Delaware Special Education: The Eye of the Hurricane Part 1 Revisited A Year Later…

Special Education In Delaware

Editor’s note: I wrote this last year in July.  I reblogged it once and you can’t do that twice apparently.  I sent this link to someone, and I read over this again.  Not much has changed.  Aside from State Rep. Kim Williams addressing the basic special education funding for K-3 students with pending legislation, I can’t think of anything.  Well, except the hurricane that Smarter Balanced has become.  And I did find the actual links on the DOE website for the actual unit counts for each school. But this blog has gained many new readers since then, so take a trip down the rabbit hole that is special education in Delaware…

In a hurricane, everything is wild and chaotic.  Winds are fierce, rain is massive, and destruction looms.  Many people flee, but some stay hoping for the best.  Homes are destroyed, roads are flooded, and lives are frequently lost.  In the middle of a hurricane, everything is calm.  It can sometimes be sunny, and rain may not be present and it can be viewed as a moment of peace.  The eye is the center of the hurricane, and everything that happens is a result of the eye.  This is the Delaware Department of Education in regards to special education.

Last week, I met with the Exceptional Children Group, the Delaware Department of Education’s special education department.  I met with their director, Mary Ann Mieczkowski, as well as the DOE’s public information officer, Alison May.  I had several questions stemming from the Office of Special Education Programs (OSEP) report on Delaware’s special education that came out two weeks ago.  In the report, it stated Delaware was one of three states that needed federal intervention in regards to special education.

The Exceptional Children’s department in Delaware seemed to think the need for federal intervention was solely based on the National Assessment for Educational Progress (NAEP) testing done for students.  This testing was done to determine student’s abilities, and several special education students were not included in this testing.  The testing is done for students in 4th, 8th and 12th grade.  According to the letter OSEP sent to Secretary of Education Mark Murphy, “We plan to measure growth in the proficiency of children with disabilities when States have transitioned to college- and career- ready standards and assessments.  In the interim, we are using data from NAEP on the performance of children with disabilities, which provide a consistent and fair benchmark for performance of children across all States.  In the future, OSEP plans to use only regular Statewide assessment data, rather than NAEP data, for annual determinations, including data on the growth in proficiency of children with disabilities on Statewide assessments.”  Some parents feel Delaware excluded children at a much lower level than other states, such as Maryland, which may have made Delaware look worse.  But also written in the letter to Secretary Murphy was the following: “This determination is based on the totality of the State’s data and information, including the Federal fiscal year (FFY) 2012 Annual Performance Plan (APR) and revised State Performance Plan (SPP), other State-reported data, and other publicly available information.”  Delaware’s goal for compliance is 100%, but they fell into a range of 75-90% for the 2013 OSEP report.  While those may not seem like a bad range, it would indicate that anywhere from 10% to 25% of students had faults in their IEPs.  Out of the over 18,000 students that were qualified with special education in Delaware for the time period of this report, the 2010-2011 school year, that means that anywhere from 1800 to 4500 students had IEPs that were not compliant  based on these percentages.  That is an alarming number.  And after that report, the Exceptional Children Group decided to raise the amount of years that schools are audited from a 3 year cycle to a 5 year cycle.  There is no notice of this change on the DOE website because it still shows a three year cycle.  Delaware has been rated as needs assistance for special education by OSEP in 2013, 2011, 2009, and 2007 and in 2014, they were rated as needs intervention.  This means Delaware has received bad marks from OSEP for 5 out of the past 8 years.  They have corrected past mistakes, but it seems new ones are created every couple years.  But for two years in a row they have missed the mark.

After a summary of my son’s experiences at a Delaware charter school and his current standing in a public school, I explained the reason for my meeting request.  My main questions were centered around funding for special education in Delaware.  On February 18th, 2011, Governor Jack Markell signed into law a bill that changed the funding for special education in Delaware public schools.  Needs Based Funding was the new method by which schools would receive money for special education. All 19 school districts in Delaware endorsed the bill, as did the legislature in Delaware. From the governor’s website, Senator David Sokola said “This is important because it ensures that children who have disabilities and are in regular classroom settings will have access to the kinds of resources that would be available to them if they were in a special education program. It also gives districts the kind of flexibility they need to determine the kinds of therapists and specialists needed to meet the needs of their students.”

As a result of this, needs based funding divided children with special needs into four sub-groups: Pre-Kindergarten, Basic Special Education, Intensive Special Education, and Complex Special Education. The units granted to each school are based on the different categories. Each unit, no matter what category, is assigned a dollar amount based on the amount granted by the state in their budget.

Pre-Kindergarten units are determined by those with special needs since birth and aren’t considered to be in the intensive or complex groups. For students in this category, one unit is given for every 12.8 students.

Basic Special Education units are determined by eligibility of special education for students in grades 4-12 and they must not be considered intensive or complex. Students in this group receive one unit for every 8.4 students.

Intensive units are based on a need of a moderate level of instruction. This can be for any student with an IEP from Pre-Kindergarten to 12th grade. As well, there must be supports for health, behavior or personal issues. The student must have an adult facilitating these supports with a ratio of 1:3 to 1:8 for most of their education. The student must be in the mid-range for use of assistive technology and also need support in the areas of a school nurse, an interpreter, an occupational therapist, or other health services. These students would also qualify for extended year services (ESY), and may have to utilize services outside of the school such as homebound instruction or hospital services. On their IEP, these students may have accommodations outside the norm, which should include adaptations to curriculum to best support their needs. Students here get one unit for every 6 students.

Complex Special Education units are determined by severe situations that require a student to adult ratio of 1:1 or 1:2. Most autistic children should fall into this category. They must receive a high level of instructional, behavioral, personal and health supports. Assistive technology needs to be utilized at an increased level for these students. ESY is a must, as well as a high level of homebound instruction or hospital services, interpreters, occupational therapists, or services from the school nurse. Unit funding is provided as one unit for every 2.6 students.

All of this is determined by the student’s Individualized Education Plan (IEP). The IEP must state what level the student falls into for unit categorization. What is interesting to note is there is no specialized basic funding for students in Kindergarten to 3rd grade. Why is this? Many disabilities start to manifest themselves during the 1st to 3rd grade years, so if there is no funding why would the school bother to implement an IEP? Furthermore, IDEA-B funding covers students aged 6 to 21, so why wouldn’t federal funds go to these younger students? This seems like a major oversight on the part of the DOE.

The Exceptional Children’s department of the DOE checks with schools every 5 years to audit their special education IEPs. They check that all timelines are in compliance, parental notices are sent out, the IEP is accurately written, the IEP lists all goals and procedures for accommodations, and notices are sent out when needed. On the Department of Education website, it states schools are audited on a 3 year cycle, but Maryann Mieczkowski informed me it is now set up on a 5 year cycle. I found this to be a perplexing decision as Delaware was given a grade of Needs Assistance by the federal government in 2013 for special education, and in 2014 the feds said Delaware needs intervention for special education. Why would they go from 3 to 5 years when compliance has been considered a major issue for five of the last eight years?

The Exceptional Children department DOES NOT audit an IEP that is declined. Let me repeat this, They do not audit declined IEPs. I would think this would be an area of gravest concern for IEPs. For the DOE not to monitor a declined IEP, I would assume they believe that all special education teachers, school psychologists, administrators, therapists, school nurses, and parents know exactly what they are doing. According to Mieczkowski, if the parents sign the paperwork this is sufficient. But it isn’t. Far too many parents and special needs students have been a victim of IEP declines that should have been approved. The testing done on the child could be woefully insufficient, good grades could be manipulated into a denial of services, or the parents do not have enough knowledge to accurately determine what is correct and not correct. I have heard of parents being told right off the bat when they ask for an IEP that services will be declined before ANY testing has been done or an eligibility meeting has even been scheduled. It is the role of the ENTIRE IEP team to determine eligibility, not just the person conducting tests. As well, there have been several accusations in Delaware of schools (not students) cheating on the standardized testing to improve the schools annual performance. This could have a very dramatic effect if members of an IEP team are looking at these test scores to determine eligibility.

I asked Mary Ann Mieczkowski where the school audit information can be found as it was not transparent on the DOE website. She didn’t really answer but said she would provide that information to me. What I did receive, via email, was a list of seven schools that were audited during this fiscal year, with the same generic letter every single one of them received. There was absolutely no individual school information provided with these letters. So where can this information be found? If you look at the Continuous Improvement section of the Special Education part of the DOE’s website, you will see references to letters of the alphabet corresponding to school districts. There are also significant mentions of certain schools not being used for annual reports since the “N” number is so low. I would have to guess this would be some of the charter schools in Delaware. The ones with a very small number of special education students included in their overall population. The ones I have written about a couple times on this blog. Like Providence Creek and Charter School of Wilmington. Are these schools exempt from compliance monitoring since they have so few special education students?

They do not audit declined IEPs. I keep stressing this fact, because it is important. I did a study of the Delaware online checkbook, and from the 2012 fiscal year to the third quarter of the 2014 fiscal year an alarming fact was soon revealed. Over one million dollars, $1,000,000.00, was spent by Delaware public schools in matters of special education to Delaware special education attorneys, trusts set up for children with special needs, and the school’s own attorneys. While details of these cases are not known, one can easily see a trail. This investigation included items I knew to look for, such as the names of special education attorneys in Delaware, names of companies that administer special education trusts, and the names of attorneys representing Delaware’s public and charter schools. Upon close inspection, it’s easy to see the following: when a financial award is given to a child, there are significant amounts going to Delaware special education attorneys, or there is also an increase in a school or district’s legal fees. As well, there are consultations with in state or out of state psychologists or psychiatrists that are not with the school. This is usually when an IEE or neuro-psyche is requested by an attorney. In going through many school’s financial reports, I have seen legal fees fall under categories where they should not be. It could be human error, or perhaps they are trying to cover up this money so parents don’t see the bigger picture. Most parents don’t dissect a school’s finances. All of this shows Delaware parents are going outside of the Delaware DOE system of complaint because for some reason they feel this is a better way to get their child the accommodations they deserve by federal right. Looking at the money trail, it would be wise to assume that. As well, the schools are not forthcoming about this information unless someone hunts and pecks for it, like I have. There is no press release, or any accounting of the schools with the DOE when this occurs. The schools are not obligated to report this information to the DOE according to Mieczkowski. But someone must surely see massive amounts of money going to different vendors. So what does this mean in regards to the DOE?

I asked Mary Ann Mieczkowski and Alison May if they were aware of this, and Mieczkowski said she believes the Delaware DOE system for parental special education complaints is fair. She stated there are three sources for a parent to complain: they can file an official complaint with the Exceptional Children department, they can go to a mediation, or they can file for a due process hearing. In the state of Delaware, there have been 25 due process hearings since IDEA changed regulations in 2004. There have been 72 administrative complaints. There are currently over 70 pending cases filed with outside special education attorneys in this state according to anonymous but reliable sources. This is a lot of money coming out of school district’s pockets. These are funds, based on events occurring outside of a normal school budget, that involve a great deal of student, parent, teacher, special education, administration, and school board’s time and money. Had schools performed their legal obligations in regards to special education to begin with none of this would be happening. But this is something the DOE and the schools do not want parents to know about. These matters are not known to the general public.

So why all the secrecy? No school would want to be known as a place where special needs children are not given services. No school wants to lose their state or federal funding either. For charter schools, the stakes are much higher. A few significant special education lawsuits can have a dramatic effect on the school’s financial position. Pencader Charter School, which was closed by the Delaware DOE Board Of Education in 2013 is a classic example of this. They were closed for various reasons, but their financial position was in serious jeopardy as a result of special education legal action taken against them. These funds are often the result of settlements between the parents and the schools and do not fall under the purveyance of the Delaware Department of Education. These are funds that come from taxpayer money, and are usually given for compensatory education for a period of up to two years to make up for what the schools did not provide. So how does this fit in with needs based funding?

Needs Based Funding is a SET amount of money the Delaware public schools receive from the state after the September 30th student count. It is not a changing, fluid amount of money that increases or decreases during a school year. This is part of the Title I funding the public schools receive from the state. So what happens if a school receives an extraordinary amount of requests for IEPs during the year between? Nothing. No amount of money is changed. Since most students request an IEP well into a school year, this needs to be closely scrutinized. According to Mieczkowski, it is a balancing act, and it tends to even out since children often fall out of the IEP/Special Education system. But does it really? The state requires a letter of explanation or an audit of any school district, charter school or vocational school that has a change in IEP status for each school year in + or – five IEP unit counts. I have not seen one online audit performed against any school published since this policy came out in 2012. Yet, if you look at the Delaware Department of Education website for these types of changes, the School Profiles sections shows many instances where the unit counts change by 5% up or down. Let’s look at Academy of Dover as an example. For the 2012 fiscal year, they had 18 special education students. In 2013, that number jumped to 29. Where is evidence they submitted a letter of explanation or that a formal audit was done? There isn’t. Because the key is in the wording. It is for a 5% change in each category. So for example, the intensive category would have to show a 5% + or – difference, not the entire special education population. Since the schools aren’t obligated to show this data, only the total number of special education units, it would be impossible to figure out which categories are in compliance. Upon doing a Google search for my son’s school district, Capital, I stumbled onto something. In PDF format, was a breakdown for the Academy of Dover. The website found on Google is here: Yet when I searched for this type of data on the DOE website, it was nowhere to be found. So I did a little more Google experimenting, and I found this: This includes every single public school in Delaware’s unit counts. With this information, a picture begins to form.

In comparing the Academy of Dover link I found on Google and the other link I found that I will call the Big Report, I can extrapolate and break down some data. For the 2012 fiscal year, Academy of Dover received a total of 18.93 units total for their school. Of that total, .24 units were for basic special education, .68 were for intensive spec ed, and 1.53 were for complex spec ed. The total number of basic special ed students was 2, intensive was 4, and complex was 4. Based on the formulas for units with the regulations for the DOE, I calculated the dollar amount each student received. In the Academy of Dover link, it shows the school received $12,622 for the 2 basic students, $5,223 for the 4 intensive students, and $22,197 for the 4 complex students. This is on top of the $2055 the school receives for each student. So each basic special ed student received a total of $8,366, each intensive student got $3,360.75, and each complex student got $7,604.25. I know what you’re saying already. The math doesn’t add up. Why would a basic student get more than an intense or complex student? Basically, someone screwed up. On the Academy of Dover link, it shows the $5,223 for the 4 intensive students. But on the Big Report, it shows something different. Someone reported the wrong numbers, because if you have 2 basic and 4 intensive, the numbers change to this: Basic student gets $3,632.75 and intensive student gets $5210.50. These numbers make much more sense than what appears on the Academy of Dover link. As each special needs student rises in the categories, the amount of funding the school receives rises as well.

As a side note, it is very interesting the DOE has a count of 18 special education students on their school profiles sheet when both the Academy of Dover link and the Big Picture only show 10 special ed students. What numbers did the federal government and the state report for the unit count in order to receive IDEA-B funding, which is provided by the feds?

But say it’s January 8th into the school year, and Johnny Appleseed is diagnosed with high functioning autism, and he should receive complex unit funding. The school already received the funding, and Johnny’s portion of the complex funding won’t be received until the next school year. And the school Johnny goes to only serves children from Kindergarten to 5th grade. You aren’t going to see that many students falling out of an IEP program at that age. What is a school to do? All too often, the answer is plain and simple- Johnny is denied Johnny special education services. The school has gone over why Johnny didn’t qualify for an IEP with his Mom, and that was cause Johnny was just too damn smart! Mom was happy Johnny is so smart, and he is given a 504 plan. Mom signs off on the IEP decline, and quickly signs off on the 504 plan, cause Johnny is smart, and this will help him! At least that’s what the school psychologist and the special education case worker told her. The school doesn’t have to worry about getting audited, cause they only audit existing IEPs, not the declines. The school also doesn’t have to stress about all that extra money they would have needed to fund Johnny’s complex disability, cause he didn’t get an IEP. Maybe next year, they can grant Johnny an IEP, but they have to get it done before that September 30th student count!

This may seem far-fetched, but this happens all the time in Delaware schools. And more often than not, it occurs in the charter school system in very high numbers. And guess where the charter schools get their funding from with unit counts? The school district that each student originates from. They actually bill those school districts for the money. So if a student at a Dover charter school actually resides within the Appoquinomonk district, those funds carry over from the Local Educational Authority to the charter school. This is one of the central reasons why some people can’t stand charter schools, because they take funds that should be set in stone for the public school districts. And since these children are denied special education services they do not have the protections granted them under an IEP. Behavior referrals, suspensions and sometimes even expulsions increase rapidly. Had these students received the supports needed, some of these actions could have been prevented.

A term called “counseling out” has been levied against many charter schools in Delaware. This wording is applied when a school highly recommends a parent transfer a child to another school. Reasons can vary from behavior issues or a simple “We don’t have the resources to help your child”. The parents become frustrated, and just transfer or choice their child to another public school. Most charter schools are probably at capacity. If this happens after the September 30th count, guess what happens? The public school now has a special education student that doesn’t have funding applied for this child. This has occurred most noticeably in Newcastle County. The public schools have many more special education students then the charter schools. This sets up a disproportionate chasm between the public schools and the charter schools. The special needs students, because of their disabilities, do not perform as well on the state assessments. The charter schools, whether through counseling out or charter school enrollment preference (weeding out the special education students by asking if a child has an IEP on the application), are viewed as more desirable than the public schools. Of course they would be, they shove the burden onto the schools that are more compliant and efficient in dealing with special education.

Some parents have also alleged that while their child received an IEP, they may not have been approved for the category the child belonged to. Instead of intensive or complex categories, their child could be placed in a basic category. This is a decision of the IEP team, but an uninformed parent can be easily manipulated by a school or other members of an IEP team.

I have heard from quite a few parents that the Needs Based Funding system is very difficult to understand and the DOE does not do a good job of explaining it on their website. This is true of many explanations of special education matters. Most of the reporting and committees are based on events happening two to three years ago. There is not much recent reporting done at all in regards to special education.

On the DOE’s website, there is a link to their Continuous Improvement report that was submitted to OSEP this year. It covers special education done for the 2011-2012 academic year. This report was what prompted the feds giving Delaware a “needs intervention” rating a couple weeks ago. In this report, there is a graph showing how satisfied parents are with the IEP process in Delaware. Out of 2,054 parents that did the survey, only 15% felt their child’s IEP goals were completed, 42% said some of the goals were accomplished, and 35% said none of the goals were accomplished. Yet, Delaware still wants to hold on to Common Core and standardized testing as the lifeline to save everything in education. One of the action plans as a result of this part of the survey was a goal to increase parent participation in IEPs. What they failed to realize is there has to be parent participation in the IEP process, so how is this a goal? It’s the law!

Out of the 10 mediations the Department of Education had for fiscal year 2012, only 1 of them generated a resolution. A 10% resolution process does not give parents much hope this is an effective process. The Due Process Hearings show some resolution in cases, but not all. For administrative complaints, I looked at what was listed on the DOE website for the last three fiscal years. Out of the 22 cases, I found half the cases showed clear violation of IDEA B regulations, whereas the other half did not. This is an exact 50% win ratio for parents. Not the best odds. So all in all, I wouldn’t say the complaint-mediation-due process hearing system established through the Delaware DOE is a fair system at all.

Another important fact to remember is the vast majority of disabilities children have are neurologically based. The testing many schools perform do not give an accurate picture of a students deficiencies. As a result, school psychologists, who are not specifically trained on the science of neurobiological disabilities, are the ones making the vast majority of the decisions during IEP meetings. The members of the IEP team that are employed by the school tend to agree with the school psychologist because they believe that person is the local expert on all things special education. However, more schools in other states are looking at employing psychiatrists to help determine eligibility for IEPs.

As I finished up my meeting with Mary Ann Mieczkowski and Alison May, I advised them the most important thing I wanted them to think about was the IEP decline system in Delaware. I asked them to consider adding the declines to their audits. Not one word was said to indicate they would even consider this.

I don’t think a 3 year or 5 year cycle for each public school district or charter school is sufficient. I think these audits should be done yearly, with declines having as much weight as an actual IEP itself. I believe every single school district in this state should have a complete and transparent breakdown of their needs based funding on their website, showing how many students are in each subgroup, how many unit counts they have, and the amount of funding they received for each. I think every school (not district) should have listed on their website the following information: The amount of IEPs and 504 plans a school has for that school year as well as how many IEPs or 504 plans have been declined. I propose every school board has a parent of a special needs student as a member. I think every school in Delaware should have psychiatric consultation for any IEP request with a suspected neurological condition.

I would like to see EVERY SINGLE school board and financial oversight committee meeting digitally recorded and made available to the public within seven business days. House Bill 23 has been sitting in Legislative Hall collecting dust for well over a year now. Had this bill passed, all school board meetings would be digitally recorded. The major opponents to this bill are the schools due to the costs for performing this type of duty.  Well, many public schools already do this, such as Capital, Red Clay Consolidated, and Christina. The charter schools don’t want to do it at all. But I think you can find a way to squeeze it in. After all, over a million dollars has already gone out in EXTRA, not budgeted, special education costs.

The only way things will change for special education in Delaware is if schools are forced to change. It doesn’t matter what the feds say to the Delaware DOE. It’s what the Delaware DOE SHOULD be doing. And if you agree, write to the DOE. Write to your district House Representatives and Senators about the lack of transparency going on in our state in regards to special education. If you have gone through a process where you have obtained an outside special education attorney, ask your elected officials to subpoena that information for the IEP Task Force which will be created as a result of Senate Concurring Resolution 63 in the twilight hours of the 147th General Assembly legislative session and passed by the House and the Senate.  What has been withheld should become public fact to those who can change the laws.

For parents who don’t have special needs children and believe their kid is doing just fine in school, this can affect your children as well. When schools are pouring out money in special education matters after they have already received federal, state, and local funding for these purposes, where do you think that money comes from? Most schools operate on a fixed budget. But when legal fees, compensatory education damages, and other related costs start adding up, those funds have to come from somewhere. Services could be cut, staff could be reduced, extracurricular activities could be reduced or even eliminated, and so on. Don’t believe for one second the schools will explain why these events ARE happening, but understand they are. A figure of over a million dollars may not seem much when states talk about budgets in the billions, but for each school district or charter school, these funds are siphoned from other areas.

Special needs students are at a very important crossroads right now. Teachers are waking up to the common core hell they have been glued to the past few years. Special needs parents are starting to see the destruction and financial toll the special education hurricane has done to our state. And the students, the ones who were given disabilities they neither asked for nor want, have become a major issue in this state. Do we exclude them from state testing, or do we push more of them to do their best because they can perform the same as any other student if we push real hard? The Smarter Balanced Assessment is coming and this will be the equivalent of a Category 5 Hurricane for Delaware.  All in the name of Common Core, but what is the burden this places on our exceptional children in Exceptional Delaware?

Meanwhile, the hurricane keeps swirling in Delaware, and in Dover, the DOE believes they are safe and everything they decide is what is best for students. Their leaders continue to incorporate the Delaware education system into something that is not best for students or teachers. Special needs children will suffer the most from the implementations passed by our legislature. The state will lose our best teachers to other states, and then who is the most qualified to take care of our students? I have said it before, and I will say it again, what use is measuring graduation rates when students are in Kindergarten, 3rd grade, or even 6th grade? It’s certainly an important measurement, but to make it a cornerstone of special education compliance when many students are denied the services for that measurement is ludicrous. Meanwhile, I am sure the DOE will do everything they can to help high school special needs students do better. But they are allowing children in elementary schools to be denied services and essentially left for dead, without any ramifications whatsoever for the schools. What happens in ten years or so when they are ready to graduate high school but the foundation was never put into place for them? Will the current members of our government, DOE Exceptional Children Group and DOE Board members even be around then? Most likely they will not, but some will, the “lifers” in the system. Special needs students and their parents should not have to suffer over these matters. It is a sin against humanity for those who have the ability to stop this madness to do nothing. Instead, the DOE does nothing and they continue to make the same mistakes over and over again.

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