Special Education Today

Being the ever dutiful hearing officer, I'll start with a disclosure before I get to the substance of this post: I am passionate about the need to eliminate poverty in the USA, or at least to substantially ameliorate its effects. That having been said, let me state that I firmly believe there is an unfortunate and nearly direct relationship between the poverty of a child's family and his poor performance in school.

This makes sense. If a child doesn't eat properly, it affects the brain negatively. If a household is constantly under the extreme stress associated with being poor, a child suffers emotionally. The side effects of poverty, high crime neighborhoods, the lack of the prospect of a better life, etc. also take their toll. It is difficult enough to educate a child under the best of conditions. Poverty causes many extreme obstacles to the learning process.

The effect of poverty upon learning also has an effect upon certain legal issues. Concerning No Child Left Behind data crunching for example, it may well be the relative poverty rate among the groups studied separately, much more so than their status as a subgroup member, that explains their poor performance. The whole group data analysis of NCLB may be flawed because there is an "intervening variable" as they say.

With regard to special education, one of the assumptions underlying the law is that parents will exercise their procedural safeguards if a school district does not provide FAPE to a student. The Supreme Court referred to these procedural safeguards as having the effect of equalizing the field of play in rejecting the argument that school districts should bear the burden of persuasion in due process hearings because they have an advantage in information. Schaffer v. Weast 546 U.S. 49, 126 S.Ct. 528, 44 IDELR 150 (2005). If, however, as many suspect, due process hearings and mediation and other procedural safeguards are accessed almost exclusively by the wealthiest of parents, there may be a flaw in the fundamental design of the compliance sections of the law. OSEP only collects data, and presumably therefore defines success, for the the state dispute resolution systems in terms of the number of settlements (for mediations and resolution sessions) and in terms of timeliness (for hearings and state complaints.) See state performance plan indicators 16 to 19. It would be quite nice if OSEP would develop some data to show who is really utilizing he procedural safeguards. If the families of children with disabilities who are poor only rarely exercise their rights, something is wrong.

Now for an announcement, we are collecting information, studies, opinions, and anecdotes about the relationship between poverty and the ability to learn. In addition to this general topic, please send us whatever you may have regarding poverty and special education in general, and more specifically whether poor families are accessing their procedural safeguards. We are interested in everything from the physical effects of poverty upon the brain to any information on the use of the due process hearing system by various income groups. Please post a comment or send an email with the information. Thanks in advance for any help you can give us.

We finish the series on the IDEA procedural safeguards today. The four methods of dispute resolution were discussed in great detail in a previous series of posts; the current series deals with the remaining procedural safeguards. The United States Supreme Court has frequently noted the importance of the IDEA procedural safeguards, finding them to be at the heart of the fairness of the process, the great equalizer. Today we look at how the IDEA'04 changes and the latest federal regulations impact the requirement of prior written notice.

A school district must provide prior written notice to the parents whenever it proposes to, or refuses to, initiate or change the: identification, evaluation, placement, or FAPE. IDEA Section 615(b)(3). See 34 CFR Section 300.503(a). The notice must contain the following: a description of the action; an explanation of why the district proposes or refuses the action; a description of each evaluation procedure, assessment, record or report relied upon; a statement that the parents have protections under the procedural safeguards; sources for the parents to contact to obtain assistance; a description of other options considered and why they were rejected; and a description of the factors that are relevant to the district’s proposal or refusal. IDEA Section 615(c)(1). See 34 CFR Section 300.503(b).

“Prior” written notice is an unfortunate choice of words. This does not mean that the notice must be given before the decision is made. Indeed, OSEP has pointed out that the notice must be given a reasonable amount of time before the school district implements the proposal, or refusal, described in the notice. The proposal triggers an obligation to convene an IEP team meeting, but providing prior written notice before the meeting could suggest that the district’s action was made without parent input and participation. 71 Fed. Register No. 156 at page 46690 (August 14, 2006).

OSEP has published a model form for prior written notice consistent with current statutory and regulatory requirements. The model form is available on the website: http://idea.ed.gov/.

If, like me, you are a special ed law junkie, there are a number of special ed conferences and education law conferences one can attend to meet other special ed law junkies. In March, I attended the conference of the American Council on Rural Special education, or ACRES. In addition to presenting an Update on Special Education Law, I had a meeting with the new Secretary of OSERS and the new Director of OSEP about rural special education issues. Although I spoke a lot at the meeting, a fuller listing of my thoughts about rural issues in special education are spread across two recent posts. I also attended a number of interesting educational sessions, including a day-long workshop on 21st Century learners. As always there were plenty of networking opportunities and meetings with old friends.

A couple weeks ago, I attended the Conference of the Council for Exceptional Children in Boston. There I presented my first poster session- on the role of the teacher in the IEP team meeting, focusing upon the IDEA'04 provisions providing for the excusal and non-attendance of IEP team members. I also attended a number of great sessions including many organized by the CEC Public Policy department staff Deb Ziegler and Kim Hymes. Another session forecasting IDEA hot issues for the future was very interesting. Also, I learned of a fascinating study showing that transition outcomes may not be very good for kids with disabilities. Once again, I made a large number of new contacts with potential business associates as well as having plenty of time for visits with friends.

Early next month I will be at the LRP Institute on Special Ed Law in Charlotte. Please look me up if you're going to be there.

Today we continue the series on the IDEA procedural safeguards. The four methods of dispute resolution were discussed in great detail in a previous series of posts; this series deals with the remaining procedural safeguards. The United States Supreme Court has frequently referred to the IDEA procedural safeguards as being at the heart of the fairness of the process, the great equalizer. Today we examine how the IDEA'04 changes and the latest federal regulations impact the right to an independent educational evaluation.

The parents of a child with a disability have the right to an independent educational evaluation (hereafter sometimes referred to as “IEE.”) IDEA Section 615(b)(1). The IEE must be provided by the school district at public expense unless the LEA files a due process complaint and shows that its evaluation was appropriate. 34 CFR Section 300.502(b). The U. S. Supreme Court found the right to an IEE, in particular, to be a very important safeguard for parents, and relied on it in part in rejecting the argument that school districts had an advantage in terms of expertise and knowledge. Schaffer v. Weast 546 U. S. 49, 126 S.Ct. 528, 44 IDELR 150 (2005).

Parents may obtain only one IEE at public expense each time the school district conducts an evaluation with which the parents disagree. 34 CFR Section 300.502(b)(5). The purpose of this new regulation is to protect the parents’ right to an IEE (OSEP rejected a suggestion limiting a parent to one IEE in a child’s school career) while ensuring that a school district does not have to bear the cost of multiple IEEs concerning a single disagreement. 71 Fed. Register No. 156 at page 46690 (August 14, 2006).

OSEP has noted that where a hearing officer orders an IEE, parental consent is needed for the release of education records to the independent evaluator. If the parent refuses to consent, the hearing officer could decide to dismiss the parent’s complaint. 71 Fed. Register No. 156 at page 46690 (August 14, 2006).

If a parent obtains an IEE at public expense, but disagrees with the result, the school district may introduce it as evidence in a due process hearing. 71 Fed. Register No. 156 at page 46690 (August 14, 2006).