Guest Post by Lauren O’Connell Mahler with McAndrews Law About Delaware IEPs

Lauren O’Connell Mahler is a special education attorney in the Wilmington offices of McAndrews Law Offices, P.C.  McAndrews has two offices in Delaware, the one in Wilmington and one in Georgetown which opened last year.  The original article appears on the website of McAndrews Law Offices.  This article was republished with the permission of McAndrews Law Offices, P.C. This is a must-read for Delaware parents, especially now when IEPs are in the creation process or getting an annual revisit.  Special education law is very tricky and many parents are unprepared for what is allowable by law and what is not.  Parents are the #1 advocate for their children with disabilities and they should always prepare ahead of time for any IEP meeting.  Know your child’s rights with special education!

Learning to read your child’s Delaware Individualized Education Program (IEP) can be an intimidating task. IEPs are filled with legal language and educational jargon that can be overwhelming. Without a basic understanding of your child’s IEP, you may be feeling reluctant to offer input at your child’s IEP meeting.

As a parent, you are an equal member of your child’s IEP team. Thus, it is essential that you understand your child’s IEP so that you can help the IEP team develop the IEP, monitor your child’s educational progress, and advocate for his/her needs. The following is a list of the basic components that make up your child’s IEP in Delaware. Items are addressed in the order in which they typically appear in Delaware IEPs:

• “Disability Classification” – Your child must meet one of the 13 eligible disability classifications in order to qualify to receive special education services. The categories are Autism; Developmental Delay; Deaf Blind; Emotional Disturbance (ED); Hearing Impairment; Learning Disability (LD); Intellectual Disability; Orthopedic Impairment; Other Health Impairment (OHI); Speech and/or Language Impairment; Traumatic Brain Injury; Visual Impairment; and Preschool Speech Delay. The classification does not dictate the services that your child can receive. His/her services should be based on your child’s unique, individual needs.
• “Data Considerations” – Here, the IEP team should list all current data about your child that they reviewed in developing the IEP. This includes, but is not limited to, current school district evaluations, independent evaluations obtained by the parent, State and local test results (such as DCAS scores), classroom test results, progress reports, and the parent’s educational concerns. The data should serve as the basis for the services and supports that the team puts into the IEP.
• “Other Factors to Consider” – These list special factors that the IEP team might need to be aware of with your child. The boxes should be checked if your child has difficulty with communication, is blind or visually impaired, is deaf or hearing impaired, is limited in his/her English Language proficiency, needs Assistive Technology, or has a print disability that prevents them from using materials presented on a physical page.
• “Transition Services” – This page is included in  beginning at least by age 14 or 8th grade. It should include a statement of your child’s measurable, individualized goals for life after high school, including where they plan to live, work, and whether they intend to pursue any higher level education or training. It should be based on data (such as Parent and Student Transition Surveys). It also lists the classes your child is taking, which should be tailored to help them achieve his/her post-high school goals, as well as any activities they will complete to help them reach his/her goals, and any outside agency who will help your child prepare for the transition to adult life (such as Division of Vocational Rehabilitation, Division of Developmental Disabilities Services, DART Bus Service, and POW&R).

“Unique Educational Needs and Characteristics” – The middle pages of your child’s Delaware IEP should list each of your child’s unique educational needs. The need will be identified in box at the top, left-hand corner of the page. The rest of the page will detail the services and accommodations being provided to address that need as follows:

• The top, right-hand box includes a statement of any supplementary aids, modifications, services, or accommodations that will be put in place to address your child’s unique educational need. These should be based on the supports that were recommended in your child’s evaluations.
• “Services, Aids & Modifications” – This is a statement of the duration, frequency, and location of any special instruction that your child is receiving to address the unique need (for example: Small Group Reading Instruction – 3 times per week for 30 minutes in a Push-In location). Push-In means within the general education classroom. Pull-Out means in a separate classroom.
• “PLEP” – The Present Level of Educational Performance is a specific statement of what your child is currently able to do in that unique area of need. It should be based on current data and should be measurable. The PLEP is the starting point for setting an annual goal and measuring your child’s progress.
• “Benchmark” – These are the interim steps your child will take over the course of the year to reach his/her annual goal. They are typically measured each marking period. Monitoring whether your child is meeting his/her benchmarks will help you determine if they are making sufficient progress toward his/her annual goal. If your child is failing to meet his/her benchmarks, his/her IEP may need to be revised to provide more support.
• “Annual Goal” – This is a statement of what the IEP team feels the child can achieve within 1 year’s time. The goal should be specific and measurable and should clarify how it will be measured. The amount of progress should be realistic and attainable, but not trivial. The language in the annual goal should be aligned with the language of the PLEP and benchmarks.
• “Related Services” – Related services provide extra help and support to your child in needed areas. They can include, but are not limited to, any of the following: Speech/Language Therapy, Occupational Therapy, Physical Therapy, Counseling Services, Parent Training and Counseling, Social Skills instruction, Audiology, Therapeutic Recreation, Social Work Services, School Health Services, Medical Services for diagnostic or evaluation purposes, Orientation and Mobility Services, and Psychological Services. The IEP must specify the frequency and duration of these services.
• “Consideration of Eligibility for Extended School Year Services (ESY)” – The team must document whether your child is eligible for extended school year services. ESY is different from summer school or credit recovery. It is based on the needs and goals in your child’s IEP. There is no single factor that determines whether a child is eligible for ESY. Instead, the IEP team must consider a variety of factors, including whether the child has made meaningful progress towards his/her IEP goals or has a tendency to regress in critical skill areas during the summer. Note: Under Delaware law, children classified under certain disabilities automatically receive 12-month educational programs.
• “Least Restrictive Environment” – The IEP must specify what placement your child is in. The placement (or LRE) is the extent to which your child will not participate in general education classes and extracurricular activities. The IEP lists a continuum of placements ranging from Setting A (for children who spend at least 80% of the day in the regular classroom) to Settings E, F, and G (for children who are in separate Residential Facilities, Homebound or Hospital placements, or Correctional Facilities).
• Additional components attached to Delaware IEPs – If your child has a Behavior Intervention Plan or Positive Behavior Support Plan, this should be attached to your child’s IEP and is part of the document. Additionally, if your child needs accommodations on the State-wide Smarter Balanced, DCAS, or SAT assessments, the checklist of Smarter Balanced, DCAS, or SAT accommodations should be attached to the IEP.*

This article was designed to provide you with a basic framework for understanding your child’s Delaware IEP. The information within this article is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.

Editor’s note: The * in the last bullet point was edited by myself to reflect the Smarter Balanced and SAT assessments as well as DCAS.

 

 

Predicting Delaware’s Assessment Inventory Report

By June 30th this year we will all know what is in the final report from Delaware’s Assessment Inventory Committee.  This is when it is due to the General Assembly.  I have made predictions in the past about the end result: that district assessments will go the way of the dinosaur in favor of more interim assessments for the Smarter Balanced Assessment.  When Senate Joint Resolution #2 was announced, it was at the height of the 2015 opt-out movement.  Governor Markell spoke about it at Howard High School last March.  I immediately saw it as a response to opt-out.

A week before the legislation hit the General Assembly, I had the opportunity to see a DOE email stating that Senate Joint Resolution #2 was the answer to opt-out.  The House and Senate Education Committee Chairs in Delaware sponsored the legislation.  During the Senate Education Committee meeting in June, it was brought up before House Bill 50, much to the consternation of several people.  Governor Markell’s Education Policy Advisor, Lindsay O’Mara, when asked at the meeting, said the Smarter Balanced Assessment could be a part of the assessment inventory but it depends on state and federal regulations.  The Assessment Inventory Committee officially began in November.

To date, no minutes have been posted on the General Assembly website or the DOE website.  The group first met on November 16th and then again on December 16th.  The only place it shows up is on the Delaware Public Meeting Calendar and it must be put there seven days before the meeting as per Delaware state code.  In looking at that website, there are no scheduled meetings showing up anywhere in 2016.  In fact, on the list of committees and task forces in a different section of the General Assembly website, there is no listed Chair of this committee.  No meetings show up on the Department of Education calendar part of their website either.

I am going to predict now that the Smarter Balanced Assessment will definitely be a major topic of discussion at this task force.  It will not be a part of the assessment inventory to be kept or removed.  But someone will say something to the effect of “We need to do an evaluation of this test.”  It may even be one of the few members on the task force who has vocally opposed it.  Politics is often suggesting something to someone and making it seem like it was their idea.  Someone will whisper it into their ear and they will think it is a great idea.  When it comes to education, great ideas can seem like a good thing but they are loaded with snares and traps.  Like I said before, this committee is top-heavy with Markell sympathizers.

There will be some other carrots in this final report.  One teachers will love will be a recommendation that standardized tests not be used for the purpose of teacher evaluations.  Teachers will support this emphatically and will then support anything the committee recommends.  If Governor Markell doesn’t sign an executive order or no legislation passes prior to this report, there will be a very strong recommendation that high school juniors not take the Smarter Balanced Assessment.  This is something ten Democrats in the House of Representatives wrote to the Governor about three days ago.  The reduction in district assessments will not specifically say “get rid of this or that”.  There will be a recommendation that no student receives any type of “interim assessment”, whether it is the Smarter Balanced Assessment or something like SRI, SMI, MAPS, DIBELS, or any of the other assessments districts use in Delaware more than once in any given marking period.  There may be certain assessments ditched, but for the most part it will be up to the local districts.  There will most likely be language either requiring or strongly suggesting the Smarter Balanced Interim Assessment be given at least once during the first or second marking period.

The evaluation of the Smarter Balanced Assessment will be done by a third corporate cousin of one of the many vendor companies the DOE utilizes for pretty much anything that generates a report.  The evaluation will come back and find that the Smarter Balanced Assessment is effective.  Bloggers and teachers will rip it apart and say the report is not valid.  The state will most likely pay this vendor anywhere from $50-$100,000 for this report which will show some issues with the test but not enough to render it invalid.  When all is said and done, we will pretty much have what we’ve always had but a little bit less of the district assessments.  Smarter Balanced will still be here.  Parents will still opt-out.  The big question on everybody’s mind will be if our legislators honor that right by overriding Governor Markell’s veto of House Bill 50 or if they side with the test and punish corporate backed privateers who are hell-bent on continuing their agendas.

 

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.