Friday, May 15, 2009
California State Bar Results
Here's to the February Bar takers who are getting their California State Bar results today. We wish you all the best of luck!
Fast Fact Friday: Extended School Year ("ESY")
ESY is the provision of services, during the summer months, to a child who is eligible for special education and related services.
If your child's IEP team determines that ESY services are necessary for the provision of FAPE, then these services must be provided. The school district cannot get out of this responsibility by claiming that no such services are available; by claiming that only certain categories of disability are provided with services; or, by unilaterally limiting the type, amount or duation of those services.
At the very least, the appropriateness of ESY services should be discussed by the IEP team. For more information of what should be discussed at the IEP meeting and what the meeting agenda should look like, click here.
If your child's IEP team determines that ESY services are necessary for the provision of FAPE, then these services must be provided. The school district cannot get out of this responsibility by claiming that no such services are available; by claiming that only certain categories of disability are provided with services; or, by unilaterally limiting the type, amount or duation of those services.
At the very least, the appropriateness of ESY services should be discussed by the IEP team. For more information of what should be discussed at the IEP meeting and what the meeting agenda should look like, click here.
Thursday, May 14, 2009
Switzer Learning Center
Yesterday, I visited and toured the Switzer Learning Center, a Nonpublic School (NPS) (for more about NPS placements - read our previous blog post from April 2009) in Torrance, California. Switzer if a specialized school for students grades 3 through 12 with learning disabilities, emotional disabilities, attention deficit disorders and behavioral disorders. It is an extremely small school, with currently around 92 students total.
Overview of the Program:
Switzer incorporates a clinical treatment program and behavior management throughout the school program. All students at all grade levels are on a behavior program that is based on reinforcement for positive behaviors, meaning that the students earn points for appropriate behaviors in each period of the school day. Additionally, the school keeps data on both negative or inappropriate behaviors and positive or "involvement" behaviors for every student, and utilizes a computer program to track progress and compare the student to the overall population of the school. The clinical treatment component also includes DIS counseling services for all students on a weekly basis, and availability of the counselors in the moment on an as needed basis.
There is one elementary school classroom, with students ranging from third through sixth grade, and one middle school class, with students from sixth through eighth grade. The high school classrooms are separate from the lower grade levels. The high school program includes six periods per day with the students changing classes and teachers for each class, similar to a traditional high school schedule. High school students can also be dually enrolled, either in a public high school in their home district, at the Southern California Regional Occupational Center (SCROC) in Torrance.
Other Things to Note:
Switzer is a good option for students who have behavior difficulties related to their disability.
It provides modified and individualized instruction within grade level curriculum standards, and also utilizes a specialized reading program, SRA-reading, to provide specialized intervention.
The behavior system is very positive and seems to be implemented consistently.
Switzer offers a diploma-bound curriculum, but does not provide the necessary classes and credits for a student to go straight into a 4-year university.
For more information about Switzer, visit their site directly at www.switzercenter.org. We can also help you with specific information about Non Public School placements.
Overview of the Program:
Switzer incorporates a clinical treatment program and behavior management throughout the school program. All students at all grade levels are on a behavior program that is based on reinforcement for positive behaviors, meaning that the students earn points for appropriate behaviors in each period of the school day. Additionally, the school keeps data on both negative or inappropriate behaviors and positive or "involvement" behaviors for every student, and utilizes a computer program to track progress and compare the student to the overall population of the school. The clinical treatment component also includes DIS counseling services for all students on a weekly basis, and availability of the counselors in the moment on an as needed basis.
There is one elementary school classroom, with students ranging from third through sixth grade, and one middle school class, with students from sixth through eighth grade. The high school classrooms are separate from the lower grade levels. The high school program includes six periods per day with the students changing classes and teachers for each class, similar to a traditional high school schedule. High school students can also be dually enrolled, either in a public high school in their home district, at the Southern California Regional Occupational Center (SCROC) in Torrance.
Other Things to Note:
Switzer is a good option for students who have behavior difficulties related to their disability.
It provides modified and individualized instruction within grade level curriculum standards, and also utilizes a specialized reading program, SRA-reading, to provide specialized intervention.
The behavior system is very positive and seems to be implemented consistently.
Switzer offers a diploma-bound curriculum, but does not provide the necessary classes and credits for a student to go straight into a 4-year university.
For more information about Switzer, visit their site directly at www.switzercenter.org. We can also help you with specific information about Non Public School placements.
Wednesday, May 13, 2009
District obligations when you transfer schools
For any parent, the decision to transfer a child from one school to another is an overwhelming one. For parents of children with special needs, this decision is even more daunting. What does the school district have to do about your child's IEP? Does the new school have to assess? Does the new school have to hold an IEP meeting? Where should your child be placed in the mean time?
This blog is a brief overview of what the new school district must do, at least initially, to meet your child's educational needs. The following only applies to students, in California, who already have an IEP when they transfer.
1. Transfer from one district to another, within the same state
If you transfer within your same state to a new school district, then for up to 30 days the local educational agency must provide your child with FAPE. This offer of FAPE must include services comparable to those described in the previous IEP document and the new district should consult with the parents in determining what is "comparable."
At the 30 day point, the new school district must adopt the previously approved IEP that is consistent with the law.
2. Transfer from one district to another, within the same special education local plan area ("SELPA")
If you transfer districts, but you are within the same SELPA as the previous school (what is a SELPA?) the new district must continue, without delay, to provide services comparable to those described in the existing approved IEP unless the parent and the local educational agency agree to develop, adopt, and implement a new IEP that is consistent with the law.
3. Transfer from one state to another
If you transfer from another state into California, the local educational agency must provide the student with FAPE. These services must be comparable to those described in the previously approved IEP and the new district should consult with parents in determining what is "comparable."
In this scenario, the Education Code vaguely addresses assessments by stating that the local educational agency must provide FAPE until it conducts an assessment, if determined to be necessary by the local educational agency, and develops a new IEP, if appropriate, that is consistent with the law. However, there is no mandatory obligation that the new district conduct assessments.
4. Other Requirements
In addition to the above, the following requirements also apply:
So what does this all mean? If any confusion arises, remember, the bottom line is that the District still has the obligation to provide your child with FAPE. Even where there is an interim period, after the first 30 days, every child should be provided with an appropriate education to meet his or her unique educational needs.
What to watch out for? If you enter a new district and its offer of FAPE does not appear to be "comparable" to the placement and services in the previous IEP, then do not blindly accept the new district's offer. You still maintain all your parental rights. In this scenario, request a full battery of assessments and then an IEP meeting where those assessment results can be shared. It is important to keep in mind that the new school district does not yet know your child, so you may have to advocate harder than before to ensure it learns what your child's unique needs are, and what services are appropriate to meet those needs.
Any strategy? To avoid any additional confusion, in most cases, it is the best idea to ensure that before you transfer districts that you have an agreed upon and implemented IEP. However, this does not mean that you should consent to an IEP just for the sake of transferring - but where there is an appropriate IEP, make sure it is consented to and implemented before the transfer.
My situation is a little different.... Please, let us know if your scenario is not covered in the above, and we would love to participate in a discussion with you and other blog readers about what your options may be! (Contact special education attorneys)
This blog is a brief overview of what the new school district must do, at least initially, to meet your child's educational needs. The following only applies to students, in California, who already have an IEP when they transfer.
1. Transfer from one district to another, within the same state
If you transfer within your same state to a new school district, then for up to 30 days the local educational agency must provide your child with FAPE. This offer of FAPE must include services comparable to those described in the previous IEP document and the new district should consult with the parents in determining what is "comparable."
At the 30 day point, the new school district must adopt the previously approved IEP that is consistent with the law.
2. Transfer from one district to another, within the same special education local plan area ("SELPA")
If you transfer districts, but you are within the same SELPA as the previous school (what is a SELPA?) the new district must continue, without delay, to provide services comparable to those described in the existing approved IEP unless the parent and the local educational agency agree to develop, adopt, and implement a new IEP that is consistent with the law.
3. Transfer from one state to another
If you transfer from another state into California, the local educational agency must provide the student with FAPE. These services must be comparable to those described in the previously approved IEP and the new district should consult with parents in determining what is "comparable."
In this scenario, the Education Code vaguely addresses assessments by stating that the local educational agency must provide FAPE until it conducts an assessment, if determined to be necessary by the local educational agency, and develops a new IEP, if appropriate, that is consistent with the law. However, there is no mandatory obligation that the new district conduct assessments.
4. Other Requirements
In addition to the above, the following requirements also apply:
- The new school must "take reasonable steps to promptly obtain the pupil's records."
- Each local educational agency must ensure that assessments of individuals with exceptional needs are coordinated with the individual's prior and subsequent schools, as necessary and as expeditiously as possible.
So what does this all mean? If any confusion arises, remember, the bottom line is that the District still has the obligation to provide your child with FAPE. Even where there is an interim period, after the first 30 days, every child should be provided with an appropriate education to meet his or her unique educational needs.
What to watch out for? If you enter a new district and its offer of FAPE does not appear to be "comparable" to the placement and services in the previous IEP, then do not blindly accept the new district's offer. You still maintain all your parental rights. In this scenario, request a full battery of assessments and then an IEP meeting where those assessment results can be shared. It is important to keep in mind that the new school district does not yet know your child, so you may have to advocate harder than before to ensure it learns what your child's unique needs are, and what services are appropriate to meet those needs.
Any strategy? To avoid any additional confusion, in most cases, it is the best idea to ensure that before you transfer districts that you have an agreed upon and implemented IEP. However, this does not mean that you should consent to an IEP just for the sake of transferring - but where there is an appropriate IEP, make sure it is consented to and implemented before the transfer.
My situation is a little different.... Please, let us know if your scenario is not covered in the above, and we would love to participate in a discussion with you and other blog readers about what your options may be! (Contact special education attorneys)
Friday, May 8, 2009
Fast Fact Friday: When do you have to enroll your child in Kindergarten?
If your child turns 5 years old on or before December 2, then in California, the school district has to accept your child into Kindergarten for that school year. Furthermore, if this applies to your child, then he or she may also be admitted to the prekindergarten summer program maintained by the district for pupils who will be enrolling in kindergarten in September.
However, this does not mean that you have to enroll your child when he or she is 5 years old. The only requirement regarding when you have to enroll your child in school is that each person between the ages of 6 and 18 is subject to "compulsory full-time education" (California Education Code section 48200). Thus, you do not have to enroll your child into school until he or she is six years old (of course, certain exceptions may apply for those parents who choose to home school their child). In fact, there is no requirement that your child has to attend Kindergarten. If a child is determined to be ready for first grade work then, at the discretion of the school administration and with parental consent, the child can be admitted directly to first grade.
So, if you are a parent of a special needs child and a part time preschool program is appropriate to meet the needs of your 5 year old and the typical Kindergarten program is not, then continuing in the preschool program for an additional year should be discussed by the IEP team.
Additional Information:
To learn when an exception can be made that permits your child to enter Kindergarten younger than 5 years old, click here.
For more information on Kindergarten requirements in California, click here.
For more information on the "Kindergarten Readiness Pilot Program," click here.
However, this does not mean that you have to enroll your child when he or she is 5 years old. The only requirement regarding when you have to enroll your child in school is that each person between the ages of 6 and 18 is subject to "compulsory full-time education" (California Education Code section 48200). Thus, you do not have to enroll your child into school until he or she is six years old (of course, certain exceptions may apply for those parents who choose to home school their child). In fact, there is no requirement that your child has to attend Kindergarten. If a child is determined to be ready for first grade work then, at the discretion of the school administration and with parental consent, the child can be admitted directly to first grade.
So, if you are a parent of a special needs child and a part time preschool program is appropriate to meet the needs of your 5 year old and the typical Kindergarten program is not, then continuing in the preschool program for an additional year should be discussed by the IEP team.
Additional Information:
To learn when an exception can be made that permits your child to enter Kindergarten younger than 5 years old, click here.
For more information on Kindergarten requirements in California, click here.
For more information on the "Kindergarten Readiness Pilot Program," click here.
Thursday, May 7, 2009
Manifestation Determinations: Suspensions and Special Education Students
If your special education student gets suspended from school they have certain rights that a general education student may not have.
First, a special education student can be suspended or removed to an alternative placement for up to 10 school days for the entire school year due to a violation of student conduct. If your child is suspended for more than that or the district is attempting to move him to an alternative placement for more than 10 days then the district must first hold a manifestation determination meeting within 10 days of the decision to move the student. To review so far - the district can decide that they want to suspend for more than 10 days or even decide that they want to move your student but they can NOT actually do it until they conduct a manifestation determination meeting.
What is a manifestation determination? It could be like an IEP or it could be more like an expulsion hearing - depending on your district. Under the law the district, parents, and all relevant members of the IEP team review all relevant information in the students file, including their IEP, relevant observations, and information provided by parents to determine whether the conduct in question was caused by or had a direct and substantial relationship to the child's disability or if it was the direct result of the district's failure to implement the IEP. If either of these apply then the violation was a manifestation of the child's disability. If neither of these apply then it was NOT a manifestation of the child's disability and the suspension or move to an alternative placement goes forward UNLESS you appeal the result by requesting a hearing. If your child is removed to an alternative setting the district is still required to provide him with a FAPE.
If the violation is a manifestation of my student's disability what happens next? The IEP team must then conduct a functional behavioral assessment and implement a behavioral intervention plan or if a behavior intervention plan was already developed they must review the plan and modify it to address the behavior. The child also gets to stay at his or her current placement unless the parents and the district agree to a change in placement.
Are there circumstances where this doesn't apply? Of course there is. The district can remove the student to an interim alternative educational setting for not more than 45 days regardless of whether or not the violation was related to the student's disability in the following circumstances: 1) the student carried or possessed a weapon on school premises or a school function; 2) the student knowingly possesses or used illegal drugs or sold or solicited the sale of a controlled substance while at school or at school function; or 3) has inflicted serious bodily injury upon another person while at school or at a school function. The interim setting is still determined by the IEP team.
What if my child is not eligible for special education? In that circumstance they may still be protected if the district had knowledge that the child was a child with a disability before the behavior occurred. The district will be deemed to have such knowledge if the parent expressed their concern in writing that the student was in need of special education, if they requested an evaluation or if the teacher of the child or other personnel expressed specific concerns about the behavior to the director of special education or other personnel.
Can the school call the police? The laws that govern special education students do not do prohibit the district from reporting a crime to the appropriate authorities or prevent law enforcement or judicial authorities from exercising their responsibilities.
First, a special education student can be suspended or removed to an alternative placement for up to 10 school days for the entire school year due to a violation of student conduct. If your child is suspended for more than that or the district is attempting to move him to an alternative placement for more than 10 days then the district must first hold a manifestation determination meeting within 10 days of the decision to move the student. To review so far - the district can decide that they want to suspend for more than 10 days or even decide that they want to move your student but they can NOT actually do it until they conduct a manifestation determination meeting.
What is a manifestation determination? It could be like an IEP or it could be more like an expulsion hearing - depending on your district. Under the law the district, parents, and all relevant members of the IEP team review all relevant information in the students file, including their IEP, relevant observations, and information provided by parents to determine whether the conduct in question was caused by or had a direct and substantial relationship to the child's disability or if it was the direct result of the district's failure to implement the IEP. If either of these apply then the violation was a manifestation of the child's disability. If neither of these apply then it was NOT a manifestation of the child's disability and the suspension or move to an alternative placement goes forward UNLESS you appeal the result by requesting a hearing. If your child is removed to an alternative setting the district is still required to provide him with a FAPE.
If the violation is a manifestation of my student's disability what happens next? The IEP team must then conduct a functional behavioral assessment and implement a behavioral intervention plan or if a behavior intervention plan was already developed they must review the plan and modify it to address the behavior. The child also gets to stay at his or her current placement unless the parents and the district agree to a change in placement.
Are there circumstances where this doesn't apply? Of course there is. The district can remove the student to an interim alternative educational setting for not more than 45 days regardless of whether or not the violation was related to the student's disability in the following circumstances: 1) the student carried or possessed a weapon on school premises or a school function; 2) the student knowingly possesses or used illegal drugs or sold or solicited the sale of a controlled substance while at school or at school function; or 3) has inflicted serious bodily injury upon another person while at school or at a school function. The interim setting is still determined by the IEP team.
What if my child is not eligible for special education? In that circumstance they may still be protected if the district had knowledge that the child was a child with a disability before the behavior occurred. The district will be deemed to have such knowledge if the parent expressed their concern in writing that the student was in need of special education, if they requested an evaluation or if the teacher of the child or other personnel expressed specific concerns about the behavior to the director of special education or other personnel.
Can the school call the police? The laws that govern special education students do not do prohibit the district from reporting a crime to the appropriate authorities or prevent law enforcement or judicial authorities from exercising their responsibilities.
Residential Placements
What is a residential placement? When is it required? Who pays for the room and board cost? This blog will cover a basic overview of residential placements. Because often is is the student with mental health needs that need a therapeutic program like a residential school, this blog is part of our series for Children's Mental Health Awareness Day.
Residential schools can provide students with much needed consistency and intensity in their program, and can provide a therapeutic environment that may not be available in other settings. They exist on the "continuum of placements" under the IDEIA and state special education laws. Generally, residential placements are very restrictive settings, are very expensive, and are burdensome on the family unit, as the child has to be out of the home. Therefore, they are only appropriate as a consideration of the IEP team in situations where it is shown that they are required for that student.
Overview and Definitions:
A "residential placement" is a facility in which the student essentially lives at the school site and is in 24 hour custody. Residential schools are a type of therapeutic placement, and they provide a therapeutic component to address the student's mental health needs in conjunction with addressing the core educational curriculum and academics.
Students require residential placements for a variety of reasons and in a variety of situations. Residential placement is deemed appropriate when the therapeutic and residential components of the program are necessary in order for the student to receive an educational benefit. If placement in a residential program is necessary for the appropriate provision of special education and related services to the student, the program (including both therapeutic and educational components) must be provided at no cost to parents. Students who require residential programs are those for whom the educational needs and emotional needs are "intertwined" or "inseparable" from emotional needs, and a determination is made by the IEP team that the child requires therapeutic and habilitation services in order to "benefit from special education."
Some Basic Examples:
Student with extreme behavioral difficulties, who has been unable to learn appropriate behaviors in the school and community settings, or who is unable to generalize learned behaviors across settings to the extent that they are not able to benefit from the general education campus placement.
Students who require intensive 24-hour supervision and interventions to address aggressive, assaultive, destructive or self-injurious behaviors.
Students whose mental health needs are so significant that they impact their ability to participate in the school environment, attend school regularly, and function on a regular campus.
Students who have not made any progress in their emotional and behavioral goals in a less restrictive setting, and who require interventions across settings and in a therapeutic environment in order to benefit.
Payment for Residential Programs:
If a residential program is required for the student to receive FAPE, then it must be provided at no cost to parents. This does not mean, necessarily, that your school district will be paying the entire cost. Rather, states are permitted to have specific procedures and mechanisms in place to deal with funding for residential schools. In many states, there are cost-sharing arrangements between school districts (or "local education agencies" - LEAs), the state department of education (or "state education agencies" - SEAs), and / or other local or state government agencies. For example, in California, there are state-specific cost provisions that require the Department of Mental Health to fund the residential and therapeutic components of the program, if the child is eligible to recieve mental health services under the state's AB3632 provision.
Ultimately, it is the school district's responsibility to provide individual students with a free appropriate public education (FAPE). And the bottom line, therefore, is that if the student requires residential placement to recieve a FAPE, the District bears the burden of ensuring that it is provided at no cost to parents. There are certainly instances where a child may not qualify for eligibility under AB3632 or whatever program/agency the state has for mental health services, but still requires residential placement as part of their educational program. In those situations, the District must fund the placement, including the residential component, because to fail to do so would be a denial of FAPE to the student.
Residential schools can provide students with much needed consistency and intensity in their program, and can provide a therapeutic environment that may not be available in other settings. They exist on the "continuum of placements" under the IDEIA and state special education laws. Generally, residential placements are very restrictive settings, are very expensive, and are burdensome on the family unit, as the child has to be out of the home. Therefore, they are only appropriate as a consideration of the IEP team in situations where it is shown that they are required for that student.
Overview and Definitions:
A "residential placement" is a facility in which the student essentially lives at the school site and is in 24 hour custody. Residential schools are a type of therapeutic placement, and they provide a therapeutic component to address the student's mental health needs in conjunction with addressing the core educational curriculum and academics.
Students require residential placements for a variety of reasons and in a variety of situations. Residential placement is deemed appropriate when the therapeutic and residential components of the program are necessary in order for the student to receive an educational benefit. If placement in a residential program is necessary for the appropriate provision of special education and related services to the student, the program (including both therapeutic and educational components) must be provided at no cost to parents. Students who require residential programs are those for whom the educational needs and emotional needs are "intertwined" or "inseparable" from emotional needs, and a determination is made by the IEP team that the child requires therapeutic and habilitation services in order to "benefit from special education."
Some Basic Examples:
Student with extreme behavioral difficulties, who has been unable to learn appropriate behaviors in the school and community settings, or who is unable to generalize learned behaviors across settings to the extent that they are not able to benefit from the general education campus placement.
Students who require intensive 24-hour supervision and interventions to address aggressive, assaultive, destructive or self-injurious behaviors.
Students whose mental health needs are so significant that they impact their ability to participate in the school environment, attend school regularly, and function on a regular campus.
Students who have not made any progress in their emotional and behavioral goals in a less restrictive setting, and who require interventions across settings and in a therapeutic environment in order to benefit.
Payment for Residential Programs:
If a residential program is required for the student to receive FAPE, then it must be provided at no cost to parents. This does not mean, necessarily, that your school district will be paying the entire cost. Rather, states are permitted to have specific procedures and mechanisms in place to deal with funding for residential schools. In many states, there are cost-sharing arrangements between school districts (or "local education agencies" - LEAs), the state department of education (or "state education agencies" - SEAs), and / or other local or state government agencies. For example, in California, there are state-specific cost provisions that require the Department of Mental Health to fund the residential and therapeutic components of the program, if the child is eligible to recieve mental health services under the state's AB3632 provision.
Ultimately, it is the school district's responsibility to provide individual students with a free appropriate public education (FAPE). And the bottom line, therefore, is that if the student requires residential placement to recieve a FAPE, the District bears the burden of ensuring that it is provided at no cost to parents. There are certainly instances where a child may not qualify for eligibility under AB3632 or whatever program/agency the state has for mental health services, but still requires residential placement as part of their educational program. In those situations, the District must fund the placement, including the residential component, because to fail to do so would be a denial of FAPE to the student.
Eligibility under the category of Emotional Disturbance ("ED")
Mental health issues, as described in the previous post, are important components of the special education maze for many special needs kids. While mental health concerns arise in every eligibility category, there is one obvious category where they are a centralized concern, and that is the category labeled "Emotional Disturbance".
To qualify for eligibility for special education and related services as someone with an emotional disability, a student must exhibit one of the following five criteria "to a marked degree" over "a long period of time".
These criteria are:
(1) An inability to learn that cannot be explained by intellectual, sensory or health factors.
(2) An inability to build or maintain satisfactory interpersonal relationships with peers and teachers.
(3) Inappropriate types of behavior or feelings under normal circumstances.
(4) A general pervasive mood of unhappiness or depression
(5) A tendency to develop physical symptoms or fears associated with personal or school problems.
What is "to a marked degree" over "a long period of time"? Well, to keep things interesting, the IDEA does not define these terms for us. To provide some guidance, the Office of Special Education Programs ("OSEP") has stated that a "generally acceptable definition" of "a long period of time" is a range of time from two to nine months - assuming preliminary interventions have been implemented and proven ineffective during that period. Letter to Anonymous, 213 IDELR 247 (OSEP 1989). As to the requirement that the behavior be to a "marked degree," OSEP has stated that this refers to the "frequency, duration or intensity of a student's emotionally disturbed behavior in comparison to the behavior of his peers and can be indicative of either degree or acuity or pervasiveness." Letter to Anonymous, 213 IDELR 247 (OSEP 1989).
My child meets this criteria, so now what? If your child meets the criteria for ED, then he or she should receive special education and related services that are appropriate for his or her unique educational needs in this area. If your child is not receiving services to meet these needs, then that means it is time for the IEP team to come together to discuss these unique needs, keeping in mind that "educational" needs can include BOTH academic and non-academic areas - so don't be afraid to explain how the emotional disability affects the needs of your child in both of these areas. The bottom line is that your child's IEP should reflect a program that is appropriate to meet your student's unique needs and enable him/her to receive an educational benefit.
How do I get Mental Health Services? Special education students in any disability category may receive services from county mental health programs. To receive these services, it all goes back to the basics of special education- FAPE - if mental health services are appropriate [the "A" in FAPE] to meet your child's unique educational needs [the "E" in FAPE], then those services must be provided at no cost to the parent [the "F" in FAPE].
To qualify for eligibility for special education and related services as someone with an emotional disability, a student must exhibit one of the following five criteria "to a marked degree" over "a long period of time".
These criteria are:
(1) An inability to learn that cannot be explained by intellectual, sensory or health factors.
(2) An inability to build or maintain satisfactory interpersonal relationships with peers and teachers.
(3) Inappropriate types of behavior or feelings under normal circumstances.
(4) A general pervasive mood of unhappiness or depression
(5) A tendency to develop physical symptoms or fears associated with personal or school problems.
What is "to a marked degree" over "a long period of time"? Well, to keep things interesting, the IDEA does not define these terms for us. To provide some guidance, the Office of Special Education Programs ("OSEP") has stated that a "generally acceptable definition" of "a long period of time" is a range of time from two to nine months - assuming preliminary interventions have been implemented and proven ineffective during that period. Letter to Anonymous, 213 IDELR 247 (OSEP 1989). As to the requirement that the behavior be to a "marked degree," OSEP has stated that this refers to the "frequency, duration or intensity of a student's emotionally disturbed behavior in comparison to the behavior of his peers and can be indicative of either degree or acuity or pervasiveness." Letter to Anonymous, 213 IDELR 247 (OSEP 1989).
My child meets this criteria, so now what? If your child meets the criteria for ED, then he or she should receive special education and related services that are appropriate for his or her unique educational needs in this area. If your child is not receiving services to meet these needs, then that means it is time for the IEP team to come together to discuss these unique needs, keeping in mind that "educational" needs can include BOTH academic and non-academic areas - so don't be afraid to explain how the emotional disability affects the needs of your child in both of these areas. The bottom line is that your child's IEP should reflect a program that is appropriate to meet your student's unique needs and enable him/her to receive an educational benefit.
How do I get Mental Health Services? Special education students in any disability category may receive services from county mental health programs. To receive these services, it all goes back to the basics of special education- FAPE - if mental health services are appropriate [the "A" in FAPE] to meet your child's unique educational needs [the "E" in FAPE], then those services must be provided at no cost to the parent [the "F" in FAPE].
National Children's Mental Health Awareness Day
Today, May 7, 2009, is National Children's Mental Health Awareness Day. This year's theme is "Thriving in the Community," and the awareness campaign has a special emphasis on how high school youth who receive the services they need are more likely to have positive outcomes, such as better grades, and less likely to have negative outcomes, such as involvement with the juvenile and criminal justice systems.So many students who receive special education and related services require mental health services to address behavioral, social and emotional needs. We see a wide range of these issues, from kids who need school based counseling services to address their social skills deficits, to kids who require outside therapies to address their mental health needs, to kids who require residential placements because of the severity of their needs.
Here in California, we have what is referred to as AB3632 services, which are services and supports provided by the Department of Mental Health when a child on an IEP requires mental health services in order to access their curriculum. Read more about AB3632 here: http://www.dmh.ca.gov/Services_and_Programs/Children_and_Youth/AB3632.asp
Mental health issues need to be destigmatized-especially for kids and within the special education system. Why is it that parents are so reluctant to accept special education eligibility if the "category" is Emotional Disturbance (ED)? It's because of the stigma attached to these types of disabilities, the stigma that follows the child and unfortunately leads to misunderstanding by teachers and others who then often just assume "this is a bad kid." These issues can only be addressed by increased awareness on a large scale within school systems and communities.
One problem with mental health disabilities is that there are kids who are never identified as having a disability, but are merely "labelled" as being a disipline problem, so they never recieve the supports and services that they need. It is so true that if kids recieve the supports and services they need, they are more likely to have positive outcomes and less likely to end up on the juvenile or criminal system. As advocates, parents and educators, we have a "window of opportunity" to push for interventions and services for these students so that they can succeed and become productive participants in society.
Another equally concerning problem, however, is the overidentification of students as having "ED." In many instances, students with other disabilities, such as Learning Disabilities, Autism, etc, have related mental health needs, like anxiety or depression. Sometimes these needs are exasperated in situations where these children have not recieved the appropriate educational interventions or supports, and so they are flailing in a program where they are overwhelmed or feel "stupid." More awareness and education needs to take place to truly help parents and educators understand the existence of mental health needs that are related to other disabilities. The core disability may not be ED, but the child still may require mental health services in order to meet their needs.
There are also issues with systemic problems within school systems in terms of placing and servicing children with an "ED" label. Organizations all over the country are attempting to fight the "schoolhouse to jailhouse pipeline" by advocating for systemic changes in how students with emotional and behavioral difficulties are served within the special education system. (read: http://www.splcenter.org/news/item.jsp?aid=282) Too often, these kids have been "wharehoused" into special day classes without true individualization of their programs. Too often, comprehensive behavioral evaluations have not been conducted, or behavior plans have not been based on positive interventions, or haven't been approrpiately implemented. These systemic issues need to be addressed if the educational system is truly going to meet the needs of these kids, increase their positive outcomes and decrease the negative outcomes. An interesting article about these systemic issues can be found at the Southern Poverty Law Center's website at http://www.splcenter.org/legal/news/article.jsp?aid=189&site_area=1.
National Children's Mental Health Awareness Day is a good step in the right direction for addressing the issues that face children with mental health needs. Awareness, community education, decreased stigmatization, and systemic change are all necessary to truly begin to meet the needs of these kids so that they really can thrive in their communities.
Wednesday, May 6, 2009
Foster Care and Kids with Disabilities: My Journey to Special Education Law
May is National Foster Care Month, which is intended to provide an opportunity to focus attention on the year-round needs of children and youth in foster care in America. Foster Care Month focuses not only on promoting awareness and community education about issues related to foster care, but also acknowledges the work and commitment of the people involved in the lives of foster care youth - foster parents, social workers, and organizations.
As I have been reading information on the website for this campaign (www.fostercaremonth.org), I am struck by the relationship between issues facing foster care youth and those facing kids with disabilities, and I'm reminded of how I got involved in special education law in the first place.
I always knew I wanted to go to law school, and that I wanted to focus my career on being an advocate for people who were disadvantaged, vulnerable, and needed a voice. During both of the summers while I was in law school, I went back to my home state of Georgia and worked in the Office of the Child Advocate as a legal intern. The OCA is a state government agency that acts as an "oversight" to the Department of Family and Children's Services offices throughout the state of Georgia. As an intern, I was involved in investigations of cases in which an individual alleged that the system had failed to follow procedures for child protective services cases or foster care cases. In this capacity, I worked on many cases in which the child involved was an older foster care youth, and I started to notice a pattern: many of these kids had disabilities, including learning disabilities, behavioral disorders, developmental disabilities, etc. Many more were probably experiencing disabilities, but were labelled as "behavior problems" or "defiant" instead. I knew nothing about IEPs or what the school districts were legally obligated to provide, and it wasn't my job to look into that. But I started to realize that these kids were being failed by multiple systems; sometimes their family system, the child welfare agency, unfortunately sometimes their foster care placements, and even the school system. They "disrupted" their placements (both school and home) again and again because their needs were not being met.
I'll never forget one situation in particular. The youth in this case was a teenager who had a diagnosis of Bi-Polar disorder. She had been in and out of various foster homes, and returned many times to her parents' home only to then be removed a few months later. The department had been investigating allegations of abuse and neglect, and meanwhile she was in and out of attending school, switching schools, often truant, and failing. The school was aware of her disability (there was a psychoeducational evaluation in her file from her school district). When I spoke with someone who was involved in her foster care case, that individual opined that there was not "abuse" happening in the house because it was just a "volitile relationship." Then later, when I was trying to get information from her school, and asked what was being done to support her, I was given the same opinion - this is just a "volitile student," what can we do. This was a huge shock and wake up call to me. I wanted to scream - but she has a DISABILITY, she's Bi-Polar and not being treated by a doctor for that, or recieving therapy, she has no services or supports at school, of course she is truant and failing and disrupting her foster placements.
It was then I realized the vulnerability of students with disabilities and the need to advocate for services within the school system. My third year in law school, I discovered that Pepperdine was offering a special education law clinic, and I signed up right away. The clinic and the special education law class provided me with the knowledge and understanding about the rights of students with disabilities that I had not previously been exposed to. I learned that students were entilted to Individualized Education Plans, and that students, like many of those I had previously dealt with who had behavior difficulties, had legal protections. I went to IEP meetings with families, and started learning about various disabilities, about the assessment process, and about interventions and services that were available.
Eight years after I worked on those foster care cases, I'm now representing students with disabilities and assisting parents in obtaining appropriate services and supports from their school districts. Although my job does not currently entail representation of foster care youth, I never forget what I experienced and learned those two summers. I found special education law because I was looking for a way to help affect change in one of the systems that is supposed to be supporting these students. Kids with disabilities are some of the most vulnerable people in our society, and to have that overlap with being in the foster care system or the child welfare system increases that vulnerability thousands-fold. This Foster Care Month, I hope that advocates and attorneys for children all over the country - whether they directly represent kids in foster care or not - promote awareness about all of these issues so that as a whole, our community can learn and affect change.
As I have been reading information on the website for this campaign (www.fostercaremonth.org), I am struck by the relationship between issues facing foster care youth and those facing kids with disabilities, and I'm reminded of how I got involved in special education law in the first place.
I always knew I wanted to go to law school, and that I wanted to focus my career on being an advocate for people who were disadvantaged, vulnerable, and needed a voice. During both of the summers while I was in law school, I went back to my home state of Georgia and worked in the Office of the Child Advocate as a legal intern. The OCA is a state government agency that acts as an "oversight" to the Department of Family and Children's Services offices throughout the state of Georgia. As an intern, I was involved in investigations of cases in which an individual alleged that the system had failed to follow procedures for child protective services cases or foster care cases. In this capacity, I worked on many cases in which the child involved was an older foster care youth, and I started to notice a pattern: many of these kids had disabilities, including learning disabilities, behavioral disorders, developmental disabilities, etc. Many more were probably experiencing disabilities, but were labelled as "behavior problems" or "defiant" instead. I knew nothing about IEPs or what the school districts were legally obligated to provide, and it wasn't my job to look into that. But I started to realize that these kids were being failed by multiple systems; sometimes their family system, the child welfare agency, unfortunately sometimes their foster care placements, and even the school system. They "disrupted" their placements (both school and home) again and again because their needs were not being met.
I'll never forget one situation in particular. The youth in this case was a teenager who had a diagnosis of Bi-Polar disorder. She had been in and out of various foster homes, and returned many times to her parents' home only to then be removed a few months later. The department had been investigating allegations of abuse and neglect, and meanwhile she was in and out of attending school, switching schools, often truant, and failing. The school was aware of her disability (there was a psychoeducational evaluation in her file from her school district). When I spoke with someone who was involved in her foster care case, that individual opined that there was not "abuse" happening in the house because it was just a "volitile relationship." Then later, when I was trying to get information from her school, and asked what was being done to support her, I was given the same opinion - this is just a "volitile student," what can we do. This was a huge shock and wake up call to me. I wanted to scream - but she has a DISABILITY, she's Bi-Polar and not being treated by a doctor for that, or recieving therapy, she has no services or supports at school, of course she is truant and failing and disrupting her foster placements.
It was then I realized the vulnerability of students with disabilities and the need to advocate for services within the school system. My third year in law school, I discovered that Pepperdine was offering a special education law clinic, and I signed up right away. The clinic and the special education law class provided me with the knowledge and understanding about the rights of students with disabilities that I had not previously been exposed to. I learned that students were entilted to Individualized Education Plans, and that students, like many of those I had previously dealt with who had behavior difficulties, had legal protections. I went to IEP meetings with families, and started learning about various disabilities, about the assessment process, and about interventions and services that were available.
Eight years after I worked on those foster care cases, I'm now representing students with disabilities and assisting parents in obtaining appropriate services and supports from their school districts. Although my job does not currently entail representation of foster care youth, I never forget what I experienced and learned those two summers. I found special education law because I was looking for a way to help affect change in one of the systems that is supposed to be supporting these students. Kids with disabilities are some of the most vulnerable people in our society, and to have that overlap with being in the foster care system or the child welfare system increases that vulnerability thousands-fold. This Foster Care Month, I hope that advocates and attorneys for children all over the country - whether they directly represent kids in foster care or not - promote awareness about all of these issues so that as a whole, our community can learn and affect change.
Monday, May 4, 2009
The Gilbert Hall School: A New Perspective on Learning to Learn
On Saturday, I attended the Open House for a new private school, Gilbert Hall School (GHS), which is located in Culver City. The Gilbert Hall School is based on a model of learning developed by Dr. Gutstein, director of the Relationship Development Research Institute. Dr. Gutstein has basically taken the principles of Relationship Development Intervention (RDI) and applied them to classroom based learning in an innovative new school.
A few years ago, I was involved in a Fair Hearing with the Westside Regional Center that was on the issue of RDI for a child with autism. At that time, RDI was not widely used or even known here in the LA area, and I read everything I could find on the topic as we were preparing for the case. Those inquiries lead me to contact Dr. Gutstein, who gave me a lot of information about his research and the RDI program. So, when I learned that the GHS model was based on Dr. Gutstein's research and the theories behind RDI, I was intrigued to hear more about it.
During the Open House, Dr. Gutstein gave a very informative lecture on the research and theories behind the GHS model. The focus of the model is on brain development, which Dr. Gutstein argues should be the primary focus in all of education utilizing "best practices." Dr. Gutstein discussed the downfall of the typical educational system's focus on measuring success by tracking specific skills learned or academic milestones met. This focus doesn't allow for the development of flexibility to solve "fuzzy problems," to improvise or deal with "grey areas," or to come up with alternative solutions. A repertoire of skills is not enough to make it in the world; rather, individuals have to develop what Dr. Gutstein refers to as "nueral integration," which is what allows all of us to problem solve and adapt in new situations.
Neural Integration was defined by Dr. Gutstein as a "lifelong process in which the brain's different processing centers learn to work together in increasingly more sophisticated and efficient ways." The brain basically grows and forms with experiences that present mental challenges, and most children develop nueral integration through "guided participation" by their parents. Children learn not only how to address the specific situation they are faced with, but in addressing that situation, they are learning how to think through the next, unique situation.
What does all of this have to do with special needs kids? Dr. Gutstein explained that in 100% of children on the Autism spectrum, the process of developing nueral integration breaks down. Despite the fact that children on the spectrum are diverse in so many other ways, this is the one thing that unites them. Furthermore, other children affected by disabilities such as ADHD and executive dysfunction, Tourette's, Bi-Polar, Seizure Disorder, and Severe Learning Disabilities can also be affected by this neuro-vulnerability.
Dr. Gutstein's model for the Gilbert Hall School is focused on using dynamic and innovative curriculum to specifically address the development of neuro-integration. The GHS school day is focused on intensively developing specific dynamic processes. Classroom activities and academics are a part of the program, and these activities are used not only to teach the specific skill addressed in that lesson (math, reading, etc) but also as a means of teaching the students to think, problem-solve, relate, etc. The curriculum is competency based, and the program operates on a "level" system, very similar to the levels within the RDI program, in the sense that it is an assumption of the program that an individual must reach competency on one level before they will be able to be successful on the next.
This is the core uniqueness of the program - it doesn't focus on the typical measures of academic progress that we see in educational programs, but on the bigger picture of learning - learning to learn, learning to think, problem-solve, and relate to the world. Like the RDI model focuses on underlying relationship functions rather than superficial social skills, the GHS model focuses on the underlying components of thinking and learning rather than on skill sets and achievement markers.
Another unique aspect of the school is the parent involvement component. The RDI program, which forms the basis for much of what the GHS model is, focuses on parental involvement in the development of the child's ability to problem solve and relate to others. The GHS model incorporates this focus, in that the learning goes beyond the classroom and into the home setting. Parents are integrally involved at GHS, and must have a willingness to incorporate new ways of interacting with their child at home in order to allow their child to truly develop and grow.
GHS is a very small school setting, and is currently not a certified Non Public School. For more information about GHS, check out their very extensive website at www.gilberthallschool.com. Also, if you are interested in more information about RDI and Dr. Gutstein's research, check out www.rdiconnect.com.
A few years ago, I was involved in a Fair Hearing with the Westside Regional Center that was on the issue of RDI for a child with autism. At that time, RDI was not widely used or even known here in the LA area, and I read everything I could find on the topic as we were preparing for the case. Those inquiries lead me to contact Dr. Gutstein, who gave me a lot of information about his research and the RDI program. So, when I learned that the GHS model was based on Dr. Gutstein's research and the theories behind RDI, I was intrigued to hear more about it.
During the Open House, Dr. Gutstein gave a very informative lecture on the research and theories behind the GHS model. The focus of the model is on brain development, which Dr. Gutstein argues should be the primary focus in all of education utilizing "best practices." Dr. Gutstein discussed the downfall of the typical educational system's focus on measuring success by tracking specific skills learned or academic milestones met. This focus doesn't allow for the development of flexibility to solve "fuzzy problems," to improvise or deal with "grey areas," or to come up with alternative solutions. A repertoire of skills is not enough to make it in the world; rather, individuals have to develop what Dr. Gutstein refers to as "nueral integration," which is what allows all of us to problem solve and adapt in new situations.
Neural Integration was defined by Dr. Gutstein as a "lifelong process in which the brain's different processing centers learn to work together in increasingly more sophisticated and efficient ways." The brain basically grows and forms with experiences that present mental challenges, and most children develop nueral integration through "guided participation" by their parents. Children learn not only how to address the specific situation they are faced with, but in addressing that situation, they are learning how to think through the next, unique situation.
What does all of this have to do with special needs kids? Dr. Gutstein explained that in 100% of children on the Autism spectrum, the process of developing nueral integration breaks down. Despite the fact that children on the spectrum are diverse in so many other ways, this is the one thing that unites them. Furthermore, other children affected by disabilities such as ADHD and executive dysfunction, Tourette's, Bi-Polar, Seizure Disorder, and Severe Learning Disabilities can also be affected by this neuro-vulnerability.
Dr. Gutstein's model for the Gilbert Hall School is focused on using dynamic and innovative curriculum to specifically address the development of neuro-integration. The GHS school day is focused on intensively developing specific dynamic processes. Classroom activities and academics are a part of the program, and these activities are used not only to teach the specific skill addressed in that lesson (math, reading, etc) but also as a means of teaching the students to think, problem-solve, relate, etc. The curriculum is competency based, and the program operates on a "level" system, very similar to the levels within the RDI program, in the sense that it is an assumption of the program that an individual must reach competency on one level before they will be able to be successful on the next.
This is the core uniqueness of the program - it doesn't focus on the typical measures of academic progress that we see in educational programs, but on the bigger picture of learning - learning to learn, learning to think, problem-solve, and relate to the world. Like the RDI model focuses on underlying relationship functions rather than superficial social skills, the GHS model focuses on the underlying components of thinking and learning rather than on skill sets and achievement markers.
Another unique aspect of the school is the parent involvement component. The RDI program, which forms the basis for much of what the GHS model is, focuses on parental involvement in the development of the child's ability to problem solve and relate to others. The GHS model incorporates this focus, in that the learning goes beyond the classroom and into the home setting. Parents are integrally involved at GHS, and must have a willingness to incorporate new ways of interacting with their child at home in order to allow their child to truly develop and grow.
GHS is a very small school setting, and is currently not a certified Non Public School. For more information about GHS, check out their very extensive website at www.gilberthallschool.com. Also, if you are interested in more information about RDI and Dr. Gutstein's research, check out www.rdiconnect.com.
Friday, May 1, 2009
So what is a NPS anyways?
A Non-Public School ("NPS") is a privately operated, publicly funded school that specializes in providing educational services for students with needs so exceptional they cannot be met in a public school setting. (cacfs.org)
Can my child go to a NPS?
The decision to place a child in a NPS is an IEP team decision. In making a placement determination, the local education agency ("LEA") must ensure that a continuum of program options is available to meet the needs of your child. Thus, when a school district is making its offer to your child, it must consider all or any combination of the following:
Once your child is enrolled in a NPS, that NPS must provide all services specified in the IEP, unless the NPS and LEA agree otherwise.
NPS & the least restrictive environment ("LRE")
A frequently used phrase in special education is least restrictive environment.
Under the IDEIA, LRE is: "to the maximum extent appropriate, children with disabilities . . . are educated with children who are not disabled, and . . . removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily." 20 U.S.C. 1412(a)(5)(A).
Because NPS placement generally means that your child will not be educated with non-disabled peers, the IEP team should take into consideration your child's right to be educated in the LRE before placing him/her in a NPS. In accordance with the IDEIA and LRE, a NPS is appropriate if even with the use of supplementary aides and services, the student will not be able to access an educational benefit in the regular education environment.
Therefore, if you are at an IEP meeting and placement options are being discussed, and the resource, SDC and other supplementary aides/services available within the District are not appropriate to meet your child's unique needs and provide him/her with an educational benefit, then the appropriateness of a NPS should be discussed.
Can my child go to a NPS?
The decision to place a child in a NPS is an IEP team decision. In making a placement determination, the local education agency ("LEA") must ensure that a continuum of program options is available to meet the needs of your child. Thus, when a school district is making its offer to your child, it must consider all or any combination of the following:
- Regular Education
- Resource Specialist Program ("RSP")
- Designated Instruction and Services ("DIS")
- Special Day Classes ("SDC")
- Nonpublic, nonsectarian school ("NPS")
- State Special schools
- Instruction in other settings
- Itinerant instruction
- Instruction using telecommunication and instruction in the home, in hospitals and in other institutions
Once your child is enrolled in a NPS, that NPS must provide all services specified in the IEP, unless the NPS and LEA agree otherwise.
NPS & the least restrictive environment ("LRE")
A frequently used phrase in special education is least restrictive environment.
Under the IDEIA, LRE is: "to the maximum extent appropriate, children with disabilities . . . are educated with children who are not disabled, and . . . removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily." 20 U.S.C. 1412(a)(5)(A).
Because NPS placement generally means that your child will not be educated with non-disabled peers, the IEP team should take into consideration your child's right to be educated in the LRE before placing him/her in a NPS. In accordance with the IDEIA and LRE, a NPS is appropriate if even with the use of supplementary aides and services, the student will not be able to access an educational benefit in the regular education environment.
Therefore, if you are at an IEP meeting and placement options are being discussed, and the resource, SDC and other supplementary aides/services available within the District are not appropriate to meet your child's unique needs and provide him/her with an educational benefit, then the appropriateness of a NPS should be discussed.
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