Parental Consent for the Initial Provision of Special Education and Related Services

This is a picture of my daughter standing on the balcony of our hotel (Dusit Thani) in New Cairo. There was an "oasis" outside our window but beyond that is it mostly sand and new construction homes.

The Special Education Process Guide for South Carolina revised 10/1/10 clarifies that when a parent provides consent for the initial provision of special education and related services it does not mean the parents are consenting to each service included in the initial IEP developed for their child. This consent requirement only applies to the initial provision of special education and related services generally, and not to the particular special education and related services to be included in the child's initial IEP. In order to give informed consent to the initial provision of special education and related services under 34 CFR Section 300.300(b)(1), parents must be fully informed of what special education and related services are and the types of services their child might need, but not the exact program of services that would be included in an IEP to be developed for their child. Once the LEA has obtained parental consent and before the inital provision of special education and related services, the IEP team would convene a meeting to develop an IEP for the child in accordance with 34 CFR Sections 300.320 through 300.324.

What About a Guardian Ad Litem?

This is a random picture I took while traveling from the Cairo International Airport to our hotel. Notice all the sand on the road...

Page 46566 of the comments to the IDEA 2004 regulations explains "We agree that guardians with limited appointments that do not qualify them to act as a parent of the child generally, or do not authorize them to make educational decisions for the child, should not be considered to be a parent within the meaning of these regulations." What this means...there are differnt kinds of guardians who serve in different roles as authorized by the State. In South Carolina, a Guardian ad Litem is a volunteer trained to perform five important functions: investigator, reporter, spokesperson, monitor, and protector. This person would not be able to make educational decisions on behalf of the child (e.g., receive notice, give or revoke consent, file formal complaints, request mediation, file for a due process hearing, give or deny permission for release of records, etc.) unless a court authorized them to act as a child's parent. If in doubt, school officials need to ask for documentation from a court authorizing the guardian to make educational decisions.

What About Step-Parents?

Another view of Cairo from the plane...

A letter from the Family Policy and Compliance Office dated August 20, 2004 clarifies the term "parent" includes natural parents, a guardian, or an individual acting as a parent in the absence of a parent or a guardian. The Department has determined that a parent is absent if he or she is not present in the day-to-day home environment of the child. Accordingly, a stepparent has rights under the FERPA where the stepparent is present on a day-to-day basis with the natural parent and child and the other parent is absent from that home. In such cases, stepparents have the same rights under the FERPA as do natural parents. Conversely, a stepparent who is not present on a day-to-day basis in the home of the child does not have rights under the FERPA.

Who is Considered to be a Parent?

A view of Cairo from the plane...

34 C.F.R. Section 300.30 defines the term "parent":
Parent includes a biological or adoptive parent; a guardian; a foster parent; an individual acting as a parent in the absence of a biological or adoptive parent or a guardian, who has legal responsibility for the child's welfare (including a grandparent, stepparent, or other relative); or a surrogate parent.
With regard to non-custodial parents, as long as the non-custodial parent's rights are not terminated or restricted through a court order, the non-custodial parent has equal rights to access the student's education record. The non-custodial parent retains the right to review or amend the records and consent to the disclosure of his or her child's records.

Surrogate Parent Information

That's me in the sunglasses with my daughter (blue scarf) and our friend Ai. Yes...that is the Sphinx between the two pyramids.

Here are some surrogate parent tips:

• Each public agency must ensure a surrogate parent is assigned for a child with a disability when: no parent can be identified; the public agency, after reasonable efforts, cannot locate a parent; the child is a ward of the State; or the child is an unaccompanied homeless youth (34 CFR Section 300.519)
• The surrogate parent may not be an employee of the state educational agency (SEA)/LEA/or other agency involved in the education or care of the child
• The surrogate parent may be an employee of a non-public agency that only provides non-educational care for the child
• The SEA must ensure surrogate parents are appointed not more than (30) days after determination of need
• Surrogate parents must have knowledge and skills that ensure adequate representation for the child
• A foster parent may serve as the surrogate parent if (s)he has no interest that conflicts with the child's interest and is willing to make educational decisions required of parents under IDEA

What Constitutes an Educational Record?

Another pyramid/camel pic...

So, what constitutes an educational record under FERPA?

Educational records are records directly related to a student and maintained by an educational agency or institution or by a party acting for the agency or institution.

They may include, but are not limited to:

• academic work completed by a student;
• attendance data;
• scores and test protocols of standardized intelligence, aptitude, and psychological tests
• interest inventory results;
• health data;
• family background information;
• information from teachers or counselors;
• documentation regarding student behaviors;
• individualized education programs (IEPs);
• IEP meeting minutes of conference summaries;
• documentation of parent notice and consent;
• videotapes, such as a videotape of a student with a disability made by a physical therapist working with the student; and
• audio tapes of IEP meetings.

FERPA and IDEA

This is St. George's Church in Old Cairo. There is a dungeon under the church we toured. Very dark, cramped, stuffy. Not a place I'd want to be.

The Family Educational Rights and Privacy Act (FERPA) is a federal law that protects the privacy of student education records. The law applies to all schools that receive funds under a United States Department of Education program, including Head Start programs. (20 USC section 1232g; 34 CFR Part 99)

The state must also have policies and procedures in effect to ensure that public agencies in the state comply with 34 CFR sections 300.610 through 300.626 related to protecting the confidentiality of any personally identifiable information collected, used, or maintained under Part B of the IDEA.

What rights are available under the IDEA and the FERPA?

34 CFR section 300.613--Access rights

• Parents or eligible students have the right to inspect and review the student's education records maintained by the LEA.
• The LEA must comply with a request without unneccessary delay and before any meeting regarding an IEP, any due process hearing pursuant to section 300.507, any due process hearing related to the discipline provisions in sections 300.530 through 300.532, or a resolution session pursuant to section 300.510.
• In other situations the LEA must comply no later than 45 calendar days after the request is made.

Common PLAAFP Errors

Here is another pic of Old Cairo. There is a solid gate at least a foot thick at the entrance of this part of the city. Our guide explained that many, many years ago this area was inhabited by the Christian population.

Here is a list of common errors found in the Present Levels of Academic and Functional Performance section of IEPs:

1. Writing vague descriptions of academic and/or functional needs
2. Writing statements that are not related to a student's disability
3. Writing statements based solely on a standardized battery of tests
4. Writing PLAAFP statements that are not individualized
5. Using a student's disability as the PLAAFP statement
   

PLAAFP Checklist

Here's a picture of my daughter and a different angle shot of the courtyard of the Hanging Church in Old Cairo.

Here is a Present Levels of Academic and Functional Performance Checklist to help in covering the bases...

1. Is the statement written in understandable language and is clear to everone on the team?
2. Is the statement precise enough to lead to measurable annual goals?
3. Does the statement describe how the student's disability affects educational performance?
4. Does the statement explain how the student's disability affects his or her participation in the general education setting?
5. Does the statement describe only the unique needs that will be addressed in the IEP?
6. Do all needs identified in the statement lead to an annual goal, special education service, or both?

Gathering Information for the PLAAFP

Another Cairo pic...this is the courtyard entrance to the Hanging Church mentioned in a prior email. It is the most famous Coptic Christain Church in Cairo.

Gathering information and writing the Present Levels of Academic and Functional Performance (PLAAFP) can be a daunting task. Basically, there are four things to consider and address in the narrative:

1. Determine the student's current academic strengths and needs
2. Determine the student's current functional strengths and needs
3. Determine how the student's academic and functional needs are discrepant from expected levels of academic and functional skills
4. Determine what amount of growth can be expected within one year's time that will significantly close this gap.

Some of the common errors in this section include:

1. Writing vague descriptions of academic and/or functional needs
2. Writing statements that are not related to a student's disability
3. Writing statements based solely on a standardized battery of tests
4. Writing PLAAFP statements that are not individualized
5. Using a student's disability as the PLAAFP statement

One final challenge... this section needs to pass the "stranger test". Can a parent or teacher read this section and understand what it means?

Academic and Functional Strengths and Needs

Another Cairo pic. I shopped a store called Spinney's to get staples for my daugher's dorm. It was pretty much like our Walmart on Black Friday...very crowded with long lines. Keep in mind I was by myself and the only Arabic I know is "hello", "yes", and "thank you". I was so glad to make instant friends while waiting to pay the bill. One of them spoke English and wanted a picture of me. I kept the receipt as a token although I can't read it!

Section II of the EXCENT IEP is where case managers provide a description of the academic and functional strengths and needs of the student and how the disability affects involvement and progress in the general curriculum. For preschoolers, involvement in appropriate activities and desribed. This section is very important as it provides the starting point for all decisions regarding an IEP. It might be helpful to think about this section as an opportunity to explain in words what the student is like in the event they transfer to another teacher who needs to learn about their new student without the luxury of a phone call. When doing IEP Folder Reviews, I make a 4-square grid at the top of the section and write AS (academic strengths), AN (academic needs), FS (functional strengths), and FN (functional needs) in the boxes. I check them off as I read a description of each in this section to make sure all four are addressed. This section must provide rationale for the unique need for special education by comparing the student's performance to that of his/her classroom peers. An example of a FN description of behavior might read like this "Hannah has difficulty staying on task during instruction. During three structured onservation periods, she was on task an averge of 54% of the time observed. Her peers were on task an average of 88% of the time observed. Hannah's difficulty remaining on task results in low achievement in classes that require sustained attention to task.

I'll continue this section on the next entry...

Diploma versus Certifcate in Section I

Another Cairo pic...This is a friend of mine (Said) who writes for a German magazine (he is holding it up). Said is standing in front of one of the Great Pyramids and if you look closely you can see the silouette of the Sphinx. One of his most recent pieces was about education in Cairo. He speaks fluent Egyptian, German, and English!

Section I of the EXCENT IEP also address whether or not a student with disabilities is working toward a regular state high school diploma or a certificate. The important thing to remember here is that the State Certificate and the District Attendance Credential are two very different documents. The South Carolina High School Certificate is earned by students who have at least 24 Carnegie Units but failed to pass all subtests of the HSAP. Our Oconee County High School Certificate is for students with disabilities who have not earned the required units of credit or passed exit examinations; however, they have met attendance requirements and have fulfilled the requirements of their Individualized Education Plans.

Another Cairo pic...we toured the Saint Virgin Mary's Coptic Orthodox Church in Old Cairo. It is also called the Hanging Church as it sits above a gatehouse of the Babylon Fortress. Experts believe it was likely built around 690 to 692. Awesome!

Continuing with the last two transition services listed in Section I of the EXCENT IEP, the Development of Employment and Post School Objectives are components of a transition program that “the student needs to achieve desired post-secondary goals. These could be services leading to a job or career or those that support activities done occasionally such as registering to vote, filing taxes, renting a home, accessing medical services, filing for insurance or accessing adult services such as Social Security Income ”. And finally, a Functional Vocational Evaluation is one component of a transition program that is included “if appropriate”. This evaluation involves “an assessment process that provides information about job or career interests, aptitudes, and skills. Information may be gathered through situational assessment, observations or formal measures, and should be practical. The IEP team could use this information to refine services outlined in the IEP”.

Source: Storms, J., O’Leary, E., & Williams, J. (2000). Transition requirements: A guide for states, districts, schools, universities and families. Eugene: University of Oregon, Western Regional Resource Center

That is me on the back of a camel in front of the pyramids. My daughter and I traveled to Egypt to get her moved into the American University of Cairo where she will study for two years. What an adventure!

Picking up from my last blog entry...transition services should focus on academic and functional achievement to facilitate movement from school to post-school life and can involve the acquisition of daily living skills and related services in addition to instruction, community experiences, the development of employment and post-school objectives, and functional vocation evaluation. The need for acquisition of daily living skills typically applies to lower functioning students who already have annual goals in this area. Related services for transition are similar to the related services in an IEP that are needed for a student to meet their post-secondary goals. Examples might be occupational therapy, physical therapy, interpreting services or perhaps counseling. I'll finish up the topic of transition services (i.e., development of employment and post-school objectives and functional vocational evaluation) in my next entry. It is good to be home!

Transition Services

Transition services should focus on academic and functional achievement to facilitate movement from school to post-school life. Transition services can be instruction, community experiences, acquisition of daily living skills, related services, development of employment and post-school objectives, and functional vocation evaluation. In Oconee County, we have a Students Transitioning to Adult Roles in Society (STARS) program for our certificate track students. Participation in STARS, Vocational Transition, or Vocational Rehabilitation does not automatically mean the "Community Experiences" box in the Transition section of the IEP is checked. If the "Community Experiences" box is checked, it means there must be a need for the student to participate in a community experience to meet their post-secondary goal and there must be a community experience goal in the IEP. For example, if a student has trouble staying in his assigned work area then the IEP could have an annual goal such as "Amanda will stay in her assigned work area at least 35 out of 40 minutes over 3 consecutive work days." I will address the remaining transition services over the next few blog entries.

SC Career Cluster

I was having problems with blogger yesterday. It took several attempts to get my entry to post...then the last paragraph was chopped off. Things seem to be working better this morning so yesterday's entry has been "repaired".

Today's transition topic is short and sweet and concerns the SC Career Cluster. IEP teams and guidance counselors will need to work together to make sure the SC Career Cluster in Section I of the EXCENT IEP matches the Career Cluster in the Individual Graduation Plan (IGP) of students with disabilities. Seeing as how student career interests are likely to change over the years, it is possible that students with disabilities might meet with their career counselors to change their IGPs. When this happens, special education teachers need to know so they can make the same changes to the IEP.

Post-Secondary Goal Must be Based on Age-Appropriate Transition Assessment

Please remember that IEPs must show evidence that measurable post-secondary goals(s) were based on age-appropriate transition assessments. This evidence is documented in two places in the IEP in EXCENT: Section I under "Student interests and preferences" and Section II under "Present Levels of Academic Achievement and Functional Performance". Here are some examples of evidence showing that post-secondary goal(s) were based on age-appropriate transition assessments under Section I "Student interests and preferences":

• "Based on the Kuder Career Planning System, Shaquille's top four carreer clusters are..."


• "According to the results of the Becker Work Adjustment Profile, Amy's work attitude and work habits..."


• "An interview with Michael revealed his interests and preferences to be..."
  

There are numerous transition assessments developed for various ages and ability (e.g., Skills Assessment Module, the Becker Reading Free Vocational Interest Inventory, SCOIS). Please remember to show evidence that measurable post-secondary goals(s) were based on age-appropriate transition assessments by listing them in Section II under "Present Levels of Academic Achievement and Functional Performance" as well. Since we can no longer type "See attached reports" in the findings section, it will be necessary to summarize the results. If the teacher conducts an interview with the student, the interview form must be signed and dated by the student and teacher. If you have questions about transition, please contact Betsy Burkett, SDOCs Transition Facilitator, at extension 4427.

Transition Services

Transition service needs must be discussed for students age thirteen and older during the effective dates of the IEP. They can also be discussed for younger students if the parents(s) or the IEP team determine it is appropriate. What this means is that every student age thirteen and older during the effective dates of the IEP must have a post-secondary goal reported in the transition section (Section I) of the IEP. This goal must address education or training and employment, or for low functioning students, the transition goal might be to learn indendent living skills. The wording of the transition goal is like an IEP goals in that you must use the words "will study" or "will attend" (education and training) and "will become" (employment). IEPs are out of compliance if they use wording like "hopes to become", "aspires to be employed", or "will seek a job". Think about it like this...we do not write a goal for math using the wording "When given 25 mixed conversions (fraction to decimal to percent), Brandon hopes to respond correctly to at least 20 within 20 minutes by the annual review date of the IEP". If you have questions about writing post-secondary goals, please contact your curriculum coordinator in special services or Betsy Burkett (ext. 4427) our Transition Facilitator. Thanks for doing your best to keep SDOC in compliance with South Carolina's Indicator 13 of the State Performance Plan.

First Day for Students

Good Morning! I wish you all of you an exciting and smooth start back to school. It was wonderful seeing the buses on the road this morning and students waiting at bus stops ready to see their friends and get back to work. The Department of Special Servies will be out in the schools for most of the day providing support and making sure needs are met. The schools are divided as follows:

Kent: BRE, NSE, West Elem, SMS

Sam: JMB, Keowee, Wal Elem, Wal MS, Wal HS

Melissa: OPE, Ravenel, Adult Ed, Code LC

Marge: FOE, OIS, WOMS, WOHS, TSE, TSMH, SHS

I look forward to seeing students and teachers today. Have great first day of school!

Definition of a Parent In South Carolina

Sometimes I get invitation letter questions about situations where the parents of a student with a disability are divorced and one parent has custody and the other doesn't or the student is in custody of an organization or individual rather than the biological parents. I am hoping this state definition of a "Parent" will help in choosing who to include on an invitation letter.

B. DEFINITION OF PARENT

LEA personnel must determine the appropriate person(s) to make educational decisions on behalf of the child. Those individuals have a right to receive notice, give or revoke consent, file formal complaints, request mediation, file for a due process hearing, give or deny permission for release of records, etc.

In South Carolina “parent” is defined as:

a) Parent means
(1) A biological or adoptive parent of a child;
(2) A foster parent, unless state law, regulations, or contractual obligations with a State or local entity prohibit a foster parent from acting as a parent;
(3) A guardian generally authorized to act as the child’s parent, or authorized to make educational decisions for the child (but not the state if the child is a ward of the State);
(4) An individual acting in the place of a biological or adoptive parent (including a grandparent, stepparent, or other relative) with whom the child lives, or an individual who is legally responsible for the child’s welfare; or
(5) A surrogate parent who has been appointed in accordance with 34 C.F.R. § 300.519 of the IDEA. (S.C. Code Ann. § 63-1-40 (2008))

If there is more than one party qualified to act as parent and the biological or adoptive parent attempts to act as the parent the biological or adoptive parent must be presumed to be the parent and legal decision-makers unless the biological or adoptive parent does not have legal authority to make educational decisions for the child. A judge may decree or order a person acting as a parent or legal guardian to act as the “parent” to make educational decisions about the child. The LEA must recognize this person(s) as the legal decision maker for the child. (34 C.F.R. § 300.30 (b)(1)(2)).

Transition Service Participants in an IEP Meeting

IDEA 2004 300.321(b), describes transition service participants in an IEP meeting:
(1) In accordance with paragraph (a)(7) of this section [see my blog entry for 8/11/10], the public agency must invite a child with a disability to attend the child's IEP Team meeting if a purpose of the meeting will be the consideration of the postsecondary goals for the child and the transition services needed to assist the child in reaching those goals under 300.320(b).
(2) If the child does not attend the IEP Team meeting, the public agency must take other steps to endure that the child's preferences and interests are considered.
(3) To the extend appropriate, with the consent of the parents or a child who has reached the age of majority, in implementing the requirements of paragraph (b)(1) of this section, the public agency must invite a representataive of any participaing agency that is likely to be responsible for providing or paying for transition services.

Please remember that in South Carolina transition services must be addressed for any student with an IEP aged 13 or older or if the student will turn 13 sometime during the life of the IEP. Betsy Burkett (ext 4427) is the Transition Coach in SDOC and is available to assist with transition questions.

The IEP Team

IEP case managers: please refresh yourselves with IDEA 2004 Section 300.321 which provides guidance on the composition of the IEP team. It states:

(a) General. The public agency must ensure that the IEP Team for each child with a disability includes--

(1) The parents of the child;

(2) Not less than one regular education teacher of the child (if the child is, or may be, participating in the regular education environment);

(3) Not less than one special education teacher of the child, or where appropriate, not less than one special education provider of the child;

(4) A representative of the public agency who--

(i) Is qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of children with disabilities;

(ii) Is knowledgeable about the general edcuation curriculum; and

(iii) Is knowledgeable about the availability of resources of the public agency

(5) An individual who can interpret the instructional implications of evaluation result, who may be a member of the team described in paragraphs (a)(2) through (a)(6) of this section;

(6) At the discretion of the parent or the agency, other individuals who have knowledge or special expertise regarding the child, including related services personnel as appropriate; and

(7) Whenever appropriate, the child with a disability.

It is always advised to schedule your IEP meetings at least a week in advance of the annual review date just in case for some reason you have difficulty getting the IEP team together. It can be quite challenging to find a commonly agreed upon day and hour to get several busy people together around the table. Keep in mind that it is perfectly acceptable to hold a conference call with the parent and other IEP team members when the parent is unable to participate. Just be sure to have each team member introduce himself/herself so the parent is aware of who is in the room.

I will address IEP team participation requirements for students eligible for transition services tomorrow. Have a great day!

Listing of Parental Rights

It is a maxim that special education requires extensive paperwork comprising numerous checked boxes in addition to narratives on IEPs and related documentation. One very important box that must be checked on the Notification of Meeting (Invitation Letter) is the Listing of Parental Rights or what most of commonly refer to as the Procedural Safeguards Notice (PSN). The very first page, first paragraph, of the PSN explains that according to 34 CFR Section 300.504(a), a copy of the PSN must be given to parents only one time a school year, except that a copy must be given to the parents also: (1) upon initial referral or parent request for evaluation; (2) upon receipt of the first State complaint under 34 CFR Sections 300.151 through 300.153 and upon receipt of the first due process complaint under Section 300.507 in a school year; (3) when a decision is made to take a disciplinary action that constitutes a change of placement; and (4) upon parent request. In SDOC, we document proof of annually presenting the PSN to parents annually by checking the Listing of Parental Rights on the Notification of Meeting for all annual reviews and special reviews applicable to items 1-4 above. Please remember to check this very important box when appropriate. Thanks for all your hard work!

Welcome Back SDOC Special Educators!!!

For educators, the first day back to school is very much like New Year's Day. It is an opportunity for a fresh start...a resolution to do better than the previous year. Our special education teachers work tremendously hard and are dedicated to improving outcomes for students with disabilities. They spend several hours developing IEPs that serve as road maps to improved outcomes and spell out what districts will do to ensure a free and appropropriate education for each student. My blog entries at the beginning of this school year will focus on some reminders for teachers when developing IEPs. An IEP folder review conducted over the summer revealed the need for some refresher tips. For example, in Section I of the IEP, there is a box for Excluding Summer Months. Unless a student is being served at one of our year-round camps (Wilderness Way Camp School or Fairplay Wilderness Camp School) this box will be checked. Also, if an IEP will span two grade levels, the Grade for this IEP section should indicate such (e.g. 7-8). Please check my blog regularly for additional tips and other information related to the provision of special education services. Have a great year!!

No Consent for the 3-year Reevaluation

In Gwinnett County School District, 53 IDELR 341 (SEA GA 2010), a parent did not provide consent for the triennial revaluation of their child with a disability. The IEP team resorted to reviewing data with regard to progress toward IEP goals and objectives, anecdotal reports, and test results. Ultimately, the team determined there was enough documentation to make an elibility determination that the student continued to have a disability and needed special education services. An administrative law judge determined the placement was appropriate and that proposed goals were adequate. When parents choose not to sign consent for re-evaluation, IEP teams should examine existing data from the following sources: the student (ask what his/her strengths are), teachers, disciplinary reports, progress toward the current IEP, guidance counselors, behavior observations, assessment results, outside agencies (if you have a release for information), and parents.

Parent of a Student with Asperger Syndrome and ADD Revocates Consent for IDEA Services

In Jefferson County Board of Education, 110 LRP 2743 (SEA AL 9/29/09), an Independent Hearing Officer (IHO) ruled a local education agency did not violate IDEA when a parent asked the district to find her child eligible for special eduation services a second time around. The parent withdrew her child from school after several disciplinary infractions then reenrolled her child 6 months later and signed a document revoking consent for special education services. Following an incident involving a smoke bomb, a hearing officer ordered the student to attend boot camp for 30 days. The parent then sought placement back into the special education program due to health concerns of her child. When the district correctly treated the referral as an initial evaluation for IDEA services and scheduled a meeting, the parent initiated due process alleging a denial of FAPE as services were not reinitiated automatically. The IHO wrote, "While it appears that the [IDEA amendments on revocation] do not clarify such an issue,... it appears cross-purpose to anticipate that the parent can turn on and off the services like a water faucet."

Congratulations West-Oak Middle School!

I am continually inspired by the dedication, hard work and passion exhibited by our special education teachers. Way to go Joey Bryson and Cynthia Opperman for working diligently to earn a $5,000 Toolbox for Education grant awarded by Lowe's Charitable and Educational Foundation. The money will be used for creating a hands on career development and exploration center for at-risk students. West-Oak Middle is one of more than 450 schools or parent organizations to be awarded a Lowe’s Toolbox for Education grant for school improvement projects benefiting K-12 public education across the United States during the 2009-2010 school year. The goal of the program is to help students take ownership of their education and ultimately decrease the drop-out rate of our at-risk student population. Career exploration in business and marketing, home and consumer science, manipulatory processing and production, and industrial technology will be offered. Students will experience what it is like to be an employee in a real-work setting as teachers take on the role of supervisor and assign duties requiring problem-solving, locating materials, following written directions, and documenting performance. The project is scheduled to be up and running by fall of 2010. I am sincerely looking forward to visiting this program next year. Kudos to Cynthia and Joey for doing what it takes to see their vision come to fruition!

A Special Graduation at WOHS

Yesterday I had the honor of presenting closing remarks at the graduation celebration of the T-Warrior and F-Troop classes at West-Oak High School. Three T-Warrior students (Daniel Hightower, Patrick McKay, and Samuel Padilla) donned their caps and gowns to walk across the stage and accept their certificates of achievement. The program was emotional for several participants as students from both classes signed to inspirational songs like "Do I Make You Proud", "Who I Was Born To Be", and "What the World Needs Now." A senior slide show presented photograhs of the graduating students with their friends, teachers, and administration over the course time in their program. The celebration that followed was catered by Considerate Catering comprised of students from our STARS (Students Transitioning into Adult Roles in Society) program at the Hamilton Career Center. The food and drink was delicious and made the celebration extra special. Hats off to our special education teachers, support staff, service learning students, parents, and administration for making yesterday an unforgettable day.

A Visit to Hamilton Career Center

Last week I was able to observe in our Transition to the Real World (TRW) class at Hamilton Career Center. When I entered the classroom all students were at computers working on an assignment that required them to find information about state agencies that provide services to individuals in our community. The teacher monitored individual progress and provided guiding questions to help students understand the importance of knowing where to go to get assistance. Afterwards, we took a short walk to the newly renovated Home Center located on the HCC campus. The purpose of this facility is to provide learning experiences to our 18-21 year old students with disabilities to help them become independent and contributing members of their local community. They are learning basic housekeeping, maintaining a house structure, demonstrating safety in using home appliances, maintaining a garden and shrubbery, and identifying mechanical and electrical elements of a home such as an HVAC system and breaker box. The teacher of this program received a grant to finacially support his vision for enabling our students to achieve competitive employment, improving their social skills, improving daily living skills, and enabling students to access appropriate community agencies. This program is further evidence that leadership is present throughout our district as teachers take the initiative to make things happen.

A Visit to James M Brown's Preschool Intervention Class

I recently visited the PIP class at James M Brown Elementary and couldn't help but smile as I watched several preschoolers participate in an exciting "hands-on" activity using a Smart Board. Before the lesson began, the teacher led the class in movement as they watched a video and sang a "prep" song reminding them of good listening and learning behaviors. Afterwards, every student was provided an opportunity to individually interact with the Smart Board while answering a question of the day. The teacher built on prior knowledge and experiences by having each boy (yes...all boys in this class) remember a recent field trip to a farm. The students were actively involved in the instruction as they voted "Yes" or "No" in response to "Did you eat the strawberries you picked at the farm?" The teacher was enthusiastic and energetic as she provided continuous positive feedback and praise. These preschoolers were having so much fun they likely didn't even realize they were learning very important skills: turn-taking, attending to the teacher, staying in your seat, the concepts of "Yes" and "No", social skills (acknowledging peers), and organizing information (they had to drag symbols to the correct place on the Smart Board screen). I bet coming to school is the best part of the day for many of these little ones.

Pre-planning is a Key Consideration in Manifestation Determination Reviews

In re: Student with a Disability, 53 IDELR 205 (SEA VA 2009), a due process case, an independent hearing officer concurred with a Virginia district that a student's disruptive behavior was planned and willful; therefore, it was not a result of his ADHD. Based on the student's explaination that he was trying to get attention, in addition to the comments of the teacher who confronted him after the incident, the manifestation determination review team correctly concluded that the student's behavior did not reflect the impulsivity commonly characterized by his disability.

Planning Undermines Impulse Control Argument

A state due process hearing (San Diego Unified School District, 109 LRP 54649 [SEA CA 08/12/08]) resulted in a decision that a California school district was justified in disciplining a student with a Specific Learning Disability and ADHD just as if he was a student without a disability. During a manifestation determination review, the IEP correctly concluded that the student's drug distribution did not have a direct and substantial relationship to the student's disability. Investigation into the incident revealed that his actions were not conducted on the spur of the moment but involved planning. Administrators are advised to conduct thorough investigations of behavior incidents so they can bring the information to manifestation determination hearings for the purpose of guiding decisions.

Middle School Student's Misconduct Determined Unrelated to ADD

In Hollingsworth v. Hackler, 53 IDELR 298 (Texas Court of Appeals 2009), the court reversed the denial of appellants' (principal and assistant principal) motions for summary judgment and rendered judgment that the parents take nothing on their Individuals with Disabilities Education Act claims brought under the Civil Rights Act. In this case the student made an obscene gesture at classmates who were making fun of him. An admission, review, and dismissal (ARD) committee meeting was held and the committee found that the student's behavior was not a manifestation of his attention deficit disorder. According to the case summary, a dispute ensued and the parents sued. The principal and assistant principal challenged the denial of their summary judgment motion under as to the parents' claim. On appeal, the court reversed and rendered judgment that the parents take nothing on this claim. The parents were members of the ARD committee that conducted the manifestation determination review of the student's behavior. The parents did not show that the disciplinary procedures applicable to children without disabilities required parental involvement in the school's disciplinary decisions, for purposes of 20 U.S.C.S. § 1415(k)(5)(A). There was no evidence that the district violated the student's rights under the Act by placing him in a disciplinary alternative education program for 45 days without referring the disciplinary decision to the ARD committee. Thus, principal and assistant principal were immune from individual liability to the parents for civil damages.

IDEA Does Not Require Students to be Classified by Their Disability

In Pohorecki v. Anthony Wayne Local School District, 53 IDELR 22 (N.D. Ohio 2009), a court determined that the IDEA does not require children to be classified by their disability type. It does require that a child identified as needing special education and related services be regarded as a child with a disability and that a free and appropriate public education be provided. The label or disability category assigned merely guides IEP teams as they develop an appropriate education plan. There was sufficient evidence in this case that the student met the IDEA's definition of ED and that classification was appropriate.

Disability Harassment/Retaliation

In Wilbourne V. Forsyth County School District (11th Circuit, 2009), a case was dismissed that involved a teacher who argued that a school district retaliated against her by issuing a "letter of directive" to be placed in her personnel file. The district also filed a complaint against the teacher with the Professional Standards Commission (PSC) for "unprofessional conduct" after she filed a complaint with the PSC regarding an incident involving a teacher abusing her disabled son and then confonting an administrator at her son's school about the school's projected discipline of her son. To establish a case of ADA retaliation, a plaintiff must show three things: (1) that the teacher engaged in a statutorily protected activity; (2) that she suffered an adverse employment action; and (3) a causal link between the protected activity and the adverse action. Once a plaintiff has established a case of retaliation, the employer has an opportunity to present a legitimate, non-retaliatory reason for the challenged employment action. If this is accomplished, the plaintiff then bears the burden of showing that the reason provided by the employer is a pretext for prohibited, retaliatory conduct. Here, the teacher presented insufficient evidence to establish that the district's reasons for taking adverse action against her were pretext for discrimination.

Lewellyn v. Sarasota County School Board, 53 IDELR 288 (M.D. Florida 2009)

In this case, parents claimed the school district disciplined their two sons with disabilities unfairly when it revoked a school choice privilege for one boy (attending a school outside their attendance area) and offered the other deferred expulsion and a behavior contract. The Section 504 and ADA claim filed was discontinued as the District Court determined the district did not discriminate based on disability. The manifestation determination review revealed the boys' behavior was not related to their disabilities which allowed school officials to wage the district discipline policy as it would for students without disabilities. The change in schools back to the one boy's home attendance area does not constitute a change in placement as the Office of Special Education Programs (OSEP) has written that transferring a student to another school does not constitute a change in placement unless it substantially or materially alters his educational program (Letter to Fisher, 21, IDELR 992 (OSEP 1994).

Revoking Consent for Special Education Services

According to 34 CFR 300.300(b)(4), parents may revoke consent for special education services in entirety. However, they not are able to unilaterally revoke consent for specific, individual services unless state law permits such (South Carolina does not). If parents request to remove a particular service from the IEP, the case manager needs to convene the IEP team to allow the parents to share their concerns and to review whether the service is still needed. The team may determine there is a way to meet the student's need differently (other than by direct services) if the child continutes to need the service in the area for which the parent desires to revoke consent. For example, rather than removing speech therapy services in entirety, the team may agree that consultative services with the regular education teacher may be appropriate. If the team strongly believes the services the parents want removed are necessary, make sure the parents are given a copy of the procedural safeguards in the event they want to dispute the provision of a service. Finally, if the team agrees the service is no longer needed based on documentation of progress, provide the parents with Prior Written Notice before ending the service then hold a special review meeting to make the the change in the IEP.

NAEP Results Indicate Progress for Students with Disabilities is Little to None

Although more students with disabilities are participating in the National Assessment of Educational Progressn(NAEP), results indicate the gap between students with and without disabilites is not closing much. In 2007, 34% of 4th grade students with disabilities were excluded from testing versus only 28% in 2009. These figures are the same for 8th graders. While more students with disabilites are being allowed to take the NAEP, the average score for students with disabilities continues to be a concern. The average reading score for 4th grade students with disabilites in 2007 was 190 while in 2009 it dropped one point to 189 (on a scale of 500). The 8th grade results were a bit better, but not much. In 2009 the average reading score for 8th graders with disabilities was 229, up from 226 in 2007. Likewise, the gap between students with and without disabilities continues to be large. In 2009, students with disabilites, on average, scored 34 points lower than their non-disabled counterparts. In 2007 the gap was 33 points. The difference between scores for 8th graders was a little better. In 2007, on average, the gap between students with and without disabilites was 38 or 39 points. In 2009 it was 37. These results indicate that we must continue to work hard to learn and implement more effective strategies to help improve educational outcomes for students with disabilities.

Writing Goals and Objectives for Students with Severe Disabilities

Writing IEP goals and/or objectives can be difficult for students with severe disabilities as progress is typically very slow. In this sitation, it is important for the team to consider goals with the purpose of improving a child's functional skills and to help the student learn to become as independent as possible. Task analysis and considering what the student is able to do is essential. However, it may also be appropropriate for some students with significant cognitive impairments to have academic goals. If a teacher writes an academic goal it should be for the purpose of improving academic functioning. For example, a student may have a goal to identify numbers 1-5 with the purpose of knowing what "2" means when asked to give you two of something. The IEP should clarify what the student should be able to do with the skill. Parents and other members of the IEP team also need to work together to set realistic goals. It may be helpful to look at skills that are measured in South Carolina's Alternate Assessments. These are aligned to our state standards and may be a good reference for developing goals for students with significant cognitive impairments. The IEP should reflect how the team has developed goals that allow for steady (although likely slow) progress over time.

FERPA Allows Districts to Release Contact Information Under Certain Conditions

In Disability Law Center of Alaska, Inc. V. Anchorage School District, 53 IDELR 2, 581 F.3d 936 (9th Circuit 2009), the court determined that FERPA and the provisions of the IDEA regarding confidentiality do not bar a Protection and Advocacy (P & A) agency from obtaining from school officials contact information for the parents/guardians of diabled students when the P & A agency has probable cause to believe students are being abused or neglected. According to Court records, "The agencies stated that 'if a school or other facility could refuse to provide the name and contact information, it could interfere substanially with a [protection and advocacy agency's ] investigation of abuse or neglect, thereby thwarting Congress' intent that [protection and advocacy agencies] act to protect vulnerable populations from abuse or neglect.'" Although FERPA prohibits releasing personally identifiable information without parental consent or court order, the U.S. Department of Education and the U.S. Department of Health and Human Services have interpreted the Developmental Disabilities Act as creating a limited exception to FERPA.

Protection and Advocacy Did Not Have Probable Cause To Suspect Abuse and Neglect

In Disability Law Center v. Discovery Academy, 53 IDELR 282 (D. Utah 2010), the court concluded a Protection and Advocacy agency was not entitled to access to student records at a therapeutic boarding school as the agency did not produce any factual evidence that the school used inappropriate seclusion and restraint techniques. The P & A agency claimed there was probable cause to believe neglect had occured and argued that it had sole authority under P & A for Individuals with Mental Illness Act (PAMI) to decide whether there is probable cause to investigate. This argument was rejected as the agency would be able to conduct what was effectively a "warrantless search and seizure" of the school's records--a practice that would raise serious constitutional concerns. Court records state "The [agency] fails to provide any factual support for what the allegations were, who made the allegations, what the substance of the complaint was, or the name of the supposed victims of the abuse."

Teacher's Use of Seclusion and Restraint Does Not Violate Student's Constitutional Rights

In C.N. v. Willmar Public Schools, 53 IDELR 251, 591 F.3d 624 (8th Circuit 2010), the parent of a third grade student identified with a disability under IDEA reenrolled her daughter in another district after learning her daughter was subjected to physical and verbal abuse by a special education teacher. After transferring, the student's mother sought to challenge the adequacy of the former district's educational services. The subsequent challenges to the student's previous education became moot because according to the U.S. Court of Appeals for the Eighth Circuit in Thompson, if a student changes school districts and does not request a due process hearing, his or her right to challenge prior educational services is not preserved. Rather, the new school district is responsible for providing a due process hearing. The Section 504 claim was properly dismissed for the same reason. As for plaintiff's Section 1983 claims, there was no Fourth Amendment violation since the special education teacher's use of restraints and seclusion was authorized by the student's individualized education program. Her behavior intervention plan allowed her teacher to use seclusion and restraint as behavior managment techniques.

Calling Police Does Not Violate Student's Constitutional Rights

In B.L. Boyertown Area School District, 52 IDELR 42 (E.D. Pennsylvania 2009), a court granted a school district's and principal's motion to dismiss action for damages under Section 1983, 504, and the ADA. Where the student's Behavior Intervention Plan provided that the Principal had broad discretion when the student hurt or threatened others or used profanity, the principal's action of calling the Pennsylvania State Police was within the provisions of the BIP when the student used profanity towards his one-to-one aide. Telephoning the police to deal with the child does not constitutute a clear violation of the child's consitutional rights and it was reasonable for the principal to assume that this action was in compliance with the law.

Money Damages Sought Under IDEA

In Blanchard v. Morton School District., 52 IDELR 3 (W.D. Washington 2009), a prior decision that a district made a free and appropriate education available to a student with autism and other severe limitations was affirmed. Additionally, claims under the ADA and 504 require a showing of deliberate indifference and the plaintiff must establish the following: (1) the defendants had knowledge from which an inference could be drawn that harm to a federally protected right is substantially likely, and (2) the defendant actually draws that inference and fails to act upon the likelihood. There was no evidence in this case that remotely reached a level of deliberate indifference and there was no evidence that even reached a level of negligence.

Compensatory Damages Are Not Available Under IDEA

In Doe v. Westerville City School District, 51 IDELR 245 (S.D. Ohio 2009), the plaintiffs initiated a case alleging that for the school year commencing in 2002-2003 through and including the 2006-2007 school year, Defendants violated the IDEIA by failing to provide a FAPE for John Doe, Jr. and by failing to create and follow an IEP that provided instruction premised on scientifically based reading research in violation of NCLB. The Plaintiff requested a jury trial and sought both equitable relief and compensation damages. The U.S. District Court determined the Plaintiffs were limited to the remedies available under the IDEA for violations of the law (e.g. funds to reimburse parents for expenses on special education that a school board should have, but did not provide) and could not seek compensatory damages, including damages for emotional injuries. There was no right to a jury trial in a case alleging IDEA violations and there was no private right of action under the NCLB Act.

A Visit to Northside Elementary

Happy St. Patrick's Day! This week I was able to visit two special education classrooms at Northside Elementary. In the first classroom an urgency for learning was present as all students were on task working independently or with an aide. The teacher worked with two students simultaneously addressing each one's unique needs. She provided just enough scaffolding to lead her students to the correct answers and instructed with patience and a genuine concern for each students' learning. Effective teaching practices observed included relating learning to real-world experiences, visuals, and manipulatives. Some students experienced technology throughout the lesson. In the second classroom the teacher reviewed good body-listening skills before beginning a lesson with a group of students. She managed to target several learning objectives (e.g., auditory comprehension, counting, shapes, turn-taking, and answering "wh" questions) while engaging the students in a fun game activity. Pragmatic language skills were addressed as the students used laminated photographs of themselves cut into paper dolls to practice communication. The preschoolers loved this activity. The atmosphere in both classrooms was very positive and it was evident both teachers had spent time planning activities to meet each students' individual needs.

A Visit to Tamassee-Salem Elementary

Yesterday I was able to observe a speech-language lesson at Tamassee-Salem Elementary. The speech room was well organized and visually appealing. The students entered the room excited and knew they were in for a fun lesson. The speech teacher had her materials ready and started by asking each student "What are you working on today". After each response the teacher reminded the student how to articulate their target sounds correctly and provided a model for correct production. The students took turns practicing their sounds while randomly drawing letters to try to spell the word "Clover" for St. Patrick's Day. The group had a lot of fun and I laughed out loud several times. This teacher made speech time engaging and enjoyable!

Students With Disabilities Must Benefit From Public School Special Services

In Cone ex rel. Cone v. Randolph County Schools Board of Education, 53 IDELR 113 (M. D. N. C. 2009), the U.S. District Court, Middle District of North Carolina, determined that a district did not provide appropriate services to meet the education needs of a high school student with Fragile X syndrome and Autism. While the court did not indicate the student required a residential placement, it did note that the IEP did not provide a plan for transitions throughout the school day, consistent instruction in all environments, or a plan for communication between school and the student's home. U. S. District Judge Thomas D. Schroeder wrote "[The district's expert] also agreed that more consistency in the information and techniques used with [the student] is beneficial to those with his condition." IEPs teams must be mindful of each student's individual needs when developing educational plans to confer educational benefit.

Fifth Grader With Emotional Disturbance Receives FAPE

In L.F. by Ruffin v. Houston Independent School District, 53 IDELR 116 (S. D. Texas 2009), the court concluded a school district met FAPE requirements when it placed a fifth grade girl with an emotional disturbance in a self-contained program designed to address behavior, academics, and social skills. The placement was determined to be the least restrictive environment as the student was mainstreamed for study hall and physical education. Although the parent charged the district with procedural violations, paperwork indicated the parent was informed of the placement and received appropriate and timely notification of IEP meetings. Cypress-Fairbanks Independent School District v. Michael F., 26 IDELR 303 (5th Circuit 1997) outlined 4 prongs used to determine whether or not a special education program is appropriate: (1) addresses student's individual needs; (2) is administered in the LRE; (3) is implemented in a coordinated and collaborative manner by key stakeholders; and (4) allows the student to obtain academic and nonacademic benefits. The district met all four elements in this case and the court rejected the parent's substantive claim as well.

IEPs Should Indicate Services Being Provided to Students

In J.P. and R.P. v. Enid Public Schools., 53 IDELR 112 (W.D. Oklahoma 2009), an administrative decision in a school district's favor was made despite the district's failure to delineate services in a high schooler's IEP. U.S. District Judge Joe Heaton wrote "While [the student's] IEP documents themselves fail to specify every area in which [the student] was in need of special services, the IEPs in practice provided him with an array of special education servives personalized to his own neeeds and calculated to provide him an educational benefit." The IEPs did not spell out how services to address organizational, transition and academic services were going to be provided; however, special education instruction included showing the student how to outline chapters, use a daily planner, breaking tasks in smaller units, how to use indexes and glossaries, interviewing skills, and how to fill out applications for employment. Although the court ruled in favor of the district, case managers of IEPs should not take chances. Special education services required to address student needs should be delineated in IEPs.