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Georgia Special Education Law Blog

Social Thinking Scholarship 2013 Application

on Mon, 08/05/2013 - 14:25

Georgia Law on Restraint

on Tue, 07/16/2013 - 20:35

Restraint is schools is governed by Georgia Compiled Rules & Regulations rule 160-5-1-.35. Note that this rule applies to all students, not just those students with IEPs or 504 Plans.  

The Georgia rule on restraint divides interventions into several categories:  

(1) Chemical restraint – any medication to restrict movement that is not prescribed by the student’s doctor.  

(2) Mechanical restraint – essential the dictionary definition of restraint, covering a physical object that restricts movement and cannot be easily removed by the student. Therapeutic devices recommended by a doctor or therapist are excluded from the definition, as are seatbelts.  

(3) Physical restraint – physical contact from an adult to restrict a student’s movement. Prone restraint is specifically defined, and involves putting a student face down on a floor or surface and using force to keep the student prone.  

(4) Seclusion – putting a student in a separate area and physically preventing the student from leaving, such as locking the door.  

(5) Time out – any time a student is removed from the learning environment but not confined.  

Chemical restraint, mechanical restraint, prone restraint, and seclusion are prohibited by the rule. Physical restraint is allowed only when the student is an immediate danger to himself or others and no less intense intervention is working. It must stop when the student is no longer a danger. Additionally, physical restraint cannot be used as school discipline, when unsafe to do so, or when medically inappropriate.  

Ignoring compliance issues, that seems like a reasonable policy, but there are several ways that a school district can wiggle out of the prohibition. Most reasonably, the rule does not cover actions taken by police or medical personnel (such as EMTs), even if the school called the police or the ambulance. But the rule explicitly allows school district employees to take “appropriate” action when (a) dealing with a fight or (b) protecting other students and staff. A teacher is cannot be liable in a lawsuit for money if the teacher is preventing imminent harm or bodily injury.  

Those exceptions practically swallow the rule because the only time a school employee should be considering use of force is when the problem behavior is severe. Although the rule provides protection when the student’s behavior does not affect other students, most times a student’s behavior rises to the level that restraint should be considered, the behavior risks harming other people at the school. Expect a school district to emphasize dangers to others whenever a teacher or school official uses restraint on your child because that conclusion gives the district the best justification for what restraint teachers used.  

There are many things a parent can do to address concerns about restraint. First, you have a right to be informed within a reasonable time, preferably within one school day. During that conversation, ask school officials what less intense interventions and de-escalation techniques are being used. School officials are required to start with less severe interventions if possible, and school employees should be able to explain why lesser methods did not work and what could be done to make them work in the future.  

Additionally, school districts are required to have a written policy on use of physical restraint. Get a copy and read it, then think about whether you believe it was followed with your child. The written policy also must describe training on restraint provided to teachers and explain how use of restraint is documented. If those provisions were not followed, you should talk with people at your child’s school to encourage them to follow the rules in the future.  

These rules on restraint are not just rights that protect your child. The rules are also the Georgia Department of Education’s considered opinion of what works well to deal with a student’s extreme behavior while minimizing physical and emotional harm to the student and improving the student’s future behavior and academic outcomes.  

Upcoming Events

I will be speaking at the Reach Enrichment Center’s monthly meeting on Saturday, August 3 at 10:00 am.  

Additionally, I will be speaking at the SPECTRUM parent support group monthly meeting on Thursday, October 3 at 6:30 pm.  

Have your own event for children with special needs? Submit it here for inclusion in future events lists.

Informal Accommodations and High Stakes Testing

on Mon, 06/24/2013 - 19:41

There are many reasons to be wary of informal or unwritten accommodations of your child’s disability. The major concern is that informal changes made by individuals depend on those individuals remaining in their roles. But when a student changes grade or school, the teacher who informally gives extra time on math tests probably won’t follow that student.  

Without a written plan, you will not be able to show the school district that it already agreed to particular changes for your child. Instead, you will need to start over at the beginning of the process, convincing the district that a particular modification or accommodation is necessary for your child. That concern is one of many reasons that accommodations are supposed to be listed in an IEP.1  

In addition to those basic concerns, the accommodations your child receives on high stakes testing like the CRCT or SAT are heavily dependent on the parallel accommodations your child receives in the classroom. Even when everything is going well between you and the school district, the administrators of high stakes tests often resist giving accommodations during testing. If the accommodations are not written in a special education plan, then the administrators of the high stakes test are even more likely to resist.  

Fortunately, this is one area where you and the school district have interests in common. For a variety of reasons, school districts want better scores on high stakes tests, because that reflects well on the school district. Thus, the district is likely to agree to put accommodations in writing if it has already been convinced to provide the accommodation. But just because the district is willing to put accommodations in writing does not mean that school officials will remember to do so when the IEP or 504 plan is being written. Thus, reminding school officials about this issue can get accommodations written down, with all the benefits of formal instead of informal accommodation.  

1 20 U.S.C. § 1414(d)(1)(A)(i)(IV).  

Interesting Links

From Georgia Public Broadcasting, this is an interesting article about shortfalls in Georgia programs for training new teachers.  

Upcoming Events

I will be speaking at the Reach Enrichment Center’s monthly meeting on Saturday, August 3 at 10:00 am.  

Additionally, I will be speaking at the SPECTRUM parent support group monthly meeting on Thursday, October 3 at 6:30 pm.  

Have your own event for children with special needs? Submit it here for inclusion in future events lists.

Assessment Validity

on Fri, 06/07/2013 - 19:58

It might seem obvious that assessments used in an evaluation should not be skewed by irrelevant factors or administered incorrectly.1 Using assessments incorrectly creates a misleading impression of a student’s current level of performance and needs, which can lead to an ineffective special education plan. Yet some school districts do use assessments in obviously incorrect ways. Fortunately, statutes and regulations under the Individuals with Disabilities Education Act (IDEA) prohibit many improper assessment procedures.  

An assessment can be misleading if the student does not understand the assessment. Thus, a student who is not a proficient speaker of English should not be evaluated by English-language assessments. Likewise, an assessment that relies on verbal responses is not appropriate for children who are nonverbal or semi-verbal.2  

Even if an assessment is not inherently misleading, the assessment is not useful if it is not performed correctly. Most formal assessments were created by high-level experts in the field and have significant research describing the circumstances in which the results are valid. For that reason, designers and publishers of the assessments have fairly specific rules for how to administer the assessment and how to interpret the results. The IDEA requires that the person administering the assessment must follow the instructions of the designers and publishers of the assessment.3 Sometimes, the designer or publisher of an assessment lists required methodological background needed to be qualified to administer the assessment (like how an MD is generally required to formally diagnose a particular infection). Thus, the IDEA requires that the person administering the assessment for the school district be “trained and knowledgeable personnel.”It can be very useful to link the requirement that the assessor by knowledgeable with membership of the IEP team. Although a parent cannot generally pick particular members of the IEP team, there must be a member “who can interpret the instructional implications of evaluation results.”5  

There are two basic ways to prevent these problems with the assessment from adversely affecting your child. First, you can be explicit about the qualifications of the required team member. The person who describes the instructional implications of an assessment can be a valuable ally in using those results to create a useful special education plan. By asking that person open-ended questions about the educational implications of assessment results, you can make sure that the data collected during the evaluation is valid and used productively to provide educational benefit to your child. If the person with the most expertise on the assessments thinks something is necessary or likely to make the plan more successful, other team members are unlikely to disagree.  

Second, you can try to proactively control what assessments are used during the evaluation. For example, some advocates recommend trying to prevent the IQ test being given to children who are autistic. An autistic child’s skill deficits can distort the IQ test scores to understate the cognitive ability of the child. The distorted test results can create a misleading impression, causing teachers to inadvertently underestimate the student’s capability. Keep in mind that close parental control of the contents of an evaluation is very difficult to accomplish. Because this is a very difficult and confrontational course of action, it should be approached carefully with close assistance from a legal and / or medical expert.  

1 Remember, an evaluation is a legal term and an assessment is a medical term. One evaluation is made of many assessments.  

2 34 C.F.R. § 300.304(c)(1)(ii).  

3 20 U.S.C. § 1414(b)(3)(A)(v).  

4 20 U.S.C. § 1414(b)(3)(A)(iv).  

5 20 U.S.C. § 1414(d)(1)(B)(v).  

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Interesting Links

What to Do While Waiting for an Assessment (Autism Speaks blog)  

Letter to the Editor: “Dyslexia and the Poor” (New York Times)  

Upcoming Events

I will be speaking at the Reach Enrichment Center’s monthly meeting on Saturday, August 3 at 10:00 am.  

Additionally, I will be speaking at the SPECTRUM parent support group monthly meeting on Thursday, October 3 at 6:30 pm.  

Have your own event for children with special needs? Submit it here for inclusion in future events lists.

Evaluation v. Assessments

on Tue, 05/28/2013 - 18:39

Often, school districts are confused by the difference between an evaluation, which is a legal term, and an assessment, which is a medical term. An evaluation is a task that a school district is obligated to perform under the Individuals with Disabilities Education Act (“IDEA”). A student receives only one evaluation at a time under the IDEA, and that evaluation must cover “all areas of suspected disability.”1 I have previously discussed how often a student is entitled to an evaluation, but the brief answer is that a school district probably cannot be required to evaluate more frequently than once per year, and may not be required to evaluate more frequently than once every three years. The purpose of the evaluation is twofold. First, evaluations exist to determine if a student is a “child with a disability,” which is to the technical way of saying that the student is eligible for an IEP. The other purpose of an evaluation is to guide the creation of the IEP by figuring out the child’s needs.2  

By contrast to an evaluation, an assessment is something that an expert like a psychologist does to try and figure out a child’s capabilities in some area. There are many types of assessments, based on particular areas of weakness – examples include, but are not limited to cognitive function, hearing, behavior problems, need for assistive technology, or functional life skills. In practice, this means that your child may undergo evaluation from several different experts in order to complete the evaluation and determine your child’s needs. Although not every student will need assessment in every possible area of need, an evaluation must cover a student’s behavioral issues, social skills, and the emotional status of the student if those issues could interfere with educational success.3  

Because the evaluation must address all areas of the student’s suspected disability, a school district’s failure to notice a particular disability or need of a student violates the law, even if the school district identified other disabilities and needs. Failing to notice a particular problem is essential equivalent to failing to effectively evaluate the student. For example, a school district that notices a child has hearing problems but fails to notice that the child is also dyslexic has fallen short of its legal obligation.  

In short, a school district cannot defend its evaluation by saying that it performed some assessments, relevant to some of a student’s needs, and any additional assessments can be requested in the next evaluation, in a year’s time. Quite simply, if you need more experts or more tests to figure out a student’s needs, the evaluation is not complete. That does not necessarily mean that particular assessments (such as all the assessments necessary to identify auditory processing disorder) must be administered, but it does mean that a school district cannot close its eyes to a particular areas of need of a student simply because it has investigated other, unrelated needs of that student.  

1 20 U.S.C. § 1414(b)(3)(B)  

2 20 U.S.C. § 1414(b)(2)(A)  

3 34 C.F.R. §§ 300.304(b)(3), 300.304(c)(4).  

For those interested, here is a link to Prof. Weber’s article “All Areas of Suspected Disability,” that discusses the legal issue in greater detail.  

 

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Upcoming Events:  

I will be speaking at the Reach Enrichment Center’s monthly meeting on Saturday, August 3 at 10:00 am.  

Additionally, I will be speaking at the SPECTRUM parent support group monthly meeting on Thursday, October 3 at 6:30 pm.  

Have your own event for children with special needs? Submit it here for inclusion in future events lists.

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