Office of Special Education and Rehabilitative Services

2 August 2010

Seclusion and Restraints Big Topic at Conferences

Filed under: Education Law, Individualized Education Program, Office of Special Education and Rehabilitative Services, Special Education, law, restraints, seclusion, special education law — Jim Gerl @ 7:14 pm

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This week, I am at the Utah Institute on Special Education Law. Seclusion and Restraints continues to be the hottest of hot button issues in special education law. Two speakers have mentioned the issue so far.

The post yesterday discussed the controversy over whether the new federal law should prohibit IEP teams from including seclusion and restraints.

The House and Senate bills define physical restraints as "a personal restriction that immobilizes or reduces the ability of an individual to move his or her arms, legs or head freely." The bills define seclusion as "a behavior control technique involving locked isolation." Seclusion does not include "time outs."

Both speakers emphasized that there will be a renewed emphasis on positive behavior interventions and restraints. This is consistent with the answer to my question by Dr. Alexa Posny, the new Assistant Secretary of Education for the Office of Special Education and Rehabilitative Services. Look for the reauthorization of IDEA to include enhanced and more specific directions for IEP teams concerning behavior techniques and interventions. In addition, HR 5628, the Ending Corporal Punishment in Schools Act, also emphasizes the need for positive behavior interventions. Look for more PBIS mandates soon.

One speaker predicted a huge increase in IDEA hearings and court appeals involving behavior issues, especially concerning seclusion and restraints. The awareness of this issue is likely to cause such a result as we have previously predicted in this blog.

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14 July 2010

27 January 2010

Alexa Posny Interview Index of Posts

Filed under: Gerl, Index, Office of Special Education and Rehabilitative Services, Posny, Special Education, United States Secretary of Education, law, special education law — Jim Gerl @ 2:48 pm

The series of posts of the substance of my interview with Alexa Posny, the new Assistant Secretary of Education for Office of Special Education and Rehabilitative Services has just ended. I was thrilled that Dr. Posny gave me the interview. She spent nearly an hour answering my questions. She didn't duck the tough ones, and I gave her plenty of thorny topics. She clearly has a vision and she clearly cares about kids with disabilities. I was very impressed with Dr Posny.

One reader had an excellent suggestion - that I create a list of the posts of the substantive interview with Dr Posny, with the topics and dates of the posts. I have placed a link to each post in the part number on the list. I hope that this index should serve as a valuable reference. Here goes:

POST _TOPIC______________________ DATE
PartI Qualities for the new OSEP Director December 14, 2009

Part II The mission and role of OSERS December 16, 2009

Part III Reauthorization of IDEA December 29, 2009

Part IV Seclusion & Restraints December 30, 2009

Part V The Rowley standard; parent's right to participate January 6, 2010

Part VI Early childhood education & poverty January 7, 2010

Part VII Standards by category of disability January 13, 2010

Part VIII Assessment by instructional or grade level January 14, 2010

Part IX Standardized tests; data requirements January 20, 2010

Part X Revocation of Consent; communication January 21, 2010

Part XI The resolution session and arbitration January 26, 2010

A big thank you to Dr. Alexa Posny and her staff. I believe that the interview provided a lot of information for our many and varied readers.

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Alexa Posny Interview – Part XI

Filed under: Gerl, Office of Special Education and Rehabilitative Services, Posny, Special Education, dispute resolution, education, law, special education law — Jim Gerl @ 10:45 am

My recent interview with Dr. Alexa Posny, the new Assistant Secretary of Education for OSERS (the Office of Special Education and Rehabilitative Services) covered a lot of ground. This is the last substantive post in a series concerning the interview over the last few weeks. At the suggestion of a reader, I will add an index of the topics covered to make reviews easier. "JG" indicates that I am speaking. "AP" indicates that Secretary Posny is speaking.

In this post, Dr. Posny discusses the new resolution session and the possibility of arbitration as a special education dispute resolution mechanism:

JG: So, I find that to be interesting. The dispute resolution systems, the resolution session is a new thing that came in just in 2004. Do you have any feeling as to how that's working or - -

AP: Oh, I've heard nothing but great things about it. Okay, I've heard for both sides, on the school side, as well as with the parent side, because it's a way to at least come together to have a conversation. And so, I've heard that people really - - what's interesting is that some states already had systems like that set up. So, you may not hear as much from them because it was already in place, but for those that didn't, I believe it's been a real boon and I believe we've seen fewer due process hearings as a result.

JG: Yeah, I think that's true. It's definitely kept down the number of due processing hearings and I think for most of the time, it's the right reason. I had concerns, originally, about confidentiality and about the no lawyer sort of emphasis of it, but again, that's I think just my bias coming out as a lawyer, but I think that sometimes they're there for good reasons and I was afraid that it was going to abused in that way, but I have not heard from around the country - -

AP: I haven't either.

JG: - - and it's interesting because I really thought that was - - you know, that was another one of my bad predictions - - my crystal ball is often a little foggy, you know.

AP: Well, but sometimes we don't know and I think sometimes when people say, well, why are you doing that? And it's because there's a part of me saying, we don't necessarily know all the time, but we can at least try. If it doesn't work, well, we'll fix it. I mean, but let's try some of these things and see if we really can get it to work.

JG: Arbitration was in the last reauthorization - -

AP: Yes.

JG: - - in the House bill and then, it didn't make it through the last conference. Do you think arbitration is a good model? I have some thoughts about it.

AP: I don't know. Well, I have some biases about it. My brother-in-law is into that kind of stuff (laughing) and there's a part of me saying, well, does it really work? I don't know. I really don't know.

JG: Alright because it's interesting.

AP: I probably don't know enough about it to be able to weigh in on that and I don't know. I'm one of these and I know I am the eternal optimist, but I really think that we just really need to work together to do this, but I don’t think we need a third party to necessarily come in and say, you'll do this and you'll do that. I don't know. It's too prescriptive.

JG: Okay.

AP: That's my personal opinion.

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21 January 2010

Alexa Posny Interview – Part X

Filed under: Gerl, Mediation, Office of Special Education and Rehabilitative Services, Posny, Special Education, communication, consent, law, revocation, special education law — Jim Gerl @ 1:05 pm

My recent interview with Dr. Alexa Posny, the new Assistant Secretary of Education for OSERS (the Office of Special Education and Rehabilitative Services) covered a lot of ground. This is the next to the last in a series of occasional posts concerning the interview over the period of a few weeks. "JG" indicates that I am speaking. "AP" indicates that Secretary Posny is speaking.

In this post, Dr. Posny talks about revocation of consent for special education and the importance of communication:

JG: The other thing that came up a lot when I told people who I know - - and many of the people I know are dispute resolution coordinators, I'll confess that - - but had to do with the new regulations, the relatively new regulations, on revocation of consent. There's a lot of bad feeling about that for a lot of reasons. One is that there are allegations in some states that parents are switching the switch on and off a lot. There doesn't seem to be anything in either the regulations or the statute that stop a parent from doing it as much as they want. The other thing is, I guess, the argument that I've heard is that the - - who is the beneficiary, really, of special education? Is it the child or the parent? And if it really is the child, should the parent even have the right to do that? Once they have already - - not in the beginning - - I think everybody agrees, in the beginning, a parent can say no, but once they get in to special ed, can they turn it off.

AP: Well, okay, and you know, you're a lawyer - -

JG: Yes.

AP: Okay, and since when does the parent not have the right to do what he or she wants with his or her child? Does that bother me? Well, of course, it does, but yet, I'm a parent as well. I should be able to call the shots, and if I say no, the answer should be no. And I think that's why this came about. I mean, it is clearly - - shouldn't the parent have the right to say, no, I don't want this anymore? Now, will it cause some concern? Oh, absolutely. And was this heartbreaking? Of course, it was because there's a part of me saying - - you know because I think about neglect.

JG: Right.

AP: And when does this cross the line and turn into neglect or abuse or whatever? And that's a hard line to call, but that's where having been a special ed director and a special ed teacher and all of that that's where having established a relationship with a parent, I'm here to tell you, I would use that and I would never give up. I mean, I would go to that parent and just say, you know, this is it. I've had a lot of those tough conversations. I remember being with a parent and I wrote a minority opinion on an IEP because I was recommending that this child, this severely learning disabled child, go into more of a segregated classroom and I said, I honestly think he needs it. And this was in high school. I said, I just don't think he's going to get the benefit without it and very seldom do I push towards that and the parent disagreed.

JG: Wow.

AP: And she said, no. She said, I want him to be mainstreamed and she said, well - - and she said, I'm going to tell him that he better do well or I'm going to threaten to put him in there. And I said, don't. And I knew this parent very well and I said, don't do that because I said, if you ever find out you need to, I said, he's not going to want to go. He's going to view it as punishment and I talked to her and I said, I really believe this, a year later, and she put her child in the other program. But I want to be able to - - that's the same way, and if we have these relationships with these parents, we should be able to have these conversations and be able to help them through this.

JG: Right. And too often, when I see them as a hearing officer, the relationship has been so badly destroyed. My main problem with that new regulation is that it does not allow mediation as an option, and I don't understand that - -

AP: I know.

JG: - - because I can understand not allowing a due process hearing to override because the idea is that the parent is going to be acting in the child's best interest, as you said, and we do have to use that as the model because that's that law, basically. But if a school district thinks that continued special education and related services would help a child, why can't they call in a mediator and try to mediate the dispute over consent? the current federal regulations prohibit mediation in these situations and I feel that ir should be changed.

AP: Okay, no, it's a good thought.

JG: Yeah.

AP: It is.

JG: But that regulation does not even allow for mediation, which is - - that's - - and again, I'm an advocate of mediation. I think it's - - having seen hearings and mediation, I really think mediation is much better.

AP: I do too and my whole life is basically been spent in special ed because I even did special ed when I worked with the Title I Technical Assistant Centers. I have never been involved in a due process hearing and someone said, well, you must have given them everything. I said, absolutely not. I worked in the Shawnee Mission School District - - extremely wealthy - - and I said, absolutely not and the parents knew it. I couldn't. We didn't have that kind of money. So, I mean, there are ways to work together.

JG: Right.

AP: Absolutely. And I know darn well that in every job I've had as a special ed director, you spend 95% of your time with about 5% of the parents, but it's time well spent.

JG: Right. And I think you're right. And I think that the relationship issues are very important. It's interesting to me, doing hearings both in many places, the different - -

AP: Oh, what a difference.

JG: - - different ends of the scale. And again, some of it, I think, is communication. Some of it is - - I've done some work with ACRES, the rural special education group - -

AP: Yes.

JG: - - and many of the professors involved with that group think that there just aren't enough lawyers in some parts of the country that will represent people. Now, in some parts of the country, like Philadelphia and other urban areas, there are maybe too many.

AP: I agree. Yeah, I know. In Kansas, we're lucky if we had eight or nine due process hearings a year.

JG: And I don't think the goal is to have a lot of due process hearings, but at the same time, I think that sometimes that at the same time that the system is over legalized, it's also under legalized in certain parts of the country and I just - -

AP: Yes.

JG: In many rural areas just to bring a due process hearing is sort of like suing the school, which is sort of like suing the community.

AP: Yes. And that's very true in rural areas.

JG: Right.

AP: Yes, very much so.

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20 January 2010

Alexa Posny Interview – Part IX

Filed under: Data, Gerl, Office of Special Education and Rehabilitative Services, Posny, Special Education, education, law, special education law, standardized tests — Jim Gerl @ 9:46 am

My recent interview with Dr. Alexa Posny, the new Assistant Secretary of Education for OSERS (the Office of Special Education and Rehabilitative Services) covered a lot of ground. This is the ninth in a series of occasional posts concerning the interview over the next few weeks. "JG" indicates that I am speaking. "AP" indicates that Secretary Posny is speaking.

In this post, Dr. Posny talks about standardized tests and data collection requirements:

JG: Okay. The other thing about no child left behind that many people have challenged, including President Obama when he ran, was the idea of putting everything into one big standardized test - -

AP: Yes.

JG: - - and measuring everything on that. Is it fair to do that? If you don't use the one standardized test, what else do you use, unless you develop your growth model you talked about?

AP: Okay, well, growth model is part of it, but what we haven't been able to do and it's just because just the sheer volume and if we have to start somewhere, are the performance measures. I mean, what are the other things? How can they put this into practice? All we're getting is what they - - all we can do is on the multiple-choice tests. We need to do performance. We need to take a look at some of these other skills that they really need to be there and I've always been the biggest proponent of multiple measures. The issue is, is how do we do that for the enormity and the number of kids that we've got to be able to do this. And the other thing is, is that what we've got right now is a summative measure. It is a measure for a point in time. It has validity, it has reliability, and it has merit, but it's not the whole picture. It's only one segment of what we should be taking a look at. You know, I look at what special educators have done over the decades, in terms of the continuous progress monitoring. I mean, I think special educators have been doing this - - instructional focus, leading towards the ultimate - - I think that's some of the best things they do. So, I think we can all learn from each other and that's what we want to see now in general ed. But the thing that special educators need to know - - what they needed to do and what NCLB basically forced them to do, is what are the standards. So, again, I just think it's down to yeoman's job of changing how we think about teaching.

JG: Okay, interesting. I've heard a lot of complaints about that. The other thing that came up a lot when I talked to people I know when I told them I was going to do this interview with you was the concept of data collection, in terms specifically of requirements that change from time to time, either in terms of what the data are or how you collect them or what you do and then, when you compare them, whether or not that's even valid after you've changed them from last year. So, again, I think most of people out there in the states are agreeable to the concept of collecting the data and comparing it, but I think they have some trouble with some of the changes in that. Would you like to respond to that?

AP: Sure. But first of all, let me just state, data is my friend. I use data all the time because I think data tells the story and when you change the data sets or you change any perspective within there, can you compare? No. And you shouldn't, unless you can do some kind of an analysis that says, no, it wasn't changed that significantly. It's kind of like what NAEP does. I mean, they have changed the standards. They have changed the assessments and all of that and yet, they're still able to do the comparison over the course of time because they have done the analysis that allows them to say, no, it wasn't changed that significantly and it's the same. But if the definition is changed, there are parameters that really change the construct and the answers, no. And then, you know, when we changed - - and I'm talking about back in Kansas - - when we moved from the three assessments and changed them to the seven, basically, we put in a jagged line, in terms of the trend, and I said, you cannot compare. You know, from 2005 to 2006, I said, the world changed. And I said, so there has to be a break in there, to say there's - - you really can't do a fair comparison.

JG: Okay.

AP: I mean, that's just part of data.

JG: Right, and I think that's the frustration that I've been hearing mostly. It's not so much that they have to do it, it's just sort of that they don't like it to change so much.

AP: And I'm with them 100%. If I don't have to change it, I won't, believe me.

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14 January 2010

Alexa Posny Interview – Part VIII

Filed under: Assessment, Gerl, No Child Left Behind Act, Office of Special Education and Rehabilitative Services, Special Education, disabilities, education, law, special education law — Jim Gerl @ 3:26 pm

My recent interview with Dr. Alexa Posny, the new Assistant Secretary of Education for OSERS (the Office of Special Education and Rehabilitative Services) covered a lot of ground. This is the eighth in a series of occasional posts concerning the interview over the next few weeks. "JG" indicates that I am speaking. "AP" indicates that Secretary Posny is speaking.

In this post, Dr. Posny talks about the assessment of children with disabilities for NCLB purposes and related issues:

JG: Okay. That's interesting. Yeah, I didn't see the connection there to that before, but I think that's very interesting. Another thing they (the principals association) proposed was that for students with disabilities, for purposes of the AYP and NCLB-type data, that they be assessed at their instructional level rather than their grade level. How do you react to that?

AP: Well, okay, that would be all well and good, if the kids have really been taught at their instructional level to the best of their ability. The fear of some is that we're going to not expect as much from them again, if we don't do that. I think the idea is - - you know, I understand exactly what they're talking about because I'm the one who is the big proponent behind the 2%. Okay? What I refer to is the 2% assessment because I do think that they're a number of our kids who aren't at grade level, they're not. I mean, it's in the light of their disability. The issue and what the concern of the field is right now is, if we go back and open the Pandora's box again, are we going to have too many that aren't going to be pushed, you know, not to that level? And that's why I'm saying, if we can come up with a way of doing the growth model and being able to establish the potential growth for every child, really and truly do that, then I think we've go a model that would work and then, I agree with them. But we've gotta come up with that model.

JG: You're not satisfied with what's been proposed under the growth model so far is what I'm hearing.

AP: Well, no. I'm not disagreeing. It's the state of art and the research we have, it's so limited. That's all I'm saying. And I look at what the Fuchs have done out of Vanderbilt and I think that there's great merit in what they've got, but we need to expand this and just have more information. But I am all for student growth model, absolutely, as long as we know that it is honing kids to their highest potential possible and that's the key. How do we establish that trajectory and how do we know that it really is challenging for every student and that we're not low-balling it?

JG: And you mentioned the 2% and again, do you think that those exceptions for children with cognitive disabilities are big enough to cover the numbers - -

AP: Yes.

JG: Yes.

AP: Oh, absolutely.

JG: Okay.

AP: Oh, yes. And then that's because we put it in place in Kansas in 1998. So - - and I know people are saying, well, where'd that number come from? I mean, for us, that number has been more than sufficient.

JG: Okay.

AP: I do. But do we have enough research on it? Absolutely not.

JG: Okay.

AP: Yeah.

JG: Yeah. I have wondered where the number came from and I've heard parents of children with severe disabilities sort of claim that no child left behind has not been so good and I hear parents of children with relatively mild disabilities claiming it's the best thing they've ever seen.

AP: Yes.

JG: Do you think that's fairly true? Has it been better for kids with mild disabilities - -

AP: Well, I do because so many states did not develop the 2%. You know, they automatically have to be in general ed and they're putting a lot of time, effort and energy into making sure that happens. I think what we're hearing - - first of all, I think there's confusion in terms of the 1%, long before the 2%. I think there are a number of kids who are not significantly cognitively disabled who may have been put into the 1% or on the other hand, they were put into general and that's not appropriate and my typical example is a child who we have referred to as mentally retarded, in the past, who chronologically is a fifth grader but is really operating at a first grade level. That child does not belong in the 1%, not at all. That's the child I was trying to get at in terms of the 2%.

JG: Okay.

AP: Okay? But still, we need to push them. So, they'd be in grade level content. Yes, but it's going to look different. Okay? It's going to be at the lower end of the continuum when you think about the sequence of learning.

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13 January 2010

Alexa Posny Interview – Part VII

Filed under: Disability, Gerl, Office of Special Education and Rehabilitative Services, Posny, Secondary School Principals, Special Education, category, education, law, special education law — Jim Gerl @ 11:22 am

My recent interview with Dr. Alexa Posny, the new Assistant Secretary of Education for OSERS (the Office of Special Education and Rehabilitative Services) covered a lot of ground. This is the sixth in a series of occasional posts concerning the interview over the next few weeks. "JG" indicates that I am speaking. "AP" indicates that Secretary Posny is speaking.

In this post, Dr. Posny talks about standards of care for disability categories (which was proposed by the National Association of Secondary School Principals) and related issues:

JG: Okay. That's very interesting. I'm going to go back to some of the other reauthorization issues, but again, at some point, I want to try to give you some time to just talk about other things that are important to you. But the National Association of Secondary School Principals announced their recommendations for what they'd like to see in the reauthorization of IDEA. I found some of them very interesting. One of them was that they - - and I can see some merit to this; on the other hand, I have a real violent, bad reaction to this - - it's that they would like to see standards of care based on disability categories, under IDEA, so that a school would know, if they had an autism program that it was a good autism program. I think you can probably guess why that bothers me a little bit. I mean, it just kinda takes the "I" out of IDEA, doesn't it?

AP: Well, it does that. The other thing is, is that when you look at any of the 13 disability categories, you have a full range of mild to moderate to significant. So, you couldn't come up with just one standard of care based upon a disability category. It won't work. What it needs to be is standards of care based upon the needs of the child, regardless of what they are. You know, and even that's difficult because every child is so different. I mean, I taught learning disabled kids, as well. Well, everyone one of them was different as night and day. So, if I had one standard of care, that would not have been useful to me at all, not at all.

JG: And it's interesting, a lot of folks that are actually out there practicing don’t get this sometimes, I think, because they - - and I don't think that they're trying to be difficult, I think it's something they don't completely understand. But I had hearing once where the child was already eligible, under speech/language needs, and they then had the whole hearing based on whether he was also eligible under autism. And I kept saying, what difference does it make?

AP: What difference does it make?

JG: Yeah. Whatever his or her needs are, pretty much you have to meet them once you put them in, right?

AP: And that's my whole thing, you know, and it's strictly for funding right now to have to put them in a disability category. Who cares?

JG: Right.

AP: It makes no difference whatsoever.

JG: Right.

AP: You can call them whatever you want. What is it that we need to provide?

JG: Yeah, and again, I think if you got to the model you were just talking about, you'd eliminate a lot of that problem too.

AP: Yes. And we've gotta get to the point though where parents will trust us.

JG: Right.

AP: That we are going to do the right thing. And I think that's where RTI can really - - RTI and EIS, I think, can be very helpful to us, that they will see that their child's needs are being met, even though we didn't have to label him or her.

JG: Okay. That's interesting. Yeah, I didn't see the connection there to that before, but I think that's very interesting.

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7 January 2010

Alexa Posny Interview – Part VI

Filed under: Early Childhood, Gerl, Office of Special Education and Rehabilitative Services, Posny, Poverty, Special Education, early childhood education, education, law, special education law — Jim Gerl @ 5:30 pm

My recent interview with Dr. Alexa Posny, the new Assistant Secretary of Education for OSERS (the Office of Special Education and Rehabilitative Services) covered a lot of ground. This is the sixth in a series of occasional posts concerning the interview over the next few weeks. "JG" indicates that I am speaking. "AP" indicates that Secretary Posny is speaking.

In this post, Dr. Posny discusses the importance of early childhood education and the impact of poverty upon education:

JG: Let me skip - - I'm going to come back to reauthorization, if we have time, but I wanted to at least get to one thing that I'm pretty sure that you care a lot about and I have to, again, as a good hearing officer, disclose that I have a bootleg copy of your NASDSE presentation.

AP: Oh, okay.

JG: So I'm going to confess that up front to let you know how I found some of this out. But I know that early childhood education is important to you.

AP: Oh, absolutely.

JG: Could you just, first of all, just talk a little bit about - - tell me some of your thinking. How that plays into your current job? And what we can do. What schools can do. What parents can do.

AP: Oh, I just - - to me, I think that that was the biggest thing that wasn't part of no child left behind. And I really, honestly think that we are not going to make the differences that we want to see, if we don't start at birth. And if you saw what it is in there, there is the study by Hart and Risley that I have used over and over and over again and I don't care of the child is disabled, disadvantaged, whatever it is, if the child is hearing one-third the number of words as kids who are more advantaged, it's impossible to learn to read words that they've never heard. And they start so far behind that eventually, most of these disadvantaged kids end up in special education and I honestly don't think they are. And that's where I'm thinking we're doing a disservice. And this where - - that's why I think it's so critically important when we talk about early intervening services and response to intervention, both of those, if we can intervene as early as possible with some of these kids, I know that we will not be identifying anywhere near the number of learning disabled kids just because they can't read and it's only because they didn't have the language and literacy skills from birth. And if we did that and we caught them as soon or prevented or intervened as early as possible, the money we do have for special ed could be spent on those kids who really and truly are. There would be more money that could be spent working with those kids who truly are. That's why I am so passionate about early learning. It absolutely makes all the difference in the world, and even for students with disabilities. I'm glad we have Part C and that we have 619. Without that, I hate to think of how far behind - - but still think about our really and truly learning disabled kids. We can't find them early enough. You know, we still, you know, because what - - the behaviors. I mean, a lot of kids don't reverse letters or a lot of kids are just having trouble, but why can't we provide it for every child then who needs it? And if we could, I think we would prevent a lot of this. I do.

JG: Okay. It's interesting. What sort of things would happen in that early intervention? What sort of things do schools do when they get to the children early and they haven't identified them as special ed but have identified them as needing some help.

AP: Some help - - well, it's based usually upon poverty and a few other things. One of the things - - what I'm really passionate about is that I think every infant and toddler should have access to early learning, regardless. Makes no difference to help them excel or to help those that are so far behind. What do they need to do? They need to provide the developmentally appropriate practices. It doesn't mean we're providing them an academic program, but the biggest one is language, reading to the kids, expanding their vocabulary, helping them understand, helping them see the connection. It's just being exposed. Our kids who are so disadvantaged live in homes that have no books, no print materials, no nothing. They don't even know - - you know, I worked with the Chicago Public Schools and these kids in kindergarten would walk in the door and would have no idea that print words even go from the left to the right. I mean, that's how far behind they are and that's why it makes it so difficult. I worked with the BIA schools and it's the same kind of issues. So, it's just being exposed. Its' really just changing society and just knowing. It doesn't mean everyone would be required to go. It's just providing access and letting - - catching these kids up long before they walk in the school door.

JG: That study you mentioned, I think I have some of the numbers here somewhere, the Hart and Risley study - -

AP: It's the Hart and Risley study, yes.

JG: But in terms of the children from professional families hearing something like 2,153 words per hour.

AP: Yes.

JG: Children from working class families hearing 1,251 words per hour.

AP: Yes.

JG: And children from poor families hearing 616 words per hour.

AP: Yes.

JG: And again, I think that's what you were just referring to.

AP: It is.

JG: But those kids from the poor families, what I've heard schools say, I guess, is that they have become the social services agencies of last resort. People expect us to fix poverty now, in addition to everything else. Can we ever really fix education without fixing poverty first or is the horse and the cart situation?

AP: I always say we have to go hand in hand. And there's a part of me saying, do we have to fix everything? Well, if we're the only game in town, then my answer is absolutely yes, you know, especially when you're talking about rural areas.

JG: Right.

AP: The school is the center of that town. If the school disappears, the town dries up. And I can speak eloquently to that about Kansas because that's what's happening. But this is a societal issue. It absolutely is. Now, my original background is sociology and psychology, so I absolutely understand how we really need to change our society. One of the programs that I think is one of the best is Parents As Teachers. We're helping parents be better parents. The one thing we don't teach in school is how to be a good parent. So, if we can help parents become better parents, then their kids will, and we're beginning to change society and we need to begin to have more programs like that that will help in terms of the next generation. And we need to work with our kids in school to say, there are other opportunities out there. Just because you live in the urban poor, does not mean you need to have to stay here in the urban poor.

JG: Right.

AP: So, it's all of those and I absolutely believe that we need to work on this more as a society. I do.

JG: Can the schools help the other segments of society to come along in that? Is there a role for the schools in terms of being the leader?

AP: Sure. Well, often they're the catalyst. I mean, you know, to get people on board, to say, you know, when you look at those schools that really and truly have turned around, it became a community. You know, the whole community had to rally around because you have to change the parents' vision of what was possible about the school. A lot of the schools require that if you want you child - - especially some of the magnet schools and some of the other charter schools - - part of what they require is the parent must play an active role and must be in that school as well. It begins to change and that's great. We mean business. I think one of the best, you know, especially in terms of early learning, is when we get the businesses to understand that if you support and put money into this, we will begin to change what you see. So, I just think schools can be the catalyst and to say, look, we're not going to change this unless we all work together.

JG: I think part of the problem is we put up walls. First of all, there's the special ed, general ed wall, which is obviously a big one that a problem.

AP: Well, I want to tear that one down.

JG: Okay. Well, good, and I think many people are with you, particular people in special ed, but people in general that seem to be buying into that. Now, would you agree with that?

AP: I absolutely agree. I'm hearing it more and more. I mean, my ideal would be is whether we could reauthorize ESEA and IDEA together. I just don't think we're there yet. But absolutely, we need a system of education and we have some students who will always have - - be a student with a disability, but my key thing is this, why do we have to label a child to provide him or her with whatever he or she needs whenever he or she needs it?

JG: Right.

AP: We have to label them disabled. We have to label them disadvantaged. There are kids who are disenfranchised, disengaged. Who cares?

JG: Right.

AP: Let's give him or her whatever he or she needs.

JG: And it would be a lot easier if there weren't all those walls.

AP: That's exactly right and if we didn't have the labels.

JG: Yeah. I think I understand why they're there but at the same time, they're frustrating sometimes.

AP: Well, it was the only way we could get it to begin with. I mean, we had to target the funding and stipulate that it had to be used for this because we didn't know what to do. You know, I always talk about 1975. We segregated kids with disabilities, but that was okay at that point in time. That was all we knew and it took us up until the '90s to know that no, we can include and we should include, but we're going to always need the full continuum. That will always be necessary.

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6 January 2010

Alexa Posny Interview – Part V

Filed under: Gerl, Office of Special Education and Rehabilitative Services, Posny, Rowley, Special Education, law, parent, special education law — Jim Gerl @ 5:50 pm

My recent interview with Dr. Alexa Posny, the new Assistant Secretary of Education for OSERS (the Office of Special Education and Rehabilitative Services) covered a lot of ground. This is the fifth in a series of occasional posts concerning the interview over the next few weeks. "JG" indicates that I am speaking. "AP" indicates that Secretary Posny is speaking.

In this post, Dr. Posny talks about the Rowley standard for FAPE and the issue of a parent's right to meaningful participation in the process.

Another issue that comes up a lot, and this is a real sticking point with parents, is the Rowley standard. In terms of educational benefit, most circuit courts have required that to be some meaningful educational benefit. The parents cite the legislative history of the original EHA and say that it really should be a potential maximizing law. Do you think that something - - in fact, there was a Washington State federal trial court decision in Mercer Island that said that the Raleigh standard sets the bar too low and they were using the 1997 amendments to based that, not even the no child left behind stuff. Do you think we need to rethink the standard for that or should we stay away from it or what?

AP: Okay, well now, let me just give you my personal opinion.

JG: Okay.

AP: My answer would be no. I don't think we need to and it's because of what we're doing - - what did in terms of no child left behind and if I sit and think around an IEP team and trying to determine what the maximum benefit would be, well, we could be all over the place. I mean, what could we have possibly established as a criterion and yet, if we take a look at what are the outcomes we want, you know, in terms of what no child left behind has done, you know, that to me is the better place to put our time, effort and energy. And, you know, because again we could be spending a lot of our time litigating something that we probably could not even figure out. What would be a maximum benefit? Is it employment? So, therefore, if a child is not gainfully employed and has a living income - - I mean, how far could we possibly go? I just think it's very difficult to define. So, I really think coming up with the outcomes in terms of how well they do academically, I think that just holds a whole lot more.

JG: One special ed administrator said to me once that you know, we don't really guarantee any kid a maximized potential, it's sort of up to the kid too.

AP: Well, there are a lot of other mitigating factors. You know that as well. You know, the parents, the background, you know, the child, whether - - have they had effective teachers?

JG: Right.

AP: And, you know, and I'm talking about in special ed, have they had effective general ed teachers? Because if they haven't taught it, then you know, boy there are a lot of - -

JG: It makes it hard.

AP: Oh - - I don't know where you would take that one, but I understand, believe me. I very clearly understand what parents are asking for.

JG: Well, and I have a daughter, and I've always wanted the best for her and most parents want the absolute best for their kids, but I'm not sure that the school system is ever going to be able to do that I guess is the problem.

AP: No, and there was a part of me saying, I'm responsible for my son.

JG: Right.

AP: You know, because my son is 26 and he's an engineer and at Georgia Tech right now and they're paying for his education. (laughing)

JG: (laughing)

AP: But a major part of that responsibility was me. What am I doing at home to make sure that he's doing everything that he needs to. I would never have force it on the teachers to say, well, you're not teaching him enough.

JG: Right, and again, that's one important part of IDEA is that it guarantees the parents the right to participate in the process and I think most hearing officers and most courts come down really hard on school districts the hardest when they think that they're not allowing parents that opportunity.

AP: Absolutely. They need to be a major voice at the table.

JG: Right.

AP: Oh, you bet.

JG: And I think even if the courts feel that the parents are being - - the district is pretending to give the parents some input but not really considering anything that they say that they get very upset, not that they have to necessarily agree with them all of the time, but - -

AP: That's correct, but they need to be - - you know, this is a relationship that we establish. I often laugh about it because I often talk about a special ed, I think, is second to a superintendent in terms of probably the headaches, but the difference is this and I said, you know, for us in special ed, we could literally have a relationship with parents for 21 years. And is said, there isn't anyone else, not any of the principals, no one else has that long of a period of time and I said, so, we better start this out the right way and make sure that we're working well together because I said, 21 years is a long time.

JG: Well, and I think a lot of the cases that I see when they make it - - usually by the time they make it to me as a mediator or as a hearing officer, there's been some unpleasant things happening along the road.

AP: I agree.

JG: But one of the things - - one of the main problems I see school districts having is not paying attention to the communication and relationship issue kind of things.

AP: Oh, absolutely.

JG: And I thing that that plays well with what you just said, I think, because that's an important part of it.

AP: You bet.

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30 December 2009

Alexa Posny Interview – Part IV

Filed under: Gerl, Office of Special Education and Rehabilitative Services, Posny, Special Education, law, restraints, seclusion, special education law — Jim Gerl @ 2:20 pm

My recent interview with Dr. Alexa Posny, the new Assistant Secretary of Education for OSERS (the Office of Special Education and Rehabilitative Services) covered a lot of ground. This is the fourth in a series of occasional posts concerning the interview over the next few weeks. "JG" indicates that I am speaking. "AP" indicates that Secretary Posny is speaking.

This post deals with whether IDEA should be changed in view of the revelations about abuse of seclusion and restraints, especially as used on children with disabilities:

JG: Let me give you a couple of specific issues and ask you whether or not you think they should be part of reauthorization. The one that's actually back in the news again this week is seclusion and restraints.

AP: That's correct.

JG: Congress has just offered a new law about that and not part IDEA, but do you think that and given all the things that were in the GAO report and that National Disability Rights Network report that maybe IDEA should beef up its sections on behavior-type issues?

AP: That's a tough one to respond to. You know, the revisions in the past and the versions of IDEA try to stay away from specifics, especially in terms of appropriate methods or methodologies or whatever. So, I'm not necessarily - - I can't give you a definitive answer, but I guess I would not be leaning towards that.

JG: Okay. Well, let me try it a different way. Do you think that maybe positive behavior support should get more play in IDEA somewhere? Because, basically, because behavior is only covered in IDEA as a vague reference in the IEP section and there's really nothing else except the part when there's a manifestation determination, it says there's no manifestation, which is very specific. But in terms of positive behavior supports, do you think we should merge that into IDEA somewhere?

AP: Well, again, often it's viewed as a specific methodology and you know, as a hearing officer, we don't even put that into IEPs.

JG: Right.

AP: So, we would have to stay away from looking at it and basically saying that we're supporting one particular methodology. So, will you see those exact words. My guess is probably not. But the information about training and providing professional development, about appropriate techniques, I mean, that kind of language, I'm sure. But again, it's been a term that's phrased because of response to intervention. Those words aren't even in there.

JG: Right.

AP: So, and it's very - - it's done intentionally.

JG: And some of us, as hearing officers, call that (methodology) the "M" word , you know (laughing) - -

AP: Um hmm.

JG: Because you're not supposed to say it or go near it. You know what I mean?

AP: That's correct.

JG: And it think that - - I understand what you're saying, but just the way that some kids with disabilities have been abused though, it's so horrible and it's just, you know - -

AP: Well, it's traumatic. I mean, no one wants to see that, but is the law to really - - you know, is IDEA the law to take that on? You know, I think that's the question more than anything else. IDEA has so much in it.

JG: Right.

AP: And believe me, I don't want any child to ever be hurt or abused or whatever. My first job was teaching emotionally disturbed middle school kids. So, believe me, I understand the behaviors their talking about, but there is, you know - - but to harm a child, oh, my gosh.

JG: Yeah. That's scary.

AP: Yeah, not at all.

JG: I haven't actually read the new legislation, yet. I just saw a release about it this morning. I don't think it assigns you any duties, does it, in terms of - -

AP: Well, no because it's really pertaining to all kids.

JG: Okay.

AP: It just so happens that students with disabilities tend to be probably the recipients of that more often because of their behavior, but it's for all.

JG: Okay.

AP: So, it would not be assigned specifically to us.

JG: Okay, and that's what I was assuming, but I thought you might already know because it - - if that course is proposed, it hasn't even made it through the committee yet.

AP: That's correct.

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29 December 2009

Alexa Posny Interview – Part III

Filed under: Disability, Gerl, Office of Special Education and Rehabilitative Services, Posny, Special Education, education, law, special education law — Jim Gerl @ 4:11 pm

My recent interview with Dr. Alexa Posny, the new Assistant Secretary of Education for OSERS (the Office of Special Education and Rehabilitative Services) covered a lot of ground. This is the third of a series of occasional posts concerning the interview over the next few weeks. "JG" indicates that I am speaking. "AP" indicates that Secretary Posny is speaking.

The photo on the left shows that Dr. Posny was so new as Assistant Secretary that they still had the last guy's name on the directory. Believe me they will soon know that she has arrived. She is very impressive.

In this post, we discuss IDEA reauthorization:

JG: It is amazing, but it does get back to one point you made too. I think that IDEA, like no child left behind, has also been wildly successful. We sometimes forget. We get all stuck in the data and stuff and we forget. I just read a 1919 opinion by the Wisconsin Supreme Court called State Ex rel Beattie - - this was 1919, so it' must be taken in a historical perspective and that’s hard - - but the state supreme court actually approved of the exclusion of a child with cerebral palsy from public school based on the fact that he was nauseating to the teachers and the other students. So, we've come a long way.

AP: Yeah, well, we have. I always talk about that. And it's interesting that you bring up a case in Wisconsin because that's where I was born. But I tell people because people are saying, gee, you know, we just haven't done enough and said, no. I said, I think this has been downright phenomenal. In 35 years - - in a little over three decades - - what we have done has been absolutely remarkable. Absolutely every child with a disability has total and complete access, not only to an education, but to the highest quality and be held to the highest standards. I've gone to other countries. I've gone to Japan. I've gone to China. And first of all, I ask, where are they? You know, because you don't see them. Now, I had a chance to go and I got to see some, but we're talking about less than 1% of the population and I don't even like to think about where they are. But what we have done in that just that short period of time and I look at my son and he does not know what it's like to not be in school or anywhere else without kids with disabilities. That's one generation. In one generation, we have made a see a change.

JG: It is. It is remarkable.

AP. I do, but I still say, we're in our infancy.

JG: Yeah. Oh, yeah, and that's part of the thing too - - lawyers don't like special ed law because it changes frequently.

AP: Oh, all the time.

JG: And it's not like property where you can pretty much know or you have a set of facts, so you can pretty much determine and advise your client. You just can't do this in this area. You don't know what the hearing offer is going to do. They are crazy sometimes, I'm told. So, let me bring you to the reauthorization. First of all, do you know what kind of timeframe we're talking about for IDEA. I know congress is busy with a few other things right now.

AP: Well, they are. I mean, health care has to be coming through first and then, of course, ESEA. So, in terms of the timeframe, technically, IDEA is up next year, you know, for reauthorization. But I think timing is going to be everything. You know, we really do need to work on ESEA first because that is behind the time. So, I think it'll be after that. Can I give you a particular time period? I would say probably within the next couple of years, okay?

JG: Okay.

AP: Now, but there's a part of me saying that as we work on the reauthorization of ESEA, I'm hoping that we see parts of what we see in IDEA be put in ESEA. I'm hoping that we will begin to see some of the similarities, some of the areas that should be the same.

JG: Okay, and in terms of the climate, it doesn't seem to me that special ed is a particularly partisan type issue. In fact, we've seen Justice Ginsburg and Justice Scalia, for example, vote the same way on special ed Supreme Court cases. Is that your reading? Is that the political climate?

AP: Absolutely. It's always been my need to - - you know, when you think about it, how can it be partisan? I mean, we're talking about assisting any child with a disability. That is not a partisan issue, not at all.

JG: And, again, that is my reading of it. Once congress is done with it, of course, it's going to be time for a new federal regulations again. That's always fun.

AP: That's correct.

JG: Do you have any idea how long that will take or is that just too far down the road now to estimate?

AP: Well, no. You know, having been here when we did the regulatory part last time, when you really think about it, it really is almost like a four year process, okay? Because what happens, you know, we redo the law and then states have to redo their law. Meanwhile, we're working on the regulatory part, you know, and we redo that and then the states have to redo their regulations. So, it usually takes about four years to completely turn it around.

JG: Okay.

AP: So, I mean, that's - - and that's not bad. That's reasonable.

JG: Yeah.

AP: I know people think that it sounds extreme, but no, that's about right.

JG: But again, it part of that cycle though. Everything is changing at some point, then the law changes and the federal regs change, the state regs change, you get hearing officer decisions, you get court dates and then it's time to start all over again.

AP: Exactly right. There is another part of me saying, you know, we need to be thoughtful about it. So, we don't want to rush it either. We do want to do it the right way. The other thing is and often what we hear from states, especially having just come from a state, is we also need to give them time to redo or to put things in place to allow this to happen and if we give them a timeframe of saying, you have to have this all in place in a year, we're being unrealistic. So, I mean, it takes time to make these changes as well. So, it's realizing that and understanding that.

JG: Alright and that does sound reasonable to me, but there's other people out there that have different agendas. So, once again - -

AP: Yes.

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17 December 2009

Alexa Posny Interview – Part II

Filed under: Disability, Gerl, OSERS, Office of Special Education and Rehabilitative Services, Posny, Special Education, education, law, special education law — Jim Gerl @ 12:41 am

My recent interview with Dr. Alexa Posny, the new Assistant Secretary of Education for OSERS ( the Office of Special Education and Rehabilitative Services) covered a lot of ground. This is the second of a series of occasional posts concerning the interview over the next few weeks. NOTE: After today's post, this series will continue after the Christmas holiday. "JG" indicates that I am speaking. "AP" indicates that Secretary Posny is speaking.

Today's post concerns the mission and role of OSERS.

AP: Yes, and IDEA reauthorization is going to be coming up.

JG: Yeah, and I've got that on my list for you, believe me. Before we get to that though, in terms of the role of OSEP and the role of OSERS in general, in terms of what you do, how do you see the mission of your agency and the mission of OSEP within your agency?

AP: Okay, well, I'm sure you're very well familiar that OSEP and RSA, the Rehabilitative Services Administration and NIDRR, National Dissemination and Research arm of this, when I look at all of that, this is to serve infants, toddlers, youth and adults, in terms of for the K12 system, in terms of the academic and that part of the system, as well as leading them towards that career or their life in the future and which is where the VR comes into this. So, in terms of our mission, it's to make sure that any person with a disability is gainfully employed and has a great life, bottom line, and K12 is definitely a precursor to that and that's where OSEP plays the major role. You know, they do it and the Part C, of course, is 619 and then, of course, K12 and all the way through 21 or whatever, and that's then where RSA and the rest of it picks up afterwards, you know, to make sure that especially those adults with disabilities - - who have significant disabilities - - of course, are provided what they need. So, how does OSEP fit in there? If we don't have a good system that's leading into what they need to do in terms of follow up, then anything we do in terms of VR, they can't redo what might have been lost, if we don't provide what the children need long before they get out of the public school system. So, in OSEP - - since I know OSEP so well - - that's been great. The other thing is, one thing that I've talked about, as much as we talk about no child left behind, some areas of concern within that, I believe that students with disabilities made tremendous progress over the last however many years as a result of holding all of our kids to be accountable and to make sure that they all succeed. So, I just think we've seen tremendous strides. I really do.

JG: And I think you're right. In terms of your job, how much do you think special ed is going to play? You also have vocational rehab I like to call it because I'm old (laughing) and the research functions, of course. But special ed seems to be the big-ticket item on the plate. Is that true, you think?

AP: It's very true and it's not because I want to slight the other pieces, but when you think of how much IDEA - - I mean, you are very aware of the volumes of regulations and laws that we have and that plays a big part in it. Now, I'm not saying that WIA, the Workforce Incentive and the Rehab Act and so forth don't have those pieces, but when you think about what is included in IDEA, that's why it's such a huge aspect, but there's another part of it. We have to make sure that we are inclusive, so I need to be in all of the discussions on the reauthorization of ESEA, every piece. So, because it's more of that piece that impacts the rest of the U.S. Department of Education, that's OSEP plays such a big role. But I also need to help them understand how RSA and NiDRR also play a piece in this and that's another piece. I want to help that rise to the surface, to let them understand how it fits together.

JG: Okay.

AP: So, you know, I think it's been slighted.

JG: Okay, and I think many people feel that way, but on the other hand, as you said, there's just so much money and so much law involved in the special ed, for whatever reason. I mean, if you look through the case law on rehabilitation, there's just nothing there.

AP: But it's nothing in comparison to case law that we have. That's right.

JG: It's hard to actually literally keep up. I try to read all the cases in special ed, including many of the hearing officer opinions because I think that there's a lot of good discussion and new ideas there, but it's just hard to read them all. There's so many.

AP: Absolutely, and just think about it. We've only had the law for about 35 years.

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14 December 2009

Alexa Posny Interview – Part I

Filed under: Disability, Gerl, Office of Special Education and Rehabilitative Services, Posny, Special Education, education, law, special education law — Jim Gerl @ 1:02 pm

My interview with Dr. Alexa Posny, the new Assistant Secretary of Education for OSERS ( the Office of Special Education and Rehabilitative Services) last week covered a lot of ground. This is the first of a series of occasional posts concerning the interview over the next few weeks. "JG" indicates that I am speaking. "AP" indicates that Secretary Posny is speaking.

Today's post concerns who should be the next Director of OSEP, the Office of Special Education Programs and when will we have somebody in that job.

JG: In terms of your old job, the director of OSEP, do we know when that job is likely to be filled?

AP: Well, it's going to depend. You know, I've been here all of four weeks. So, there's a part of me saying, I need to get the lay of the land.

JG: Right.

AP: And knowing that I was in that position, what I need to do is spend time to figure out what we need because I look at what may be my strengths and talents and maybe some areas that I may not have as much. So what do we need to basically compliment because we don't need the exact same thing. So, it's a matter of just taking a look at it. What can we use?

JG: And you've anticipated my next question. What would you be looking for? What do you - - again, you're new, but you've done that job before - - so, what are some of the kinds of qualities in a person you'd like to see, you think or maybe what you want out of the person doing that job?

AP: Well, it's probably easier to speak about the qualities of the person. The person has to be a little bit crazy. (laughing) And, you know, just knowing what the job is. And I say that with all the greatest humor and the greatest respect for everyone else, but it's coming at it - - it's looking for someone who, in my mind, is knowledgeable because I really think that makes a difference because you're dealing with a lot of different disability areas, as you're very familiar with, and you know, a child with autism is very different from a child who is learning disabled, which is very different from being deaf or hard of hearing and/or visually impaired. So, it's having some background in that because we deal with all of it. But there's another part too. I'm also looking for someone is dedicated to making sure that every child succeeds, regardless and that we're in an educational system and how can we make this system the best there is for every single child. You know, so there's that dedication and commitment that is paramount. But then I'm also looking for some other qualities too. You know, for me, it's that relentless focus and what is that focus of the person and how can we go after it when we know it's the best thing for kids. Another one is just keeping in mind - - well, basically being open minded because, you know, again, we're talking to a lot of different people. The other thing that I look for and whenever I've hired people to work with me is I said, I am not looking for a yes person. That is not what I need. I need people who are going to push back. To say, well, have you thought about this or what do you think about this or can give me some different ways because then we'll only do that much better and we'll think about it ahead of time. So, it may not be as specific, but it's those kinds of characteristics and qualities that I think really make a big difference and there's a big difference between what a person brings with him or her, in terms of those kinds of qualities, because knowledge can also be learned. So, does somebody have to be extremely knowledgeable? No, no because that kind of information can be learned. We all did it.

JG: That's true.

AP: Yeah, and every time the law changes, we have to do it again.

JG: That's true:

AP: Yes, and IDEA reauthorization is going to be coming up.

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