Don’t let your special needs child fall victim to “new”​ Federal and State voucher/choice policies

This article originally appeared on long-time Delaware special education advocate Steve Newton’s LinkedIn account yesterday.  I read it today and Steve not only hit a grand-slam with this article, but he hit it out of the park!  This is the must-read of the month and the timeliness of this could not be more important!  Normally, I would italicize this but for reasons which will soon become clear, I did not.  Great job Steve!

The road is about to get a lot rougher for special needs kids in America’s schools

It’s never been easy.

IDEA [Individuals with Disabilities in Education Act] was signed into law by President George H. W. Bush in 1990 to stiffen the supports for disability-challenged American students that already existed in Section 504 of the Americans with Disabilities Act. IDEA established the rules for determining the need for special services, how supports within the education system would be determined, and provided for their monitoring via IEPs [Individualized Education Plans]. The trifold intent of IDEA was to (a) guarantee parents and students a role, a voice, and an appeals option in the process; (b) fund services that would allow special needs students to receive FAPE [Free Appropriate Public Education]; and create mechanisms for monitoring/enforcing the entire process.

Despite the fact that none of those goals has ever really been attained (Congress has never fully funded IDEA in any budget in the past 27 years), IDEA represented a massive improvement for special needs students across America. Millions of kids with specific Learning Disabilities (as in Math or English), with Emotional Disabilities, with ADHD, with Autism, and with other, lesser-known disabilities managed to finish school and go on to college, or employment, and independent, productive lives. Flawed as it is in the execution, IDEA has been a hugely successful law.

But the last decade has seen major problems setting in

It doesn’t just cost more money to educate kids with special needs, it requires schools to go the extra mile for accommodations, modifications, transportation, tutors, attendance exemptions, assessment exemptions, graduation exceptions. There’s a lot of work involved, and without the promised Federal funding it falls on school districts like the typical unfunded mandate. And when a few students with severe disabilities begin to consume large amounts of limited district funds, there’s a natural if unfortunate tendency for school officials to sense an unfairness in the whole system: why should all those dollars go to the education of a handful of students, when there are hundreds of other right here in our classrooms who aren’t getting sufficient resources for their education?

So even schools and school districts that genuinely want to help special needs children have almost unconsciously slid down into a variety of strategies designed to gut many of the provisions of IDEA without seeming to do so. Here are a few examples:

Oklahoma’s great special education voucher shell-game

In Oklahoma, when your special needs child is first approved for special services, school officials are required to advise you of the Lindsey Nicole Henry Scholarship. LSH allows parents to take 95% of the Federal and State funding for their special needs child and apply it to the tuition to any private or parochial special-needs school in the state. Got it? Oklahoma will pay what amounts to about 80% of your tuition into such private schools when the public schools won’t help you.

Of course, there is one small and one ENORMOUS catch to all this.

First (the small catch), the overwhelming majority of the special-needs programs for which you can use these vouchers (39 of 46 in 2016) are private religious schools. Don’t worry, the State Supreme Court ruled that because parents choose to send their kids to these schools there is no question of breaching the barrier between church and state. But that’s not really the big issue.

The big issue is that if you accept an LSH Scholarship you give up all rights to special needs services in Oklahoma public schools for that student … forever. Once you accept the scholarship, I don’t care if your child is blind, or quadriplegic, or autistic, he or she can never come back to the public schools with an IEP. Never. Even if the voucher school triples its tuition and your scholarship no longer covers enough for you to be able to pay it. Lest you think I am being hyperbolic here, this is what the official fact sheet says:

As required by the revocation of consent provisions of the Individuals with Disabilities Education Act, a federal law, and the LNH Act, when a parent accepts an LNH scholarship, (1) the student is no longer entitled to receive special education and related services from any Oklahoma public school district and (2) each Oklahoma public school district must treat the student as a non-disabled student for all purposes, including discipline.

The importance of the LNH Scholarships is that they are a voucher-based program that has already passed at least one hurdle of constitutional scrutiny, and represent a model that other financially pressed states are considering. Far cheaper to warehouse those special needs children in voucher-funded private schools than to provide them with a Free Appropriate Public Education.

The “These are the services we offer” lie

Many school districts across the country will assess students to see if they qualify for special services, agree that they do, and then present the parents with a menu of options for “the services we offer.” Usually this involves enrollment in smaller, special-ed classes, a “resource room,” an Autism program, an ADHD program, and some online “individualized” coursework for students too ill to attend school regularly, as well as a whole bevy of smaller accommodations like an extra set of textbooks or preferential seating near the front of the classroom.

“But,” say the parents, “our child is not ADHD or Autistic, she’s got Fibromyalgia or ME/CFS, or some other disability that affects a far smaller percentage of the population. These aren’t the accommodations of modifications she needs. She needs homebound tutoring and attendance exemptions, and since she’s got a high IQ we need to find a way for her to pass AP Physics.”

Then the school officials smile at them with the paternalistic smile of someone explaining the realities of life to small children, and reiterate, “I’m afraid we don’t offer those services here. We’ll have to figure out a way to do the best we can for your child with what we’ve got. And, as for that AP course, it’s sadly out of the question. She’d never be able to keep up, given her attendance problems, and we can’t expect an AP teacher to work with just one student at the expense of all the others.”

In my experience, 90% of the parents of special needs children in this situation will be eventually browbeaten into accepting this answer by the dozen “education professionals” in the room during the IEP meeting, all of whom bemoan the lack of funding and promise to do “our absolute best for your daughter.” (I’ll explain why the other 10% don’t fall for this a little later).

Here’s the thing: what these school officials have just done is completely illegal under IDEA–and they know it! But if they can convince the parent to accept their proposition, the parent’s signature will legally waive the right to any services they are not willing to provide. OK, this is confusing. Why is it illegal, and how do they get away with it?

First, understand again that the “I” in IEP stands for “Individualized.” IDEA requires that the school’s assessment begin with assembling as complete as possible of the child’s strengths, disability, and potentials, and then focusing on each to build the best possible menu of services and accommodations. IDEA explicitly forbids the school from starting with its “available programs” and forcing every special needs student into that cookie cutter. Under IDEA, for example, it doesn’t matter if none of the other special needs students in your school require a special headset/microphone apparatus to direct the teacher’s words into his ears–if he needs it, and that support is critical to achieving FAPE, then they have to figure out a way to buy it. Even if that means a personal aide in the classroom. I say again: it is illegal to begin with the accommodations; the assessment process must begin with the child’s needs.

So how do schools get around this? (And they do.) Simple: when parents are invited to the first IEP meeting they receive a massive hand-out of IDEA notices, procedures, and protections. What I’ve just said above is in there … in almost incomprehensible education jargon that you’d need specific professional training to ferret out. More to the point, the hand-out also places the burden of asking about such issues squarely on the shoulders of the parents. If the parents don’t ask, the school doesn’t have to volunteer the information. And later, if challenged, the school can point to the fact that the parents signed for the appropriate materials, were given a full chance to review the IEP and get an outside opinion from anybody they chose, and then decided of their own free will to waive their rights to any other services. Why shouldn’t they? They’ve been put in a room with an administrator, guidance counselor, school nurse, educational diagnostician, educational psychologist, special education teacher, and regular education teacher (probably several of these), all of whom are the professionals that they are accustomed to believe would only ever have their child’s best interests at heart.

And these professionals do a completely legal, completely unethical end run around the law to screw over your child. She’ll never get that AP class. (Don’t blame the teachers so much for this. You have no idea how much institutional pressure is placed on them to sit back, shut up, and nod at the correct points. Non-tenured teachers know they can lose their jobs for arguing about these points. Even experienced, tenured teachers have learned that their school has all sorts of ways to punish them for breaking ranks here.)

The “It’s not time for an IEP assessment yet” con game

This one’s a doozy. You know there’s something wrong, so you talk to your child’s teacher or guidance counselor. “I’m thinking Sammy should be checked to see if he needs an IEP,” you say. The school official shakes her head and says, “I don’t think we’re there yet. We like to try RTI [Response to Intervention] or a 504 Plan before we move into that territory. Here, let me show you how we do it.”

Did you catch the con? Odds are, you didn’t. 90% of parents won’t.

They think that they just asked for their child to be assessed for special services and discovered that there is a long process–usually consuming at least a semester or even a year–before they are allowed to get that evaluation. They think that there is a natural, required progression from RTI to 504 to IEP, and they don’t want to rock the boat.

They should be rocking the f–king boat, because this is a con game.

Under IDEA you have the absolute right to request an evaluation for special services at any time, and the school has to do the evaluation within 60 working days. They CANNOT refuse or delay this request. If your child’s disabilities merit the protections and supports of an IEP, you get to skip directly to that point. The school can be in serious, SERIOUS trouble if it refuses to do a special needs assessment.

But–wait a minute–didn’t the parent in the above example trigger that process by asking for Sammy to be evaluated for an IEP?

Nope. Not at all. Because there’s this other loophole in IDEA: the request for an evaluation must be made in writing or it doesn’t count. If challenged, in the scenario above, the guidance counselor can truthfully say, “The parents never formally requested a special needs evaluation. They agreed that we should explore other avenues first.”

You see, IDEA places no requirement at all for the school to tell you that this request has to be made in writing, and therefore it makes it in the best interest of the school to distract you from doing so. Because as long as you don’t send that letter or email, they have absolutely no obligation to assess your child. And they’re not ever going to tell you that.

But what’s wrong with RTI or a 504 Plan? Nothing and everything.

Let’s start with a 504 Plan. Millions of students with mild to even moderate disabilities have thrived with correctly executed 504 Plans. They are less bureaucratically cumbersome to get, and they are more flexibly changed than IEPs. But there are two really big differences between 504s and IEPs. IEPs have the full force of Federal law behind them, and can usually be written so as to trump school, district, or even State policies that might not be in the student’s best interest. If an IEP says, for example, that the student is ill enough that s/he should not be penalized for absences from school, even State truancy laws cannot be used against that child or the parents. IEPs, properly written, can trump damn near everything. But 504s don’t. 504s can provide for many services, but they cannot override school, district, or State policies without the agreement of each of those bureaucratic levels. Parents of an extremely ill student covered only by a 504 Plan can be held liable by those truancy laws (and I’ve seen it happen).

There’s a second difference between 504s and IEPs that is even more fundamental, but–again–it’s complicated. 504s can authorize accommodations for special-needs students, but only IEPs can authorize modifications. If you don’t understand how these two terms differ, odds are you will never achieve the proper level of special services for a moderately to severely disabled child. So here goes …

Accommodations are changes, services, or supports that make it possible for a child with a disability to complete the regular curriculum. For example, the child could receive preferential seating if s/he has a visual problem, somebody could take notes if s/he has difficulty listening/writing at the same time, or s/he could get extended time on tests and assignments. But the student is expected, ultimately, to complete the same coursework and the same assessments as all other students. A 504 Plan can guarantee accommodations.

Modifications are changes in the curriculum itself that make it possible for the student to complete the course. Modifications might include reducing/eliminating homework assignments in a course, changing tests from written to oral, exempting a disabled student from Physical Education classes, reducing graduation requirements, or providing for an independent tutor to deliver a completely personalized course at home. Modifications are significant structural changes to a child’s education, and can only be authorized via an IEP. When so authorized they have the force of Federal law.

If your child actually needs modifications to succeed, and the school attempts to convince you to delay or even reject an assessment for special services, then the school is really doing nothing less than attempting to prevent your child from getting an education. (Yes, there are gray areas here, and room for genuine disagreement on specific cases, but that margin for disagreement is far, far narrower than you’d think.) If your child needs modifications, a 504 Plan is inadequate.

So what about RTI–Response to Intervention? That’s even trickier. First, let’s let the experts tell us what it is, and then deconstruct that explanation:

Response to intervention (RTI) is a process used by educators to help students who are struggling with a skill or lesson; every teacher will use interventions (a set of teaching procedures) with any student to help them succeed in the classroom—it’s not just for children with special needs or a learning disability. …

The response to intervention process was introduced within the 2004 reauthorization of the Individuals with Disabilities Act (IDEA). While it is not introduced as a part of the law, it was presented within regulatory notes as a method to help identify students with specific learning disabilities. In essence, the legislators and the Office of Special Programs (OSEP) wrote into those notes a statement that asks school districts not to rely on what is called the discrepancy model for identification of specific learning disabilities and consider using interventions tried within RTI. In practice, most school districts use RTI to intervene prior to special education referral, which is good

Now, a couple notes: (1) RTI is not actually part of IDEA; (2) RTI grants no specific rights to accommodations or modifications, and (unlike both 504s and IEPs) has no appeals process; and (3) RTI is the perfect tool to slow down a child’s progress toward getting the 504 or IEP s/he probably needs.

In short, education bureaucrats used the regulatory notes in the re-authorization of IDEA to create a stalling tactic for schools and districts that don’t want to provide the full gamut of special services one second faster than they are forced to do so. Schools, not parents, determine the applicability of RTI practices, decide which interventions to use, decide if they’ve been successful, and can withdraw them at any time for any reason–even if the reason is just “There are really too many children in this class for me to be spending extra time with Sarah every day.”

That RTI was so intended is proven by one simple observation: schools already had the authority to provide extra supports to any student at any time that a teacher considered it necessary. There was absolutely no reason to write it into the regulations except to impact the functioning of IDEA in such a way that slows down achieving access to more costly services.

Important point: RTI was an erosion of IDEA introduced long before the current administration and its talk of vouchers. President George W. Bush was in office then, and deserves a significant part of the blame for this watering down of support for special needs students.

But the President Barack Obama’s administration has done more … and worse.

Standards-based IEPs–chaining disabled students to high-stakes testing

This is one of the “fun” wrinkles trotted out by the corporate testing gurus and US DOE in the form of training grants to state DOEs–the idea that “data driven IEPs” should “promote access to the Common Core State Standards.”

This is very nearly the ultimate in Orwellian Newspeak for education, this idea that the purpose of an IEP is no longer to develop the best educational plan based on the child’s strengths, weaknesses, and individual needs, but that disabled children should have access to standards-based education that can be verified by data. In other words, what the Standards-based IEP does is require key elements of student progress for all disabled children to be measured by high-stakes tests.

Even if the child’s functional level in cognitive terms is significantly below grade level.

Even if the child has significant health impairments or physical disabilities that would make taking a high-stakes assessment at best a joke and at worst a punishment.

Even if it means that the States are now empowered to refuse to honor an IEP that calls for a child to be exempted from such high-stakes testing as developmentally and educationally inappropriate.

Want to know the absolutely most Orwellian component of Standards-based IEPs is? There is absolutely NO EVIDENCE that SBIEPs provide any benefit to students.

Let’s say that again: There is absolutely NO EVIDENCE that SBIEPs provide any benefit to students.

Huh? They couldn’t do that, could they? Bear with me a minute. When Delaware and other States received training grants requiring them to implement SBIEPS, if they were known to work, then you’d expect the assessment component of the grant to evaluate Delaware educators on how well those SBIEPs had worked–in other words, whether or not those SBIEPs had in fact led to students to better performance based on giving them access to Common Core standards via high-stakes testing. That’s just the way that grants work–you have to prove that what you did actually accomplished what it was supposed to, or else you have to explain why not.

But not for SBIEPs.

For SBIEPs the state grants evaluated education bureaucrats NOT on improved student performance, but on the “fidelity of implementation” in their training practices. In other words, the only evaluation built into these grants is effectively–prove that you conducted X number of training sessions with teachers, and that in those training sessions you presented the material in the manner we required. Get that? The people mandating the use of SBIEPs know they don’t work for students, only testing corporations, so they don’t want the grantees even gathering the evidence that might prove that.

What the existence of SBIEPs will do, if fully implemented, is severely restrict the services provided and the performance goals that schools can agree to for students with IEPs. It is, like the RTI process, an attack on IEPs from the other direction. First they make it harder to qualify, then they restrict what you are qualifying for.

Fortunately, at this point most school districts don’t understand or even really use SBIEPs in the manner intended, so the actual harm has been pretty minimal. But it raises the point that special needs families must be forever vigilant.

And now about those vouchers. …

What vouchers and block grants will do (even if renamed as something else in States with laws against them) is to lump Federal funding for special needs students into the larger block grants provided to the schools, to be re-divided equally among all students, and to follow them to whatever school their parents choose.

In currently proposed plans the decision of whether to set aside a percentage of that funding for special needs students (as well as how much) will be delegated from the Feds to the States, meaning that the Federal assurance portions of IDEA will be effectively zeroed out. An IEP will now mean what the State says it means because the States will control the funding.

This can get confusing, since the Feds generally only provide between 4-15% of K-12 education to each State, with the average somewhere around 6-8%. But that 6-8% contains 85-90% of the special needs funding (even though Congress has never lived up to its obligation to fully fund IDEA). More ominously there is no guarantee written in the law that any of those “choice” option schools–charter schools, private schools, parochial schools–have to offer any special needs services at all. Despite your vouchers, under the proposed changes, these schools can simply say they don’t provide these services and turn your child away.

If that one passes, lay it squarely on President Donald Trump’s doorstep. It will be his unique contribution to weakening the protections for special needs children that (we need to constantly remember) have only existed in this country since 1990.

What to do? First (and strategically) join/support a special needs advocacy group like those you can find here and here. These groups have a long history of lobbying and fighting for special needs children, and they generally do so on a shoestring as compared to the resources that multi-billion-dollar education conglomerates like ETS or Pearson can bring into play from the dark side. So volunteer your time, donate your money, and don’t forget that getting your own child through school does not end the fight. Somebody else’s son or daughter still needs your support to get an education, and they’re counting on you.

But get a Parent Advocate–today

For your individual needs it is an absolute must. As I have detailed above, most parents enter into the fight to secure services for their sick or disabled children almost completely unaware of the shabby tricks and evasions that can be used to keep the schools from fulfilling their obligations. Having somebody in the room on your side of the table who knows the law and the language makes all the difference in the world.

By the way, IDEA absolutely guarantees you the right to bring ANYBODY to an IEP meeting that you choose, and you CANNOT be required to pre-inform the school.

Finding that advocate isn’t always easy. There are a lot of people and organizations that purport to provide such services, and there’s not really much way to vet them except by recommendations and word of mouth. (I can tell you this–most of the really good Parent Advocates are NOT attorneys.) I’ve been working for a few years on trying to interest one of the advocacy groups in compiling some sort of national registry of Parent Advocates with proven track records, but so far it has been … frustrating. If all else fails, start with the Federally funded Parent Information Center in your state–they generally want to teach you to do your own advocacy (almost always a BAD idea), but they also often know the names of local advocates. For difficult cases expect to have to pay your advocate–there’s a lot of work involved and it probably took years to acquire those skills. But a good Parent Advocate is literally worth his or her weight in gold.

I cannot be optimistic about the future of special needs funding or IDEA in the current climate. The present tendency of the Federal Government is to transfer the responsibility and costs for educating your kids back to the States (who couldn’t or wouldn’t do the job or IDEA would never have to have been passed in the first place). This is really transferring the costs and responsibility for safeguarding and nurturing our most vulnerable children directly back to their families, as if Americans are so individually minded that they recognize no community or national obligation to take care of everybody’s children. I offer this excessively lengthy piece in the hopes that some family, somewhere, will read it and use the information contained therein to get their child what s/he needs before IDEA is not only gutted but abolished.