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Georgia Special Education Law Blog

GNETS Rule Change Proposal

on Wed, 11/02/2016 - 20:29
As many of you may know, there is currently a lawsuit pending, filed by the US Department of Justice against the State of Georgia, alleging that the GNET program is discriminatory.  Although not precisely legally relevant, the Georgia Department of Education is in the preliminary stages of drafting a new state rule governing the GNET program and services. (For those interested, the proposed draft rule can be found here.)  
Whatever their motivation, the Georgia DOE has asked for public input on the proposed draft rule. Below are the comments I just submitted:
Good afternoon. My name is Tim Schwarz . I am an attorney who solely practices in the area of special education. Please accept this as my feedback to the draft proposed new rule regarding the GNETS. In reading the proposed new rules I have several concerns, based on my experiences with the difficulties my clients have had in their interactions with the GNETS system.  
The first concern many of my clients have with the GNETS system is that it is often used as a quasi-discipline placement, rather than as a therapeutic placement. Student with behavior difficulties are referred to a GNETS placement by school principals who simply want the student removed from the building, without any consideration of whether (1) additional support can be provided in the current placement, (2) the GNETS placement is therapeutically appropriate, or (3) other the less restrictive placement available through the school district. The proposed rules do not provide sufficient guidance to prevent what is essentially use of GNETS as a discipline placement, and include no enforceable rights for students to avoid this inappropriate process.  
Secondly, many behavior difficulties students show that lead school staff to seek a GNETS placement are caused by conditions such as autism and/or cognitive impairment, not stereotypical mental health issues that GNETS programs are aimed to address. There is no therapeutic basis to include mentally ill students and students whose behavior can be attributed to other causes in the same placement. Further, such common placement is likely legally inappropriate. Yet the proposed rules say very little about the need to avoid co-mingling students with different needs in a common setting. Further, the proposed rules include no enforceable provisions to prevent therapeutically and legally inappropriate placement co-mingling.  
Finally and more importantly, students placed in a GNETS placement because of their mental health needs are not provided useful therapeutic support and counseling. Ideally, local schools would be staffed with certified mental health professionals to provide direct therapy and advice staff on supporting students suffering from mental illness. Not only do the proposed GNETS rules fail to provide a mechanism for creating this support in local schools, the proposed rules do not even mandate this level of support in the GNETS location.  
A school psychologist could carry a caseload of students who to see on a regular basis to provide counseling services, as written into their IEPs or 504 plans. That is unheard of here in Georgia, but is something that we need, especially if we are to move to GNETS as a service model. The proposed rules as written do not even to contemplate changing the GNETS program from its current inadequate state to a more useful therapeutic and local educational option for students with mental illness.  
Thank you for your consideration these comments on the proposed rule. Please feel free to contact me for any follow-up.

Maximizing Potential is not Required

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). Since I wrote this post, the Supreme Court has changed the law to require more than a basic floor. Nonetheless, maximizing student potential is not legally required.

Cameras In the Special Education Classroom

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

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

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.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.