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Georgia Special Education Law Blog

Tragedy

on Fri, 02/01/2013 - 16:23

Our hearts and thoughts go out to those who have been affected by the tragedy yesterday at Prince Middle School, part of the Atlanta Public Schools. But for those of us who follow public education closely, it is not news to learn that some students come to school with substantial difficulties – whether medical problems or difficult home lives. In short, the tragedy that happened yesterday is also a symptom of larger problems that constantly trouble public education.  

Solving these types of problems is hard, and cannot be done solely through the school system. I wish I knew what could be done to prevent these shooting incidents in the future, from keeping kids from getting access to guns to a better mental health safety net to helping people generally to deal with difficult circumstances in their lives. If I know one thing, it is that society does not truly know how to address these types of problems, because we would already be doing what was needed if we knew what that was.  

I hope that psychologists, sociologists, and other experts are studying this issue and come up with good solutions soon, because every dollar we mistakenly spend on some intervention that is not working is a dollar that we could have used to make our education system better.

Behavior Improvement Plans and Extinction Burst

on Fri, 01/18/2013 - 16:57

Sometimes school district’s lack of expertise can hurt your child. For example, when your child with behavior problems is going through what experts call an extinction burst. Let me explain:  

As I discussed last week, it is possible to figure out the function of a child’s problem behavior – in non-technical language: the reason why this problem behavior is happening. Sometimes an expert, such as a Board Certified Behavior Analyst, determines that the function of the behavior is causing the caregiver or teacher to give extra attention to the child. In other words, receiving attention is rewarding the problem behavior and maintaining the frequency of the behavior.    

In those circumstances, the expert is likely to recommend that caregivers or teachers ignore or stop giving attention to the child in response to the behavior. Experts call this “putting the behavior on extinction.” What that means in practice often depends on that the problem behavior is. When a behavior is no longer rewarded with attention, what occasionally happens is a dynamic that experts call an “extinction burst.”    

What is an extinction burst?  

Imagine you are at work and complete some task that arises from time to time. When you report this to your boss, your boss immediately gives you a reward – maybe something like a bonus on a gift card. Then, every time you complete that task and tell your boss, you get another reward. In this metaphor, the task at work is the behavior from your child, and the boss is you, the caregiver, or the teacher.  
 
Continuing the metaphor, if the next time you completed the task, your boss acknowledges you but does not give you the bonus – without any explanation. Assuming the task is still necessary, you might have thoughts like “I've been rewarded before for completing this task. Maybe I am not being rewarded now because I did the task incorrectly in some way.” Thus, you might go back to the task, but put even more effort into it, in the hopes that this will cause your boss to resume giving you the reward. Only after that doesn’t work would you would just give up and decide to avoid doing that task in the future if possible.  
 
This is same dynamic happens with problem behavior from your child. The problem behavior is getting rewarded with attention and when the attention stops, the child might act as if doing the behavior more intensely will cause the reward to return. Thus, one predictable effect of implementing extinction of a problem behavior is that the intensity or frequency of the behavior will get worse before it gets better. If this intensity increase really is an extinction burst, then it should pass quickly. But when the school district does not understand the implication of scientific concepts like the extinction burst, the school district could think that the brief increase in behavior problems is evidence that the behavior improvement plan is not working, and therefore pressure you to accept a new, more restrictive placement for your child.  
 
Federal law requires a behavioral improvement plan after a disciplinary infraction is determined to be a manifestation of the child’s disability. Further, federal laws strongly prefers that the child remain in the same placement after a behavior problem leads to consideration of serious school discipline, with the school district implementing a behavioral improvement plan to provide support for the child in that placement. But when the school district believes the behavioral improvement plan is not working, you risk losing your child’s placement just because the school district does not sufficiently understand what is going on.  
 
In short, if there is a problem with the implementation of the behavioral improvement plan, that means the school district should involve a behavioral expert at the school district’s expense to reexamine the problem by observing the behavior as it occurs. The goal is for the school district to create and implement a successful plan that allows the child to remain in the same, less restrictive placement, if possible.
 
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Upcoming Events:
 
I will be giving a free presentation on the basics of special education law tomorrow, January 19 at 10 am at the Art It Out Therapy Center. Please call 770-726-9489 to RSVP.
 
If you can’t make that meeting, Talk About Curing Autism is hosting a similar presentation by Christy Calbos, another special needs attorney here in Georgia. More information here.
 
January 27: Kids Enabled Resource Fair. Register here.
 
February 1-2: 23rd Annual “Dimensions of Dyslexia” Convention. Info here.  
 
February 27-28: “Across the Spectrum” Autism / Asperger Conference and Expo. Info here.
 
Have your own event for children with special needs? Submit it here for inclusion in future events lists.

Special Education is Good for Everyone

on Fri, 01/11/2013 - 15:20

After the long break, I want to take a step back from specific legal rules to talk about big picture issues that confront special needs education. Specifically, I want to confront the strange idea that one hears from time to time – that there is a conflict between educating children with special needs and educating typical children.

Some school districts assert that diverting limited resources from regular education to service children with special needs hurts regular education. This is mostly a deflection by the school district, trying to divide various groups that the district serves. If different interest groups attack each other, the school district can avoid discussing the ways it falls short of the education goals society has set for it. This deflection should be resisted on the general principle that distractions from important issues should not prevent us from addressing those issues.

 
Moreover, it's almost always a false conflict. Special education generally requires training teachers to be better and more effective at overcoming difficulties in teaching. If teachers can learn skills to be more effective at teaching special needs children, they can apply those skills when teaching regular education students as well.
 
For example, the Individuals with Disabilities in Education Act (IDEA) requires a Manifestation Hearing when a school district is considering serious discipline of a special needs child. Part of the hearing process is an evaluation called a Functional Behavorial Assessment (FBA). Further, the district must create and implement a Behavorial Intervention Plan (BIP) if the misconduct is determined to be a manifestation of the disability.
 
What are FBAs and BIPs?
An FBA is an evaluation of behavior, often performed by a Board Certified Behavior Analyst. By looking at the context of the behavior, including what was happening before the behavior and what happened after it, an expert is able to draw conclusions about why a particular behavior occurs – formally speaking, the function of the behavior. Once the function of a behavior is determined, it is easier to plan interventions to reduce the frequency of problem behavior, perhaps trying to replace it with more socially appropriate behavior.
 
For example, a child who misbehaves to avoid a task should receive extra attention in order to redirect the student back to the task. By contrast, a child who misbehaves to get attention or some other reward – the proverbial tantrum in the store to bet the candy - should be ignored. Obviously, that is very vague analysis, and an expert would be able to give much more concrete advice after examining a particular situation.
 
A BIP is the plan of what interventions will be done, and how they will be implemented. Thus, a BIP describes the modifications, accommodations, or support services that will support the child in whatever placement is appropriate – preferably the placement that the child was in before the behavior problems led to consideration of school discipline. If the school district does not follow the BIP, then the district is violating its legal obligations, just as if the district did not correctly implement the IEP.
 
Further, the principles for reducing the frequency of misbehavior can be applied to all students, not simply those with skill or cognitive deficits. An FBA or a BIP is not legally required when a typical student misbehaves, but teachers who use the perspective of “purpose of behavior” will likely be more effective at dealing with problem behaviors of typical children. In general, the more sophisticated techniques teachers are able to use, the more effective they will be in dealing with students. And the source of these perspectives and skills is usually the training and research that exists to help serve children with particular problems.  
 
In short, a clever school district can draw from the expertise its personnel have developed in dealing with specialized problems in order to solve more generalized problems. Becoming more effective at solving a type of problem frees the district to focus on the core mission – educating the students. That’s why there’s not really a conflict between special education and regular education.
 
***
 
Upcoming Events:
 
I will be giving a free presentation on the basics of special education law on January 19 at 10 am at the Art It Out Therapy Center. Please call 770-726-9489 to RSVP.
 
If you can’t make that meeting, Talk About Curing Autism is hosting a similar presentation by Christy Calbos, another special needs attorney here in Georgia. More information here.
 
January 27: Kids Enabled Resource Fair. Register here.
 
February 1-2: 23rd Annual “Dimensions of Dyslexia” Convention. Info here. Today (January 11) is the last day for an early bird discount.
 
February 27-28: “Across the Spectrum” Autism / Asperger Conference and Expo. Info here.
 
Have your own event for children with special needs? Submit it here for inclusion in future events lists.

Happy Holidays 2012

on Fri, 12/21/2012 - 18:53

As we celebrate the holidays, we also reflect on how we can make the world a better place in the coming year. Uplifting stories of children with disabilities reaching their potential and beyond help us see the way forward. Stories like the football team from the California School for the Deaf - which went 10-1 last season even though all 19 players on the team are deaf. Those students' hard work is an inspiration to us all.

Happy Holidays! Hope everyone reading the Georgia Special Education Law Blog has a wonderful New Year.

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I'm giving a free presentation on the basics of special education law on Saturday, January 19 at 10 am. The Art It Out Therapy Center at 1640 Powers Ferry Road, Building 3, Suite 200, in Marietta will be hosting - please RSVP by calling 770-726-9489.

More Evaluation Rights

on Fri, 12/14/2012 - 20:19

The 11th Circuit Court of Appeals1 recently  issued an opinion in Phillip C. v. Jefferson County Board of Education affirming the important parental right known as the independent educational evaluation (“IEE”), stating:

[States] must reimburse parents for the cost of an IEE in order to ensure that parents can exercise their right to an independent expert opinion, which is an essential procedural safeguard. . . . The right to a publicly financed IEE guarantees meaningful participation throughout the development of the IEP.

School districts are always required to consider the opinions of medical professionals and other evaluators, even if the evaluator was not employed by the school district or the evaluations was not created at the request of the school district. This obligation follows from the general principle that school districts must be proactive in figuring out the special needs of a child and determining the appropriate support services. Specifically, federal regulations require school districts to consider evidence from any evaluations that a parent provides.2 But in the real world, finding an expert evaluator willing to spend the time to evaluate your child appropriately can be very expensive. This problem is addressed by that parents’ right to an independent educational evaluation at public expense.

Independent evaluation rights are the natural counterpart to school-based evaluation rights, which I have discussed previously. In essence, parents have the right to a second opinion from another expert – paid for by the school district. Because one possible worry is that an expert’s opinion is influenced by the employing school district, the IEE must be performed by an expert who is not employed by the school district that the child is attending.

To invoke your right to an IEE, you only need to tell the school district that you disagree with an evaluation. “If a parent requests an independent educational evaluation at public expense, the public agency must, without unnecessary delay” pay for the evaluation or initiate litigation.3 If the school district does not want to pay, it must prove that its evaluation was appropriate – basically that the new evaluation is not necessary at all. It's very hard for a school district to prove that because more information about a child’s problems and possible solutions is always going to be useful in implementing the education plan that has been individualized for the particular student.

Some school districts impose restrictions, such as caps on the reimbursement amount or restriction to local evaluators. Although some reasonable restrictions can be enforced, the law is clear that these restrictions cannot be strictly enforced if they prevent you from meaningfully receiving your right to independent educational evaluation. For example, the school district cannot set the reimbursement rate so low that no provider is willing to work that rate. Further, the school district’s limitations on independent evaluations cannot be more restrictive than the qualifications the district applies to its own evaluators.4

1. The Federal Court of Appeals that covers Georgia.

2. 34 C.F.R. § 300.502(c)

3. 34 C.F.R. § 300.502(b)(2) (emphasis added)

4. 34 C.F.R. § 300.502(e)

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