Major Change to the Parents Rights in Special Education (Procedural Safeguards)

According to South Carolina's Office of Exceptional Children Policies and Procedures released April 6, 2009, once a child has been dismissed from special education services, any subsequent evaluation would be an initial evaluation and all requirements would apply. This is a huge deviation away from the former procedures which claimed that once a child with a disability, even though he/she may have been exited, all subsequent evaluation would be a reevaluation. This major change should prompt IEP teams to be very careful when exiting students from special education.

Special Olympics was founded by Eunice Kennedy Shriver and since 1968 has been bringing one message to the world: people with intellectual disabilities can and will succeed if given the opportunity (hmm...this sounds a lot like our vision for special services...The vision of the School District of Oconee County Special Services Department is that every student will succeed with appropriate support.)

William J. Clinton, former president of the United States of America stated, "I firmly believe Special Olympics is more than just a program of sports, training and competition; it's a strong statement of optimism about human life."

Today, several of our students with special needs are taking a field trip to participate in our local Special Olympics sponsored by the Council for Exceptional Children. Opening ceremonies will begin at 9:00 at the Clemson University Outdoor Track. I expect our students participating in this event will remember the experience for the rest of their lives!

Garcia v. Board of Education of Albuquerque Public Schools, 49 IDELR 241, 520 F .3d 116 (10th Cir. 2008)

The current trend is that courts are weighing the "substantiveness" of an IEP over procedural violations during due process proceedings. For example, in her presentation at the 19th Annual CASE (Counsel for Administrators in Special Education), Julie Weatherly mentioned a situation whereby a district committed some procedural violations (e.g., failing to have and implement a current IEP at the beginning of the 2003 school year) yet the student was not denied access to FAPE. According to Weatherly, "...the record failed to show that the irregularities would have made any difference to, or imposed any harm on, the student. This is because she was significantly truant from school, often skipped classes and used drugs and alcohol." IEP teams must devote a great deal of attention to developing IEPs that will confer meaningful educational benefit. If their IEPs are ever contested during due process proceedings, the courts will focus much more heavily on the content of the IEP versus procedural errors.

May Sped Staff Participate in the General Education Intervention Process Without Jeopardizing Sped Funding?

According to South Carolina's Office of Exceptional Children Policies and Procedures released April 6, 2009, questions often arise about who can work with a student to provide what type of support at what point in the general education intervention process and how that fits with funding restrictions. It is the responsibility of both general and special educators to carry out general education intervention. Further, because child find is required by special education law, it is expectd that spcial educators will support carrying out general education intervention. This may include special educators providing such things as assisting in collecting student data, participating in the analyses of data to determine next steps, and the provision of interventions.

May a Parent Revoke Consent for a Particular Special Education or Related Service?

According to South Carolina's Office of Exceptional Children Policies and Procedures released April 6, 2009, if a parent and LEA disagree about whether a child should receive a particular special education or related service, the parent may use mediation or due-process procedures to resolve the issue. The parent may not revoke consent for a particular service. Under 34 C.F.R. section 300.300(b)(1), parental consent is for the initial provision of special education and related services, not for a particular service or services; therefore, the parent may not revoke consent for a particular service. Revocation of consent is for all special education and related services.

South Carolina Office of Exceptional Children Policies and Procedures as of April 6, 2009

On Wednesday, December 17th, 2008, I started a blog label titled Parents Rights in Special Education which featured the most current precedural safeguards with regard to special education in the state of South Carolina. On April 6th, 2009, the Office of Exceptional Children at the State Department of Education released the most recent version of South Carolina's policies and procedures. I am conducting a side-by-side comparison of the Question and Answers section about parent rights and will present the Q and A's that have changed and the ones I haven't entered yet.

Here's the first one...

Question: May an LEA allow a student to sign a waiver at age 18 to waive his rights?

Answer: No, only a court of law may disallow the transfer of rights at age 18. Prior to the promulgation of State Board of Education (SBE) regulation 43-243 in August 2007, LEAs were allowed to use waivers in this situation. Any waivers signed prior to the promulgation of this regulation were "grandfathered" in; however, the rights must now automatically transfer to the student, unless the parent has an order issued by the Probate Court or the student signs power of attorney voluntarily transferring his or her legal rights to the parent.

Use Power to Educate

In William Ury's book Getting Past No, he explains a fifth barrier to joint-problem solving: the other side's power. If the other side can get what they want by acting on power plays there will be no reason for them to cooperate with you. They may view the negotiation as one side winning and the other side losing and will do their best to drive you into submission. Don't allow your goal to shift from mutual satisfaction to victory. Ury advises, "Use power to bring them to their senses, not to their knees." Furthermore, "Use your power to educate the other side that the only way for them to win is for both of you to win together."

If this does not yield a joint resolution, the next step is to let them know the consequences of not not reaching a mutual agreement by asking the following Reality-Testing Questions:

1. What do you think will happen if we don't agree?

2. What do you think I will do?

3. What will you do?

If this does not bring you closer to an agreement, Ury advises making a direct statement of what will happen. This will provide the other side an opportunity to "reconsider their refusal to negotiate." However, you must be careful to warn and not threat. According to Ury, "A threat is an announcement of your intention to inflict pain, injury, or punishment on the other side...A warning, in contrast, is an advance notice of danger." A warning must be delivered with respect, and the more urgent the warning, the greater respect needed in the delivery.

Generosity

From chapter 21 of The 21 Indispensable Qualities of a Leader, John C. Maxwell points out that "generosity isn't an occasional event. It comes from the heart and permeates every aspect of a leader's life, touching his time, money, talents, and possessions." As we face increasingly difficult econonic times, it will become even more imperative to share with those who have greater needs than ourselves. Maxwell offers tips for fostering the trait of generosity...

1. Be grateful for what you have. Contentment cultivates true happiness.

2. Put people first. "The measure of a leader is not the number of people who serve him, but the number of people he serves."

3. Don't allow the desire for possessions to control you. I love a quote Maxwell provided from a friend. He said the world is made up of three kinds of people, "Haves, have-nots, and have not paid for what they have."

4. Regard money as a resource. According to E. Stanley Jones, "Money is a wonderful servant but a terrible master. It it gets on top and you get under it, you will become its slave."

5. Develop the habit of giving. Richard Foster states, "Just the very act of letting go of money, or some other treasure, does something within us. It destroys the demon greed."

How will you demonstrate generosity today?

B.V. v. Education Department of the State of Hawaii, 49 IDELR 151, 514 F.3d 1384

In her presentation at the 19th Annual CASE (Counsel for Administrators in Special Education), Julie Weatherly mentioned a case whereby parent's requested a new teacher for their child. According to Weatherly, "Althougth the District Court acknowledged that the teacher was unprofessional when she wrote the student's name on the blackboard every time he misbehaved, the teacher was fully qualified to implement IEPs for students with Asperger Syndrome and she had an excellent reputation." In this case, a denial of FAPE was unfounded. The judge wrote, "The court is unwilling to conclude that one misjudgment on the part of an otherwise outstanding teacher completely undermines an IEP."

Innovative IEP Meetings

Again, I had the privilege of attending an IEP meeting at James M Brown Elementary this past Friday. I would like to take an opportunity to highlight the technological innovation demonstrated by the special education department. The case manager of the student for which the meeting was being held drafted the Annual Review IEP in EXCENT then opened it up on her laptop and projected it on the conference room wall for the IEP team to view and modify throughout the meeting. Net savings: approximately 26 sheets of paper (2 drafts of the IEP which is shorter in length than most). Another 27 pages were saved when the case manager asked the parent if she would prefer a hard copy or electronic version of the Procedural Safeguards Notice. The parent requested an electronic copy. This was denoted in the staffing minutes along with her email address. The case manager also reviewed a Word version of the Pragmatics Checklist then offered to email a copy to the student's mom...another copy saved. Finally, another 12 sheets of paper was saved when the student's mother requested an electronic copy of the final IEP versus a hardcopy. This was explained in the minutes which the team signed along with a single signature page of the IEP. Total sheets of paper saved at this meeting....66. If the case manager opens the Microsoft Outlook Window, documents can be sent electronically to the parent's email address during the meeting and this can be logged in the minutes (with parent approval of course...we would always provide a hardcopy upon request). Other advantages of this format include access to SASI to discuss attendance or discipline issues or access to TestView to review academic and testing performance. If I were a parent attending a meeting in this format, I would feel confident that the faculty and administration of my child's school are leaders in technological innovative practices. Many thanks to JMB for modeling the way!

May an IEP be Written With No Annual Goals?

No. Measurable annual goals document the child's anticipated progress as the result of special education. Special education is defined as "specially designed instruction to meet the unique needs of a child with a disability..." If no measurable annual goals are necessary and no specially designed instruction is necessary, the child's continued need for special education and related services should be reconsidered. If only modifications, accommodations, consultation, or services that don't require specially designed instruction are required, the child's needs may be able to be met through a Section 504 plan or other means.

Lessard v. Wilton-Lyndeborough Cooperative School District., 49 IDELR 180, 518 F.3d 18 (1st Circuit 2008)

In her presentation at the 19th Annual CASE (Counsel for Administrators in Special Education), Julie Weatherly mentioned a case whereby the parent's of a student with disabilities charged the LEA with violations of procedural safeguards. She explained that the transition plan of an IEP does not need to be "stand-alone" but can be written in statements "under the applicable components of the child's IEP" as was the case in this situation. The parents also claimed the child did not have a Behavioral Intervention Plan; however, "the IDEA does not require, necessarily, a BIP as part of an IEP". BIP's are written based on need. Finally, the parents claimed the school district did not have a signed IEP in place by the beginning of the school year. Weatherly quoted the case stating it was "fairly laid at the parents' doorstep" because they would not identify the specific concerns they had with the proposed IEP.

Are Districts Obligated to Implement Recommendations Made by an Outside Evaluation Team?

According to Parents Rights in Special Education (Procedural Safeguards) distributed by South Carolina's Office of Exceptional Children at the State Department of Education, after an initial evaluation is completed, if the parent disagrees with the district's evaluation, they have the right to ask for an independent educational evaluation at public expense. If the parent obtains an independent educational evaluation at public expense or provides the agency with an evaluation obtained at private expense, the results of the evaluation must be considered by the district, if it meets the district's criteria, in any decision made with respect to the provision of FAPE to the child. However, the district is not obligated to implement the recommendations made by the outside evaluation team.