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Georgia Special Education Law Blog

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)

Georgia Cyber Academy and Least Restrictive Environment

on Fri, 12/07/2012 - 20:23

The Georgia Cyber Academy is a public program for students from kindergarten to 11th grade.  Although it is a public school, children attend from home via computer connection from the internet. Taking advantage of the virtual environment, students can go through the program at their own pace, consistent with state curriculum requirements. Although there are many implementation concerns, the ideal is that competition between the virtual schools and the local school districts will create additional incentives for the local districts to improve the quality of their programs. For parents, the virtual schools have a similar relationship to the public schools as private schools – while retaining the low or no cost of a public school.

Although the virtual schools are a valuable resource for some parents, their role in special education is concerning.  The existence of the Cyber Academy allows parents the opportunity to leave a school district without moving, enrolling in an expensive private placement, or abandoning any attempt to education their children. From the parents’ perspective, the Cyber Academy is an escape from a school district that seems unable to meet their children’s needs. But from the school district’s perspective, a parent making life difficult by advocating for a special needs child has simply vanished. Suddenly, district administrators are free to act as if the have no responsibility to provide for that child’s needs – because they don’t as a practical matter.
This is problematic because educating children at home instead of in a physical school has substantial downsides. As I discussed previously many students with special needs need help developing social skills. Socials skills are very difficult to develop without regular interaction with typically developing children. School attendance provides an opportunity for interactions with peers. Further, the structured environment of the school setting increases the chance that appropriate behaviors and interactions will occur - so your child is less likely to model bad habits. Providing this setting and meeting these goals is part of the legal obligation of the school district.
More precisely, the Individuals with Disabilities in Education Act obligates school districts to try to try to educate a child in the “Least Restrictive Environment.” Specifically, the IDEA says:
To the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.
20 U.S.C. § 1412(a)(5)(B)
There are multiple justifications for this obligation, including removing the stigma of the “special needs” label, ensuring that educational goals are sufficiently aggressive, and the social skills issues I discussed above. Regardless of particular reasons, it is very clear that a home placement is a more restrictive environment than any in-school setting. Yet the poor quality of special needs services provided by schools means that some parents feel that it is a better option for their children. First, this decision may create bureaucratic barriers for a child to receive occupational or physical therapy they are entitled to. And it is a false choice – if the district was doing an adequate job, most parents would not feel the need to withdraw from the district in the first place.
Further, this dynamic harkens back to the very problems that lead to the passable of the IDEA and predecessor statutes – specifically, school districts telling certain children with special needs that they would not be permitted to enroll at all. Now, the existence of the Cyber Academy allows school districts to manipulate parents to achieve the same effect – children with special needs being educated separate and out-of-sight of typically developing children. This is just not right.

School Districts Must be Proactive

on Fri, 11/30/2012 - 21:07

This week, I meant to write about the important legal concept known as "Least Restrictive Environment." But there is a lot of ground to cover about LRE, and I was much busier this week than I anticipated. Instead, I'm going to discuss a different provision of the Individuals with Disabilities in Education Act: 20 U.S.C. § 1412(a)(3)(A). Colloquially known as the Childfind requirement, this provision states:


All children with disabilities residing in the State, including children with disabilities who are homeless children or are wards of the State and children with disabilities attending private schools, regardless of the severity of their disabilities, and who are in need of special education and related services, are identified, located, and evaluated and a practical method is developed and implemented to determine which children with disabilities are currently receiving needed special education and related services. (emphasis mine).
As my emphasis shows, the key idea is that all children with disabilities who need special education must be located and identified by the school district. Even if the child's parents have not requested particular services or even identified their child's disability to the school district, the district is obligated to know about the child's special education needs.
Normally, the provisions of the IDEA only apply to children who are eligible for an IEP. But the reference to children in private schools - who are not eligible for an IEP - indicates that all children are covered by this provision. That means the school district must also know the needs of a child with a Section 504 Plan, even though an IEP generally provides more procedural protections that a 504 Plan.  
In particular, the Childfind requirement - a school district be proactive about knowing a child's needs - is the best answer every time school employees suggest that the parents are not doing enough or doing the right things. Because the school district is required to be proactive about figuring out a child's needs, the district's claim that the parents are insufficiently or incorrectly supportive is almost always a misdirection. The burden is always on the school to correctly understand each child's individualized needs - in order to satisfy other IDEA obligations to provide an individualized plan with services appropriate for that child. Shifting that burden onto the parents is an unfair attempt to avoid legal obligations.
Finally, an important implication of Childfind is that the school district is obligated to identify all a child's needs. Even if a child has an IEP for dyslexia, the school cannot blame failure to make adequate progress on the child's undiagnosed ADHD. The Childfind obligation means that the district should have known about the problem and provided the appropriate services already.

Social Skills in School - 11/20/12

on Tue, 11/20/2012 - 12:41

I recently read an article in Slate magazine about how miserable children are in middle school.  One major reason is that children are very seldom explicitly trained on new ones ways of interacting with others. Instead, children are expected to pick up appropriate social skills just by observing the way other people behave towards each other.

Unfortunately, most people are not consciously aware of what cues they use to decide how to behave towards other people. Even when people are aware, there are strong social expectations that prevent people from talking about how they should interact with each other. Because of expectations like “avoiding criticizing others,” people keep silent instead of giving helpful advice about social interaction problems. If someone has certain kinds of disabilities, this silence makes it even harder for them to figure out how to behave appropriately. Thus, they have few ways to socially interact that make them feel safe, comfortable, and happy.
What can parents of children with special need to do?  There are products like Social Stories, or opportunities to practice like social skills improv.  Still, it's not unreasonable for parents of children with special needs to expect the school district to provide some help by creating interventions that help children learn how to behave in a socially appropriate way in order to express their desires. Special needs law recognizes that expressions of a disability that interfere with learning must be addressed by the district, even if they are not typical education topics like reading, math, science, or history.
One possible program is an organized a lunch table of typical and non-typical peers, with guided interactions from trained teachers.  Or a more intensive intervention might be required, with more direct and individualized programs for a particular child. But special education law encompasses the concept that learning social skills is an important part of growing up, and the school district has a responsibility to support special needs children as they try to learn social skills.
This is one major principle behind the legal doctrine Least Restrictive Environment, which I'll talk about in more detail in another post.  But even if teaching children appropriate social skills was never required, teaching social skills has the benefit of improving everyone’s behavior. Good social skills can lower the frequency of misbehavior, bullying, and other discipline problems. At the same time, it can make the experience at school more pleasant – benefiting both children with special needs and typically developing children.
Also, I have heard that the Nightline segment on seclusion rooms I discussed last week has been rescheduled to air tonight.

Seclusion Rooms in the News - 11/13/12

on Tue, 11/13/2012 - 20:57

Various ABC shows have been covering the use of seclusion rooms in Connecticut.  These rooms are used to isolate and discipline children with special needs. Depending on their available time, Nightline may include coverage this evening. ABC News has some video here. Seclusion rooms are a complicated issue under the law. Georgia has some relatively recent rules on seclusion and restraint, but there is no blanket prohibition. Still, I think that there are many strong legal arguments against use of seclusion and restraint in all but the most extreme cases.  

First, there's fairly little evidence that seclusion rooms reduce the frequency of problem behavior going forward. Second, the rooms can be dangerous - concrete walls, little teacher supervision, and tantruming children do not make a good mix. Finally, secluding children does nothing to educate them, which violates the basic principles of the Individuals with Disabilities in Education Act.  

On a side note, the video includes some foot of one mother getting very upset at a school board meeting. Her emotions are totally understandable because the school district does not seem to care about educating her child, but behavior like that often hurts more than it helps. It is not fair, but courts will judge parents for failing to maintain their cool. And school officials will get defensive rather than focusing on the important issues.

As I've said before, the substantive standards of the IDEA can be quite low, so it is important to manage your expectations going into an IEP or Section 504 meeting in order to make it easier for the school district to focus on what is most important in providing a decent plan to educate your child.