Pending Legislative Changes Impacting Special Education

Posted on August 21, 2019 by Micki Moran

Illinois House Bill 3586

This bill was supposed to apply only to Chicago Public Schools. However, due to a “drafting error”, the bill reads that the following will apply to every school district in the state. If the bill is signed by Governor Pritzker, the following will be the case.:

  1. All school districts will be required to send home copies of all documents that will be reviewed at an IEP meeting at least three business days prior to the meeting. (Excluding placement and related service minutes.)
  2. All school districts will be required to keep service logs for each provider and to make these service logs available at each IEP meeting and to notify parents about these logs at the beginning of each year. And, if the services are not implemented consistent with the IEP, the District must notify the parents about the fact that they have not been implemented as soon as possible, including information about the right to request compensatory services. These logs must be provided to parents upon request.
  3. All school districts will be required to utilize Response to Intervention (“RTI”).

If these changes are applied to all school districts, this would be very pro-child legislation. The Illinois Alliance of Administrators of Special Education (“IAASE”) is opposed to the bill’s applicability to all schools. Let’s hope that the governor signs this into law as it is.

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Restraint, Seclusion and Isolated Time Outs

Posted on July 3, 2019 by Micki Moran

In the past month, I have been involved in representing parents in several cases where a student was subjected to abuse at the hands of a staff member at a public therapeutic day school. The abuse was related to the use of restraints and time outs. Regrettably, the incidents of restraint, seclusion and the use of isolated time outs were the norm at the school. There were multiple videos showing staff mistreating young children and forcing them into locked rooms for significant lengths of time. 

Schools often state that they only use restraints in limited circumstances, for example, when a student is a danger to themselves or others. That is the rhetoric told to parents when they visited the school as a potential placement for their child. Parents reported that they specifically denied consent to restrain their child or for the school to place them in an isolated time out room. This request was denied over the course of two school years. When the parents asked to see the rooms where the restraints took place, the school and the special education district refused to allow them to view the spaces. Yes, there were several options for restraint and seclusion. Students were often physically dragged down the hallways where they were brought to what the school euphemistically referred to as “the office. “

I have been practicing in the area of special education law for twenty-five years. I have a grown son who has a disability.  There are days that I think nothing will surprise or shock me. I am not cynical but have had some very complicated and tragic cases in my office. I was wrong. The videos were disturbing. However, what was most upsetting about these cases is the failure of the school to understand that the widespread practice of restraint and seclusion, which is deeply imbedded in the culture of many schools, is harmful to children. There are no statistics that support this practice as having any positive impact on children’s behavior. It was clear in an IEP meeting that there was no plan to change the practice of restraint and isolated time out. This was not being done to prevent a student from harming themselves or others but was utilized for minor disciplinary violations and work refusal.

The emphasis was on the fact that they had discharged the staff involved in the incidents. There was no questioning that in one case the student was subjected to these interventions 70 times in the course of a school year.  The system itself is broken. Staff will come and go and may be trained to do a better job of restraining children while still perpetuating a cycle of harm and trauma. Firing the staff does nothing to correct the toxic culture in these schools. Administration should be questioned on how they have allowed this abuse to continue. The use of these interventions is so embedded in the culture of some schools that no one even questions whether this practice has any research base or does damage to children. The real question is how this can be allowed to continue.  These practices will continue unabated unless parents demand that their child not be subjected to restraint and isolated time outs. Regrettably, many if most parents are kept in the dark about these “interventions” and have no idea that they can object to something the school insists on doing.

Things Parents Can Do:

  1. Ask the school or district for their written policy on the use of seclusion, restraint and isolated time out.
  2. Insist on seeing the areas where your child might be sent.
  3. If you have any questions or concerns about your child being secluded or restrained, please call our office at 312-640-0500 to speak to Micki Moran.

Selected Resources:

Dangerous Use of Seclusion and Restraints in Schools Remains Widespread and Difficult to Remedy: A Review of Ten Cases; February 12, 2014; United States Senate; Health, Education, Labor and Pensions Committee; Majority Committee Staff Report

Feds Release New Stats on Restraint and Seclusion in Schools; By Michelle Diament; April 24, 2018; Disability Scoop

A More Compassionate, Productive, Effective Approach to Understanding and Helping Behaviorally Challenged Kids; Dr. Ross Greene; www.livesinthebalance.org

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Reading Disputes

Posted on June 17, 2019 by Micki Moran

The school year is nearly over. I finally have time to catch my breath and look back at what where the main legal issues in the special education area for the 2018-2019 school year that kept me occupied.

Reading disputes were an ongoing concern this year. The failure to teach students to read is not confined to poorly funded or economically disadvantaged schools. Regrettably, there were a number of students I represented and still do, who attend “good school districts”. I sat in several IEP meetings this year where the school personnel seemed unable to construct a plan to remediate a student’s reading deficits. Instead they persisted on offering a one-size fits all program with no research base. These were students who were at least two years below grade level and in some instances 4-5 years below grade level. Parents were panicked and the school scrambled around for what to do without real concern about the appropriateness of that intervention for a particular child.

This haphazard approach is frustrating on many levels. Schools should at the very least be able to teach reading and identify and support struggling readers who should have been able to close the gap or at least make sufficient progress. I am the parent of an adult who struggled with reading and the information regarding appropriate research-based interventions is hardly new news. Many of the same programs that are being used today were available and utilized with efficacy thirty years ago. There are many resources for schools and programs that have been proven effective, however, for reasons that I don’t entirely understand aren’t being utilized. Schools seem to be assigning reading interventions based on what curriculum has been purchased or staff training. There still seems to be little interest in individualizing the intervention based on the student’s needs. Not all students will have decoding needs, some will have comprehension issues and a variety of other language-based learning struggles. No one intervention works for every student.

I have had special education teachers and administrators state in IEP meetings that “we don’t do remediation in high school- we work on compensatory strategies.” There is nothing legal about this response nor is it based on any research. It is violative of the IDEA and is bad practice in general. High school and middle school students need to be taught to read well enough to function in society.

Rather than complain about the state of reading in our educational system I want to offer some practical advice to parents:

  • Make sure that you clearly understand your child’s reading profile. No one score is sufficient to provide the necessary information regarding whether your child is keeping pace with their peers. (e.g. MAP scores or CBM’s) Ask for data regarding the progress and how that compares to same age peers.
  • Understand the reading deficit(s) (e.g. decoding, comprehension, fluency).
  • Passing or better grades are not necessarily and indicator (particularly in elementary school) that your child is not experiencing reading difficulties.
  • Trust your instincts. If you have a concern, request an evaluation.
  • Insist that the school provide a plan for intervention and remediation. This should include objective criterion for progress monitoring.
  • Frequency of data collection and by whom?
    • Program/curriculum that is being utilized?
    • How often is the intervention taking place?
  • Ask for information regarding the use of research-based interventions and an explanation why those interventions are appropriate for your child.

Selected Resources:

What Works Clearinghouse www.ies.ed.gov

International Dyslexia Organization  www.dyslexiaida.org

Florida Center for Reading Research www.fcrr.org

Reading Next- A Vision for Action and Research in Middle and High School Literacy: A Report to the Carnegie Corporation of New York (Alliance for Excellent Education 2004).

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Top Twenty Tips for Getting the IEP your Child Needs

Posted on April 3, 2019 by Micki Moran
  1. Start with data. What is your child able to do? Accurate, data driven, present levels of performance are essential.
  2. Evaluations. (current and comprehensive)
  3. Develop an Agenda for the IEP meeting. Circulate this in advance.
  4. Get organized.
  5. Be clear and concise in your discussions with the school.
  6. Remain calm and respectful. It is easier to dismiss an angry or emotional parent.
  7. Request draft goals in advance. (at least 5 days before the meeting)
  8. Request (insist) on getting copies of any evaluations prior to the meeting.
  9. If you have a private evaluation this also should be shared with the school personnel (at least 5 days before the IEP meeting).
  10. Determine what your priorities are for the upcoming school year. Not everything can happen in a year.
  11.  Ask the IEP team to explain how they intend to get where they want to go educationally with your child. Simple enough. Oftentimes, schools have trouble answering those questions.
  12. Agree in advance on the length of the meeting. Avoid marathon IEP meetings.
  13.  If the school personnel have done things that have been helpful to your child acknowledge those along with your concerns.
  14. Breathe.
  15.  Ask for very specific information on how often and the format for the delivery of related services. For example, will speech therapy be in a group, how many students, when are the services delivered?
  16. Take your time. If you need time to reflect after the meeting don’t be afraid to ask for a few additional days to review the goals and other documents.
  17. Focus on Transition. Where do you want to end up? Transition planning should not be an afterthought. Starting early is important.
  18. Agree on a to do list. Oftentimes, there are follow up tasks in an IEP meeting. Determine who will be responsible for the tasks and the time line for getting those accomplished.
  19. Determine if any additional data is needed.
  20. Review the IEP document and ask for clarification or send your own letter correcting, clarifying or disagreeing.
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Groundhog Day

Posted on January 29, 2019 by Micki Moran

As February approaches I am reminded of the movie Groundhog Day where Bill Murray plays a weatherman who is sent to Punxsutawney, Pennsylvania to cover the annual Groundhog Day festivities. Groundhog Day has become shorthand in popular culture as a reference to an unpleasant or difficult situation that continually repeats. Essentially it has come to mean same stuff, different day. Over the past month, I have had a number of cases where this phrase came to mind. This has been especially true in disputes with school districts regarding reading interventions for students with learning disabilities such as dyslexia.

While there are many issues for students with disabilities that are complex, and schools may struggle to find the right interventions within the context of the law and resources, I am always stunned that schools seem unable, after all these years, to teach students to read. Schools will sometimes go to great lengths in their effort to refuse students the necessary programs that are research based and have been recognized for many years as effective.

While it is true generally that schools are charged with choosing the methodology, the law provides that these choices must be made with the student at the center of the discussion. Recently, I have been told in several IEP meetings from the director or case manager when questioning the appropriateness of a particular reading intervention for a student, “this is what we have,” meaning that the school district has purchased a curriculum and isn’t about to invest in anything more at this point. I am generally not a cynical person, even after many years of doing the work of representing parents and children in special education disputes. However, I do believe that schools are frequently doing a poor job of intervening and helping struggling readers.

The response from school districts changes depending on the age of the student. With no sound reason, middle schools and high schools will frequently announce at an IEP meeting that reading interventions such as Orton-Gillingham and Wilson are for “younger” students and that it isn’t likely to help a student at this age. The schools insist that the IEP be focused on developing compensatory strategies rather than remediation.

If reading interventions are offered to this age range it is generally a hodge-podge of materials developed by teachers who believe they know what works. These programs are designed for a classroom of students who often don’t have the same issues related to reading but are grouped together by achievement or grade level. Many of these interventions are computer based and data on their efficacy is very limited.

Parents need to ask the following questions in an IEP meeting when reading is being discussed:

  1. What is the intervention the district is intending to utilize to remediate the reading deficit?
  2. Why is this appropriate for my child?
  3. What is the research base for this program as it relates to my child’s needs?
  4. What is the training of the staff? [reading teachers aren’t required to be certified by a particular program]
  5. What is the expected progress likely to be based on my child’s profile?
  6. How often will data be taken on progress?
  7. By whom?
  8. How will we know the intervention is working?
  9. How many minutes per week will my child receive instruction?
  10.  How will it be delivered? (in a group, one to one?)

Resources:

What works:

National Center for Educational Evaluation and Regional Assistance: ies.ed.gov/ncee/

National Reading Panel: lincs.ed.gov/

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Accelerated Placements: Illinois School Law Update

Posted on July 24, 2018 by Micki Moran

On July 1, 2018, 105 ILCS 5/14 as amended went into effect. It essentially requires that school districts have non-discriminatory gifted, talented and accelerated programs, and obligates school districts to develop a policy that allows for accelerated placement of eligible students.

This amendment may provide access to gifted, talented and accelerated classes to students previously denied because they had a learning disability in one area and have high abilities in others and may benefit from accelerated placements.

(105 ILCS 5/14A-17)
Sec. 14A-17. Accelerated placement. For purposes of this Article, “accelerated placement” means the placement of a child in an educational setting with curriculum that is usually reserved for children who are older or in higher grades than the child. “Accelerated placement” under this Article or other school district-adopted policies shall include, but need not be limited to, the following types of acceleration: early entrance to kindergarten or first grade, accelerating a child in a single subject, and grade acceleration.
(Source: P.A. 100-421, eff. 7-1-18.)

(105 ILCS 5/14A-32)
Sec. 14A-32. Accelerated placement; school district responsibilities.
(a) Each school district shall have a policy that allows for accelerated placement that includes or incorporates by reference the following components:
(1) a provision that provides that participation in accelerated placement is not limited to those children who have been identified as gifted and talented, but rather is open to all children who demonstrate high ability and who may benefit from accelerated placement;
(2) a fair and equitable decision-making process that involves multiple persons and includes a student’s parents or guardians;
(3) procedures for notifying parents or guardians of a child of a decision affecting that child’s participation in an accelerated placement program; and
(4) an assessment process that includes multiple valid, reliable indicators.
(b) Further, a school district’s accelerated placement policy may include or incorporate by reference, but need not be limited to, the following components:
(1) procedures for annually informing the community at-large, including parents or guardians, about the accelerated placement program and the methods used for the identification of children eligible for accelerated placement;
(2) a process for referral that allows for multiple referrers, including a child’s parents or guardians; other referrers may include licensed education professionals, the child, with the written consent of a parent or guardian, a peer, through a licensed education professional who has knowledge of the referred child’s abilities, or, in case of possible early entrance, a preschool educator, pediatrician, or psychologist who knows the child; and
(3) a provision that provides that children participating in an accelerated placement program and their parents or guardians will be provided a written plan detailing the type of acceleration the child will receive and strategies to support the child.
(c) The State Board of Education shall adopt rules to determine data to be collected regarding accelerated placement and a method of making the information available to the public.
(Source: P.A. 100-421, eff. 7-1-18.)Share on Facebook

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High Stakes Testing and Accommodations

Posted on July 23, 2018 by Micki Moran

High Stakes Testing and Accommodations          

With the emphasis on high stakes testing, as well as the intense and overdone competition at many high schools, there is a push back from school districts and a tendency to deny extended time for students with good grades.

It is not uncommon for parents to come to my office for a consultation for help in navigating their child’s need for testing accommodations. Often, the student may present as a very hard-working student who gets good grades but may report that they do very well on their homework and spend an excessive amount of time studying. At some of the more competitive schools this may mean that they spend an average of 4-5 hours per night just to keep up. They are not failing or even on the surface struggling but the effort is disproportionate. Additionally, it is not atypical for their grades on tests to be lower than their homework and other projects outside of a testing situation.

In my office, the student will may say that they studied very hard for the tests and during the test they were frustrated because they were afraid of running out of time or simply were freezing under the pressure of a timed assessment.

Frequently Asked Questions Regarding Testing Accommodations:

Do I need a current evaluation?

Typically, the answer is yes.

What kind of documentation do I need?

Examples:

  • Recommendations of highly qualified professionals;
  • Proof of past testing accommodations;
  • Observations by educators;
  • Results of psycho-educational or other professional evaluations;
  • An applicant’s history of diagnosis
  • An applicant’s statement of his or her history regarding testing accommodations

[Note: Not all of these are necessarily required]

www.ada.gov/regs2014/testing_accommodations

Do I need to have an IEP or a 504 Plan to qualify for testing accommodations?

Although a student may have never previously received testing accommodations through an IEP, Section 504 plan or a formal private school policy, she may nevertheless be entitled to extended time for the standardized exam. An absence of formal testing accommodations does not preclude a candidate from receiving testing accommodations.

What accommodations are available on tests?

The need for accommodation type is highly individualized. Some examples of accommodations are as follows:

  • Eliminate the use of a scantron
  • Extended time
  • Oral Testing
  • Use of a basic calculator
  • Large print test
  • Use of a scribe
  • Wheelchair access
  • Screen Reading Technology

Resources:

ADA.gov

ADA: Testing Accommodations

Understood.org: What is the difference between a 504 Plan and an IEP?Share on Facebook

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Endrew F.-What have we learned?

Posted on July 23, 2018 by Micki Moran

The cases interpreting and applying the Endrew F. standard have continued to grow and expand the definition of what is required of school districts in their effort to provide a free, appropriate education to students.

The following are bullet points and links to what we have learned since the Endrew F. decision and hopefully will provide a blue-print for parents to advocate for students.

  1. The IEP must be individualized. This means that the IEP document must address your child’s unique needs. (high achieving or high ability students are often provided a one size fits all program). This response is common. Schools may state that this is what we have, or this is our program.
  2. The IEP must be reasonably calculated to help your child make progress.
  3. The student must be afforded the opportunity to meet challenging objectives.
  4. A cookie cutter approach to checking the boxes is not going to pass legal muster.
  5. Parent input is essential.
  6. The IEP must be ambitious in light of your child’s circumstances.

How do I make this happen?

  1. Develop an Agenda for the IEP.
  2. Have current data regarding your child’s abilities and functioning.
  3. Have a clear sense of what are the appropriate goals and objectives for your child.
  4. Set the bar appropriately high for your child.
  5. Don’t settle for the response that “this is what we have” or “this is what our school does.”
  6. Be clear about the goals.
  7. Remain calm but firm.

Endrew F. v. Douglas County School District

Americans with Disabilities ActShare on Facebook

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Summary of Dear Colleague Letter-November 16, 2016, By Attorney Sharon Falen

Posted on June 16, 2016 by Micki Moran

Magnifying glass in hand isolated on white background

On November 16, 2015, the United States Department of Education issued a “Dear Colleague Letter” in an effort to clarify for states and local educational agencies their obligations under the Individual with Disabilities Education Act (IDEA). In summary, the Letter reminds school districts of the intention under which the Act was created, namely to ensure that every student with a disability receives meaningful access to an education on par with the state’s academic standards for all children. In other words, a student’s individualized education plan must be aligned with the statewide and districtwide “academic content standards” for the grade in which he or she is enrolled. This means that the IEP goals for students with disabilities should aim for progress within the same curriculum as that of non-disabled children.

The Letter noted that, as a rule of thumb, an IEP that focuses on ensuring that a child is involved in the general education curriculum will be aligned with the state’s standards. Nevertheless, schools must not lose sight of individualized decision-making in the IEP process. The Letter stressed that a child’s specific disability must always be “an essential consideration” in drafting annual goals. What needs to be determined is how the student will achieve success in higher education, careers, and independent living though services, supplementary aides, modifications, and other supports specific to that child’s disability. The Letter reminds districts that progress must be evaluated, and among the factors to consider are prior rates of growth and progress towards grade-level proficiency.

The Letter notes that a limited exception exists for students with significant cognitive disabilities; IEPs for these students may be measured against “alternative academic achievement standards.” For those students whose present levels of achievement fall significantly below the grade in which they are enrolled, goals should be “ambitions but achievable” in an effort to close the gap.

Finally, the Letter presents an example of how an IEP might be implemented effectively. It is important to note that this process is specific to each student and is data-driven. Specialized instruction should assist the students with IEPs in reaching levels of performance and knowledge expected at their grade level.

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Equality in Education: The Denial of FAPE as a Result of a Systemic Breakdown

Posted on June 16, 2016 by Micki Moran

Shadows and white stripe form a not-equal-to sign.

I started my practice on the North Shore of Chicago for a number of reasons. The most important one was that I lived in one of the suburbs, was a single mother with no family to count on, and the school systems were and are among the best in the state. When I first began representing families in the early years on a pro-bono basis, I was struck by the level of inequality at every level for those students in the city of Chicago and less affluent suburbs. During the first year, I filed a request for a due process hearing and along with alleging the violations of the IDEA and state law, I asserted that the district was in violation of the Supreme Court ruling in Brown v. the Board of Education. The hearing officer dismissed my claim regarding the separate but unequal reasoning indicating that this wasn’t a due process issue. In this segregated school in Chicago where my client attended there were no white students, the school had few resources, and the answer to all my requests were we don’t have that or we don’t do that. The requests for additional speech, specialized reading instruction, and social work services were ones that would have been provided in the suburban districts  without the need for an attorney and would be readily available.

On that day, arriving at the school on the west side, I couldn’t find an entrance. There were no outside doorknobs or handles. The students were locked in their classrooms from the inside and there were few pictures or any of the colorful bulletin boards that are found in schools. The school was quiet – too quiet. That picture was not unique in certain areas of the city. The resources were concentrated on the North Side where children had active if not affluent parents who advocated for them. This was the case in many of the suburbs where I worked now and then. It is unfortunate that this picture has changed little since I began my practice. Parents without resources, both financial and otherwise, are left to their own devices with limited ability to access the services for their children. Most parents who come to me are overwhelmed. They have access to the internet and often have a network of other parents who are savvy and clear about what their child needs. They also have the funds to consult with an attorney. It is easy to forget that this isn’t the case for thousands of parents who are left out of the discussion and the system. When they are told this is all we have, they frequently go away from a meeting assuming that this is all the school an offer.

There are pockets of people who are trying to do better but accessing these resources can be daunting in a large school system for most parents. Knowing who to call and what to say matter greatly.

Resources:

Family Resource Center. frcd.org

Jewish Child & Family Services (JCFS).  www.jcfs.org

The James B. MORAN CENTER for Youth Advocacy. moran-center.org

Equip for Equality. equipforequality.org

Chicago Public Schools Office of Diverse Learners Supports and Services. CPS.edu

ISBE IEP facilitation. www.isbe.state.il.us

 

 

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