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Tuesday, December 30, 2008

Is IDEA Being Implemented as Congress Intended?”

. Special Education: Is IDEA Being Implemented as Congress Intended?” Congress of the United States House of Representatives Committee on Government Reform February 28, 2001
Prepared by Lilliam Rangel-Diaz Center for Education Advocacy Miami, Florida 33156 305-279-2428, Ext. 211 E-mail address:
God blessed me with the opportunity to attend the Congressional Hearing on IDEA with a 24-hour notice!
I encourage every child advocate and every parent to contact Congressman Burton’s office with recommendations to improve IDEA implementation and enforcement. The record will remain open until March 15, 2001.
Congressman Burton’s Personal Experiences
Congressman Burton is deeply committed to this cause, as he has been personally touched by a child with disability, his grandson, Christian, who has autism.
He related the struggles of his daughter in obtaining educational services for his grandson. He has attended IEPs with his daughter and was shocked to find the recalcitrant system that we have all grown so accustomed too. He stated that if this happens to a child who has a Congressman for a grandfather, he could not even begin to imagine what is happening to other families and other children. His experience with the special education system is what motivated him to investigate the implementation and enforcement of IDEA.
Contact information:
Hon. Dan Burton, Chairman Hose of Representatives Committee on Government Reform 2157 Rayburn House Office Building Washington, D.C. 20515-6143 Attn. Ms. Beth Clay Tel. 202-225-5074 E-mail address:
The following are my personal impressions and observations of the Congressional Hearing and my own opinions:
Congressman Dan Burton from Indiana, Chairman of the Government Reform Committee, opened the hearing, which was titled, “Special Education: Is IDEA Being Implemented as Congress Intended?”
What follows are excerpts of his opening statement:
“Why do families have to go to court to receive services?"
“ . . . Why is it that, when we have federal law that requires that every child receive a free and appropriate public education, many families are having to go to court to receive these services?”
“The committee received thousands of e-mails, telephone calls, letters and faxes from families, teachers, administrators, and organizations about the implementation of the Individuals with Disabilities Education Act (IDEA) . . . Are teachers and administrators trained in the changes in the Federal laws regarding special education? Are families fully informed early in the process about their rights?” The “Federal Role in Education: To Serve the Children not the System”
He quoted President Bush, “The federal role in education is not to serve the system. It is to serve the children,” and stated that he was in 100% agreement with that statement. He stated:
"We repeatedly heard that parents do not want their children to be ‘warehoused,’ or placed in classes where they are not intellectually challenged."
"We repeatedly heard from the disability community and families about the need for accountability for schools that do not comply with the law.”
"Families across the country do not feel that their schools are following the IDEA law. A majority of over 2,500 families we heard from had to fight for services. We repeatedly heard from families that the schools did not inform them of the programs available to their children or of their rights under the law."
"We also learned that families spend tens of thousands of dollars out-of-pocket to obtain educational services for their children, as well as to hire lawyers to fight for their children’s educational needs . . . "
"It was never Congressional intent that taxpayer dollars be spent on hiring attorneys to fight parents in long and expensive court battles that will keep children from getting services.
"The role of Special Education Directors, teachers, and administrators is to serve the children, not to serve the system. The new mantra at the Department of Education is that “No Child Be Left Behind.’ It is very important that no child be left behind, including any child with a disability . . ."
When Congress passed legislation to require a free and appropriate public education to all children with disabilities, we never envisioned that parents would have to fight for these services.
We never envisioned that schools would refuse to accept the diagnosis of a doctor and then not evaluate a child for six months or a year – delaying all services until the school evaluation is obtained. A six-month delay can have a detrimental effect on the child for years…
When Congress passed IDEA we never envisioned that schools would tell parents, ‘if we provide it for your child, then we will have to provide it for everyone!’
We repeated heard from families that schools used this as an excuse not to provide services. If the service is an appropriate service to meet the educational needs of a disabled child, any child with the same disability in the school should be offered access to that appropriate service… Marca Bristo, Chairperson of the National Council on Disability, beautifully delivered the major findings and major recommendations of NCD’s Back to School on Civil Rights Report regarding the poor implementation of IDEA and the lack of enforcement actions.
Back to School on Civil Rights was entered into the Congressional Record.
How to Improve Implementation of IDEA? OSEP Has No Recommendations
Patricia Guard, Acting Director, Office of Special Education Programs, U.S. Department of Education, testified. Congressman Burton interrupted her testimony reminding her that what she was stating was what IDEA law says and that Congress is fully aware of what IDEA says, that what they want to know is why is not being implemented and what needs to be done to improve it.
He asked her for specific recommendations from OSEP, but OSEP was unable to provide any, aside from increase in funding. Ms. Guard indicated that she had to get back to the Committee with specific recommendations.
It’s hard for me to resist offering my editorials, so I’m not going to resist the temptation . . . for OSEP not to have recommendations to improve IDEA implementation and enforcement is so tragic that is almost comical!
For me, the highlight was . . .
For me, the absolute highlight of the hearing was the testimony of Melinda (Maloney) Baird, Esq. From Knoxville, Tennessee, now in private practice previously involved with the Weatherly Law Firm, followed by the testimony from Mr. Gary Mayerson, Esq. from New York, a parent attorney.
I wish I had a video camera so that we could all relive the moment together . . . I will do my best to describe what I observed . . .
Excerpts from Testimony of Melinda (Maloney) Baird, Esq., school board attorney
The following are excerpts from Ms. Baird’s testimony:
I am an attorney in private practice in Knoxville, Tennessee, and have been working in the field of special education law for almost sixteen years. My practice is devoted exclusively to the representation of school districts in special education matters. I formerly served as an attorney in the Office of Special Education Programs for the Tennessee Department of Education and as Associate Publisher for Education and Disability Publications for LRP Publications.
Over the past twelve years, I have provided hundreds of workshops and in-service training seminars for thousands of teachers, administrators, and parents of students with disabilities…. For the past four-and-a-half years, I have represented school districts in Tennessee, Alabama, and Florida in litigation concerning the IDEA and Section 504 of the Rehabilitation Act of 1973… Despite the best efforts and good intentions of lawmakers, the paperwork burden for special education has increased rather than decreased…
In my opinion and based on my experience, local school districts are doing an ADMIRABLE (emphasis added) job of providing appropriate special education and related services to these students, and are rising to the challenge of meeting the mandate and increasing expectations of the law…. I annually prepare a yearly summary of federal and state court decisions affecting special education, which I have attached for your information and review . . .
I think it is remarkable that, on average, less than one hundred lawsuits are filed in federal and state court out of a total of more than six million students receiving special education and related services. The Committee members should remember that in each state there is a federally funded agency providing free or low-cost legal representation to parents of students with disabilities.
Therefore, families of students with disabilities are able to initiate a legal action against their local school district either at no cost or low cost whenever their child’s rights have been violated. Parents also have the option of filing a complaint with the Office for Civil Rights and their State Department of Education, and of requesting formal mediation at no cost to them….
The law provides a complex scheme of procedural rights and the availability of free or low-cost legal representation for parents of students with disabilities. I can testify that the parents I encounter are well aware of their legal rights and freely take advantage of the legal process. My husband is a retired educator with twenty-eight years of experience as a special education teacher and administrator…
It would be wrong to assume that all complains filed against school districts are without merit. It would also be wrong to assume that all complaints filed against schools have merit. The fact that we have disputes between school districts and parents of children with disabilities is proof that the system is working, not proof that the system is flawed… Excerpts from Testimony of Gary Mayerson, Esq., parent attorney
The hero of the day, Mr. Gary Mayerson from New York (who by the way was borne and raised in Miami, Florida), provided the accurate information regarding the state of affairs regarding special education litigation. He stated:
Unfortunately, while there apparently are enough lawyers and law firms prepared to work on a steady retainer basis for school districts (or the insurance companies which insure school districts), there are relatively few lawyers in the country who are ready, willing and able to represent children . . .
The subject matter is complicated, the learning curve is steep, the pay is uncertain and erratic, and the risks of failure can be catastrophic to the child and the child’s family. There clearly are easier ways to earn a living . . . “Private” Conferences for School Board Attorneys Funded by Taxpayers?
Mr. Mayerson included as Appendices to his written testimony, a seminar brochure entitled “Special Education and The Law" a private briefing designed for school board members, central office administrators, special education directors, etc.” Page 2 of the Program agenda announced a session titled “Special Education for Early Childhood Autistic Students – How to Avoid Parent Demands for Lovaas/Teach Methodologies,” and another session titled, “How to Avoid Liability in Lovaas Cases.”
Mr. Mayerson also attached a copy of “workshop” brochure from our esteemed LRP Publications entiled “Building a Blueprint from Defensible Autism Programs,” with Melinda (Maloney) Baird as the workshop’s presenter. He also testified to Ms. Baird’s presentation in Tennessee back in November 2000, titled “The New Reauthorization – Back into Hell?”
We are all too familiar with these workshops and “private” conferences at taxpayers’ expense.
Congressman Burton and Congresswoman Maloney from New York did not find Ms. Baird’s “catchy” titles amusing at all. As one observed Congressman Burton’s increase in facial color, becoming redder by the second, Ms. Baird was asked several questions regarding Mr. Mayerson’s appendices and testimony.
Among the questions asked of Ms. Baird, was an explanation of how could she put on “private” conferences with taxpayer dollars designed to teach school people how to break the law and get away with it.
OK, we can all relish the moment now . . . SMILE, SMILE, SMILE . . .
Of course, this refers to the infamous “National Institute on Legal Issues of Educating Individuals with Disabilities” by LRP, which caters to school boards and school board attorneys who attend these conferences at taxpayers expense to learn how to win against parents in court.
Congresswoman Maloney from New York literally yelled at Ms. Baird, stating that this practice could not be legal and that she would get this under the Sunshine Law.
Ms. Baird was not a happy camper.
OSEP Staff Comfort School Board Attorney
At the end of the hearing, it was observed that Ms. Baird found refuge and comfort among her friends from OSEP, Ms. Patty Guard, Ms. Joleta Reynolds and Ms. Ruth Ryder, who were all there.
Whose interest is OSEP protecting? Do we have any doubts left?
How could anyone in their right mind expect that OSEP would ever enforce IDEA, much less sanction state education agencies that allow its local school districts to violate the law?
“The Cat Is Out of the Bag”
For the first time I feel confident that IDEA is getting the attention it deserves (THE CAT IS OUT OF THE BAG).
“Thank God for Little Boys Like Christian”
Thank God for little boys and little girls like Christian, Congressman Burton’s grandson, who through the miracles of their existence, raise the level of awareness of those who are in a position to make a difference. What would the rest of us do without them?
I encourage all parents and advocates for children with disabilities to make recommendations to improve IDEA.
Please Make Your Voice Heard
It is scary to hear the recommendations that I heard at the hearing from school people and from uninformed legislators. The school people complain bitterly about the burden of paperwork and about the discipline of children with disabilities.
What they really mean is that paperwork makes them somewhat accountable and they just don’t like that. They also stated that they miss the days when the parents “trust” them.
Accountability & Measurable Student Outcomes
We need to demand accountability, not necessarily through “paperwork” (I’m not interested in killing trees), but through technology (instead of paper and pencil tasks) and through measurable student outcomes.
Please feel free to contact me for additional information.
Lilliam Rangel-Diaz
Center for Education Advocacy 8600 S.W. 92nd Street Suite 204 Miami, Florida 33156 305-279-2428, Ext. 211 E-mail address:
IDEA Compliance Links at Wrightslaw:
Summary of Findings & News Release by National Council on Disability.
Table of Contents, IDEA Compliance Report ("Back to School on Civil Rights")
Recommendations from IDEA Compliance Report ("Back to School on Civil Rights")
Search Tips -- Find Information in IDEA Compliance Report
Keynote Speech by Lilliam Rangel Diaz, 3rd Annual Conference of Council of Parent Attorneys and Advocates, Houston, TX
Other Links
National Council on Disability
Council of Parent Attorneys and Advocates
NOTE: The 4th Annual Conference of the Council of Parent Attorneys and Advocates is at the Hyatt Crystal City, Washington DC, March 8-11, 2001. For more information, please visit the COPAA site.

Wednesday, December 24, 2008

Some Area School Districts Receive Sanction and Awards

Some area school districts receive sanctions and awards

Monday, December 15, 2008

By Lindy Bavolek

Southeast Missourian

Some school districts that received federal sanctions this year for not making enough progress are now receiving a state award for distinction in performance.

That's because the state looks at a broader range of data, including ACT scores, college placement rates and availability of advanced courses, while the federal government focuses mainly on test scores, holding all subgroups of students accountable.

So some districts that received criticism when Missouri Assessment Program results were released in August are now celebrating their state distinction.

The state's education department doled out awards to 330 districts out of 523 this year. Chaffee, Delta, Jackson, Leopold, Oak Ridge, Oran, Kelly, Woodland, Zalma, Altenburg, Kelso and Nell Holcomb made the list. Absent from the list are Cape Girardeau, Meadow Heights, Perryville and Scott City. All the districts are fully accredited. For Jackson, this is the 11th year for the district to receive the award.

"I think it's having a faculty and staff that understand that we're always trying to improve. We're not satisfied to just remain where we are," said assistant superintendent Dr. Rita Fisher.

The accolade comes four months after the district was placed in the first level of sanctions under No Child Left Behind. The district as a whole did not meet targets in math or reading for two consecutive years. While students on average met the standards, qualifying the district for the state award, subgroups of students did not. Those subgroups include students classified as special education, black or receiving free or reduced-price lunch.

Similar situations, where a district received the state award but moved into improvement status under the federal government, occurred in Oran, Kelly and Woodland.

Jim Morris, spokesman for the Missouri Department of Elementary and Secondary Education, referred in an e-mail to No Child Left Behind mandates and Distinction in Performance indicators as "two different galaxies." No Child Left Behind is largely building focused, he said, while the state's accreditation mechanism recognizes districts.

Jackson superintendent Dr. Ron Anderson said he supports "the accountability standard," but thinks some of No Child Left Behind's requirements are unobtainable."With some of those [subgroup] populations, it's not realistic. With this, you have a better chance. The subgroups are more of a bonus category," Fisher said.


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Wednesday, December 17, 2008

Writing An IEP

I. Introduction

The post-school success rates of students who have learning disabilities, as a group, have not been what we would all hope even though many individuals have been highly successful. A recent focus on greater school responsibility for the post-school life of students who have disabilities has resulted in new transition requirements. The purpose of this discussion is to present a different approach to writing IEPs, with special attention to the transition component This approach results in IEPs which, unlike most IEPs, are both educationally useful and legally correct.

The Promise

After nearly seventeen years of life the Individual Education Program (IEP)-- the heart and soul of the Individuals with Disabilities Education Act (IDEA) -- is still in it's infancy, it's great potential unrealized and unappreciated. The IEP process and product frequently have been distorted beyond recognition. The purpose of this discussion is to show how the IEP process can work to produce IEPs that are both educationally useful and legally correct. The essence of legal correctness is that the IEP is tailored precisely to all the unique needs of the individual student. The core of educational utility is that the IEP spells out precisely how the school district will address each and every unique need and how it will determine whether and when a change in strategy or service is required. The IEP process must determine:

(a) which needs or characteristics of the student require special education, i.e., individualization of services;
(b) Precisely how the district will address each need, i.e., "what special education, related services or modifications it will provide; and
(c) how and when the efficacy of those services will be evaluated.

The IEP process must include the parent (or parent/student) as a full and equal partner, and a student whose IEP addresses "transition" must be invited to participate in the IEP process and must have her or his preferences and interests considered. These transition concerns and processes are a special focus of this discussion.

The Practice

Most IEPs are useless or slightly worse, and too many teachers experience the IEP process as always time consuming, sometimes threatening, and, too often, a pointless bureaucratic requirement. The result is a quasi-legal document to be filed away with the expectation it won't be seen again except, heaven forbid, by a monitor or compliance officer. The point of the IEP exercise seems to be to complete the given form in a way that commit the district to as little as possible, and which precludes, as much as possible, any meaningful discussion or evaluation of the student's real progress.
Parents too often experience the IEP process as an overgrown parent-teacher conference in which the school personnel present some previously prepared papers and request a signature. They may be told a few things about some "rights." Parents who attempt to participate as equals are often intimidated into acquiescence. They are frequently given false and outrageous distortions such as, "We (the district) don't provide individual tutoring"; or "Speech therapy is always done by the regular classroom teacher and the speech therapist provides consultation services to her"; or "We are a full inclusion school and have no special classes or resource rooms because we don't believe in pull-out programs." When such limiting and blatantly illegal practices are presented as if they are simple fact few parents are adequately prepared to challenge the district.

A Better Way

The IEP process and product can be both educationally useful and legally correct. The first step toward that end is for the district to provide an appropriate time and place for the IEP meeting, The place should be physically comfortable and the meeting time and length appropriate. The law requires the meeting be at a mutually agreed on time and place. Too often parents are not aware they have any say in either. Districts must also be careful to avoid unrealistically short meetings, especially for initial, complex or disputed IEPs.

The only legitimate focus of an IEP meeting is on the special needs of the student and how those are to be addressed. There may be a temptation for district personnel to sidestep into policy explanations or justifications or into what the parents have done or not done. If the student is not present at the IEP meeting a strategically placed photo of the youngster can serve to help all participants stay focused on the needs of that student. Many IEP meetings lose this essential focus and wander, becoming inefficient and frustrating for all.

The single most important principle of the IEP process is that the school must appropriately address all the student's unique needs without regard to the availability of needed services. Prior to the passage of IDEA (then P.L. 94-142) in 1975, schools were legally free to offer only the programs or services, if any, they had available. Parents were supposed to be grateful for anything at all that was provided. The primary purpose of the law was to turn that squarely around and entitle the student who has a disability to a free appropriate education individually designed to meet her or his unique needs. Educators who have entered the field in the last twenty years lack this historical perspective and too easily revert to the pre-IDEA mentality of trying to stretch existing programs and services to fit the students. Instead they must start with the student and design services to fit the student's needs, however unique they may be.

The Participants

Sometimes parents report that only a teacher was at the IEP meeting; other times a seeming army of district personnel confront them. The law specifies that in addition to the parent and student (if the parent so wishes) a teacher of the student and a district representative must be present. The IDEA regulations allow the district substantial discretion in determining which teacher will be at the IEP meeting. Since, in theory, the IEP team is addressing the student's needs above all, it would seem reasonable to select a teacher who knows the student well. In addition, at least one team member must be qualified (by state standards) in the area of the student's disability. If this is not the teacher, it must be the district representative (Mcintire, 16 EHLR 163, (OSEP, 1990)). Students at middle school or high school most often have several teachers. The law does not require that they all attend, but good special education practice suggests their input should be sought and they most certainly should be informed of the IEP's provisions.

The district representative must provide or be qualified to supervise special education, have the authority to allocate district resources, and be able to guarantee no administrative veto of the IEP team's decisions (34 CFR Part 300 Appendix C, 13). These qualifications are the law's way of insuring that the IEP team, and it alone, has the power to determine what services the student needs and, therefore, will receive. The evaluation team, often called the multi-disciplinary team, determines eligibility, but only recommends services.

All members of the IEP team should remember the enormous power and responsibility that is theirs. When the IEP specifies a service is needed, the district must provide it. Too often parents are given a very different impression, i.e., that only what is already available can be provided and often in smaller than needed amounts. This critical difference between the law and practice is typified by the common situation, e.g., where the parent believes the student who has a learning disability needs intensive, individual, daily language therapy and is told by the speech therapist that since the therapist is only in that building on Mondays and Wednesdays the student will be included in an ongoing 20 minute speech therapy group on those two days.
In addition to the parent (and perhaps student), teacher, and the district representative, the first IEP meeting for a given student must be attended by a member of the evaluation team or someone familiar with the evaluation. In addition, either the district or the parent may invite anyone else. The district must, however, inform the parent ahead of time of all district invited persons who will be at the IEP meeting. There is no similar requirement for parents to inform the district of anyone they may invite.

The fact the law does not require related services personnel to be present may be highly significant. The IDEA regulations (34 CFR Part 300 Appendix A) advise that related service personnel provide written recommendations to the IEP team about the nature, frequency and amount of service to be provided. Arguably, there is no requirement that goals and objectives are necessary for related services. If related service goals and objectives are required they may be of the sort a teacher and parent could write. Since related services include only those necessary to enable the student to benefit from special education it stands to reason that the goals and objectives to be accomplished by the related services would appear as goals for the special education services. The focus on the related services components of the IEP is on specifying the amount of service and the outcome is reflected in the goals and objectives for special education. The related services are not ends in themselves, but rather enablers.

Contents of the IEP

The federal requirements for the contents of the IEP are straightforward. The individualized education program for each child must include:

(a) A statement of the student's present levels of education performance;
(b) A statement of annual goals, including short term instructional objectives;
(c) A statement of the specific special education and related services to be provided to the student, and the extent to which the student will be able to participate in regular educational programs;
(d) A statement of the needed transition services for students beginning no later than age 16 and annually thereafter (and if determined appropriate for an individual student, beginning at age 14, or younger), including, if appropriate, a statement of each public agency's and each participating agency's responsibilities or linkages, or both, before the student leaves the school setting;
(e) The projected dates for initiation of services and the anticipated duration of the services; and
(f) Appropriate objective criteria and evaluation procedures and schedules for determining, on at least an annual basis, whether the short term instructional objectives are being achieved. (34-CFR 300.346).

Legal Rulings on IEPs

These five general principles, among others, emerge clearly from a review of the hundreds of past IEP rulings from agencies and courts:

(1) All of a student's unique needs must be addressed, not just her or his academic needs, e.g., Russell v. Jefferson Sch. Dist., 609 F. Supp. 605, (N.D. CA 1985); Abrahamson v. Hershman, 701 F.2nd 223, (1st Cir. 1983). Arguably, no "non-unique" needs have to be addressed.

(2) The availability of services may not be considered in writing the IEP. If a service is needed it must be written on the IEP and if the district does not have it available, it must be provided by another agency. One of the earliest of all the agency rulings mandated that availability of services be disregarded in writing the IEP (Leconte, EHLR 211:146, OSEP, 1979). This principle has been reiterated repeatedly by the Office of Special Education and Rehabilitative Services (OSERS) and the Office of Special Education Programs (OSEP) and virtually ignored by the field.
(3) The IEP is a firm, legally binding "commitment of resources." The district must provide the services listed or the IEP must be amended (Beck, EHLR 211:145 (OSEP 1979)).

(4) IEPs must be individualized. The same goals, same content areas, same discipline or the same amounts of therapy on many IEPs (e.g., every student who receives speech therapy in a particular building receives 30 minutes daily) reveals a violation of this individualization requirement (Tucson, AZ Unified Sch. Dist. #1, EHLR 352.547 (OCR 1987)).

(5) All of the components of the IEP required by law (e.g., goals and objectives, specific special education and related services) must be present.

II. Developing the IEP

The proper team has assembled, the student's photo is prominently placed, the calming herbal tea has been served, the tape recorder is on and the newsprint is on the easel. It is time to begin developing the IEP. A three-step IEP development process is strongly recommended:
(a) List the student's unique characteristics or needs that require individualization (and which entitle the student to individualized services);
(b) Determine and specify the district-provided services and modifications that will appropriately address each need; and
(c) Write the goals and objectives that will be accomplished by the student if the services and modifications are appropriate and effective.

An IEP "Non-Form" consisting solely of a blank piece of paper oriented horizontally can accommodate this process far better than existing forms. Divide the paper into thirds and label the three columns something like:
(1) Student's Needs;
(2) Services; and
(3) Evaluation of Services. Other headings that work well are
(a) Individualize because.....;
(b) What the district will do;
(c) How we'll know it is working.

The Student's Unique Characteristics or NeedsFirst, the IEP team must determine the student's unique characteristics or needs to which the special services will be directed. One helpful way to learn to think in terms of these essential characteristics is to imagine that you are describing the student to a volunteer who has never met the student and is going to take him or her camping for a week. The IEP is required to address only the portions or aspects of the student's education that need to be individualized. The student should be visible in the IEP. Too many IEPs reveal only the academic program available in the resource room and show nothing whatsoever about the student. The primary focus of the IEP is going to be the specification of services. This initial step is to determine what is necessitating the services.

If we complete the statement, "We are individualizing Johnny's program because "_______" those "because" are his unique needs. The "because" may be such things as:
(a) he is reading several years behind where he should be;
(b) he is unable to organize his assignments, homework; or
(c) his attention is too easily distracted away from work, etc. These are the exact needs to be addressed in the next column.

When a legal dispute arises about a student's program, a common concern is whether the services provided addressed all the student's special needs. Those special needs are what must be specified in this first stage of IEP development. It is difficult to imagine how one could either attack or defend the services offered to meet unique needs unless those needs had been specified. In addition to the real world knowledge the IEP team members have about the student's characteristics/needs, it may be helpful to consult any current evaluations. This is particularly important for the first IEP which immediately follows the evaluation which found the student to be IDEA eligible. Some evaluations fail to address a student's special needs; others can be very helpful.

Characteristics or needs will often "cluster." The team may well decide in the next stage that one service will address more than one characteristic or need. However, at this point it is important to just "brainstorm" and list all the unique characteristics that require individualized attention. Sometimes the natural flow seems to be to work "across" the IEP Non-Form, i.e., when a characteristic has been identified, to then decide what service or accommodation will address it and finally determine the goals and objectives for that service that will indicate its appropriateness. Other times it may be better to list all the characteristics first, then move to services and then to goals. Either way, or a combination, is perfectly OK.

Examples of characteristics (not all from the same student) in both academic and social-emotional-behavioral areas follow. Remember that for each, the next inquiry will be, "What will the district do about this?" Some examples of unique characteristics or needs in academic areas are:
(a) Handwriting that is slow, labored, "drawn," nearly illegible due to improper size and spacing of letters and words;
(b) Lacks understanding of place value and regrouping in both addition and subtraction;
(c) Attributes literal, concrete meaning to everything he hears and reads; doesn't get jokes or slang;
(d) Understands spoken language, decodes words accurately, but does not comprehend material read independently; oral reading reveals severe lack of expression and no attention to punctuation;
(e) Works very slowly, becomes upset if he makes a mistake, quits and refuses to continue if paper is "messy",
(f) Answers before thinking, both in oral and written work; work is impulsive; many "careless" errors; and
(g) Gets arithmetic problems `"messed up" and copies them incorrectly off board and out of book. Lines up problems incorrectly and also lines up answers wrong in multiplication and division.

The law requires that the Present Level of Performance (PLOP) in these areas of need be indicated in a way that is readily understandable and is precise enough to allow us to measure progress. The PLOP can appear either as an elaboration of the characteristic or need or as the chronological beginning point in a succession of PLOP, behavioral objectives, and annual goal. The PLOP is now, the objectives are short-term goals, and the goal is where the student is headed by the end of a year.

If the PLOP is treated as a quantification of the characteristic or need, then a PLOP for the slow, barely legible handwriting in example (a) above might be "copies 5 words per minute with 1 or 2 of the words illegible."

Some characteristics or needs are sufficiently descriptive as they are and need no quantification, e.g., lacks understanding of place value and regrouping. To say that the student performs zero regrouping problems correctly adds little to the description.

Sometimes a present level of performance can be best described by a work sample. A picture can speak very loudly, as in a timed handwriting sample which could be attached to the IEP as a PLOP. Such a sample can reveal both quality (content) of written expression as well as mechanics of handwriting.

Some examples of unique characteristics or needs in social-emotional- behavioral areas would be:

(a) Shy; no friends; never volunteers in class; never initiates social contact with other children;
(b) Bully; doesn't know how to play with other children; physically aggressive with smaller children;
(c) Over-reacts and has temper outbursts; is noncompliant; pouts and whines; is sullen and negative when suggestions are made; and
(d) Short attention span; easily distracted by sounds.

These characteristics would be treated just the same as academic needs. A PLOP would be added if necessary and then the team would ask what the district will do about the bullying or the shyness or short attention span.

The Special Education, Related Services and Modifications- the District "Will Do's" The second inquiry the team should make is, "How will the district respond to each of the student's needs? What will we do about Joe's need for help in making friends? What will we do about Toni's tendency to work rapidly and carelessly? What will we do about Manuel's anger problem?" The special education, related services or modifications the district will provide can be conveniently thought of as the "district do's." The "do's" are listed in the middle column of the Non-Form. They may be as creative, flexible, innovative, and often inexpensive as the team's brainstorming and combined wisdom allow. This listing of services becomes the "Special Education and Related Services" which the law requires be on the IEP and which is too often omitted or simply perverted into a mere check mark or a percentage of time in special education. The amount of related services such as speech therapy or physical therapy that is needed must be shown, along with the date the service is to begin and the anticipated duration of the service.

One of the interesting issues about services is the question of whether methodology need be specified. If, for example, the service is remedial reading, must the method be spelled out? In general the answer is "no". In 1977, when the IDEA rules were first proposed, they would have mandated that methodology and instructional materials were to be included in IEPs. However, when the rules became final that requirement had been dropped. In the meantime, some states and districts had moved quickly and already had forms that included methods and materials. It is not unusual to find those forms still in use. One disadvantage of including method is that so doing means an IEP meeting would have to be called to change the method. If method isn't on the IEP it can be changed unilaterally as the teacher sees fit.

Methodology becomes a source of conflict when parents are convinced their child will receive benefit from a particular method and will not benefit from the method the district wants to use. The most frequently sought methods are a particular method of communication for students who are deaf and direct instruction and/or phonics based reading programs for students who are learning disabled. Almost all courts agree that schools may usually select the method. However, in rare cases parents have been able to show that a particular method is necessary to allow the IEP to be "reasonably calculated" to allow benefit, e.g., Hawaii Dept. of Education v. Tara H., Civ. No. 86-1161, (D.HI 1987). It is extremely important to note, as no court has yet done, that when the U.S. Supreme Court said methodology should be left to the state (school) it said so in the context of presuming the school had expertise in all relevant, effective methods (Board of Ed. v. Rowley, 102 S.Ct. 3034, (1982)). This is not usually the case.

A common and interesting question related to these "District Do" services relates to in-service training for teachers. Rob, e.g., has Tourette's Syndrome and needs a teacher who is knowledgeable about how his involuntary vocalizations are affected by stress. The agreed upon service to be provided by the district is inservice training by the local physician for all the school staff. Does that "district do" belong on Rob's IEP? Yes, it does. It is a service to meet his unique need. One concern is that such a service doesn't lend itself directly to a goal formulated in terms of Rob's behavior. This concern is easily addressed by looking to what we hope to see in Rob's behavior as a result of having an informed, sympathetic teacher who assists him in avoiding unnecessary stress. One obvious answer is improved academic performance. Other outcomes could be a direct decrease in frequency and severity of his symptoms and an increase in socialization.

Another issue is that the service is not being provided directly to Rob. Legally, an important question is whether Rob is receiving some special education, i.e., some specially designed instruction to meet his unique needs, which is delivered by qualified special education personnel. If he is not receiving any special education, as defined in the law, he is either not eligible under IDEA or he is not receiving the free appropriate education to which he is entitled. If he is receiving special education then it does not matter how the in-service training for his teachers is conceptualized. Logically, in-service staff training is perfectly analogous to parent training and is, therefore, a related service. If so, it is important to specify, as for all related services, how much in-service is to be provided and when.

For many years some districts resisted including on IEPs the modifications needed in the regular classroom. However, it is well settled law that they must be included. A checklist of types of modifications (e.g., in grading, discipline, assignments, texts, tests, etc.) can be helpful to insure all necessary modifications are addressed.

The Present Levels of Performance, Goals and Objectives - Evaluating the District "Do's" The third step, after the needs have been delineated and the services specified, is to write the required annual goal and behavioral objectives for each special education service or cluster of services. The clustering of services can be very efficient as well as conceptually illuminating. For example, think of a secondary student who has a severe learning disability affecting his written expression. He might need several services including keyboarding instruction, tutoring in writing, modifications in test-taking and length of written assignments, substitution of oral presentations for some term papers, and modified grading. The entire service cluster could be reasonably evaluated in terms of his improved rates of successful course completion and attendance. Other goals could also be very appropriate. The point is that just as characteristics or needs can be clustered to provide one service, so services can be clustered to be assessed by a common, single goal.

Writing goals and objectives begins with asking, "If the service we are providing is effective, what will we see in Todd's behavior that tells us so?" The purpose of the mandated goals and objectives is to evaluate the service. We need to know when or if to change what we're doing, to change the service we are providing. As long as we're on track and the child is making reasonable progress we just keep going. That's why objectives are to be statements of how far the student will progress toward the annual goal (12 month objective) by when.

One of the common and major problems with goals and objectives is that they are not taken seriously by their writers who have no intention of actually checking whether the student has reached them or not. It is as if we never understood the most basic tenet of the IEP, i.e., that we are going to try the listed services and see if they work for that student. The goals and objectives are to be real. They are to be used to evaluate program effectiveness. They are not just legal requirements to be completed and filed. The contrast can be seen easily.

Present Level of Performance

Section 300.347(a)(1)
Section 4: Present Level of Performance andAnnual Goals and Short-Term Objectives

Present Level of Performance
Present Level of Educational Performance (Including how the child’s disability affects the child’s involvement and expected progress in the general curriculum): (For preschool children, describe how the disability affects the student’s participation in appropriate activities.) ______________________________________________________________________________

Present Level of Educational Performance (PLEP) - The present level determines approaches for ensuring involvement in, or adaptations or modifications to, the general curriculum. Each area of identified educational need must be addressed in at least one of the following: annual goals, supplementary aids/services/supports, or secondary transition services.
The PLEP should accurately describe the student’s performance in all areas of education that are affected by the student’s disability [R340.1721e(2)(a)]. For preschool children, the present level of educational performance should describe how the disability affects the child’s participation in appropriate activities [34 CFR §300.347(a)(1)]. It is helpful to consider the key role of present level of performance in the overall development of the IEP.
Present level of performance information supports the IEP Team’s determination of supplementary aids/services/personnel supports, annual goals and short-term objectives, and state- and district-wide assessments on the IEP [34 CFR §300.347(a)]. The PLEP statement(s) should include four elements (in no particular order):

1. A narrative summary of the baseline data. In understandable terms, explain the data, areas of need, and how the disability affects progress in the general curriculum. The narrative summary must be sufficient to provide a foundation for education planning (a starting point for instruction).
Example: Charlie knows how to compute math problems, but is unable to meet the 5th grade standards (80% on math benchmarks) for understanding and applying problem solving strategies to story problems. He does not understand the relationship between a description and a mathematical solution. Charlie scored at the 2.8 level on the solving section of the Key Math test, and 4.8 on the Computation section. He completes word problems with 50% accuracy.

2. Baseline data may be obtained from criterion referenced tests, standardized achievement tests, diagnostic tests, classroom performance, systematic observations, state or district-wide assessments, checklists, progress reports, report cards, student input, parent input, or any combination of the above.
Example (baseline data in italics): Charlie knows how to compute math problems, but is unable to meet the 5thgrade standards (80% on math benchmarks) for understanding and applying problem solving strategies to story problems. He does not understand the relationship between a description and a mathematical solution. Charlie scored at the 2.8 level on the solving section of the Key Math test , and 4.8 on the Computation section. He completes word problems with 50% accuracy.

3. A statement of how the disability impacts the student’s involvement/progress in the general curriculum. Such as:
"needs skills to perform independent tasks required for daily living""auditory processing needs affects ability to take notes during lectures""needs organizational skills for completing work on time""requires assistance to interact with other children during group play""need for reading skills impedes completion of work at grade level""has difficulty participating in general physical education class""needs skills to pass classes required for graduation by year’s end""behavior prevents independent work on general education assignments"
Example of how the disability impacts the student’s involvement/progress in the general curriculum (in italics): Charlie knows how to compute math problems, but is unable to meet the 5thgrade standards (80% on math benchmarks) for understanding and applying problem solving strategies to story problems. He does not understand the relationship between a description and a mathematical solution. Charlie scored at the 2.8 level on the solving section of the Key Math test, and 4.8 on the Computation section. He completes word problems with 50% accuracy.

4. A description of area(s) of educational need.
"Areas" may refer to:
An academic subject area such as math, reading, social studies, language arts
A functional area such as self-care, social skills, behavior, adaptive functioning
An area of disability such as speech/language behavior, motor functioning
Example of area(s) of educational needs (in italics): Charlie knows how to compute math problems, but is unable to meet the 5thgrade standards (80% on math benchmarks) for understanding and applying problem solving strategies to story problems. He does not understand the relationship between a description and a mathematical solution. Charlie scored at the 2.8 level on the solving section of the Key Math test, and 4.8 on the Computation section. He completes word problems with 50% accuracy.

More examples of PLEP narratives:
"Teacher records show that John turns in a weekly average of 60% of his math assignments, and 50% of his English assignments (100% expected). Fewer than 75% of assignments turned in are complete. He appears capable of completing the work as given. This performance jeopardizes completion of his coursework for graduation."
"In unstructured settings and transitional times of the day, Joanne’s activity level increases and she more likely violates school rules, or becomes agitated and angry. Joanne does not de-escalate behavior and is not willing to discuss situations afterward. Disciplinary records indicate 8 disciplinary removals in the past 10 school days and 27 in 3 previous months, causing her to fall behind in her schoolwork. Joanne’s reading fluency is interrupted by substitutions. Joanne does not efficiently use context or phonics clues which affect her progress in reading as indicated by her performance on third grade classroom oral reading benchmark tests."

Physical Education - Physical education services, specially designed if necessary, must be made available to every student with a disability [34 CFR §§300.24(b)(2), 300.307]. If modifications are needed for the student to be able to participate in a general physical education program, those modifications must be described in the IEP. If a student with a disability needs a specially designed physical education program provided by special education, that program must be addressed in all applicable areas of the IEP (present levels of educational performance, annual goals and short-term objectives, and services to be provided).

What Should be in my child's IEP?
The IEP should accurately describe your child’s learning problems and how these problems are going to be dealt with.
Present Levels of Educational Performance
One of the best and clearest ways to describe your child’s unique problems is to include information from the evaluations. The IEP document should contain a statement of the child’s present levels of educational performance. If your child has reading problems, the IEP should include reading subtest scores. If your child has problems in math calculation, the IEP should include the math calculation subtest scores. To help you understand what these scores mean, you should read our article "Understanding Tests and Measurements."

Measuring Progress: Subjective Observations or Objective Testing?
Let’s return to our medical example. Your son John complained that his throat was sore. You see that his throat is red. His skin is hot to the touch. He is sleepy and lethargic. These are your observations.
Based on concerns raised by your subjective observations, you take John to the doctor. After the examination, the doctor will add subjective observations to yours. Objective testing will be done. When John’s temperature is measured, it is 104. Preliminary lab work shows that John has an elevated white count. A strep test is positive. These objective tests suggest that John has an infection.
Based on information from subjective observations and objective tests, the doctor develops a treatment plan—including a course of antibiotics. Later, you and John return—and you share your ongoing observations with the doctor. John’s temperature returned to normal a few days ago. His throat appears normal. These are your subjective observations.
Subjective observations provide valuable information—but in many cases, they will not provide sufficient evidence that John’s infection is gone. After John’s doctor makes additional observations—she may order additional objective testing. Why?
You cannot see disease-causing bacteria. To test for the presence of bacteria, you must do objective testing. Unless you get objective testing, you cannot know if John’s infection has dissipated.
By the same token, you will not always know that your child is acquiring skills in reading, writing or arithmetic—unless you get objective testing of these skills.
How will you know if the IEP plan is working? Should you rely on your subjective observations? The teacher’s subjective observations? Or should you get additional information from objective testing?

Wednesday, December 3, 2008

A Question Of Restraint

A question of restraint
Parents and educators battle over methods used to control autistic children.

MELANIE LYON figured Barnstable public schools had special strategies to teach her son Matthew, who has autism and can barely speak.

Jean Bowden, left, and Melanie Lyon, both of Marstons Mills, are pushing for changes in the way public schools control their autistic children. "If I did that to Matthew, they'd put me in jail. It's abusive," Lyon says.(Staff photo by Steve Heaslip)When she found out that included pushing him face-down on the floor, pressing his hands against his back and straddling him, her confidence turned to outrage. The Marstons Mills mother thought physical restraint was only used on students who were violently out-of-control. "The school system said they only use a restraint if the child is in danger of hurting himself or someone else," she said after viewing a video of an incident involving her then 11-year-old. "But the teacher looked right at the camera and said if he's 'noncompliant' for five minutes, we're going into a floor restraint. That's for not doing his work. It's not for hitting anybody. If I did that to Matthew, they'd put me in jail. It's abusive." Another parent, Jean Bowden of Centerville, was so outraged by the repeated use of restraints on her daughter Abbie, who also has autism, that she filed a police complaint and is considering suing the Barnstable School Department.

Abbie Bowden is held down by a special-education teacher at the Centerville Elementary School in a videotape made in January 1998."I see the teacher and aide being very rough with her and totally disregarding her bad chest cold," Bowden said of a classroom videotape showing Abbie being restrained 14 times in one day.

"Pressing her down on the floor with her arms up behind her back like a take-down in a drug bust. We are talking about a little frail 64-pound child with the mind of a 2- to 3-year-old. This teacher and school are taking a big chance with another's life and safety." If Bowden sues, she won't be alone. Just as there is a national trend toward training teachers and counselors in the use of wrestling-type holds to restrain unruly students and patients, there is a swell of lawsuits charging that the restraints are abusive or dangerous.

Abbie was put face-down in a "floor-restraint" about 10 times in the video, for reasons including refusing to take a "time-out," pushing a teacher and refusing to get up.Prompted by the death of a 16-year-old boy in a special state residential program last year, Massachusetts lawmakers have filed two bills that would severely curtail the use of physical restraints in schools, psychiatric facilities, group homes and nursing homes. The legislation also would completely outlaw the use of prone, or face-down floor restraints, on children and elderly people. Bowden plans to testify on behalf of both bills, which are being heard at 1 p.m. April 14 at the Statehouse in Boston.

"I thought what they did was so bizarre and so dangerous I don't want any child to have the risk of going through this or dying," she said.

The controversy comes as a surprise to James Shillinglaw, the director of the Barnstable schools special education program. His school program for autistic children, started in the early 1990s, has been something of a model for keeping children - who used to be institutionalized - in their own communities for as long as possible.

The trend toward keeping children with autism in their community schools began 25 years ago with a national law designed to protect the rights of children with disabilities.

Prior to 1974 children with autism were institutionalized, typically at age 6 or 12, depending on the severity of the disorder, said Barbara Cutler of New Autism Consultants in Arlington.

She said the problem with some public school programs for autism is they focus too much on disciplining the child rather than focusing on how the child learns. "They need to look more closely at the child."

Shillinglaw said the staff is well-trained in instructing autistic children and only uses restraints "as a last resort," with proper attention to safety, such as not putting weight on the children.

"Both parents (Bowden and Lyon) really wanted to keep their kids in the community as much as possible. Abbie had had several successful years in the elementary setting," he said.

But in a special pullout program for middle-school-age children with severe pervasive developmental delays - mainly autism - Abbie was acting out by pinching, slapping, smearing feces and ripping papers. Her teacher, who was trained at May Institute in Chatham and follows a meticulous charting system, counted up to 140 attempted aggressions in one day, Shillinglaw said.

"If we're at fault, it was trying too long - hoping for a break in the pattern. Staff really hates to give up on a kid," he said. The school program, based at Centerville Elementary School, brought in additional staff so the teacher could deal with Abbie one-on-one and also had Dr. Sue Thibadeau of the May Institute review Abbie's tapes.

Currently, Barnstable schools are educating 12 children with autism.

To people who criticize the way restraints were used in Abbie's videotapes, Shillinglaw asks: "Have these people ever observed the kinds of behavior we're dealing with in public schools?"

And it's not only special education students who sometimes require the use of restraints, he said. Increasingly, mainstream students are acting out, defiant of authority. Eight years ago a training session on restraints brought out about 10 teachers, all special education teachers in Barnstable, Shillinglaw said. Last year, 36 people attended, including nine school staffers who aren't in special education.

Barnstable educators say it's rare for students to be restrained in the autism program. In Abbie's case, it was a last resort after other strategies failed.

But state Rep. Demetrius Atsalis, a former Barnstable school official who is trained in the use of restraints, said what happened to Abbie appeared to be inappropriate. "If you're 150 pounds, you shouldn't have to put a child on the floor and sit on the child," said Atsalis, who viewed the tape at Bowden's request. "In that situation it wasn't called for."

Atsalis previously worked as an intervention specialist at Hyannis West Elementary School, where he said he never had to put a child into a floor restraint. "What you want to do when you restrain them is calm them down."

In Abbie's case, the repeated use of restraints - by her teacher and a teacher aide - appears to further upset her. In the video, she is restrained for refusing to sit in her chair and for pushing a teacher's arm away. She kicks out at the teacher and looks miserable.

Abbie's neuro-psychiatrist asked the school to make the tape to document behavioral problems. She said the doctor wanted to see if anything in the classroom was prompting the behavioral changes.

After viewing the tape, Bowden said she focused her attention on getting Abbie into a different program and then started complaining to state officials and legislators.

According to current state law, public schools aren't required to have a written policy regarding their use of restraints. That would change under two legislative bills filed by Sen. Frederick Berry, D-Danvers.

Barnstable has no written policy regarding the use of restraints, but Shillinglaw said he is in the process of developing one. He also said he'd like to have an in-house mentor review restraint policies and practices.

Timothy Sindelar, senior staff attorney at the Disability Law Center in Boston, who helped craft the two bills, said there are extensive rules regarding the use of restraints on people age 18 and over in state Department of Mental Retardation and Department of Mental Health programs, but basically nothing for school-aged children.

"Those same protections don't exist for our kids, our most fragile population," Sindelar said. Floor restraints, which would be outlawed under the state legislation "is never, ever appropriate to be used on children. It's contra-indicated for people of short stature, people with breathing problems."

Richard Tallman of Barnegat, N.J., said his 12-year-old son Jason died six years ago at a residential treatment center for children with learning and emotional problems after a counselor put him in a floor restraint.

"I think there should be more accountability for it," he said. "They keep referring to these things as therapeutic restraints. I don't see anything therapeutic about a 200-pound person sitting on a 90-pound kid."

He and his wife settled a civil suit against Kids Peace for an undisclosed amount.

A Hartford Courant investigative report on the use of restraints and seclusion, called "Deadly Restraint," confirmed 142 deaths nationwide.

The Courant report found there are no national standards or minimum training standards regarding the use of restraints - and that a disproportionate number of children are dying from restraints, both wrestling-type holds and mechanical contraptions.

Floor restraints are regarded as more dangerous than the "basket" or seated restraint also employed on Abbie in the Barnstable schools videotape. But earlier this month a 9-year-old boy died in a North Carolina home for abused children after being held in a basket restraint, in which a teacher gets behind the child, crossing the child's arms and holding onto the child's wrists.

Most of the deaths appear to have occurred in residential treatment centers. But not all lawsuits stem from deaths - in West Virginia, attorney Mary Downey won the right in the state's highest court to sue a school district on behalf of a child client with autism, whom Downey says was traumatized by restraints.

Closer to home, the town of Nantucket was sued several years ago after a special education student was placed in a restraint. It's unclear how the case was resolved. Cutler, the autism consultant, said youngsters with autism are exquisitely sensitive to light and sound and touch, as well as to changes in routine.

The day that Barnstable school educators videotaped Abbie being restrained 14 times, the then 10-year-old had just come back from a sick day and had a bad cold.

Children with autism "can't say 'I'm tired, can't do it, don't feel well.' What can they do? Push the person away, not do the work," Cutler said. "To me, it's 'What part of no don't you understand?' Basically it sounds to me like they're punishing this kid for having a disability."

She said there are many noncoercive alternatives to dealing with unruly behavior in children with autism. An agitated child might be calmed by a walk around the building. A child who smears feces might need more physical stimulation and get relief through running her fingers through a pan of dried rice.

But there is money to be made in training school personnel in the use of physical restraints, said Malcolm Smith, executive director of the Peaceful Intervention Program based in Lawrence, Kan.

He said companies come in and train ever-larger numbers of teachers who need to be retrained and recertified over time. "It's a crazy thing that's happened unnoticed in a few years. School systems spend hundreds of thousands of dollars keeping current their ability to restrain children."

Abbie's teacher was trained at the May Institute, but the Barnstable public schools also participate in eight-hour trainings put on by the South Coast Collaborative of Seekonk.

Patricia Steele of South Coast said she has trained hundreds of Cape Cod educators in the use of restraints. She does not promote the use of floor restraints because of the danger involved.

Trained by one of leaders in the field - Crisis Prevention Institute - Steele said she tells teachers about sudden death syndrome, when people in restraints lose their breath and never get it back.

Shillinglaw noted that the teachers and aides are trained not to show emotion when using physical restraints.

But Smith, besides criticizing the unrealistic chirpy voice used by Abbie's teacher, points out when a teacher aide clenches up and tightens her downward grip after Abbie scratches her. "The less verbal a child, the more tuned in they are to your nonverbal behavior," Smith said.

There's another problem with the "coercion model," Cutler said. "One day they're going to be bigger than you. When that kid hits 5 foot, 6 foot, one day he's going to strike back."

Lyon said that Matthew did just that, but with her, not his teacher. When she ran out of a favorite candy bar, Matthew tripped her and pushed her to the ground.

Shillinglaw said the school district didn't break the state's law against corporal punishment because both parents signed off on the use of physical restraints. Lyon said she thought they were only being used when Matthew was violent; Bowden denied she ever agreed in writing to use physical restraints.

Both Abbie, now 11, and Matthew, now 13, currently are in residential treatment programs off Cape. Abbie is at the Boston Higashi School; Matthew is at Archway in Leicester. The programs cost $80,000 and $90,000 a year and are paid in part by the local school district.

Matthew actually had been at Archway several months before his mother viewed the tape of his being restrained at the Centerville school, taken back in 1996.

Lyon said her videocassette recorder was broken when the school district sent her the tape, which she had assumed showed Matthew going through a normal classroom routine.

Having now viewed the tape, she said, "I don't feel confident with Matthew ever going back to the Barnstable school system."

At Archway, Matthew is finally toilet trained and has learned to say "I love you," Lyon said. And Higashi has proved a good match for Abbie, who was photographed smiling and raising her hand in class, Bowden said.

The women believe that there is minimal or no use of restraints at their children's new schools. The bills on which Bowden is prepared to testify would assure that.

Besides requiring schools to develop policies on the use of restraints and forbidding floor restraints on children, they would also require a written report to be filed every time a restraint is used. "Once people have the power to use restraint it's kind of a slippery slope," attorney Sindelar said. "It's easy to use the restraints any time."

But the legislation would give teachers and counselors a taste of being on the receiving end. It says: "Training shall include the experience of being placed in restraints."

Tactics & Strategy In Mediations and Negotiations

Tactics & Strategy in Mediations and Negotiations
By Dee Alpert, Esq.

This article is about about handling mediations and negotiations. These ideas are based on my experience in federal court class action sex discrimination in employment suits, administrative sex and race discrimination proceedings, and special education proceedings of all kinds.
Many years ago, the Harvard Business School did a study on negotiation outcomes. Their rules for “winning” were:

Never make the first offer.
Make your first counteroffer extortionate.
Never make the first concession.

There are many reasons why a school district comes to a mediation:

To go through empty procedures so that they look reasonable and willing to work things out, when, in fact, they’re not.
To secure information that they can use against the parent in a hearing.
To get a handle on parent/parent advocate/parent attorney’s way of operating/style.
Because they’ve been ordered to by the school board and/or outside insurance carrier.
To see if there’s some way to avoid the cost/hassle of a hearing and possible appeal and federal court litigation.
To try to work things out because they don’t want conflict/aren’t really sure why the parent is ticked off.

These are also the reasons why you may be there. Remember: Mediation is voluntary and free (except for your attorney or advocate’s fees) so you can/should use it as another way to get what you need for your kid – even if this is just information about how the other side works.

Dealing with Junk Tactics

Unfortunately, many defendants’ and school districts’ attorneys believe that if they use intimidation to win in the beginning, they can avoid the proceeding entirely. Mediations can be misused for this purpose.

If you run into junk tactics, consider these responses:

1. The good, old fashioned “do it right back” response -- the old Mutt and Jeff routine.You may get nothing out of the mediation as a result, but that may be okay for you and at least the other side won’t think they can walk all over you in hearings or other proceedings. And, depending on where your head is at, you may feel much better on the way home. Better to have the advocate or attorney or other person with you do this, so they don’t get to hate you so much that they’ll never work with you reasonably after any settlement or hearing win.

2. Laugh. Nice, big, relaxed smile and “Oh, come on, don’t tell me you’re going to play that tacky game.” Don’t think I’m kidding – if you do it relaxed enough, it can work.

3. Bring food. Bring candy, donuts, something small and nice to eat. Place a batch on the table and invite everyone to partake. This tactics disarms. And when their mouths are full, they can’t yell and make fools of themselves.

4. Bring little toys. When/if negotiations seem to have been going somewhere and then stall, try this tactic (the favorite of a gentleman named William Ury, former head of the Federal Mediation and Conciliation Service).

Bring a bunch of tiny wind-up toys in a pocket. When tension is high and it looks like someone might throw a punch at someone else, throw the toys on the table, wind them up, and tell everyone that the toys are theirs for the taking. You’ll be surprised at what a bunch of adults will do when faced with a batch of little moving toys. Mini slinkys are good, too.

Know Your Lines

The other side has probably worked out roles to play well in advance. You should do this too. Mutt and Jeff is good. Rehearse.

Work out and write down cue lines that tell whomever is with you that they should come in with a pre-rehearsed comment, suggestion or statement. Of course, your follow-up is also pre-rehearsed and you’ve got it down pat. This may as simple as reminding the other person with you that since you’re going to lose it, they need to step in and take over the conversations for a while. Or it may be something as nasty as “Oh, so you’re in your control and conquer mode again!"(to the special ed director who is sitting across from you).

This may be something like, “Oh, by the way, I’ve never been able to find the research documenting your program, methodology, etc. What is it?”

You can come up with some good lines that will always get the school’s team off balance.

“How much progress do your classified students make in reading every year?”

“How many disabled students graduate with _________ (college prep.) diplomas every year in your district?”

“Well, we know the feds require that districts have outside, independent evaluations of their Title I programs every year. So, how much progress do kids in your Title I program make every year in reading and math?”

“How many disabled kids do you declassify each year?”

If the district’s lawyer has lost a noteworthy case lately, be sure to ask about it.

If the district’s budget is in trouble, ask whether they expect special ed parents to support the budget – and why.

Ask about a proposed bond issue for new construction and whether there was community support for the bond.

If relevant, ask if their sped folks are still practicing medicine without a license. Point out that Connecticut just barred school staff from recommending that parents have their kids put on Ritalin. Ask if their insurer has told them about this practice.

I’m not suggesting that you really do this, but you will feel better knowing that you can if things get too tough – or too nasty.

Know What You Want

Of course, you’ve worked out your list of:

Absolute minimum stuff – really critical – without which you won’t settle.
Nice stuff that you can, if necessary, do without.
Junk demands (including truly extortionate stuff) that you will use as “throw aways.”
If the other side demands to know why you want something, you may say, “Well, if you want to get technical, we should do it in a hearing” -- so you avoid giving away important information.

Points to Consider

1. You can ask for things in a mediation that you cannot get or would not be entitled to in a hearing.

For example you can ask that a specific outside person be appointed as a binding decision-maker for the next year when the parties cannot agree on something (if there is a cost, this would be at district’s expense). You may ask the district to pay for a specific person to do something for the child, in or out of school.

2. Whatever the cost to you, there is always a cost to the other side in litigating. This cost may (or may not) be much, much higher than yours.

3. If necessary, you can say things in mediations that aren’t true but may make the other side believe that you’re going to cost them a fortune. For example, “Well, I’ve got five experts who think otherwise. But we can deal with that in the proper arena.”

4. If you have a real control freak on the other side (sped. administrator, superintendent . . . ) and it is unlikely that settlement will solve the real problem, ask for specific protections against retaliation and harassment in any settlement you work out, with financial penalties for violations and an outside independent person to decide the issue without having to go through another mediation and hearing. You may also consider asking that someone other than the control freak be appointed to handle your child's special ed issues in the future, without any intervention from the control freak, whoever it is.

5. Don’t be afraid. Nothing that happens in a mediation is binding. You can make every mistake in the book – and make the other side think that they’re going to walk all over you in a hearing – learn from your mistake(s), do everything completely differently in a hearing, and blow them away. In fact, if you don’t think mediation will work, you may consider doing this intentionally – coming on like a turkey who knows zip, then give the other side a very unpleasant surprise in the actual formal proceeding.

6. When you can’t sleep the night before and have more doubts than Swiss cheese has holes, remember the words of Hillel:
“If not you, who? If not now, when?”
Go for it!
About Dee Alpert, Esq.

Dee Estelle Alpert, Esq., is a New York City-based attorney who handles cases throughout New York State. She has acted as consulting counsel in special education cases nationally. She is also a hearing officer certified by the New York State Education Department.

Dee began looking at special education law when her son was five and was diagnosed with Tourette Syndrome. Fortunately, his disability was mild. Later, Dee was the first parent to secure a Section 504 Plan at New York City's Stuyvesant High School.

During a 12-day impartial hearing for a family, Dee decided that attorneys with litigation skills take special education cases to protect parents and children from a system that seemed designed to deprive them of their most basic rights and dignity.

Currently, Dee is focusing on systemic special education and education issues and tactics, including various inquiries into special education and public school district financial and related corruption. She works with a retired Professor of Education Finance, and has provided consultation to various New York prosecutors and politicians.