Georgia Special Education Law Blog

Maximizing Potential is not Required

Submitted by Tim Schwarz
on Thu, 03/10/2016 - 19:35
At a recent IEP meeting I attended, a door near the meeting room had a poster stating that the school’s mission was “to educate its students to their fullest potential so they will become responsible, productive citizens in a global society.”1 A worthy mission, but quite different from the standard being applied in the meeting, where the school district was not required to maximize potential, only provide meaningful benefit. As the Eleventh Circuit explained, meaningful means nothing more than “’some’ or ‘adequate’ educational benefit.”  
 
This is one of the basic frustrations of many parents I meet. When trying to look good for the public, school districts talk the big talk. But the school district always talks down its responsibility when talking to particular parents whose students need special education. Many parents feel very frustrated and jerked around by what they see as a two-faced school district, making grand promises in public then refusing to follow through.  
 
So who is right? From a legal perspective, the school district is right that it only must provide a “basic floor of opportunity.”1 But that’s no excuse for being so ham-handed with managing expectations. Special education law expects the family and the district to collaborate to create the special education plan. That requires frank discussion of weaknesses and strengths of a student. School districts do not make it easier to have those difficult conversations by setting up expectations in public and then immediately walking them back in private.  
 
1JSK v. Hendry County Sch. Bd., 941 F.2d 1563, 1573 (11th Cir. 1991).

Cameras In the Special Education Classroom

Submitted by Tim Schwarz
on Thu, 03/03/2016 - 17:04
The Georgia Senate recently held hearings on House Bill 614, which passed the Georgia House of Representatives last week. The bill authorizes the Georgia Department of Education to require video cameras in self-contained special education classrooms. Ideally, this proposal would remove the “teacher-said / student-said” dynamic from disputes over classroom incidents be making a recording available for review by all sides.
 
However, I have grave concerns that the videos will not be a resource for a parents, but will only help school districts defend themselves. As section (b)(4) of HB 641 explains, the Georgia Department of Education must create:
 
Procedures and requirements to protect the confidentiality of student records contained in videos recorded from video monitoring cameras placed pursuant to this Code section in accordance with the federal Family Educational Rights and Privacy Act and Article 15 of this chapter.
 
This is a significant issue because virtually every image of a classroom will contain images of multiple students – without permission of every student included in an image, a school district could easily refuse to provide copies to ANY family. This issues is not new – 34 C.F.R. § 300.615 essentially prevents IEP eligible students from reviewing records that include information on more than one child. Regardless of this restriction, appropriate school officials will still have access to all recordings.
 
In short, the video recordings created by HB 614 will be available for school districts as a shield to defend from accusations of misconduct, but will not be available for families to review in order to determine if an accusation is warranted. Although teachers may change their behavior because they know they are being recorded, I concluded that the one-sided aspect of recordings in self-contained special education classrooms means they will provide essentially no legally useful protection for parents.

Addressing Behavior Problems in School

Submitted by Tim Schwarz
on Tue, 05/06/2014 - 02:31

When a student’s behavior interferes with the student or peers ability to learn, the school district is required to include strategies that address the behavior.1 All too often, school districts respond by suspending or otherwise disciplining students, when the law requires the district figure out positive behavior supports to replace the inappropriate behavior with more appropriate behavior.  

By acting proactively, the folks at the school can positively change a student’s behavior so that the focus can go back to learning. I suspect that the failure to provide positive support is one of the reasons that mental health hospitalization is rising among children with autism – it certainly does not help.  

Those sorts of strategies should be included in the IEP and explained to you in writing. If behavior strategies are in place informally, but are not a part of the IEP, then you risk the strategies vanishing or being implemented ineffectively when the school personnel working with your child change over time. Get rid of informal interventions and accommodations that are not included in the IEP.  

I should not need to say it, but striking children as a form of discipline is not appropriate. Restraint is also prohibited as punishment.  

120 U.S.C. § 1414(d)(3)(B)(i)  

News and Upcoming Events  

This week is Children’s Mental Health Awareness Week. Find more information about events this week here.  

Grady Hospital is hosting a We Do Recover – Removing the Stigma as part of Mental Health Awareness Month. The event will be from 10 am to 1 pm at the Piedmont Hall Auditorium (22 Piedmont Avenue SE, Atlanta, GA 30303)  

I will be presenting information about the basics of special education law at the ELLAFANT meeting on May 21 at 6 pm. The meeting is hosted by the Church of Nazarene in Gainesville (1301 Otila Drive Gainesville, GA 30504). More information is here.

Assistive Technology: Responsibility for Damage

Submitted by Tim Schwarz
on Mon, 11/25/2013 - 14:33

For children with special needs, adding a computer tablet can be extremely beneficial to the student’s educational progress. The technology can do new things that were previously impossible, present established concepts in new and exciting ways, and can hold the interest of a student who might otherwise have difficulty focusing. Unfortunately, fragile technology does not always combine well with active children. When the technology breaks, replacement can be expensive – so school districts might seek assistance from the family to reduce the expense.  

The overarching principle is that something that is necessary for a special needs student to receive an appropriate education must be provided for free. Thus, the regulations on assistive technology services say that the school district is responsible for maintaining, repairing, and replacing any assistive technology device.1 That means a school district generally should not be seeking reimbursement from a family for damage to a device. Whether the student will be given another device is a separate question, but if the original device was necessary to provide an appropriate education, it seems strange to say that the school district can provide an appropriate education without the device.  

Normally, a device is used by the student at school, and does not go home with the student when the school day ends. But sometimes, the device needs to be sent home so that the appropriate plan can continue in the home. When that happens, the rule generally is that parents cannot be charged for normal use, and wear and tear. But federal law does not override any state law or case that holds parents liable for theft, loss, or damage due to negligence or misuse of the assistive device.  

Before the assistive technology is sent home, school districts often request the parent sign an acknowledgement of liability. Read this carefully, and if the notice holds you liable for ordinary wear and tear, ask the district what policy requires this language – because it risks forcing you to pay for a part of your child’s appropriate education that the school district should be providing for free.  

1 34 C.F.R. § 300.6(c)  

Upcoming Events:  

I will be speaking about the basics of special education law at the Reach Enrichment Center on Saturday, December 7 at 10:00 am. Please RSVP by calling 404-963-6624.  

The next meeting of Decoding Dyslexia Georgia will be December 2, 2013.  

The 6th Annual Conference of the Georgia Association for Positive Behavior Support is December 4 & 5, 2013.  

The IDA-GA Dimensions of Dyslexia Conference is February 1, 2014.  

The Across the Spectrum conference will be March 13 & 14, 2014.

IEP Eligibility: Spotlight on Dyslexia

Submitted by Tim Schwarz
on Fri, 11/08/2013 - 21:19

The requirements to be eligible an IEP are actually very simple. A student who:

(a) has one of the listed medical problems 

(b) that causes them to need  

(c) specialized education  

is eligible for an IEP and all the procedural and substantive rights that go with that eligibility.1 The list of eligibility categories includes all the other categories one might expect, including blindness, deafness, severe brain injury, and autism. Further, “other health impairment” is specifically listed as a potential category.  

Today’s focus is on one specific condition that school districts are sometimes resistant to acknowledging with an IEP: dyslexia. Technically speaking, no child is eligible under IEP laws specifically for being diagnosed with dyslexia. Instead, most such children would be eligible for an IEP under the category of specific learning disability. Under federal law, a specific learning disability is a “disorder in one or more of the basic psychological processes involved in understanding or in using language.”2  

The most prominent legal difficulty in getting an IEP for a dyslexic child arises from two additional eligibility criteria found in the Georgia eligibility rules defining specific learning disability. These criteria are in addition to the federal definition, and for some students, can have the effect of excluding or delaying special education services. The additional criteria in the Georgia eligibility rule beyond the definition under federal law are an academic deficiency requirement and a data collection requirement.3  

Academic Deficiency

Under the rule issued by the Georgia Department of Education, a student does not qualify for an IEP under specific learning disability unless the student has serious academic deficiencies and does not meet grade level standards. Further, the student’s need for additional academic support is not a reason to give the student an IEP.  

This requirement may have arisen from conceptual borrowing from other types of disability, in which a student mostly functioning on grade level is a cause for celebration. But that does not make the standard appropriate when a student is barely passing a course because of difficulty reading. Particularly because failure to develop a robust reading skills early can lead to total breakdown later, but can be disguised by barely passing grades.  

Mandatory Data Collection

The Georgia Department of Education rule also prohibits granting a student an IEP under specific learning disability unless multiple sources of data are considered. Possible sources of data include below grade level results on standardized tests, or results from supplementary instruction being insufficient. A particularly frustrating part of the data collection requirement is the need to collect at least twelve weeks of data on supplementary instruction before IEP eligibility is considered. This is another example of how school district policies delay federal rights and delay implementation of appropriate interventions to improve a student’s academic deficits.  

The requirement for a significant period of supplementary instruction is particularly confounding because supplementary instruction (to address a medical or psychological condition) is the definition of what generally must be shown to get an IEP. I understand the need to avoid over-inclusion, which has an unfortunate practical history. Nonetheless, the supplementary instruction for a child with a psychological difficulty learning ought to be treated as special education, which inherently makes a student eligible for an IEP with all the legal protection for a student that goes with that legal conclusion. Otherwise, the school district can minimize its own accountability to address the particular needs of particular students.  

1 20 U.S.C. § 1401(3). Special education is simply “specially designed instruction” that “meets the unique needs” of the student. 20 U.S.C. § 1401(29).  

2 34 C.F.R. § 300.8(c)(10).  

3 Ga. Comp. R. & Regs. r. 160-4-7-.05, Appendix (i)  

Upcoming Events:  

Dislecksia the Movie will be showing at the Studio Movie Grill – Holcomb Bridge on November 11, 2013 at 7 p.m. (go through the link and click SMG Outreach to easily find ticket information).  

The next meeting of Decoding Dyslexia Georgia will be December 2, 2013.  

The 6th Annual Conference of the Georgia Association for Positive Behavior Support is December 4 & 5, 2013.  

The IDA-GA Dimensions of Dyslexia Conference is February 1, 2014.  

The Across the Spectrum conference will be March 13 & 14, 2014.

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