Tag Archives: special education law

Athletics and IDEA

Recently, our local newspaper carried a front page story about a high school student on an IEP who was being told by the state’s high school athletic association that he couldn’t play in his school’s football games. According to the article, their rules said he had used up his eligibility to play because he was taking an additional year to graduate.

Extra Time to Graduate is Typical in Special Education

Needing additional time to complete school is typical for students in special education. In our book, we write about how our son’s school in Massachusetts tried to force him to graduate before he had earned enough credits to apply to a four-year college, and how we had to file for a hearing to prevent this from happening.

IDEA is very clear that schools must allow students on IEPs to participate in extracurricular activities “to the maximum extent appropriate to the child.” The student in question, Noah Britton, had been on the varsity football team the previous year and had played in scheduled games with other schools. There is no question that Noah has the right to continue to play football to the maximum extent appropriate for him.

Athletic Association Rules or IDEA?

The state athletic association, however, cited a rule that a student can’t continue to play varsity sports after eight semesters of high school enrollment. By taking an extra year to graduate, Noah would be in his ninth semester during the fall football season.

So, does the athletic association rule supersede federal law? We don’t think so, and the confusion is just one more example of why parents with children in special education need to be aware of their child’s rights or run the risk of their child losing out on an appropriate education.

Below, we have attached the letter we wrote to the Asheville Citizen-Times regarding the athletic association rules verses the legal requirements of IDEA.

Our Letter:

Dear Editor:

In reading your story about Noah Britton’s dispute with the North Carolina High School Athletic Association, it appears that the association is unaware of the provisions of the Individuals with Disabilities Education Act (IDEA), a federal law that protects the rights of students with identified disabilities to receive an appropriate public education up to age 21 or high school graduation, whichever comes first.

In particular, the association seems to be out of compliance with regulation 34 C.F.R. § 300.117, which states in part that “each public agency must ensure that each child with a disability participates with nondisabled children in the extracurricular services and activities to the maximum extent appropriate to the child.” A related regulation, 34 C.F.R. § 300.107(b) makes it clear that “extracurricular services” includes athletics. So yes, the IEP extends to sports, and always has. It is Noah’s right to continue to participate in the football program to the maximum extent appropriate for him.

It is also worth noting that IDEA requires schools to address the social and emotional development of students with disabilities, not just academics. Reading about how happy Noah was to play in an actual game is the definition of what this means. Too many students in special education are made to feel like second class citizens, and we applaud Asheville High School and coach David Burdette for what they have done for Noah.

From our lay reading of the law, it seems clear that Asheville High School is required to allow Noah full participation in the football team’s activities, including games, and that the North Carolina High School Athletic Association is attempting to violate federal law by preventing Noah’s participation.

We hope that the NCHSAA will reconsider its opposition without further delay. If not, we would like to point to Section 504 of the Rehabilitation Act of 1973, which was explicitly written to protect individuals with disabilities from discrimination. 29 U.S.C. § 794a(b) allows the “prevailing party” in a lawsuit over a violation of the statute to collect “a reasonable attorney’s fee” as part of the cost of remediation.

Judith and Carson Graves
co-authors Parents Have the Power to Make Special Education Work

A Postscript

We heard back from the newspaper a few days ago. Our letter was not printed because it contained too many words.

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Gatekeeping: Texas Style

In a continuation of our series on special education gatekeeping (Withholding Needed Services and Response to Intervention), we have an amazing story to tell about how the state of Texas kept a quarter of a million children with disabilities from receiving an appropriate education. This story actually deserves its own category, as Texas has gone far beyond the more prosaic gatekeeping tactics we have written about in the past.

What Texas did was to place an arbitrary limit on the number of students for whom the state would provide special education services. Without any legal or other rational basis, a small group of unelected bureaucrats decided to cap the number of students it would enroll in special education at 8.5 percent of the total student population. This was despite the fact that the national average of students with qualifying disabilities is 13 percent. Given the total number of students in Texas schools since the cap was initiated, this amounts to approximately 250,000 students that the state prevented from receiving the special education services that they needed and to which they were entitled.

State Mandated Reductions in Special Education

In a blistering series of articles published in the Houston Chronicle, investigative reporter Brian M. Rosenthal details how the Texas Education Agency (TEA), working virtually in secret, decided that it would limit the number of students with disabilities it would serve under the federal Individuals with Disabilities Education Act (IDEA). This is a clear violation of the law, which states that services should be given based on need, and not on any other criteria.

Although the enrollment limit was couched in the language of a “suggestion,” local special education directors knew what was expected of them. School districts that enrolled more students in special education than the prescribed 8.5 percent were subject to a variety of penalties that ranged from reprimands and fines to having the district taken over and run by state regulators. One director quoted in the article, flatly stated, “TEA required us to do this, there was no wiggle room.

How it Happened

The story begins in 2004, when four members of the TEA decided to place an 8.5 percent benchmark on the number of students who could receive special education services in the state. At the time, special education enrollment in Texas was 12.1 percent of the total student population, close to the national average of 13 percent. One of the four TEA members actually admitted under questioning that the 8.5 percent figure was not supported either by law or any research.

In addition, the TEA did not consult the federal government, the Texas legislature, or even the State Board of Education in reaching its decision. It also never publicly announced or explained its decision. In fact, when asked by some school staff members, the TEA falsely told them that limiting special education enrollment was “federally mandated.” For most school districts, this policy meant purging the rolls of students already on IEPs and discouraging new students from entering special education.

The subterfuge had a very self-serving motive. The Chronicle article estimates that reducing the enrollment in special education saved the state “billions” of dollars. Unfortunately, the collateral damage was that hundreds of thousands of students who should have been eligible were denied special education services.

Texas Tactics

The tactics Texas schools used to enforce the 8.5 percent mandate are used in many other states to prevent eligible students from entering special education or receiving appropriate services. This is why parents need to be aware of the laws that protect their children from any school district that might try to use these tactics to avoid its obligation to provide an appropriate education.

In this and subsequent blog articles, we will review the gatekeeping tactics that the Houston Chronicle uncovered, beginning with the tactic of discouraging parents from seeking evaluations to determine special education eligibility. In later articles we will describe some of the other tactics used by Texas schools.

What Federal and Texas Laws Say

Under 20 U.S.C. § 1414 “Evaluations, Eligibility Determinations, Individualized Education Programs, and Educational Placements,” IDEA states that parents can request an evaluation in all areas of suspected disability to determine whether a child qualifies for special education. Parents can make this request at any time and the school must honor the request without placing any conditions on it.

The only requirement is that the request must be made in writing. Once the school receives a signed consent form from the parents, under federal law it has 60 days to perform all requested evaluations (Texas law specifies 45 school days). All evaluations are to be performed at no cost to the parents. The specific federal statute is: 20 U.S.C. § 1414(a)(1)(B). Texas special education law does not alter this requirement.

What Schools Told Parents Instead

Instead of following either state or federal law, the Chronicle reported that different Texas school districts told parents that:

  • they would have to pay for evaluations
  • there was a long waiting list
  • students could not be evaluated more than once every two years
  • there had to be at least three meetings with teachers before the school can perform an evaluation, or as a variation, a special committee must decide that an evaluation is warranted
  • a student’s IQ was too high for special education
  • dyslexia only qualified for section 504 services and not special education
  • there could be no referral to special education until the student tries Response to Intervention first
  • a private school would be better able to teach their child. (While this last point may be true, if a public school is unable to provide an appropriate education under IDEA, then the school district must pay for the outside placement.)

This is Why You Need to Know Your Rights

All these “tactics” used by Texas schools are contrary to the laws governing special education. Yet, most parents interviewed by the Houston Chronicle were unaware of the law’s requirements, and accepted the school’s explanations without question. This meant that their child never got evaluated for special education eligibility, or they endured long delays while their child fell further and further behind in academic and social skills. This is a tragic situation that can have long-lasting consequences. We wrote our book, Parents Have the Power to Make Special Education Work so that you can separate fact from fiction and to help you get your child the appropriate education he or she deserves.

Postscript

In May of 2017, the Texas state legislature passed a bill banning the practice of placing a cap on special education enrollment. This was 13 years after the Texas Education Agency began the practice.

Judith Canty Graves and Carson Graves

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Advocating over the Long Haul: Handling Stress and Staying in the Game

We are honored to present a guest blog by attorney Robert Crabtree, the author of the foreword to our book, “Parents Have the Power to Make Special Education Work.” The following is a transcript of his remarks to the Council of Parent Attorneys and Advocates (COPAA) annual special education advocacy conference. The occasion was his acceptance of the Diane Lipton Award for Outstanding Advocacy. The title of his presentation was: “Advocating over the Long Haul: Handling Stress and Staying in the Game.”

I am so pleased to have this award from COPAA. I have loved watching this very special organization grow into a robust resource for families whose children struggle in school, and their advocates and attorneys.

COPAA stands tall, manifesting the great power that can be exercised through organizing people with widely varying interests around a common mission at a national level.

COPAA educates and trains in special education law, fights to sustain and advance those rights, and speaks truth to power both directly at all levels of government, and indirectly through COPAA’s many trainees, as they assist parents in the clinches of Team meetings, negotiations with school districts and due process hearings.

Every state should have a comparable local organization – as Massachusetts does in its Federation for Children with Special Needs, the Mass. Advocates for Children, the Disability Law Center and others – but having COPAA so powerfully active at the national level provides an indispensable resource that greatly enhances the effectiveness of state organizations.

As for me, beginning with my position with the Massachusetts Legislature’s education committee in the early 70’s and right on through my years of practice as a special education attorney, I have been incredibly lucky in my work. There are not a lot of practice areas like special ed law where an attorney can wrestle with such interesting, worthwhile legal and substantive issues and know that the stakes are among the highest that can be imagined – the chance for a child who has intellectual, emotional or physical challenges to grow as far as she can toward her full potential.

We are entrusted by our clients with the future of their children; they let us into the most intimate recesses of their lives in order to carry out our work; and the trust is a sacred one. More, through our contacts with some of best of the professionals who evaluate and treat our clients, and through the research we must do to understand our clients’ needs, our work offers us the opportunity to learn about a vast array of critical factors that affect human learning and growth.

The work is highly stressful, given the stakes and the complexities, – you might have noticed! – and yet with healthy management of our stress we can become excellent helping hands to the clients we serve.

About that stress: If I may be indulged as an old warhorse now – and one, by the way, who would be with you in person were it not for having had my chest opened three weeks ago for a heart bypass [[I’m fine, by the way, and making an excellent recovery]] – I’d like to offer a few thoughts about how one might carry out the work of an advocate over the long haul, without burning out.

At this conference and through other means, I know you are all honing your advocacy skills and learning as much as you can about how to navigate special education’s crazy quilt of rules and substance. I want to address something a little different here – to describe a few basic elements of my own history that I think have enabled me to keep on keepin’ on for, now, more than 40 years in the work.

Never stop learning. Learn to listen. Protect your heart: cultivate calmness under stress. Be connected.

First, dig into every possible resource to keep educating yourself, and never stop learning. The disabilities that can undermine progress in school are widely various, and each one carries its own questions, history, and, typically, many competing schools of thought about how best to assist the child.

You are best armed – and most at ease in this work – if you are fully informed about the disabilities you encounter, the competing options for treating or addressing those disabilities, and the ways in which any particular disability has been viewed and treated by hearing officers and courts.

We’re strongest when we know what we’re dealing with … 

Are there any shortcuts? Not really, but one that I always recommend and would make required reading if I could, no matter where you may be in your advocacy career, is the book, Far From the Tree, in which Andrew Solomon writes eloquently and deeply about a number of common and not so common challenges that people experience, separating them from their families or their wider communities.

Other examples of must reading: We all know of the huge increase in the numbers of children struggling with spectrum disorders and the battles over how effectively to meet those children’s needs. A book that I think is indispensable for understanding Autism is Donvan and Zucker’s In a Different Key.

And third on my list: Carson and Judith Graves’s book, Parents Have the Powera cleanly written resource to help parents help themselves in the process – a way to make our own jobs easier. (Disclosure: the Graves’s book includes a foreword that I wrote for them, canvassing some of the history of advocacy and the current sharp challenges to the system of rights we work with.)

Second, a corollary: learn to truly listen without interjecting or being deafened by your assumptions – what you think you know. Listen deeply to both the verbal and the nonverbal communications of your clients, of your colleagues and of those on the other sides of the cases you handle. When we think we know it all, we sometimes miss that one singular fact or strategic opening that may turn a case in a new direction.

Third, you all have great hearts – you would not be in this business if you did not – so nurture and protect that heart! The two inevitable enemies of a healthy heart are uncontrollable stress and bad physical and nutritional habits. Take care of yourselves!

Know that one of the great heart-stressors in our work can be the attitudes and actions of hostile school personnel. How should we deal with them? We all encounter school people who act badly – with disdain, with implacable coldness and bureaucratic arrogance, even, sometimes, with flat-out bigotry toward persons with disabilities. But understand that if you react and are driven by rage, you hurt only yourself and your client.

We all have to figure out how to turn anger into compassion: otherwise we become our own enemy and, in many cases, our anger distracts us and blinds us to a raft of possible strategies that might actually help our clients. Try to avoid demonizing those who wish to thwart our mission: do everything you can to get behind the curtain and understand what drives the school folk that are blocking you.

They are, believe it or not, fully human, and somewhere in there you can almost always find an opening. At the very least this entails always – always! – treating school personnel with the utmost respect and kindness, even if – in fact even more so –they treat you and your clients with apparent malevolence. (This applies not only to our particular advocacy work, but is a caution for our whole political/cultural lives at least, it seems, for the next four years.)

As for the physical, please take care of that heart with exercise and mindful eating, and also cultivate an interest that has little or nothing to do with your special ed work, be it in music, drama, book clubs, yoga, whatever – feed the interests that give you joy outside of your work to sustain yourselves and the work that you do.

I know whereof I speak. My own attention to physical exercise, to music and to friends has literally saved my life and has made my ongoing recovery from open heart surgery a much easier road than it might have been. It’s never too late to start!

And, finally, please don’t work in isolation. Create, nurture and sustain a working cadre of fellow advocates and experts. This work is too demanding to carry it all on your own shoulders. Find and cultivate colleagues with whom you can toss around issues and strategies and provide mutual support.

And, more, with those colleagues, keep an eye always on political and legislative developments that might advance or undermine special education and disability rights, and be willing to make calls and write letters to legislators to let your voices be heard.

Thank you again for this award. It’s a good feeling to be recognized by my colleagues in the field for work that has so enriched my life and enabled me, with my colleagues at Kotin, Crabtree and Strong, to help children and families live better lives.

The Tragedy of an Inappropriate Education

Education is the foundation of a productive and fulfilling life. Education teaches us to read, think, process, and analyze information. When taught these skills, individuals can grow and develop into contributing members of society. We can all agree that this is the goal of an appropriate education.

But when is an education “appropriate,” and who decides what is appropriate? For many children without disabilities, a general education curriculum is appropriate. For children with disabilities, deciding what constitutes an appropriate education is a critical question. School districts and families grapple with this question all the time.

The Goal of Special Education

The federal law that defines special education, the Individuals with Disabilities Education Act (IDEA), lists 14 qualifying disabilities that entitle a child to a Free Appropriate Public Education (FAPE). Once deemed eligible under IDEA, the law states that the child’s education must be “designed to meet their unique needs and prepare them for further education, employment and independent living.” [20 U.S.C. § 1400 (d)(1)(B)] In other words, the law is outcome based with a focus on the future life of the student as a functioning member of society.

This goal, however, is frequently thwarted by school districts that, for various reasons, do not always have a child’s education as their primary goal. We warn parents in our articles and lectures that parents and schools have different perspectives. Most parents are focused on their child’s future (“Will my child be able to go to college?” or “Can my adult child live independently from me?”), while schools are focused on budget costs and the current year’s IEP goals. Unless parents understand these different perspectives, they can lead to misunderstanding and frustration for the parents and an inappropriate education for the child.

FAPE is More Than Academic

The elementary school years are foundational. Students must first learn to read so they can read to learn. When the basic skills of education are not learned in a timely matter, a gap grows between the students who have these skills and those who don’t. For students who lag behind, there is a social and emotional toll, not just an academic one. Self-esteem can plummet, and depression and anxiety can set in.

IDEA, as clarified by court decisions, requires schools to address these social/emotional issues before the school can demonstrate that a student is making effective progress. Many state laws are even more specific in this regard. Massachusetts, for example, requires that a student have “documented growth in the acquisition of knowledge and skills, including social/emotional development.” [603 CMR § 28.02(17)] The law is clear, an appropriate education means more than simply academic success.

School Tactics to Deny FAPE

Sadly, we have seen too many school districts focus on their budget more than their obligation to provide a free and appropriate public education. IDEA does not permit teachers and administrators to consider cost as a reason for denying a student needed services. So instead, these schools rely on diversionary tactics, such as minimizing parent concerns, not including parents in decisions, withholding information, delaying or offering less expensive and inadequate services (such as Response to Intervention) to keep their costs down.

Schools also know that when parents are exhausted and struggling for answers, and the school gives them progress reports with statements like the ones we have seen: “It has been a pleasure working with this enthusiastic and engaging youngster,” and “She is a polite and hard-working adolescent,” these positive sounding but ultimately meaningless reassurances are what the parents focus on rather than the reality of their child’s struggle.

As a last resort, some schools just refuse to provide needed services and essentially dare parents to file for a hearing with their state’s department of education, knowing that only a small percentage of parents will actually do so.

These tactics are successful when parents are unaware of their legal rights and accept them without question.

When School Tactics Fail, Fight the Parents

For the parents who do know their legal rights, sometimes their only option is to hire a lawyer to force a non-compliant school district to follow the state and federal laws. Then the district might be willing to pay thousands of dollars in legal fees to fight those parents rather than put the money into providing the services that a child is entitled to. In our book we document how one school district in Pennsylvania spent $329,084 defending itself against what was ultimately a $10,000 judgement.

And the Results…

Time passes. Each school year goes quickly. Suddenly a child is a teenager, facing the prospect of life beyond high school without the supports of special education. Since the school’s obligation to a student ends once that student accepts a high school diploma, some schools try to finish their obligation as quickly as possible, even if that student is not ready to graduate.

This approach ignores IDEA’s requirement of preparing a student “for further education, employment and independent living.” We experienced this tactic first hand in addition to reading multiple hearing decisions where schools have tried to force a student to graduate without adequate preparation.

Then What?

Research by the National Center on Educational Outcomes indicates that 80 to 85 percent of students with disabilities have the cognitive ability to achieve the same state academic standards as their non-disabled peers. Yet, according to the National Longitudinal Transition Study, only 7.6 percent of these students attend a four-year college compared to almost 30 percent of their peers without disabilities. Likewise, the Government Accountability Office (GAO) has found that the unemployment rate for young adults with disabilities is twice that of the general population.

The Dropout-to-Prison Pipeline… and Worse

In 2016, The Houston Chronicle ran a series of articles by investigative reporter Brian Rosenthal on special education in Texas. He reported that officials from the Texas Education Agency, without any data to support their decision, dramatically reduced the percentage of students in the state’s special education programs in an apparent attempt to reduce costs. The series concluded that thousands of vulnerable students with qualifying disabilities were denied special education services.

So what happens to these students who are denied an appropriate education? For those whose parents do not have the ability to home school or pay for expensive private schools, they languish in general education classrooms without the proper help. When these students fall behind, they often experience depression and exhibit behavior problems. From there, it is a short distance to suspensions and expulsions. According to the Chronicle, “Some [students] have even entered the criminal justice system or otherwise required intensive adult services that cost far more than special education.”

“What we’re looking at with these kids who don’t get services… is continued demoralization,” says David Anderson of the Child Mind Institute. This leads these students “to give up and become part of the `dropout-to-prison pipeline.'” Even worse, a member of the Texas Behavioral Health Advisory Committee acknowledges that “students have killed themselves because nobody was willing to pay attention.”

The personal cost of of living an unfulfilled and unproductive life is dire.

Write Your Congressman!

When Congress passed the first special education law in 1975, it authorized the Federal Government to pay for 40% of all special education costs. Unfortunately, Congress has never funded more than 20% of those costs and often less. This means that local communities must cover the rest. Property taxes rise and residents react, resulting in a backlash against students with disabilities. We have read many complaints over the years written by parents who feel that education is some sort of zero-sum game in which students in special education receive privileges that take opportunities away from their children in general education.

This point of view is shortsighted and misguided, however. If special education costs seem high, compare them to the cost of not providing an appropriate education. An adult who is not able to function productively requires disability insurance, food assistance, and Medicaid, among other costs, for the remainder of his or her adult life. If those who advocate for lower taxes and smaller government won’t acknowledge society’s moral and ethical obligation to its most vulnerable members, then they should at least consider the monetary cost.

Instead of complaining about the students in special education, all parents should write their legislative leaders to request proper funding for IDEA as Congress originally intended. Society has an obligation to educate children of all abilities. When schools don’t provide an appropriate education, the outcome can be tragic, and we collectively suffer in the long run.

Judith Canty Graves and Carson Graves

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Parents As Equal Participants in Team Meetings

equal participant 2 textThere is a lot of misunderstanding about the role of parents at Team meetings. In our conversations with other parents and in too many online sources, there is frequently a misconception that IDEA gives parents an equal voice with school personnel in deciding what services or educational placement their child needs. The phrase that is most often cited is “equal participant,” which many parents assume means that the school must accept their suggestions at Team meetings.

The Opportunity to Participate, Not Decide

While IDEA does require that parents be “afforded the opportunity to participate” in all Team meetings [34 C.F.R. § 300.322 (a)], the right of participation is not the same as the right of decision making. The law, in fact, only requires schools to schedule meetings so that parents have the opportunity to attend and for schools to consider any information (such as independent evaluations) or concerns that the parents bring to the meeting. “Consider,” however, does not mean “accept.”

IDEA is clear that the school has the ultimate responsibility to ensure that a student’s IEP includes the services and placement needed for a free appropriate public education (FAPE). Because the law makes the school responsible, the law must also give the final decision on what constitutes FAPE to the school. If parents disagree with the school’s decision, the law provides a due process remedy, either through mediation or a hearing.

Unfortunately, pursuing due process rights can be expensive, time-consuming, and have an uncertain outcome. This means that short of going to mediation or a hearing, you must arrive at Team meetings prepared to be as persuasive as possible in advocating for the services and placement you feel are necessary for your child.

What Can You Do?

Some recommendations we have are:

  • If the Team won’t agree to all your suggestions, try to come to a mutually agreeable compromise. Remember that your goal is to achieve the best possible result for your child’s education, not to “win” a contest with the school.
  • Have a relative or trusted friend attend the meeting as a note taker so that all important agreements are recorded and the subject of a follow-up letter to your special education liaison. This will prevent later misunderstandings about what was agreed to. You can record a Team meeting, assuming your state allows this, but our experience is that this is not always the best option. (See Recording Team Meetings, Not That Simple)
  • Become familiar with any federal or state law that might impact the service or placement you want to have included in your child’s IEP. Sometimes school personnel and administrators aren’t familiar with the laws that regulate special education. A citation, gently delivered, can work wonders in breaking down uninformed resistance. If the resistance is intentional, making the Team aware of the law will work toward your advantage before a hearing officer, if it comes to that.

The bottom line is that thoughtful preparation is the best way to become “more equal” in helping your child obtain an appropriate education.

Judith Canty Graves and Carson Graves

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Demystifying Speech and Language Services

beach-33 textSpeech and language services were always a mystery for us when our son was in school. Even as he struggled with written composition, our school’s Speech and Language Pathologist would end her evaluations with the statement that “services are not recommended at this time.” We assumed that since he did not have an audible problem with his speech, that he didn’t need any of her services.

We now know that this is a typical reaction of many parents, who like ourselves, don’t understand the wide range of services that a Speech and Language Pathologist can and should provide to students in a school setting. In this article, we want to review some of the most important of these services, describe our experiences with schools attempting to limit them, and make suggestions about how you can advocate for your child to have the services that he or she needs.

The Role and Responsibility of a Speech and Language Pathologist*

A Speech and Language Pathologist evaluates children to determine if there is a communication disorder in areas related to speech, the use of language, and sensory issues that impact communication and interfere with attaining educational goals.

Though there are many detailed aspects to what a Speech and Language Pathologist can evaluate, for the purpose of this article we have simplified them into the following categories:

  • Speech: This includes expressive speech (the quality of audible sounds such as articulation and voice volume and quality), receptive speech (how a person understands and processes verbal communication), and pragmatic language (social communication skills).
  • Language: This includes the comprehension and expression of written language, sequencing of thoughts, syntax and grammar, and understanding symbols and their meanings.
  • Sensory Issues: These include social and emotional deficits that impact communication and even difficulty swallowing pills.

In addition to diagnosing disorders in these areas, a Speech and Language Pathologist provides therapy to help children communicate with their peers, teachers, and families. Therapy can also teach children who are nonverbal how to use communication devices to express themselves.

In other words, speech and language services are not just about speech, they are about learning how to communicate with others in many different ways, with both expressive and receptive language, speaking, writing, and assistive technology. The professional organization for Speech and Language Pathologists in the United States takes the position that it is the responsibility of its members to provide a full range of these services to improve the “literacy achievement of… those who struggle in the school setting.” For more detailed information about this organization and what it expects from its members, visit the website of the American Speech-Language-Hearing Association.

Eligibility for Speech and Language Services

Given the wide range of speech and language services that are available, it is no exaggeration that they are often key to providing an appropriate education to many children with disabilities. Getting schools to provide these services as part of special education, however, isn’t as simple as you might think. In fact, we have found that schools may limit what speech and language services they will provide.

Our school district, for example, claimed that its Speech and Language Pathologists were available only for obvious expressive language deficits, like significant articulation problems or stuttering. We believe that the reason for this is that speech and language services can be intensive and therefore expensive for schools to deliver.

This is a concern for parents, because more and more children, especially those on the autism spectrum, need speech and language services to help with the less obvious, but no less important, pragmatic language or written expression deficits. Because most parents don’t fully understand the nature and importance of pragmatic language, or the connection between written and expressive language, it is easy for schools to convince parents that their child doesn’t need these services. After all, for a child with multiple learning disabilities, what parent wants to hear that there is yet another therapy to schedule for their child?

How Schools Take Advantage of Parents’ Ignorance

This was the situation we found ourselves in during one of our Team meetings in elementary school. Although testing had indicated that our son had difficulty with pragmatic language and written expression, the school’s Speech and Language Pathologist concluded her report by stating that since he didn’t have a noticeable problem speaking, she could not recommend any speech and language services. We actually felt relief that this was one area we didn’t have to worry about, and focused the rest of the meeting on occupational therapy and reading instruction. Unfortunately, the school let our ignorance relieve them of the cost of providing services that our son clearly needed and that they were obligated by special education law to provide.

By the time our son was in high school, we had an independent Speech and Language Pathologist evaluate him. She produced a very detailed report that said he needed intensive and frequent services with a Speech and Language Pathologist to help with pragmatic language and writing skills. We submitted this independent report to our director of special education, who then held a meeting with us and the school’s Speech and Language Pathologist.

During this meeting, which lasted over an hour, the school’s Speech and Language Pathologist reviewed our independent report (she hadn’t done her own testing), and once again we heard the phrase “services are not recommended at this time.” While giving her report, we noticed that she never made eye contact with us, but looked directly at the director of special education as if to make sure that she was saying only what was expected of her.

During another meeting, which the director also attended, we brought up the issue of pragmatic language instruction and she told us that the school’s Speech and Language Pathologist wasn’t necessary because “the students teach each other pragmatic language skills.” In her mind, it seems, our town’s high school was full of certified Speech and Language Pathologists.

Schools Warned by the Department of Education

Diverting students away from speech and language services is apparently becoming a common practice with schools. In 2015, the US Department of Education issued a guidance letter that alerted schools to reports that a growing number of children with Autism Spectrum Disorder may not be receiving needed speech and language services. The letter also said that some schools were not including Speech and Language Pathologists in evaluation and eligibility determinations or in meetings to develop IEPs.

The letter goes on to remind schools that when they conduct an initial evaluation for special education eligibility, the school must assess in all areas of the suspected disability, including “communicative status,” if appropriate, and that IEP meetings must also “include an individual who can interpret the instructional implications of evaluation results,” in other words, a properly trained Speech and Language Pathologist.

What Can You Do?

From all of the above, it may seem that the deck is stacked against parents. We can’t disagree, so we have the following suggestions to help you obtain needed speech and language services for your child:

  • Be aware of possible communication disorders your child may have beyond obvious expressive speech problems. Consider having an independent speech and language evaluation performed to confirm the full range of your child’s needs. If appropriate, have your independent Speech and Language Pathologist attend a Team meeting to interpret the data and advise on his or her recommendations.
  • When any speech and language evaluation is performed, especially the school’s, it should be comprehensive in all areas of a suspected disability according to Part B of IDEA. This should include an assessment of the communicative status of your child. See the US Department of Education guidance letter of July 2015.
  • Think about your child’s sensory needs and how they affect communication. If swallowing is a problem, for example, a Speech and Language Pathologist should be able to help with that. This type of service is included under IDEA.
  • If speech and language services are in your child’s IEP, make sure that the service delivery grid specifies a Speech and Language Pathologist to provide them. “Sped. Staff” is not acceptable, as it could be anyone. Neither is a “Speech and Language Assistant,” who in many states is not required to have formal training. The Speech and Language Pathologist should be certified by your state department of education as well as by the American Speech-Language-Hearing Association (ASHA).

Obtaining appropriate speech and language services for your child is not an easy task. Determining what your child needs through testing and knowing what a properly trained speech and language pathologist can do, however, are important steps in the process. Remember that your research and advocacy now will pay big dividends for your child’s education in the future.

Judith Canty Graves and Carson Graves

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* The inspiration for the subhead title and much of the content of this section comes from a document published by the American Speech-Language-Hearing Association (ASHA): Roles and Responsibilities of Speech-Language Pathologists in Schools. This document is considered an official policy statement of the ASHA, the professional organization for certified Speech and Language Pathologists in the United States.

Planning for Transition Before Graduation

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Graduation is usually a time of celebration, when young people complete their high school studies and move on to work or college. For parents of students on IEPs, graduation has an additional significance because it ends their child’s right to special education. Once a student accepts a high school diploma, special education services end. This makes planning for the transition to adult life especially important. Transition planning needs to happen first, followed by transition services, and only then by graduation. The goal is not to graduate on a schedule, but for the student to acquire the skills necessary to function independently in adult life and to become a productive member of society.

Why Transition Planning is Important

All too often parents do not adequately plan for their child’s transition to a post-high school life. If schools do not bring up this topic at Team meetings or do not make parents aware of its importance, parents may be unaware of how critical it is. Without appropriate planning, students with disabilities can graduate from high school without being prepared for post-secondary education or employment. The U.S. Government Accountability Office reports that the employment rate for young adults with disabilities is less than half the rate of their peers without disabilities.

The federal law IDEA requires transition planning for students on IEPs beginning with the IEP in effect when a student turns 16. A better time to begin planning is with the IEP that will be in effect when a student turns 14. In fact many state special education laws require transition planning and services to begin at this earlier date. A transition plan should outline a course of study and specify what services are needed to support a successful transition. This includes identifying any state agencies outside the school district that might be responsible for helping with the transition process.

Planning Should Address More Than Academic Needs

Appropriate transition planning includes addressing more than just academic needs. Such aspects as helping students obtain community experiences, employment training, and daily living skills are equally important. Schools should perform transition assessments to help a student’s special education Team determine the courses, vocational training, life skills instruction, or related services that the student will need during the rest of his or her publicly funded education.

When creating a transition plan, the Team should consider the student’s vision statement of what he or she would like to be doing in the future. This means looking at the many facets of a young person’s life, such as their interests, goals, and hopes for the next five years.

Parents can help their child think ahead beyond high school graduation. For example, does the student want to attend college, vocational school, work at a job, or live independently? Will the student need various services to become independent, such as travel training, remediation in reading, writing, and math skills, counseling, or occupational therapy? Teams also need to consider health care, transportation, and community experiences. Transition planning can be complex depending on a young person’s needs. It is not as simple as achieving passing grades and passing state mandated exams, as recent hearing decisions in Massachusetts have demonstrated.

Transition Planning and Graduation are Closely Linked

Since accepting a high school diploma means an end to special education services, there is a significant financial benefit for schools to graduate students on IEPs and end their obligation to provide special education services. Otherwise, the federal law IDEA allows for special education services to continue until a student’s 22nd birthday. This provides an incentive for schools to devise different and creative ways to move a struggling student along the path to graduation and for parents to carefully monitor whether their child has made sufficient progress in meeting his or her transition goals.

Since most states allow school districts to set their own graduation requirements, we have observed that some districts play a graduation game by adopting low graduation standards to move students out of the system. Districts can legally reduce the number of required credits to graduate, lower performance criteria, or substitute a different course for a student who might have difficulty passing a required one. Our school district actually tried to force our son to graduate before he had earned enough credits to apply to college. Since attending college was his primary transition goal, we filed for a hearing to prevent them from issuing a premature diploma. The lesson is that low graduation standards can be used as a tool to remove a student from a district’s special education obligations by forcing a student to graduate before he or she is ready.

We recommend that once your child begins high school, research your school’s graduation requirements. You may find them in your school’s handbook for students or online on your school’s website. Study the requirements carefully and plan which courses your child will need for a successful transition from high school to adult life whether it is college, volunteer work, vocational training, or adult education. If further education is a goal, make sure that he or she earns enough credits to apply to an appropriate school.

Alternative Diplomas and Graduation Certificates

In addition to a regular high school diploma, schools can offer students different kinds of exit documents that require a less rigorous curriculum. These include alternative diplomas, which go by names such as an IEP diploma or vocational diploma. Some schools offer certificates of completion or certificates of attendance. None of these documents end special education or transition services. The only document that will do that is a regular high school diploma. These alternative exit documents can be an appropriate solution for some students, but parents should be aware that they can flag the graduate as a special education student and may limit that student’s options for the future.

An alternative diploma or certificate may not be recognized as qualifying for attendance at a community college, vocational school, or enlistment in the armed forces without additional testing or certification. They can also indicate to potential employers that a job applicant has special needs or learning disabilities. Each state has different standards for diplomas and certificates, so check with your department of education to see what your state permits schools to offer.

What Parents Can Do

When a student with disabilities has proper transition planning and services, the opportunities for additional education and work are greatly enhanced. To this end we recommend the following:

  • Begin transition discussions with your child’s Team by the time your child enters his or her freshman year in high school, usually by age 14. Start looking at post high school options, such as vocational training, internships, or further education, and have the Team write a transition plan into your child’s IEP. Be sure to update the plan yearly.
  • Once your child begins high school, research your school’s graduation requirements. Study the requirements carefully and plan which courses your child will need for a successful transition from high school to adult life. If further education is a goal, make sure he or she earns enough credits to apply to an appropriate college.
  • If your Team doesn’t feel that your child can meet the course standards for a regular high school diploma, ask the following:
    What accommodations and services are in the IEP that would help your child meet the same requirements as other students receiving a standard diploma?
     Would staying in school until he or she reaches the maximum age of eligibility in your state allow your child to earn a standard diploma?
     Would any form of alternative diploma or certificate be appropriate for your child’s level of performance and would earning it give your child the skills to lead an independent life?
  • Request a vocational assessment if your child would prefer employment rather than further education after high school. The assessment should be performed by a vocational assessment specialist and should provide direction about possible career paths and employment opportunities, as well as provide information about performance in skill areas.
  • Likewise, request an independent living skills assessment, if appropriate, to determine what supports are needed for your child to live on his or her own after high school.

Judith Canty Graves and Carson Graves

The above is excerpted and adapted from Chapter 11, “Transition Planning and Graduation” in Parents Have the Power to Make Special Education Work.

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The Three Essential Parts of an IEP Goal

mountains-27 textThe Individualized Education Program (IEP) is the cornerstone of special education. The individual goals created for a student on an IEP are the way that the student makes progress toward the Free Appropriate Public Education (FAPE) guaranteed by special education law. An effective goal is both specific to the student and measurable by objective standards.

Our experience is that it is up to parents to help their child’s IEP Team understand and create effective goals for their children. This requires knowing the three essential parts of an IEP goal: the current level of performance, specific and measurable milestones, and services to support attaining the goal. The following sections describe the three questions you and your Team should be asking to create goals that are realistic and effective for your child.

What’s your starting point?

Every goal begins with an assessment of the student’s current ability in the specific skill area covered by that goal. This is called the student’s “current level of performance.” The importance of this is to establish the starting point for the goal. Knowing how far a student is below grade level, for example, helps answer the question about what kind of specialized instruction is needed and how intensively it should be given. A student who is three years below grade level in math, for example, will need more intensive math instruction than one who is only a year below grade level.

The most effective way to determine the current level of performance is through testing. In reading, the Woodcock-Johnson Test or Wechsler Individual Achievement Test (WIAT) is considered a good indicator of current performance. In non-academic areas, a psychological evaluation is an effective indicator of social-emotional or behavioral performance while a test of fine or gross motor skills can indicate occupational or physical therapy performance. More general assessment methods, such as the completion of a reading skills class or participation in a sports activity, can be helpful.

We have found that there is a definite relationship between the quality of the assessment and the quality of the goal. The less objective the assessment of the current level of performance the more vague and ineffective the goal. In IEPs where the current level of performance is simply an anecdotal description of behavior, our experience is that the resulting goal is often so vague that there is little, if any, chance of the student achieving it.

Where are you going?

The goal is the IEP’s road map for achievement. You need a specific, time-limited goal that can take your child from his or her current level of performance to a realistic higher level during the time period covered by the goal, which is usually a school year.

In their book, Writing Measurable IEP Goals and Objectives, Barbara Batemen and Cynthia Herr describe the four characteristics of a measurable goal:

1. It contains a method for measuring whether or not the goal has been achieved.

2. The criteria for measuring progress are clearly defined in the goal and do not require any information other than what is contained in the description of the goal.

3. The measurement can be validated by multiple observers. For example, if two different observers measure the progress of a goal using the criteria described in the goal, they would independently come to the same conclusion.

4. It is possible to determine how much progress a student has made toward attaining the goal at any time, such as in a quarterly report.

We have seen too many IEP goals that provide little of this information. Most are impossibly vague, contain no standards by which anyone could determine if the goal was ever achieved, and perversely, often place the responsibility for achieving the goal completely on the student without any teacher or specialist assistance.

How Are You Going to Get There?

A goal won’t work if there aren’t services to help your child achieve it. This makes adequate services essential. The service delivery grid is the part of the IEP that specifies what services are needed to help the student achieve a goal, where and how often the services are given, and who is providing the services. Unless the grid specifies adequate time and a properly qualified person, it is unrealistic to expect a student to make satisfactory progress toward even the most well-written goal.

When examining a service delivery grid pay special attention to the the following:

  • The type of service.
  • The dates that service begins and ends.
  • Where and how often the service is provided.
  • The kind of professional responsible for providing the service. Vague references to “sped staff” are not helpful, and not even permitted in some states.

In addition to making sure that service delivery is clearly spelled out in the grid, we recommend that you have this information written into the description of the goal itself. The reason for this is that the service delivery grid often appears pages after the goal and can be overlooked by both you and your child’s service providers. The duplication also helps remind everyone that the most important part of an IEP goal is achieving it.

Putting It All Together

The three parts of an IEP goal: current level of performance, specific and measurable goal, and service delivery all need to support each other. When you know your starting point, where you are going, and how you are going to get there, then your child’s journey toward an appropriate education can be a rewarding one.

Judith Canty Graves and Carson Graves

What has been your experience creating IEP goals with your Team? Do you feel that the goals were effective? Please send us a comment on our Contact Page.

This article is excerpted and adapted from Chapter 7, “Writing Effective IEP Goals” in Parents Have the Power to Make Special Education Work.

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Gatekeeping 101: Response To Intervention

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An article in a Massachusetts newspaper in the winter of 2013, titled: “[Superintendent] Looking to Curb Sped Referrals,”1 highlights a growing trend of school districts actively discouraging the referral of students for special education evaluations. The article quotes a local school district superintendent as calling special education referrals “a resource zapper,” and requesting that instead, parents ask their child’s classroom teacher to decide if any concerns they might have about possible disabilities are valid. If the teacher agrees with the parents, then the teacher can refer the parent’s concern to a panel of “teachers and special education staffers.” This panel then has the option to refer the child to a program commonly known as “Response to Intervention” or RTI. According to the superintendent, “[a]ll I’m asking is for parents to work closer with the classroom teacher and keep a dialogue open and wait for the teacher to go through the RTI process.”

To many parents, this may sound perfectly reasonable. Special education services cost money, so why shouldn’t the school district be able to decide what conditions to place on admission to it? The answer lies in the purpose for which RTI is being used and how it is implemented.

What is RTI?

RTI is loosely defined in the regulations that accompany the 2004 reauthorization of IDEA2 with the goal of screening all students early in their school career to identify any who are struggling and, through increasing levels of intervention, prevent the need for more costly special education services later. By applying the screening process universally, it represents an effort to make IDEA, which addresses the unique needs of individual students, more closely conform with No Child Left Behind (NCLB), which attempts to raise standards for all students uniformly. IDEA-04 “permits” (not “requires”) schools to employ “scientific, research-based” techniques to help struggling students discovered in the screening process.

These techniques are applied in increasing levels of support, known as “tiers.” The progress of each student is monitored; if the initial tier of intervention isn’t working, the student is then referred to the next, more intense, tier. IDEA doesn’t specify how many tiers a school must use (three tiers seem to be the most common), the criteria for deciding whether a tier is working or not, nor how long a student must stay in one tier before moving to another. All of these details are left to the individual states and school districts.

In other words, RTI is not the same as, nor a substitute for, special education. RTI does not provide for evaluations by qualified professionals to identify specific learning disabilities, and a student in RTI does not have an IEP to specify learning goals or the accommodations and modifications needed to achieve those goals. Although some schools may employ these techniques, there is no requirement to do so. Most important, there is no legal mandate for a school to provide agreed upon services, accommodations, or program modifications, as there is when a student is on an IEP. In fact, the US Department of Education makes it clear that a student in special education is also eligible to receive RTI services along with special education services.3 Schools, however, appear to regard RTI as a substitute for special education that is less involved, and of course, less expensive.

So, What’s the Problem?

Early screening of and intervention for all “at-risk” students regardless of the presence of a documented learning disability is a laudable and potentially cost effective way to improve public education. The problem arises when the reality doesn’t match the intention.

In the article mentioned above, the first thing to note is that the school isn’t screening all students as the RTI model is designed to do. The only students who are considered for the RTI program are those who are able to pass through at least three gates. First, the parents must express concerns about their child to the school. Next, the classroom teacher, who may not have any training in special education, must agree that the parent’s concerns are valid. Only then does a child reach gate number three, the panel of “teachers and special education staffers” who are the ones to decide if there is any need for services, all without any formal evaluation of the student for learning disabilities.

By contrast, IDEA has very specific criteria for determining eligibility for special education and who is qualified to make the determination.4 Once parents request an initial eligibility evaluation and give their written consent for the necessary testing, the school has 60 calendar days (by federal law, state laws may vary) to perform evaluations in all areas of suspected disabilities. These evaluations must be performed by qualified and knowledgeable professionals. There is no provision in IDEA for multiple layers of screening by people who may not have the training or qualifications to recognize or evaluate learning disabilities.

RTI as Gatekeeping

The inescapable conclusion is that the superintendent quoted in the article is attempting to use RTI in a manner for which it was not intended. Instead of an early screening tool for all students to identify the at-risk ones before they fall too far behind, he wants to use it as an alternative to performing special education evaluations only for those students whose parents have raised concerns and then are able to pass through two levels of “gatekeeping.” This circumvents IDEA’s mandate that schools perform evaluations in all areas of suspected disability by qualified and knowledgeable professionals.

What is surprising is how clearly the superintendent admits this. When he calls the law’s evaluation requirements “a resource zapper,” he really means that his problem is the budget, as these resources cost money. Rather than provide services according to need as the law requires, he is telling the community for which he serves as the head of public education that his goal is to protect the budget by not even attempting to identify the need, and therefore denying students in his care the public education that it is his job to provide.

The worst part of this admission, however, is the knowledge that the superintendent is not simply doing this out of ignorance of the law. For years, the Department of Education has warned schools not to use RTI to deny or even delay special education evaluations. In a memo sent to all state special education directors in 2011, the Office of Special Education Programs (OSEP) wrote that “[t]he use of RTI strategies cannot be used to delay or deny the provision of a full and individual evaluation… to a child suspected of having a disability…”5 This memo followed a 2006 memo that stated quite clearly: “An RTI process does not replace the need for a comprehensive evaluation.”6 How can it be possible that the superintendent is not aware of this widely publicized policy at the same time he is promoting RTI as an alternative to special education evaluations?

Unfortunately, this school superintendent is far from alone. Other school districts are adopting this policy and many are announcing it publicly. A more recent article from another town’s newspaper begins with a headline that announces that the district’s special education program is to be “culled” of excess students, as if the students were a herd of over-reproducing deer. The article contains extensive quotes from both the district’s director of special education and a school committee member, explaining that students “must” be referred to a screening program that includes RTI before they can be referred to special education, a clear violation of the law.7 It is not clear from the article how the school administration was planning to remove students already in special education. That is a process that can only be done through extensive evaluations with objective data to prove that a previously identified learning disability no longer exists.

It is possible to have sympathy for those administrators and public officials who might have good intentions but who are caught in the dilemma of trying to balance available resources and the needs of students. But, the gatekeepers who choose to keep their jobs and future pensions by protecting the school budget are not the ones who lose. It is the children with disabilities and the families who are struggling with these disabilities who get lost in the bureaucratic spin cycle.

This is why the state and federal special education laws were written, to give the most vulnerable and least powerful the right to a public education appropriate to their abilities. Parents need to understand these rights and not let those with agendas other than providing an appropriate education take these rights away.

Judith Canty Graves and Carson Graves

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Notes:
1. “Kerble looking to curb SPED referrals” by Lynne Hendricks, Newburyport Daily News, January 14, 2013.
2. 34 C.F.R. §§ 300.307, 300.309, and 300.311. The only appearance of the words “response to intervention” occurs in 300.311 (a)(7).
3. “Questions and Answers On Response to Intervention (RTI) and Early Intervening Services (EIS)”
4. 20 U.S.C. § 1414 (a – b)
5. Memorandum dated January 21, 2011 from Melody Musgrove, Ed.D., Director, Office of Special Education Programs to State Directors of Special Education
6. “An RTI process does not replace the need for a comprehensive evaluation” From Zirkel letter
7. “Dedham Public Schools Special Education Program to be Culled” by Sara Feijo, Dedham Transcript, August 29, 2013.