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.

 

 

Delaware’s Moral Imperative: My Email To The JFC, DOE, State Board, WEIC, & Governor Markell

Today, the Delaware Joint Finance Committee is meeting with the Delaware Department of Education to discuss proposed changes in the DOE’s budget for Fiscal Year 2017.  This hearing will allow the DOE to answer questions about the funding increases they are requesting.  One of the hot issues is the $6 million allocated in Governor Markell’s budget for the Wilmington Education Improvement Commission’s redistricting plan for the students of Wilmington.  I had very strong thoughts about this last weekend and a response from a member of WEIC prompted another article on the matter.

At the heart of this is the basic special education funding for Delaware students in Kindergarten to 3rd grade.  Currently, students in Delaware do not receive any additional funding if they qualify as basic special education in K-3.  Within a month of starting this blog, I wrote about this eye of the hurricane in Delaware special education and broke down the categories for the funding for these services:

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

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

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

Today, I emailed all the members of the Delaware Joint Finance Committee, Secretary of Education Dr. Steven Godowsky, Maryann Mieczkowski (the director of the Exceptional Children’s Resources Group at the DOE), Delaware Controller General Michael Morton, Elizabeth Lewis (oversees education funding with the Delaware Office of Management and Budget), State Rep. Kim Williams (the sponsor of House Bill 30 which would give this funding), State Board of Education President Dr. Teri Quinn Gray, Executive Director of the State Board Donna Johnson, and the Wilmington Education Improvement Commission’s core leadership team: Dr. Tony Allen, Dr. Dan Rich, Kenny Rivera, and Elizabeth Lockman. I addressed the need for basic special education funding for ALL Delaware students in K-3:

From: Kevin Ohlandt <kevino3670@yahoo.com>
To: Smith Melanie G (LegHall) <melanie.g.smith@state.de.us>; McDowell Harris (LegHall) <harris.mcdowell@state.de.us>; Bushweller Brian <brian.bushweller@state.de.us>; Ennis Bruce <bruce.ennis@state.de.us>; Peterson Karen (LegHall) <karen.peterson@state.de.us>; Cloutier Catherine <catherine.cloutier@state.de.us>; Lawson Dave (LegHall) <dave.lawson@state.de.us>; Carson William (LegHall) <william.carson@state.de.us>; Heffernan Debra (LegHall) <debra.heffernan@state.de.us>; Johnson JJ <jj.johnson@state.de.us>; Miro Joseph <joseph.miro@state.de.us>; Kenton Harvey (LegHall) <harvey.kenton@state.de.us>; “jack.markell@state.de.us” <jack.markell@state.de.us>; “michael.morton@state.de.us” <michael.morton@state.de.us>; “elizabeth.lewis@state.de.us” <elizabeth.lewis@state.de.us>; Williams Kimberly (LegHall) <kimberly.williams@state.de.us>; Tony Allen <tony.allen@bankofamerica.com>; Daniel Rich <drich@udel.edu>; Kenny Rivera <kenneth.rivera@redclay.k12.de.us>; Elizabeth Lockman <tizlock@gmail.com>; Godowsky Steven (K12) <steven.godowsky@doe.k12.de.us>; Mieczkowski MaryAnn <maryann.mieczkowski@doe.k12.de.us>; Johnson Donna R. <donna.johnson@doe.k12.de.us>; Gray Teri <teri.gray@sbe.k12.de.us>
Sent: Wednesday, February 17, 2016 11:20 AM
Subject: Basic Special Education Funding for Kindergarten to 3rd Grade students in Delaware

Good morning all,

Some of you may know me, but for those who don’t, I am a concerned parent of a special needs child in Delaware.  He was denied an Individualized Education Program in 3rd grade at a Delaware charter school even though he fully qualified for it. 

As a result of this event, I set out to look into Delaware education and all facets surrounding it, which led to the creation of my blog, Exceptional Delaware.  One of the first things I discovered was that students who qualify for basic special education do not receive funding for this in Kindergarten to 3rd grade.  Students in 4th to 12th grade do.  As a result of this, many students in these grades are denied IEPs all over our state.  Many times this results in special education lawsuits filed against school districts and charter schools.  I firmly believe this also sets up these children with disabilities for failure.  By not getting the funding they are entitled to at a state level, this results in the local education agency bearing the brunt of these costs.  The federal IDEA funding has never been at the level that it was originally intended for. 

There are current plans in the Wilmington Education Improvement Commission’s redistricting plan for Wilmington students to grant Red Clay Consolidated School District the basic special education funds for students in K-3 in FY 2017.  This would also include the current Christina students enrolled in Wilmington schools should the redistricting plan pass the State Board of Education and the 148th General Assembly.  In FY2018, this funding would be provided to the entire Christina School District, and in FY2019 to Colonial, Brandywine, and the Wilmington charter schools.  While the plan doesn’t specifically give a timeframe for the rest of the state, the commission does urge our state to provide these funds as soon as possible for all of Delaware.

I have grave issues with this as all students in this category should be entitled to these funds.  While I am vehemently against the use of standardized test scores to determine school accountability levels, by the very nature of these plans it would set up some schools to do better than others in Delaware.  In the Delaware Department of Education’s goals submitted to the US Department of Education for their ESEA Flexibility waiver, the DOE had growth goals for Delaware.  For students with disabilities, they want them to go from 19% proficiency from FY 2015 to 59% proficiency in FY 2021.  By giving certain schools and districts this funding, it sets up a disproportionate funding mechanism that benefits some over others.

There are other concerns with this as well.  If a 1st grade student should happen to transfer from Red Clay to Indian River, would that basic special education funding follow them? 

As a parent of a special needs child, I find this lack of funding for students who are at the foundation of their education experience to be highly disturbing.  The current budget plans call for a huge influx of funding for early education, in the hopes of preventing rising costs for special education.  What I find to be not included in this conversation is the fact that disabilities in children are neurological.  I’m not saying they can’t be accommodated for a better educational outcome, but why would we give all this money to early education centers and then leave these students out to dry when they are brought into elementary school?  It doesn’t make any sense whatsoever.  While I certainly appreciate the needs of Wilmington students, I feel it is funding that should be available for all students in Delaware.  Special education is a federal mandate if a student qualifies.  By not providing the necessary state funding, we are failing these children.  I can’t tell you how many times I have heard of districts not providing services, even with an approved IEP.  While no school or district will ever come out and say it, it is because of a lack of funding in most cases. 

For any student who has gone through special education in Delaware at this age, the results are very cumbersome and painful for the student and their parents or guardians.  Parents are forced to fight a system where, in many cases, they are branded as a difficulty.  Students are disciplined based on behaviors that are neurologically based, and because they don’t have an IEP, it results in severe problems for the student as they grow.  Many students who are denied IEPs and don’t receive these services can and do fall into the complex and intensive special education categories later on because these services were not provided at an earlier age.  This happened with my own child.

I urge the Joint Finance Committee to provide the basic special education funding for ALL K-3 students in Delaware.  This isn’t really an option, but a basic civil rights issue that separates Delaware from many other states.  It is their federal right to receive a “Free Appropriate Public Education”.  By forcing districts and charters to sign an IEP indicating they will make sure the district has adequate funding to provide special education services is not proportionate to the state funding provided for students in all grades.  As well, by providing this funding for some but not all, it could certainly put the state into a precarious legal position should parents collectively band together to address this issue.

Currently, House Bill 30, sponsored by State Rep. Kim Williams is in the Appropriations Committee of the General Assembly where it has been since March 26th of last year.  I would urge the JFC to allow the funding for this legislation to be provided in the Delaware FY 2017 budget so these children can get the services Delaware has a moral imperative to provide.

If anyone has any questions or concerns surround this issue, please do not hesitate to reach out to me.

Thank you,

Kevin Ohlandt

I sent this out a couple of hours ago and have not received a response from anyone.  Which is fine, but I sincerely hope it will be brought up in their discussions today with the Department of Education.  If it is, I am fairly certain the DOE will bring up what is known as Response to Intervention (RTI) and how this is a very useful tool for schools to identify students who may qualify for special education services.  This is one of the biggest fallacies in American education and does not cover many areas that could qualify a child for special education.  It is a failed experiment that, at best, causes delays of several years before a child can get an IEP and the full special education services they need.  Special education calls for the least restrictive environment.  Why would the State of Delaware restrict the funding these children need to receive FAPE and the least restrictive environment?  This is our moral imperative in Delaware.