Withholding Information: The Dangers Of Holding Back

This article originally appeared on the McAndrews Law website.  Attorney Caitlin McAndrews wrote this and it is very important!  It has pivotal information that parents of students with disabilities need to know about during the IEP process.  Parents, even with the best of intentions, can make mistakes during this process.  I agree with the author: give as much information as you possibly can to help your special needs child succeed!

Parents sometimes withhold information from School Districts, worried that the District will find a way to “use it against them.” This can include privately obtained evaluations, information from outside therapists or medical providers, or changes in medication. Though the instinct to protect your child’s privacy is understandable, withholding this type of information from the educators who work with your student typically does more harm than good.

In the example of an independent evaluation, providing the report to the District only gives them more information about how your child learns, which they should use to appropriately program for the student. Hopefully, the District will use the evaluation to help provide appropriate supports and services; but even if they do not, the family can at least say they provided all available information to the District. If parents have to go to a hearing, and they withheld a private evaluation, a hearing officer may hold that against the parent, and may question why the parent withheld outside information about the child that could have helped the District understand and program for the child.

Additionally, the private evaluation might contain information that would trigger the District’s Child Find obligation – that is, by putting the District on notice that the child has certain needs/diagnoses, and might require special education support.  If the District never saw the outside evaluation, it may be harder to prove that the District knew of the child’s disabilities.

Similarly, Districts often request permission to speak to outside providers, such as private speech/language or occupational therapists, treating psychologists, or pediatricians. This information could help the District program for your child, and withholding it can make a parent appear uncooperative in front of a hearing officer.

In general, the instinct to hold back can be a very natural and protective one, but ultimately, parents should ask themselves, “What am I afraid will happen if I share this information?” and “What good could potentially come from sharing?” In the vast majority of cases, the potential good will outweigh the potential harm.

By Caitlin McAndrews, Esq., McAndrews Law Offices, P.C.

Delaware Special Education Due Process Hearing Showcases What Rights A Parent Should NEVER Give Up

A recent due process hearing in Delaware, filed by the parents of a child with a mood disorder, gave an example of the first thing parents should not do with special education.  The due process hearing was against the Cape Henlopen School District.  The parents claimed the district did not fulfill their obligation under IDEA with manifestation determination.  The case also showed a glaring flaw with special education law in the Delaware code, one I hope a legislator picks up on in the 149th General Assembly beginning in January.  Or if a very brave soul with a great deal of tenacity picks up the baton and literally runs for their life during the last two days of the 148th General Assembly and miraculously gets a law like this passed in the next two days, that would be a true miracle.  What did the parents do that ultimately caused a dismissal of the case? Continue reading

US DOE Guidance Letter About Response To Intervention & Child Find Shows Disturbing Trend

The United States Department of Education sent a “guidance letter” to state local education agencies (school districts) regarding Response to Intervention (RTI) and Child Find.  The Office of Special Education Programs (OSEP) sent the letter on April 29th.  It reminds pre-schools that they are responsible for child find.  This means the local school district is responsible for paying for a special education evaluation.  A pre-school can’t use RTI if a special education evaluation is needed prior to the RTI process.  This is all great except for that one tiny, itty-bitty, little thing: Who pays for it?

The US DOE had their toddler Race to the Top come out a year after the regular one and it gave states tons of money to make great pre-schools.  The funding for this runs out on June 30th of this year.  Which is why Delaware, Governor Jack Markell requested over 11 million bucks to keep these programs going.  But the big problem with this is school districts aren’t allocated more money to pay for all these special education evaluations.  So guess where that money comes from?  The local funds a school district gets from school taxes.  From YOUR property taxes.  Guess how much the charters pay for those pre-school evaluations?  Not one cent.  In fact, Delaware is a state where there is no basic special education funding from the state share of funds for students in Kindergarten to 3rd grade at any public school.  But that’s okay, they can afford it?  Right?  Yeah, let’s not go down that road.

If so many Delaware schools lack the ability to give special education services to kids in Kindergarten to 3rd grade because they just so happen to not get any extra funds for that, how is that going to work with pre-schools?  This letter, on the surface, looks great.  Big government is looking out for the kids with disabilities.  But who holds them accountable when they have NEVER given the full amount of funding to states under IDEA?  They give what, 10-13%, and they want to be the enforcer of all things special education?  What a crock!

Response to Intervention is the biggest joke of them all.  It is a crutch for Delaware schools to NOT give special education in Kindergarten to 3rd grade.  What they are doing is messing up kids big time.  Whether it is a school district or a charter, and unless they are listed in the “intensive” or “complex” category, you are better off letting your basic special education child sit in a pile of needles cause that’s what it’s like for them.  Imagine having a bad infection and someone says “let’s try this technique that will take a while to fight it”.  Will the infection get better?  Nope.  It’s going to rot and fester.  That’s what happens to the minds of children with neurological disabilities who don’t get the right special education.  But it’s alright, because Mary Ann Mieczkowski, the Director of the Exceptional Children Resources Group at the Delaware DOE says Delaware’s due process system is more than fair.  Yeah, I can see how that scares the hell out of Delaware schools into doing the right thing…

The US DOE are a bunch of hypocrites.  They endorse things like social impact bonds which is when a company “invests” in an education setting (like a pre-school) for a certain goal.  In Utah, that went swimmingly when Goldman Sachs had a long-running program they “invested” in.  The goal: only 1% of 200 kids would need long-term special education services in regular school after they put in the “necessary” programs at the pre-school to “help” these kids.  I guess they didn’t get the memo that disabilities are NEUROLOGICAL which is why programs like this are complete and utter crap.  In Delaware, the average for students with disabilities in public schools hovers around 13.5 to 15%.  But with genius banks getting their hooks in, only 1% would!  Goldman Sachs got a return on their “investment” because of the “success” to the tune of $277,000.  I don’t see OSEP sending financial institutions these letters…

To read the latest “guidance” (which essentially means do as we say or we are going to make you sorry) letter from US DOE/OSEP, read below.

Campus Community Loses Two Special Education Due Process Hearings, First Victories For Parents In 4 Years

Campus Community School, a Delaware charter school, recently lost two special education due process hearings.  These were the first due process hearings in Delaware since 2013, and the first time parents won cases in Delaware since 2011.  In both cases, the school was ordered to pay substantial compensatory damages.  Both cases were represented by McAndrews Law Firm, P.C.  In an article the law firm put out today, attorney Lauren O’Connell-Mahler wrote:

The school was further ordered to review and revise the child’s IEP to address absences due to illness, and to provide remedial education to its staff regarding their obligations to identify all children with disabilities. The panel found that the school’s record-keeping was inadequate, and determined that the Delaware Department of Education should conduct oversight of the school’s record-keeping until meaningful improvements were in place. Finally, the school was ordered to provide additional information to parents of children with disabilities concerning the educational rights of children so that those rights could be preserved and protected.

Both of the cases are below.  Campus Community received their charter renewal from the Delaware State Board of Education in December of 2015.  Neither of these cases came up at all during any of the formal proceedings for the charter school.  The school did have a comprehensive review of their special education in May of 2014.  This was something their board requested according to board minutes around that time.  The report was included as part of the record for their charter renewal.

Due Process Hearing 16-01

Due Process Hearing 16-05

Delaware’s Fatal Special Education Flaw: Using Response To Intervention

Delaware is considered to be horrible for special education by many around the country.  The reason for this could be due to Response To Intervention.

Under federal law, Child Find is an obligation for all public schools in the United States of America.  Wrightslaw describes Child Find as the following:

Child Find requires all school districts to identify, locate and evaluate all children with disabilities, regardless of the severity of their disabilities. This obligation to identify all children who may need special education services exists even if the school is not providing special education services to the child.

The US Department of Education came up with something called Response To Intervention (RTI).  This process does not work effectively at all for potential students with disabilities.  In Delaware, the whole RTI process takes 24 weeks until a suggestion is made, if needed, for an evaluation for special education services.  That is over six months because it is 24 weeks of school time.  While that may not seem like a long time for some, for the student with disabilities it can be a lifetime.  The large problem with RTI is many schools use it based on how a student is doing academically.  Some children with disabilities are very smart but the neurological wiring may not allow them to focus or have motivation to do well in school.  If the classroom is out of control, this magnifies for the student with disabilities.  Many of these students are perceived as “behavior problems” but if they do well academically, it is difficult for them to get an Individualized Education Program (IEP).  Add in other factors, such as low-income or poverty status, bullying, and violence in their environment, and this is a cauldron of problems boiling over.

Title 14 in Delaware is very specific about what Response to Intervention is:

Under federal law, Free, Appropriate Public Education (FAPE)  is mandatory for students with an IEP.  Using the Wrightslaw definition:

In a nutshell, FAPE is an individualized educational program that is designed to meet the child’s unique needs and from which the child receives educational benefit, and prepares them for further education, employment, and independent living.

The problem is getting students to this point.  At the Delaware Charter School Accountability Committee meeting today, two charters brought up the RTI process in how they identify potential special education students.  But the problems mount because of the time process.  If schools are using RTI to  identify students for special education, it is a minimum of six months before the RTI system reaches the point where special education evaluation can happen in Delaware.  Schools should be looking at other factors.  I’m not saying RTI is bad.  It can be very helpful for instruction.  But using this as a determining factor for special education services can cause a student to lose a whole year.  Then add the timeframes for the evaluation, getting parent permission, convening an initial IEP meeting, and then getting to the point of actually drafting the IEP, it could very well be a whole school year.

While I don’t think any school should be over evaluating students for IEPs for additional funding, the far greater danger is in under evaluating.  If the RTI process works for academic support, but the child does not have FAPE, it is not addressing the true needs of the student.  A student with disabilities can be brilliant, but if their neurological disability gets in the way of that, it impacts their education.  This is why I oppose many of the tests schools use to determine eligibility for special education.  A simple IQ test is not going to give you answers.  Many students with disabilities suffer from large classroom sizes without enough support.  For a sensory mind, this is like a torture chamber for these children.  But get them in a small group with RTI, where the focus is more centralized to their needs, and we have a much different story.  But RTI is not an all-day event.  So when the student is back in the general curriculum environment, that’s when teachers see the true natures of disabilities manifest themselves.  If a student appears to be smart, but doesn’t seem to be in control of their actions, this is the time to get an evaluation.  Yes, they are expensive for schools.  But how much time is spent on the RTI process that may or may not get this student results until another school year in most cases?  RTI as a system costs schools tons of money, time, staffing and resources.

Until Delaware schools truly get this, both charter and district alike, we will continue to bang our heads against the wall and say “We don’t know how to fix this.”  Add to this the even more burdensome “standards-based” IEPs which are rolling out this year, and we have a special education nightmare on our hands.  I’ve said this a million times: intelligence is not the sole factor for special education.  It could be as simple as a student having sensory toys, or additional transition time, or even training for staff at a more in-depth level.  There are so many things that can be done with special education that are not financially problematic, but common sense.  But expecting a special needs child to perform at the same levels as their peers when the DOE and schools have not done their essential legwork in truly identifying these students is a lesson in futility.  They may never perform at that level, but until schools do the right thing with special education and stop doing all this time-wasting nonsense, we will never know.  And let me reiterate: when I say performing at the same level as their peers, I do NOT mean standardized testing.  All the standardized tests actually take away from the uniqueness of the individual child and says “We want all of you to be the same.”  It is a demeaning and humiliating experience for all involved when we use a test to measure success.

Chair of Wilmington Education Improvement Commission Tony Allen Clears The Air & My Thoughts On Special Education For The Commission

In a Facebook post on the “Solutions for Wilmington Schools” page, Wilmington Education Improvement Commission Chair Tony Allen addressed some concerns people were having, including myself.  I will fully admit I reached out to Tony last night and he responded very fast:

As always, I welcome the thoughtful critique and continued questioning relative to my decisions and related actions on this historically important set of issues. It will make our Commission better, our mandate more focused and the resulting product more meaningful to students and families.

To level set everyone, the 23-person Commission is effectively a steering arm and ultimately an approving authority for what will be the work of our five working committees. I use “working” intentionally here as each will carry a heavy burden, over the next five years, to create strategies to implement the recommendations outlined in the Wilmington Education Advisory Committee’s final report, “Strengthening Wilmington Education: An Action Agenda.” Updated versions of this report are available now.

As for the Committees themselves, there are five: Redistricting; Meeting the Needs of Students in Poverty; Funding Student Success; Parent Family and Community Engagement; and Charter and District Collaboration. At present, we have only named the Co-Chairs of those committees. The Co-Chairs will finalize all of their respective committees over the next week or so, but you should all know that there is plenty of room. What I hope everyone experienced in the WEAC process was a spirit of candor, engagement and full participation. I don’t expect any of that to change with the new Commission.

On the notion of representation from Early Care & Education, Daphne Evans, you raise good points, but I think you will find that we are well-represented along those lines. There are more than a few Commission members that a passionate about the issue. And perhaps more important, in my view, the foremost authority and one of the most ardent advocates on early care & education is Dan Rich. He remains the Commission’s chief administrative and policy counsel on this work and is the reason that more support for the early care movement is central to the recommendations outlined in the WEAC final report.

Kevin Ohlandt has also written a piece and talked with me separately about special education and the need for it to have its own committee. I am confident he is right, but I don’t think that such a Committee needs to be standalone in this work. To be clear, the issue of serving low-income students is multi-pronged and interwoven. That is why one of our core recommendations and legislative priorities deals with more funding for special education K-3. This issue will be taken up in the “Meeting the Needs of Students in Poverty” and the “Funding Student Success” committees.

Finally, many have rightly noticed our website moniker, http://www.solutionsfordelawareschools. We decided to broaden our materials because many of our recommendations have applicability statewide and we believe deal directly with the 51% of public school students throughout the state that are low-income. In short, while much of the discussion has been focused on redistricting, as I have said many times, simply redrawing lines does not constitute a new path for Wilmington Education. We see and have presented our recommendations as a package of ideas to be considered together and will not make additional recommendations that don’t holistically attempt to address the fundamental problem of student success.

Despite my many thoughts, concerns, issues, and predictions with the overall outcome of this whole thing, I think Tony Allen is a stand-up guy.  He is making this process very transparent which will be the key to community engagement and letting folks know what is transpiring.  I believe the whole “basic funding” for K-3 students is pivotal to making this happen, it is just one part in a machine called special education in Delaware that has 1,000 other issues that need to be fixed.  But it’s a start, and if anyone out there is a strong special education advocate and knows what Delaware needs, I strongly suggest attending these meetings and letting your voice be heard.

I had a conversation last night with parent advocate Devon Hynson who is well-known in Wilmington and around the state to be a very strong voice for students with disabilities.  We both agreed Child Find is integral to special education improvement in Delaware.  Child Find is part of IDEA and Delaware state law which mandates that if schools see issues with a child they proactively attempt to get an evaluation and contact the parents for permission for any such evaluations.  Instead, many charters and districts punish first and ask questions later.  As a result, students tend to become lost in the system.  When they could be getting the special education they legally deserve, they are treated the same as their peers.  I’m not saying schools should be diagnosing kids, but if teachers or staff see certain behaviors or situations happening, they need to reach out to their special education coordinator or educational diagnostician to get the ball rolling.  Even one school year can make a huge different in a student’s life.

Even with all the new laws passed by Senate Bill 33, which stemmed from the IEP Task Force last year, there are a host of other issues this hopefully reconvened committee needs to address.  The most important of which is “the battle”.  This is the time when districts or charters try to negotiate with the parents or advocates over services for an individual child.  This is a very fine line, and one misstep over it can have disastrous results for a special needs student.  Personally, I think every child who gets an initial evaluation should have a full-blown neuro-psychological report done by a licensed psychologist or psychiatrist.  These types of tests are very long and time-consuming, but the benefits far outweigh any expense.  The reports generated tend to be very specific about what a student needs and what kind of services they should have.  The IQ tests and behavior analysis tests given for initial evaluation do not give a full picture or delve into the full scope of what a child needs.  This would help the IEP process immensely as the report will give most of what the student needs.

As any parent of a special needs child knows, dealing with schools can be your worst nightmare, but it doesn’t have to be this way.  There is a difference between collaboration and negotiation.  Frequently, these children can not afford to have any service cut or put on the back burner.

For the general population, many think of special education as Autism or Aspergers, or, I hate to say this because I find it offensive, the “kids who ride the short bus”.  This is so far from the truth it is ridiculous.  Disabilities in children run the whole gamut of dyslexia to social learning issues to ADHD to Autism.  And several components combine in children, which makes it even trickier to help them.   When these students manifest their disabilities, which are often neurologically based, all too often the perceived notion is they can control it.  In most cases, they can not, and the law is written to understand this.  But society as a whole doesn’t get this, including schools.

I’ve always felts psychiatry needs to play a much larger role in special education.  Therapy with a psychologist, councilor, or therapists is very important, but since disabilities are neurologically-based, and this is a psychiatrist’s area of expertise, why are we relying on psychologists for everything when they just study behavior and how to fix it?  Some manifestations of disabilities, even in the highest-functioning and brilliant child, can not always be “fixed”.  But the student can learn coping mechanisms or the school can work around these things.

For example, if a child cannot control a body movement, like tapping their fingers, instead of telling them to stop, maybe give them a soft cloth or matting so they can tap on that.  This way the child is able to manifest their uncontrolled action (not behavior), and it is not a distraction to the rest of the class.  It can be that easy!  But I can guarantee with almost 100% certainty if you try to make a child stop an uncontrollable action, it will result in conflict.  If that energy is not released, it will come out in other ways.  I like to think some special needs children have coping mechanisms wired into them to sub-consciously mitigate their actions.  While tapping is minimal, it could be the child’s way of stopping themselves from jumping up and down.  A classroom is not the place for a battle of wills between a special needs student and a teacher or staff members.  Heck, there is nowhere in school this should happen.  It embarrasses the student, frustrates the teacher, and distracts the rest of the class from effectively learning.

As a parent of a child with Tourette Syndrome, I see physical manifestations of my child’s disability all the time.  I have seen research and videos and case studies that report the same thing every single time: if a child is having tics, just ignore them.  Pretend they don’t exist.  Even in the 10% of Tourette Syndrome when they have coprolalia, the uncontrollable swearing, most experts say to ignore it.

Children with special needs often go undiagnosed and this can result in a disproportionate number of suspensions or expulsions compared to their non-disabled peers.  This is one of the largest problems going on in Wilmington schools.  And yes, putting a child in an out of school placement is often a punishment.  For too many kids, it’s the school giving up and throwing their hands in the air and refusing to deal with the true issues: their inability to provide adequate special education.

When I hear about children with disabilities being placed in day programs and residential treatment centers, my first question is always “How long did the child not get the essential services?”  If a child with Obsessive-Compulsive Disorder begins showing this disability in Kindergarten, but they didn’t get services until 5th grade, of course this child is going to have major issues.  Because the child has learned that any time they exhibit their disability they are “bad” because that’s how they have been treated for the past five years.  A brand new IEP isn’t going to erase years of damage for this child.  That road to recovery, if ignored, is going to set up a lifetime of anger and resentment on the child’s part.  Their very foundation in school is a symbol of failure in that child’s mind.

These are key things I feel the Wilmington Education Improvement Commission needs to look at right away.  Funding doesn’t solve everything, some things are just common sense.  Instead of fixing special education, we need to be embracing and celebrating these unique individual kids.  They need us to understand them when the world is screaming at them.  They are scared, and feel isolated, and they don’t get why everyone hates them.  They need compassion and empathy, not a strong hand and rigor.  They want what all of us want: to feel accepted and acknowledged they are a person, not a problem.

Landmark Special Education Case Won In Pennsylvania #netde #eduDE #edchat @KilroysDelaware @ed_in_de

A plaintiff prevailed in a very important special education case regarding tuition reimbursement and compensatory damages in Pennsylvania.  The United States District Court for the Eastern District of Pennsylvania reversed a decision by a Pennsylvania Special Education Hearing Officer.  The Federal District Court ruled in L.G. v. West Chester Area School District, that the plaintiff was denied a Free and Appropriate Public Education (FAPE) and the student was entitled to a full tuition reimbursement for a private school as opposed to the earlier ruling for limited tuition reimbursement.

The case utilized both Section 504 of the Rehabilitation Act and IDEA as arguments for cause in arguments.  For the 504 argument, which covers “any disability which substantially impacts learning or other major life activities”, the plaintiff, represented by McAndrews Law Firm, argued the school district did not provide appropriate Child Find in identifying a student with disabilities.  Despite behavior interventions and attendance issues, the school did not perform their obligatory responsibility as required by IDEA as well.  As well, the child did not receive an IEP while in the 2nd and 3rd grade at the school district.

This case won a good deal of victories for special education advocacy.  It established FAPE, Child Find duties, and tuition reimbursement as clear avenues for special needs parents to advocate for their children, not only in Pennsylvania, but nation-wide.