It would be my hope that all Delaware schools, be they district or charter, have seen this. I would also hope the Exceptional Children Resources Group, the special education area of the Delaware Department of Education, led by Mary Ann Mieczkowski, circulated this to all our schools. If not, I’ll make sure they get this. And I won’t even charge them! But just in case they haven’t seen this, they may want to read this from top to bottom. Special education is NOT a choice. And you are expected to implement it with fidelity and as per federal law under IDEA. The below document, released by the Office of Special Education and Rehabilitative Services at the United States Department of Education issued guidance about the landmark U.S. Supreme Court decision on Endrew F v. Douglas County School District.
McAndrews Law Firm, the premier special education law firm in Delaware, just won a BIG case against the Delaware Department of Education. The basis of their claim was that if a charter school goes under, the DOE is obligated to provide those services. The DOE objected with twelve different claims, all of which were shot down by federal district court! Way to go McAndrews! From their press release:
Last week, we were gratified to report that McAndrews Law Offices had prevailed in an important federal court matter on behalf of children with disabilities who attended charter schools that go out of business. Just two days after prevailing in that important matter, MLO obtained another crucial federal court decision, this time in the state of Delaware, holding that states are responsible to ensure the rights of children and their families are protected when charter schools become defunct.
In MK v. Delaware Department of Education, McAndrews Law Offices negotiated a $30,000 compensatory education fund with a Delaware private charter school as part of a settlement agreement, but the charter school then failed to pay for the compensatory education services and went out of business. On behalf of the family, MLO brought an action against the Delaware Department of Education, asserting that under federal special-education law, the state must step into the shoes of the defunct charter school and provide the child and family their educational rights under federal law. The Delaware Department of Education asserted, in shotgun fashion through a motion to dismiss the case, nearly a dozen claims as to why the state had no responsibility for ensuring that the child received the protections of federal law. These claims were universally rejected by the federal district court, which held that “Congress considered the establishment of a single agency on which to focus responsibility for assuring the right to education of all disabled children to be of paramount importance.” With this motion to dismiss having been denied and the fundamental arguments of the state to avoid liability having been dismissed, a major procedural victory has been obtained on behalf of our Delaware clients.
I wonder which charter school this was? Delaware MET? Prestige Academy? That’s just like the DOE, ducking their responsibility. Do they really not get IDEA? The fact that Delaware does not provide basic special education funding for students in Kindergarten to 3rd grade shows how out of touch they are with special education reality. By relying on Response to Intervention as a “childfind” measure, which is not the identifying criteria for special education under IDEA, the Delaware DOE and our legislators continue to disregard federal law. This is all going to come to a head very soon and Delaware taxpayers will be the ones holding the bag when we have to bail out the state for their horrible special education policies and funding mechanisms. The Delaware ACLU lawsuit over education funding in general will be a drop in the bucket compared to what is coming. DOE needs to get their heads out of their imaginary clouds and start following federal law!!!!!
State Representative Kim Williams pre-filed legislation today that would do away with emergency certifications for pending special education teachers in The First State. As part of the Every Student Succeeds Act, this is no longer allowed in public education. From the bill’s synopsis:
Enactment of the Every Student Succeeds Act amended the Individuals with Disability Education Act (“IDEA”) by mandating that special education teachers must have obtained full certification and may not be working under emergency certifications. The Delaware Department of Education must stop issuing emergency certifications in special education in order for the State to continue receiving $36 million in federal IDEA funding for our schools. This Act creates a mechanism that is in compliance with federal requirements to enable educators to obtain a certificate of eligibility in the areas of special education. Educators will be able to meet federal requirements while being enrolled in an approved, alternative routes to certification program. This Act will allow local education agencies to staff special education classrooms while ensuring the educators are receiving high quality training working toward their standard certificate in the appropriate area of special education. This Act also makes technical corrections to conform existing law to the standards of the Delaware Legislative Drafting Manual.
Also sponsored by State Senator Nicole Poore, this bill has many co-sponsors by several Democrats but no Republicans. But that shouldn’t matter as this is a federal requirement now. So what does this mean? It means you can’t just be put into a classroom that has students with disabilities with an Individualized Education Program based on an emergency certificate. You have to already be going through some type of program that would allow you to be heading towards full certification. I expect this to pass with no problems.
As well, Williams also pre-filed legislation today concerning special education diplomas with House Bill #287 which I wrote about here. To read the full pending legislation for House Bill #286, please go here.
The United States Department of Education released their annual state determinations for special education the other day and Delaware obtained a “Meets Requirements” for indicators under IDEA Part B. For IDEA Part C, they were designated as “Needs Assistance”. Part B is for children ages 3 and up to 21, with disabilities, and Part C ranges from birth to 2 years old. I wrote last year how so many of these special education indicators are based on the state assessment: their scores and participation rate play a very heavy roll. I have neither the time or the patience to get into the nitty gritty with these determinations at a granular level. The feds don’t get it and our state doesn’t get it. I have no doubt the Delaware Department of Education will celebrate this and say “look how far we’ve come”. But since so much of this is based on the Smarter Balanced Assessment, I give it about as much legitimacy as a Mona Lisa forgery.
House Concurrent Resolution #34, introduced today by State Rep. Kevin Hensley and Senator Nicole Poore would look at the costs of special education in Delaware. Another task force, with the usual representation. A bunch of people sitting around a table, half of which won’t have a clue what they have jumped into. The Delaware Way. But here is the catch with this one: most of the spending going on with special education is based on federal mandate based on IDEA.
I have a hunch what some of the impetus for this is. For years, districts have been complaining about McAndrews Law Firm. Most of these cases wind up in settlements and the districts are crying foul on this. But, if the districts and charters were doing the right thing to begin with, none of these cases would get to that point. McAndrews won’t even take a case unless it has merit. They won’t take a case based on a notice of meeting not going out once or twice.
Good luck with this task force trying to figure out WHY special education placements are increasing. It doesn’t really matter why. What matters is that they are and our General Assembly better find out how to wrap their arms around it instead of ducking the issues. I can say most of the kids who lived in my neighborhood that were home one summer day in 2006 were subjected to nasty fumes coming from an accident at the old Reichhold Chemical Plant in Cheswold. They all have disabilities of one sort or another. My son is one of them. We live in a polluted state. I highly doubt this task force would look at things like that.
Are all special education placements valid? I don’t know. I know Response to Intervention is horrible. Standardized testing should never be a measurement of whether a kid needs special education. Autism rates have been soaring for over a decade now. I just hope the Delaware DOE doesn’t put a gag order on district teachers and administrators like they did with the IEP Task Force. They told districts and charters NOT to have anyone give public comment at those meetings.
Still, not one peep about giving Basic Special Education costs for kids in Kindergarten to 3rd grade. We don’t need another task force to figure out that no-brainer. If they really want to care, how about they allow our Auditor of Accounts office to FULLY audit every single penny in special education along with ALL of education. We know the money isn’t always going where it needs to. But Delaware loves their task forces to give some crappy illusion of people wanting to do the right thing. How about just following the law to begin with?
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 Continue reading “Don’t let your special needs child fall victim to “new” Federal and State voucher/choice policies”
The United States Senate deadlocked in a vote for Betsy DeVos as U.S. Secretary of Education with a 50-50 tie. Vice President Mike Pence broke the tie, confirming Bad News Betsy as the next Secretary of Education in America. Now we recoup, focus, and battle. Hard. Fast. And Furious. She is going to unleash holy hell on public education. She who thinks grizzly bears can stop school shootings and IDEA is a state and local mandate. She who does not know the difference between growth and proficiency.
This is a billionaire. With no teaching experience whatsoever. She buys power and support and does nothing to earn it. Exactly what is wrong in education these days. We are about to enter an era of voucher hell which will only further segregate our schools. Hold on to your seats, this is going to be a very bumpy ride.
I salute Republican Senators Susan Collins (ME) and Lisa Murkowski (AK) for their courage in voting no. It is horrifying to think that 50 Republican Senators put party lines over the best interest of children. But this is Trump’s world and we are just living in it…
*Please see below for a statement from Delaware Senator Brian Pettyjohn in regards to this letter.
This morning, Delaware State Rep. Kim Williams published a letter from several state legislators around the country supporting Betsy DeVos in her nomination for the United States Secretary of Education. Senators Anthony DelCollo, Greg Lavelle, Ernie Lopez, Brian Pettyjohn, and Gary Simpson represented the Delaware contingent of these signatures. I am publicly asking these five Delaware Republican Senators to withdraw their support for Mrs. DeVos.
Last week, DeVos had her Senate Confirmation hearing. She did not know the difference between growth and proficiency. She supported guns in schools to prevent grizzly bear attacks. She stated when she was first nominated that she supported dismantling Common Core, but history with the DeVos Foundation suggests otherwise. She is a fervent supporter of school vouchers which have the strong potential to further issues of discrimination and segregation in American schools the way they are currently set up in many states. She supports charter schools which have not shown to be a greater success unless the pull smarter students in through selective enrollment preferences despite the legality of those preferences in many states. But most disappointing was DeVos inability to understand that the Individuals with Disabilities Education Act, known as IDEA, is a federal law, not a state and local law.
As a father of a student with disabilities, I was appalled when Betsy DeVos said this. The U.S. Secretary of Education is a person who leads all American students in public education. The last thing we need is someone who does not understand special education going into the job. DeVos is a billionaire but her ability to lead education in America is disturbing on many levels.
I have found myself in alignment with many bills that Pettyjohn and Lopez supported. They stood with parents during the opt out saga. They did not support the Smarter Balanced Assessment. Which is why I find their support of DeVos puzzling. Education has become synonymous with standardized testing. Students with disabilities do the poorest on these tests. But they are expected to show the most “growth” in state accountability systems. As a result, in my opinion, special education has become a gigantic mess. It is now geared more towards the student outcomes on these tests than accommodating the true needs of each individual student. If DeVos has her way, students with disabilities could be shuffled around different private schools through a very flawed school voucher system. Private schools are not obligated to follow federal special education law unless they receive federal education funds. Special education in public schools can be challenging enough, adding private schools to that mix with federal dollars could become a recipe for disaster for a population that is already marginalized to a great extent.
Once again, I urge these five Delaware Republican Senators to withdraw their support for Betsy DeVos as U.S. Secretary of Education. Our children deserve better. Students with disabilities deserve better. And my son deserves better.
**UPDATED**5:16pm: I spoke with Senator Pettyjohn about this issue shortly after I posted this article. He echoed the statement he made on Facebook, which said:
Kevin, I agreed to support Betsy DeVos for her nomination to lead the US Department of Education based on my belief that an outsider view of the US DOE is necessary. In previous statements, Ms. DeVos had indicated her disdain for the Department and it’s overburdensome policies and regulations toward states and local districts. I have, for some time, been critical of the federal intrusion into our classrooms, and prior to Ms. DeVos’ confirmation hearings, those were concerns that she had also viewed with a critical eye.
That being said, I do have concerns that have been brought to light since her confirmation hearings; especially concerning her stance on special education. While this is an issue that our United States Senators will be faced with in the coming days, I believe that the letter that was sent, which I agreed to sign before the confirmation hearings took place, will have relatively little impact on the decision that will ultimately be made on Capitol Hill.
That Senate Confirmation hearing took a lot of folks by surprise. In my eyes, it just proved that vast amounts of wealth does not always equal knowledge. DeVos will face a vote for her nomination next Tuesday, January 31st.
The United States Supreme Court began hearing oral arguments for the Endrew v. Douglas County School District today. This case could determine the goal of special education in America: a bare minimum special education or a more than minimum special education. These arguments weigh the words “significant” and “meaningful” quite a lot since it is the center of the case. Another question is how do you measure progress for a student with an Individualized Education Program. Does the IEP team just write the IEP and make sure the student is on target to perform as well as their non-disabled peers or do you go above and beyond?
Another huge issue is funding for special education. The fact that the Federal government spends less than 15% of what they promised to do for special education is a large problem. It was not the Congressional intent to dump all of this on the states and local school districts but that is exactly what happened. As well, what does “standard” mean in this context? Is it the Common Core State Standards and the high-stakes testing that supposedly measures the ability of the student to grasp those standards? Do classroom grades count for anything anymore?
The case is officially submitted into the highest court in the country. This will be fascinating to watch, especially the final ruling.
Why do parents of special needs children need to advocate for them? Because we have to. If we don’t, who will? There are those who will help, but nobody understands your child more than you. I see it as my moral responsibility to advocate for my own special needs child when something is wrong. When something doesn’t add up. To say his battle has been long and tough would be an understatement. When the pieces of the puzzle don’t fit neatly together at a school, a church, an extracurricular activity, or anything your child does, you have to look at the whole picture. If those pieces don’t fit or some are missing, get loud. Expose and find out the truth. Because even if you may not get what you wanted for your own child, it could help another child down the road.
I see special needs parents go ballistic when a restaurant or some type of amusement activity discriminates against disabled children. But I don’t see this with a lot of schools or churches. Why? Our child has just as much right to be some place as someone else. If you tell me you don’t want my child somewhere, you better have a damn good reason for it. As well, you better know damn well what you are talking about and be able to back up that talk with cold hard facts. If it is a place that has already given certain promises or expectations, and those suddenly shift, you have every right to find out why AND go public about it.
If you feel your child has been treated harshly without some form of due process or a valid reason, you need to call them out on it. If the institution has not done what they said they would do, you have EVERY RIGHT TO ADVOCATE FOR YOUR CHILD. People hate to get named or called out. They get scared. They don’t like seeing their name in public. Why? Because that could tarnish what they believe is their good reputation. If, after you have reached that point of no return, name them. Expose them. Let others know the grass isn’t that green. Because if you don’t, you are saying it is okay. You are saying it is okay for someone to discriminate against special needs children. You are saying it is okay for other children to not be given a sense of justice and fair treatment.
I always ask these basic question when it comes to special education. Would an adult tell a child who is blind that they need to see? Would they tell a child in a wheelchair they need to walk? Would they tell a deaf child to listen up? Of course not. So why would they tell our children with the disabilities they have, when those disabilities are medically documented facts, that they cannot provide for your child when they already agreed to it? It is their responsibility to understand that disability. When a parent provides documentation for their child to a school, it is incumbent on the school to actually read and understand that information. A “cursory glance” is not acceptable and it should not be tolerated. If you notice your child is having escalating behavior issues when they weren’t in the past, is that the fault of the student with disabilities if the school has not bothered to accommodate the child? I would challenge any school that has not done its due diligence for that unique child to say they did. Special education is NOT a one size fits all. And if you are a private school with a program designed exclusively for students with disabilities, then you cannot deny a child services when you have done nothing to understand that disability.
Parents have to fight for their child. It is their legal right.
Is a bus driver beholden to a student’s Individualized Education Program (IEP)? That was the question for an investigator at the Exceptional Children’s Resources Group, the special education division of the Delaware Department of Education. When behavioral issues came up for this student on the school bus, did the district do everything it could have when the student was denied access to the school bus? Find out the answers here!
As the Chairman of the IEP Task Force in Delaware back in 2014, Delaware Attorney General (then Lieutenant Governor) Matt Denn stated in the first meeting that Delaware students with disabilities deserved more than what federal law under IDEA stated. He announced yesterday he will advocate for special needs children getting a top-notch education. Yesterday, the U.S. Supreme court decided to hear a special education case regarding what a Free Appropriate Public Education (FAPE) really is. The is significant due to the fact that special education changed a lot when IDEA was reauthorized in 2004. This will be the first time the highest court in the land has tackled FAPE in a very long time.
Today, the Supreme Court of the United States agreed to hear a case from the state of Colorado involving the level of educational services that must be provided to public school students with disabilities. The case, Endrew F. v. Douglas County School District, is significant because it will be the first time in decades that the U.S. Supreme Court has addressed this issue, and different federal courts around the country have come to different conclusions on the question.
“This case may not have significant implications for Delaware public schoolchildren with disabilities,” Delaware Attorney General Matt Denn said. “Delaware state law was changed in 2010, in a bill I worked on as Lieutenant Governor with Representative Quinn Johnson and Senator David Sokola, to require that Delaware public schools provide services to Delaware students with disabilities that matches the highest level of services required by federal courts interpreting this issue. However, sometimes the language that the U.S. Supreme Court uses in issuing its decisions can be as important as the decisions themselves. For that reason, the Delaware Department of Justice will be seeking to advocate – potentially with other state Attorneys General — for the U.S. Supreme Court to find that the highest level of services for children with disabilities currently recognized by federal courts is the correct level for all of the nation’s children, and for the Supreme Court to provide specific guidance to the states as to how to implement its decision in order to ensure that children with disabilities have an opportunity to fulfill their potential.”
In regards to that bill from 2010, Denn said the following about the bill when it was introduced:
“It is completely unacceptable for us to tell the parents of most children that we want their kids to have the best public school education in America, while telling the parents of students with disabilities that their kids will receive the educational equivalent of a serviceable Chevrolet,” Lieutenant Governor Denn said. “We have a legal and a moral obligation to these children to provide them with a meaningful education, and this bill is a first step to making sure that happens.”
Denn has always been one of the strongest advocates in Delaware for students with disabilities. I am glad he is putting his support behind the parents in this potentially landmark Supreme Court case. With that being said, the very definition of special education will be redefined yet again if education reformers get their way with their dreams of “IEPs for ALL”. I pray, if that time does come, that Matt Denn will be at the front of the pack for students with disabilities, their parents, and disability advocates to make sure special needs students don’t get lost in the shuffle.
In the meantime, the Delaware Dept. of Education, under the direction of Governor Markell in epilogue language in the FY2015 budget, is still working on a Special Education Strategic Plan for the state, more than two years since it was created.
The United States Supreme Court will decide the fate of millions of special education students in America when they rule on a controversial case regarding what the appropriate amount of FAPE (Free Appropriate Public Education) is for students with disabilities. The landmark case, Endrew F. vs. Douglas County School District, could have major consequences for special education students.
According to Disability Scoop:
The Supreme Court’s decision to take up the matter comes at the urging of the Obama administration. In a brief issued last month, the U.S. solicitor general agreed with the parents that the IDEA requires schools to provide more than minimal benefit to students with disabilities.
“This court should hold that states must provide children with disabilities educational benefits that are meaningful in light of the child’s potential and the IDEA’s stated purposes. Merely aiming for non-trivial progress is not sufficient,” the solicitor general indicated.
This could be a moment of triumph or severe disappointment. With the rise of Common Core and a transition from teacher-led instruction to constant bombardment of education technology and a competency-based education environment, students with disabilities have suffered the most from the constant education reform that has taken place over the past twenty plus years. As their numbers rise, so do the corporate profits. They have been forced to take a litany of state assessments that have the same results, year after year: these students tend to perform the worst on these tests. The amount of parents choosing to go the home school route for their special needs children has risen dramatically in the last decade.
A free appropriate public education, in its current landscape, comes with a very steep price for students with disabilities. Unless the Supreme Court clearly defines what FAPE should be, in the face of the overwhelming corporate-driven changes in our schools, these children will continue to be lost in public education. Personalized learning, in the modern-day era meaning, would gear all students towards their own individual education plans which strips the special out of special education. This flies in the face of what disability advocates fight for every single day.
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.
Tomorrow night, the Capital School District Board of Education will discuss their legislative priorities for Fiscal Year 2017 at their monthly board meeting. There is a lot in this proposed draft. Some I agree with, and some I don’t. But if certain things get pushed by all school districts, we could see a controversial start to the 149th General Assembly in Delaware. Parents of students with disabilities could be spending a lot of time down at Legislative Hall in Dover.
In terms of burden of proof for who is implementing a special education student’s Individualized Education Program (IEP), I believe it should be the school that has the burden of proof. If a parent challenges a school on these issues, how is a parent going to know what is happening inside the classroom? It should be the school’s responsibility to address these issues if it gets to the point where a parent files a complaint that leads to a due process hearing. There is one or two parents and maybe one advocate in an IEP meeting. The rest is school personnel. A parent cannot implement an IEP in a school setting. Only a school can. This is the law. But in Schaffer v. Weast, the U.S. Supreme Court ruled the Burden of Proof should lie with the aggravated party, be it a student or the student’s parents (or legal guardian) or the school district should they dispute an IEP. While the Supreme Court is the largest court in the land, I don’t agree with their decision in some respects, but I do recognize the authority of the United States Supreme Court.
The final ruling of the U.S. Supreme Court ruling in 2005 reads as this:
We hold no more than we must to resolve the case at hand: The burden of proof in an administrative hearing challenging an IEP is properly placed upon the party seeking relief. In this case, that party is Brian, as represented by his parents. But the rule applies with equal effect to school districts: If they seek to challenge an IEP, they will in turn bear the burden of persuasion before an ALJ. The judgment of the United States Court of Appeals for the Fourth Circuit is, therefore, affirmed.
In a sense, any challenge a school district has about an IEP will invariably lead to the burden of persuasion. I would find it very difficult for a due process hearing to occur where a school district does not disagree with at least one part of a student’s IEP. And if it does happen, I would assume the parent lost or the Due Process Hearing Officer ruled based on applicable law that neither party got it right in terms of what should be in an IEP. In any of the steps that could eventually lead up to a Due Process Hearing, districts have to provide sufficient evidence to the parent about what is happening with special education. Parents do have considerable rights for their child’s special education. They can request an Independent Educational Evaluation, they can call for a manifestation determination hearing under certain criteria, and they can file an administrative complaint. Even though I disagree with the finding of the Supreme Court in 2005, it is the law and it is precedent. Therefore, I have to agree with the Capital Board of Education that Delaware should not have a law on the books that predates a Supreme Court decision (their law is from 1999).
With that being said, Delaware is well-known to have serious lapses or even outright denials of special education services for students with disabilities. Parents of children with special needs tend to be very passionate about what they want for their children. Many understand the law (sometimes better than the school districts) very well. I have always said never walk into an IEP meeting without an advocate and always record the meeting. What is said in IEP meetings can make or break a case in certain circumstances. Parents in Delaware should not be afraid to have their attorney subpoena a teacher as a witness. Senate Bill 33, passed in the Spring of 2015, allows for whistle-blower protection for any school staff in regards to special education. If there is one consistent thing I’ve heard from parents in Delaware, it is that teachers want to implement IEPs, but administrators have been the ones who stopped something for some reason. While this isn’t always the case, and sometimes it is both, never be afraid to play a card that could work out to your child’s best educational interest.
The other legislative priority for Capital deals with a Free and Appropriate Public Education. IDEA federal law states schools must provide children with disabilities a “basic” education without clearly defining what is meant by basic. Delaware law states schools must go beyond “basic”. I would argue that in Delaware’s current educational landscape, the push is for all students to go beyond “basic”. If Capital wants to have AP and honors classes, that goes beyond “basic”. You can’t sit there and say “all for some”. If you are going to be a school district that wants ALL students to succeed beyond just “basic”, you can’t pick and choose. Then Lieutenant Governor Matt Denn said it best at the first IEP Task Force meeting:
Children with disabilities are entitled to a Cadillac education, not a serviceable Chevrolet.
The trick is finding out what that “Cadillac education” is. I do not agree that this should be based on standards-based IEPs leading to higher proficiency on the state assessment. We all know students with disabilities fare the worst on these types of tests. We are failing all students if we continue this very bad charade of student success as measured by high-stakes testing.
In terms of the other legislative priorities in the below document, it is a no-brainer that our state needs to find a better way to fund education. The funding cuts from 2009 should have been restored a long time ago.
Three Delaware Due Process Hearing and two Administrative Complaint decisions were put on the Delaware Department of Education website with varied results. The Due Process cases involved the Colonial School District, Brandywine School District, and a combined case against Delaware College Prep and the Delaware DOE. As well, an Administrative Complaint decision involving the Red Clay Consolidated School District prevailed for the district where another Administrative Complaint involving the Milford School District prevailed for the student.
In most of these cases, there were complaints around Independent Educational Evaluations in terms of the costs and the timing of them. Other cases involved residential treatment center costs, a school making sure IEP accommodations were followed, and statute of limitations. These are important decisions to read. Parents can avoid many pitfalls by reading these and seeing what they shouldn’t do. Special education is complicated enough but even a careless error on a parent’s part can lead to future ramifications. All schools, districts, and teachers should read these as well. Special education will never get better unless the players are informed of their rights in all sides of the issues. Many of these cases involve timing, on either the school or the parent’s part. The Brandywine case is very interesting.
Many schools in Delaware start up again in two weeks. Many parents will be requesting IEPs or updates to existing ones. Now is the time to see what cases are setting precedence!
Due Process Hearing: Colonial School District Vs. Student
Due Process Hearing: Student Vs. Brandywine School District
Due Process Hearing: Student vs. Delaware College Prep and Delaware Department of Education
Administrative Complaint: Student Vs. Red Clay Consolidated School District
Administrative Complaint: Student Vs. Milford School District
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 “Delaware Special Education Due Process Hearing Showcases What Rights A Parent Should NEVER Give Up”
Delaware WILL get a “Needs Intervention” label for their Annual IDEA Determination from the Office of Special Educations Programs at the United States Department of Education. The Delaware DOE knows this, but they aren’t announcing it. My guess is they are waiting for the “formal” letter to come from the feds before they publicly release this information to the public. Even though they were told this information at least four weeks ago. If I were a betting man, we won’t find this out until after June 30th. I predicted this three weeks ago when I found the letters that went out to the districts and charters.
At the Governor’s Advisory Council for Exceptional Citizens meeting on Tuesday night, the Exceptional Children Resources Group at the DOE gave a presentation to the council on the Local Education Authority (LEA) portion of the annual determination. The presentation was given by Barbara Mazza and Maria Locuniak from the DOE. In this presentation, there were several absolute lies that are in this article, for which I caught them red-handed. It is very alarming they would try to dupe a state council devoted to the improvement of outcomes for persons with disabilities. Continue reading “Delaware To Get Federal “Needs Intervention” In Special Education Again As Incompetent DOE Lies At Public Meeting”
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.
The Delaware Special Education nightmare has gone on long enough. Years ago, Delaware Governor Jack Markell signed a bill to give extra funding for special education students. With categories such as basic, complex and intensive, this unit-based funding model allots funds based on the number of special education categories there are in each grade at each school. For basic special education funding for students in Kindergarten to 3rd grade there is no difference in the funding than their peers in regular education in those grades. Last year, State Rep. Kim Williams introduced House Bill 30 which would give this funding to students in those grades. It was released from the House Education Committee soon after but it has sat in the House Appropriations Committee ever since. Meanwhile, our Governor, in his latest proposed budget for FY2017 has failed once again to give that funding.
The result of this is hundreds of Delaware students not getting proper special education services, required by Federal law. This is what happens: a parent requests an IEP. Many schools in Delaware deny the IEP in those grades since they know they won’t get the funding for it unless it is a higher category. If they do approve it, they have to use the miniscule federal IDEA-B funding they get and the rest comes from their local funding. In many cases, services written into the IEP such as occupational therapy or counseling are not given to students because of this obscene lack of funding.
The Wilmington Education Improvement Commission is misguided if they truly believe any funding for their redistricting plan will give funding for students in K-3 who are considered basic special education. The Governor did not put it in the budget. But they still present to public bodies that these students will get these funds. And every time I call them out on it, someone tells me “we’re working on it”. If it was truly a priority, it would be there. No questions asked. I’ve been telling them this since day one. The Wilmington advocates can talk about how many generations of students have lost because of no services. How about the millennia of people with disabilities who have always been cast aside with education funding as if they aren’t even worth it. Federal law requires the funding to be available to be provided for students with disabilities. If you want to talk about discrimination and mistreatment, please remember that. And also remember many African-American students also have disabilities, statewide.
Our Delaware Department of Education and Governor Markell want to provide $18 million in funding to early education for the next fiscal year. One of the goals of this, according to them, is to reduce the amount of students needing special education services in their first few years of school. On the surface, this looks honorable, but be assured that it is not. What Markell and the DOE have failed to recognize (or know completely) is the fact that disabilities are neurologically based. By giving them the extra support in those early years and then putting them into Kindergarten without the funding to sustain those services, these children will suffer. It is not right to put the bulk of this funding on the local education agencies. By not giving this funding, these children have suffered. No amount of Response to Intervention is going to cure a disability. I firmly believe it is a tactic by which these special needs children are purposely denied this funding.
These students don’t do well on state assessments. Markell and the DOE have always known this. State assessments are not designed to make students proficient. They lose their meaning if everyone does well. So the powers that be want these students to do bad on the Smarter Balanced Assessment. I have heard horror stories this year from teachers who say it takes students with disabilities five times longer to do sections of the test than their regular peers. And they still won’t reach this mythological proficiency. This was something that could only be carefully planned. It is why the Governor gave NO allocations for it in any budget since he signed the needs-based funding bill. It would interfere with his Education Inc. testing buddies and their huge hedge fund returns. It is also far easier to give these students a career path towards menial jobs than to give them the funding they deserve so they could perhaps have a shot at success. You may fool people all the time, but you have NEVER fooled me. One only needs to look at Delaware Online Checkbook to see this strategy of yours has hurt many students and families over the past four years.
So please sign the change.org petition: https://www.change.org/p/peter-schwartzkopf-pass-house-bill-30-in-delaware-giving-basic-special-education-funding-to-students-in-k-3 and demand our General Assembly pass House Bill 30. The time is NOW for this bill to move forward. We can no longer sit by and watch while the most vulnerable to students suffer needlessly. Tonight at the Red Clay board meeting, Superintendent Dr. Merv Daugherty told the board and the audience to support HB30. Their board passed a resolution supporting it. All Delaware school boards need to do the same. I asked the Capital Board of Education months ago to do the same thing but they have not addressed this at all.