As for a committee on autism and special needs in R-7, I have spoken to the Superintendent and Board, which relates to why he spoke to you. If that committee is formed, you will have one voice, although I would like to see D on it too, along with others, such as J. That will be up to R-7. Given your antagonism toward me and them, you are most fortunate you are being considered to be on such a committee. I would encourage you to consider changing your approach for the sake of LSASG's credibility and influence with R-7 and beyond. Your current approach is only isolating and alienating yourself from me and others who are doing much to help children with autism and their families.
This is in response to my email where I asked the Superintendent if Jeff Grisamore was setting up these meetings and if the district will only work through him.
"Rep grisamore is getting ahead of himself. There have been no follow up discussions about any ideas that may have been mentioned in some setting. Honestly, I do not recall discussing this committee but I may have forgotten. It happens. My invitation to discuss the issues is for you only at this time. You and I can discuss together where all of this goes from there. I hope this clarifies my intention. I do not go into this knowing where we will end up but do feel our dialogue has the potential to make us a better district and help you better understand our challenges. I am really looking forward to our meetings."
My Son
Showing posts with label practices. Show all posts
Showing posts with label practices. Show all posts
Tuesday, August 4, 2009
Monday, March 30, 2009
How Missouri Handles Child Complaints
Missouri Department of Elementary and Secondary Education
- Making a positive difference through education and service -
March 23,2009
Dr. David McGehee
Superintendent
Lee's Summit R-VII School District
301 N.E. Tudor Road
Lee's Summit, MO 64086-5702
Curtis and Sherri Tucker
1200 SE London Way
Lee's Summit, MO 64081
Re: Jacob Tucker
Dear Dr. McGehee and Mr. and Ms. Tucker:
The Department of Elementary and Secondary Education has completed its investigation of the child complaint filed against the Lee's Summit R-VII School District by Curtis and Sherri Tucker on behalf of Jacob Tucker. The complaint was received on January 22,2009.
The attached decision, containing findings and conclusions, shall constitute the final decision of the Department of Elementary and Secondary Education.
Bert Schulte
Interim Commissioner of Education
c: Mr. Jerry Keimig, Special Education Contact,
Lee's Summit R-VII School District
Ms. Janet Hoskins, Assistant Director, Special Education Compliance
Ms. Julie Bower, Supervisor, Special Education Compliance
Ms. Jackie Bruner, Director, Special Education Compliance
Ms. Pamela A. Williams, Coordinator, Special Education Services
Ms. Cynthia Quetsch, Legal Counsel, Division of Special Education
Ms. Heidi Atkins Lieberman, Assistant Commissioner, Division of Special Education
Child Complaint Decision
Re: Jacob Tucker
Findings and Conclusions
1. Allegation: March 23, 2009
The Lee's Summit R-VII School District, in violation of state and federal regulations implementing the Individuals with Disabilities Education Act (IDEA), failed to develop an Individualized Education Program (IEP) with appropriate goals to address Jacob Tucker's needs.
Findings:
Curtis and Sherri Tucker, parents of Jacob Tucker, allege the Individualized Education Program (IEP) team did not develop appropriate IEP goals that address Jacob's needs. Ms. Tucker opines that Jacob's goals do not state how Jacob will achieve the goals, what the method of therapy or services will be used to help him achieve the goals, who will perform those services, how often those services will be provided, and what the services are. In addition, she opines that the goals
developed for Jacob are not appropriate or achievable given his disability.
Jerry Keimig, director of special education, indicated the IEP team met on December 15, 2008, and developed IEP goals based upon Jacob's evaluation data and current educational performance. (Jerry Keimig was not a part of the IEP team) Conference notes reflect a discussion among IEP team members regarding the appropriateness of Jacob's goals.
The present level of academic and functional performance (PLAAFP) of Jacob's IEP dated December 15,2008, states that Jacob's disability affects his functional and academic involvement and progress in regular education curriculum in the following manner: class participation, staying on task, understanding and following directions, completing and turning in work on time, organization, self advocating for make-up work, taking notes, expressing himself through lengthy forms of written expression, test taking skills, understanding emotions of peers and teachers, and general social skills. In addition, the PLAAFP indicates that Jacob continues
to need improvement with the following skills: following written directions, self advocacy, organization, study skills, pragmatic language, coping skills, and social skills. Jacob's IEP has five (5) goals which address increasing self advocacy, organization and study skills, pragmatic social skills for maintaining conversations, identifying the impression he makes, and inferring meaning from different social scenarios. The goals are measurable as they include specific numbers to record level of attainment. (These goals are not measurable and they are not appropriate)
Decision:
State and federal regulations implementing the Individuals with Disabilities Education Act (IDEA) require Individualized Education Program (IEP) teams to develop measurable annual goals (including academic and functional goals) to meet the child's needs resulting from the child's disability, enable the child to be involved in and make progress in the general education curriculum, and meet each of the child's other educational needs that result from the child's disability. Jacob's IEP dated December 15,2008, includes IEP goals that are related to the areas identified as skill deficits in the present level of academic achievement and functional
performance (PLAAFP) and the areas in which Jacob's disability affects his functional and academic involvement and his progress in the general education curriculum. (His goals will not meet his needs, enable him to be involved in and make progress in the general education curriculu, or meet other educational needs that result from his disability.)
Goal #1 Increase self-advocacy by asking for help at least 2 times in each class per semester
Goal #2 Increase organization/study skills by independently following written directions and completing task 2 times in each class per semester
Goal #3 Jacob will increase pragmatic/social language skills by maintaining a conversation using concise and relevant information with peers/adults with no more than one prompt on 3 consecutive days.
Goal #4 Jacob will improve pragmatic skills by identifying the impression he feels he is making in an interaction with peers/adults and adjusting his behavior appropriately in a structured small-group setting in 4/5 opportunities on 3 consecutive data days.
Goal #5 Jacob will improve pragmatic skills by inferring meaning from different social scenarios and identifying appropriate responses to the emotions of others in these situations with 80% accuracy on 3 consecutive data days. The state and federal regulations do not require that goals state how a student will achieve the goal, the method of therapy or services, and who will provide the services. The services summary of the IEP must include how often the services are provided and what the services are but that information is not required to be written in the IEP goals. The service summary of Jacob's IEP includes that information.
It is an IEP team's responsibility to develop appropriate goals on an individual basis based on the academic and functional needs of the child. In this case, the IEP team met and developed goals based upon Jacob's evaluation data and current academic achievement and functional performance. Goals must be measurable. Jacob's goals were measurable. Based on the foregoing, the Lee's Summit R-VII School District is found not out of compliance.
2. Allegation:
The Lee's Summit R-VII School District, in violation of state and federal regulations implementing the Individuals with Disabilities Education Act (IDEA), failed to include areas of weakness and current evaluation results in Jacob Tucker's Individualized Education Program (IEP).
Findings:
Curtis and Sherri Tucker, parents of Jacob Tucker, allege the Individualized Education Program (IEP) team failed to address any of Jacob's areas of weakness and refused to put his current evaluation scores in the present level of academic achievement.and functional performance section of the IEP, therefore, resulting in Jacob's IEP not addressing his real needs.
Jacob's IEP dated December 15,2008, states that Jacob's disability affects his functional and academic involvement and progress in the general education curriculum in the following manner: class participation, staying on task, understanding and following instructions, completing and turning in work on time, organization, self-advocacy for make-up work, taking notes, expressing himself through lengthy forms of written expression, testing-taking skills, understanding the
emotions of peers and teachers, and general social skills. Jacob's IEP also states that Jacob continues to need improvement with the following skills: following written directions, selfadvocacy, organization, study skills, pragmatic language, coping skills, and social skills. Jacob's IEP dated December 15, 2008, states that the Wechsler Intelligence Scale for Children - 4th Edition (WISC-IV) indicated that Jacob's abilities to sustain attention, concentration, and exert mental control are a weakness relative to his nonverbal reasoning skills. Jacob's ability to process visual material quickly is also a weakness relative to his nonverbal reasoning skills.
Jacob's reevaluation dated December 2,2008, which is included in the December 15, 2008, IEP, states that his overall cognitive ability is within the average range as tested by the WISC-IV. The Wechsler Non-Verbal Scale of Ability (WNV) indicated that Jacob's cognitive ability was at the superior range. The Wechsler Individual Achievement Test - 2nd Edition (WIA T-II) indicated that Jacob's reading and written language skills are in the high average range, while math appears to be within the average range. The Vineland Adaptive Behavior Scales - 2nd Edition, indicates moderately low to adequate adaptive skills observed at school.
Decision:
State and federal regulations implementing the Individuals with Disabilities Education Act (IDEA) require Individualized Education Program (IEP) teams to consider the strengths of the child and the results of initial or most recent reevaluation results. In this case, the IEP team considered Jacob's strengths, weaknesses, and test scores; and the IEP includes strengths, weaknesses, and the most recent reevaluation results. Therefore, the Lee's Summit R-VII School District is found not out of compliance.
3. Allegation:
The Lee's Summit R-VII School District, in violation of state and federal regulations implementing the Individuals with Disabilities Education Act (IDEA), failed to allow Jacob Tucker's parents to be an equal participant in the Individualized Education Program (IEP) team process.
Findings:
Curtis and Sherri Tucker, parents of Jacob Tucker, allege the Individualized Education Program (IEP) team failed to make Ms. Tucker an equal partner on the IEP team. Ms. Tucker reports that she was told by the school district that she is the expert at horne and the district is the expert on Jacob at school. Ms. Tucker contends that the Lee's Summit R-VII School District's failure to allow her to tape record meetings and include her conference notes with the district's conference notes, indicates that she was not a full participant on her son's IEP team.
Documentation indicates that Mr. and Ms. Tucker were invited to and attended the IEP meetings on May 5, 2008, and December 15, 2008.
Jacob's IEP was amended on August 27,2008, and February 2,2009. The August 27,2008, IEP amendment indicates that Ms. Tucker was present and agreed to the changes made to Jacob's IEP. The February 2,2009, IEP amendment indicates that Ms. Tucker agreed to the IEP amendment via email. (This is a complete lie)
From: Sherri Tucker [mailto:autism@kc.rr.com] Sent: Sunday, February 08, 2009 11:21 AMTo: Jerry Keimig; David McGehee; Bower, Julie; Hoskins, JanetSubject: Letter About IEP
Below please find the letter that I received from the district and the changes that have been made to Jake's IEP.
It also included a Notice of Action and a note to sign and return the consent form. I don't believe that any of this was discussed or that I was included in these decisions. It states that these changes represent our views of Jacob's academic and functional performance and they modified the PLAAFP to accommodate some of my suggestions. How did we complete the IEP on 12-15-08 when I didn't agree to it?
Many of the items state that parents report. The district has a copy of the report from Jake's psychologist. He is on the district's list of approved independent evaluators. It was he that reported that Jake has an issue with visual-motor integration. His report is available in Jake's file.
February 2, 2009
Dear Sherri,
As you requested, please find attached Amendment of the IEP that we completed 12-15-08. We have reviewed your suggestions and modified the PLAAFP to accommodate some of your suggestions. These changes represent our view of Jacob's academic and functional performance. Please also find attached Notice of Action for these changes.
Respectfully yours,
Joy Rose
SPED Process Coordinator
Here are the changes in the schools part of the PLAAFP:
WISC-IV scores indicate that Jacob's abilities to sustain attention, concentrate, and exert mental control are a weakness relative to his nonverbal reasoning abilities. Jacob's ability to process visual material quickly is also a weakness relative to his nonverbal reasoning ability.
Here are the changes in the parent's concerns:
Parents note that while Jacob has shown improvement in writing grammatically correct sentences, paragraph construction, and written expression, he still has deficits in these areas. Parents report that they and psychiatrist do not see improvement in initiating, maintain, and ending conversations appropriately, nor identifying the emotions of others. They feel this is a major area of weakness for Jacob. Parents state that they feel that Jacob continues to need improvement in math reasoning. Parents also show a diagnosis of Early Infantile Autism with Kanner's Syndrome. Mr./Mrs. Tucker report that Jacob's skin picking is due to the anxiety that he experiences because of school and he can no longer take medication for it. They report that he was taking medication for it, but it damaged his liver. He is currently seeing a psychiatrist and he believes this to be the case. Parents also note concerns for visual-motor integration being lower than cognitive and academic functioning, citing slowness in dominant and non-dominant hands. Parents want the PLAAFP to include all of the diagnostic data. The district will not repeat all of the voluminous data here, because the information is available in Jacob's school file and is incorporated by this reference.
Parent concerns are set forth in Jacob's IEP. In addition, Joy Rose, special education process coordinator, informed Ms. Tucker on October 13, 2008, that all of Ms. Tucker's communications, including parent conference notes from IEP meetings, are placed in Jacob's special education file.
Documentation indicates there are multiple emails and correspondence dated January 23,2008, to January 27,2009, between Ms. Tucker and various district personnel. There were numerous communications about Jacob's progress, goals, and implementation of the IEP. Some of the parent's requests for evaluation were granted and some refused. Ms. Tucker was provided with draft IEPs prior to each IEP meeting. Ms. Tucker submitted a classroom observation report to
the IEP team with suggestions prior to the December 15, 2008, IEP meeting. The district responded to numerous issues raised by Ms. Tucker, but did not always provide the relief Ms. Tucker requested. The district offered to meet with her to discuss her concerns.
The Lee's Summit Board of Education policy states that the use of audio, video, or other recording devices at IEP meetings or Section 504 meetings is strictly prohibited in accordance with the Rehabilitation Act of 1973. The policy also states that exceptions to this policy will only be made when such recordings are necessary to ensure parental rights that are guaranteed under Part B of the_IDEA. These requests must be made within a-reasonable-period oftime prior to the scheduled meetings.
Decision:
State and federal regulations implementing the Individuals with Disabilities Education Act (IDEA) require that input be considered from all IEP team members when developing a student's Individualized Education Program (IEP) and that the district take steps to ensure that parents are present and given an opportunity to participate. There is no requirement that parents be an "equal" decision-maker nor is there any standard to determine the quantity or quality of participation. Considering input and allowing participation does not require the team to include all the input in the student's IEP. In this case, documentation reflects that Ms. Tucker was given an opportunity to participate as a member of the IEP team. Therefore, the Lee's Summit R-VII School District is found not out of compliance.
January 17, 2009
Missouri Department of Elementary and Secondary Education (SEAP)
Division of Special Education Compliance
C/O Child Complaint Coordinator – Ms. Jackie Bruner
P.O. Box 480
Jefferson City, MO 65102-0480
Dear Ms. Bruner,
This child complaint is written regarding my son, Jacob Edward Tucker. I am unable to resolve issues with our school district, Lee’s Summit R-7. I have written to the IEP team and the district’s superintendent and have not been able to get a response from them about my concerns.
My concerns revolve around the goals that the team have for him. I don’t think that they are appropriate and do not address all of his needs. He recently had a reevaluation and he had quite a scatter of scores. His IEP doesn’t address many of the areas of his weaknesses. The District refused to put his evaluation scores in his Present Level and therefore the IEP doesn’t address his real needs.
My son's PLAAP is just what the district brought to the table and hardly any of my input was used. That does not make me an equal partner on the IEP team. While the composite test scores might give a picture of what Jake can or can't do, the subtests give the real picture of his strengths and weaknesses. To make a statement such as, "he performed within the average" does not address his strengths and weaknesses.
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)]. 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).
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.
3. A statement of how the disability impacts the student’s involvement/progress in the general curriculum.
4. A description of area(s) of educational need.
Previously, IEPs were required to include "a statement of the child's present levels of educational performance ..." Under IDEA 2004, the IEP must include "a statement of the child's present levels of academic achievement and functional performance ..." Present levels of academic achievement and functional performance require objective data from assessments.
If the school insists on using subjective teacher observations, an independent observer (the hearing officer, for example) will conclude that the school is not interested in monitoring the child's educational progress. This is exactly the conclusion you want this person to draw.
I asked for an ADOS to be performed. The Autism Coordinator suggested that the Autism Social Skills Profile would be a better tool. I agreed to that test, but I stated that I didn’t want my scores averaged in with the teacher’s scores. My son is in high school and his teachers aren’t familiar with his disability and they only see him one hour a day. To use their observations, and to average them with mine, would not give an accurate picture. The District agreed to do that.
The District had twelve teachers and me fill out the profile. There was no test score for this instrument. Instead, there was a summary at the end of the evaluation. I made my own graph to make it easier to read. This information was not available at the meeting to discuss the evaluations. There was only a rough draft without the summary or any explanation of how the data would be used. The class observation was not available either. Instead, the evaluator had written notes on notebook paper and read them aloud at the meeting. The following is the summary that was provided by the district.
Following are the items which at least 7 of the 13 raters indicated as being "never" observed (items 1-36): invites peers to join him in activities, interacts with peers during unstructured activities, asks questions to request information about a person, requests assistance from others, offers assistance to others, initiates greetings with others, introduces self to others, politely asks others to move out of his way. Following are the itemswhich at least 7 of the 13 raters indicated as being "often/very often"(items 37-49) observed as a concern: engages in solitary interests and hobbies, engages in solitary activities in the presence of others.
My son’s evaluations show some serious deficits. These are not truly addressed in his present IEP. The following are his goals:
1. Goal #1 Increase self-advocacy by asking for help at least 2 times in each class per semester.
2. Goal #2 Increase organization/study skills by independently following written directions and completing task 2 times in each class per semester.
3. Goal #3 Jacob will increase pragmatic/social language skills by maintaining a conversation using concise and relevant information with peers/adults with no more than one prompt on 3 consecutive days.
4. Goal #4 Jacob will improve pragmatic skills by identifying the impressions he feels he is making in an interaction with peers/adults and adjusting his behavior appropriately in a structured small-group setting in 4/5 opportunities on 3 consecutive data days.
5. Goal #5 Jacob will improve pragmatic skills by inferring meaning from different social scenarios and identifying appropriate responses to the emotions of other in these situations with 80% accuracy on 3 consecutive data days.
These goals do not state how he will do these things, what the method of therapy or services will be to help him do these things, who will perform these services, how often these services will be provided, and what the services are. How can a goal be achieved when there is nothing in place to achieve it?
1. Goal # 1 What does this mean? Who is he to ask? What phrasing will he use? What kind of help can he expect? What is the time frame for the response?
2. Goal #2 This goal would allow him to fail. If he only completes a task 2 times per semester, he would fail.
3. Goal #3 So if they prompt him, he will concisely say, “Hi. How are you?” This is not a measurable goal. What is relevant or irrelevant information? Who measures this? Who decides? What is the relevance meter?
4. Goal #4 How can he self reflect and self repair language? Is his impression measurable? He is being expected to remember to adjust his disability.
5. Goal #5 How will he improve? How will you know which he is doing on which of three days?
How are they going to help him achieve these goals because it looks like they're making him responsible for everything (ie he'll ask for help; he'll maintain the conversation")What are THEY going to do to help HIM be successful?What do they mean by "maintaining a conversation using concise and relevant information?" Who defines what's "concise" or "relevant"? What are his disabilities and known areas of need? For example, can he identify what "impression" he "feels" he's making? Will he be able to "adjust his behaviors accordingly" once he "recognizes his impressions"? How will he master that goal? By teacher observation of his interactions? Is there going to be someone there to "moderate" his interactions with others? For example, will a teacher or therapist stop to ask him, "What impression do you think you're making on your peers?" either after the interaction is over or would they ask him in front of his peers? What is his baseline for "inferring meaning" in social situations now? Does he have one? How do they know this is an area of need?What "social situations" are they going to use to try to teach him to infer meaning?Can he identify an "appropriate response to the emotions of others"? What specifically do they mean by an "appropriate response" to emotions of others? Are they trying to teach compassion, sympathy, how to diffuse someone who is angry with him? It seems like they want him to tailor his actions to someone else's "reactions." Can he do this? How are they even measuring 80% accuracy over 3 consecutive days? They haven't defined what their criteria are yet (i.e. He'll engage in a 5 minute give and take conversation about some social situation - I don't know, say, how to act in a restaurant - so, maybe how to interact with a waiter when ordering a meal).
Because there are no evaluations in the Present Level we don’t even know what his areas of deficits are. We only know that sometimes he is average, sometimes he is above average, sometimes he is below average, but overall he seems to be quite average.
I asked for an independent evaluation in hopes that I would be able to get more information about my son’s deficits and have someone to help me with analyzing the data. The district did not send me the same information, about providers, that they send other parents. The list that they sent me was inaccurate and forced me to find the updated information on my own. I notified the district of this. I have received no response from them.
INDEPENDENT EDUCATIONAL EVALUATIONS
34 CFR §300.502
General
As described below, you have the right to obtain an independent educational evaluation (IEE) of
your child if you disagree with the evaluation of your child that was obtained by your school
district.
If you request an independent educational evaluation, the school district must provide you with information about where you may obtain an independent educational evaluation and about the school district’s criteria that apply to independent educational evaluations.
My son’s evaluations show that he has a weakness in oral expression. His standard score in that area was an 80. His full scale IQ is 102. Our district standard states that a 20-point difference qualifies you for services. This is per Jerry Keimig. This area needs a goal. His standard score for Pragmatic Language Usage Index was an 86. This area needs a goal. His standard score for Contextual Conventions was a 90. This is not a solid skill and this area needs a goal. His standard score for Sentence Assembly was 80. This area needs a goal. His standard score for Language Memory was an 88. This area needs a goal and accommodations. His age equivalent score for the Interpersonal Relationships subtest of the Vineland II was <3:0. His age equivalent score for the Expressive was 6:10. His age equivalent for Play and Leisure Time was 3:6. His age equivalent for Coping Skills was 3:2. These were observations from a teacher that sees him one hour a day. The Vineland II scores that come from the parent rating report are: Receptive, age equivalent 1:6, Expressive, age equivalent 5:4, Personal, age equivalent 5:10, Domestic, age equivalent 5:6, Interpersonal Relationships, age equivalent 0:1, Play and Leisure Time, age equivalent 1:10, Coping Skills, age equivalent 3:10. His Internalizing was at the Clinically Significant Level, his externalizing was at the Elevated Level, and his Maladaptive Behavior Index was at the Clinically Significant Level. He needs help to improve in all of these areas. His standard score for Working Memory Index was 88. He needs goals and accommodations in this area.
I don’t believe that his deficits are being addressed and the District seems to be complacent about this. His overall scores aren’t that significant and they are not addressing the subtest scores.
I have attached documentation in support of my claims listed above. I request a copy of all responses that the District provides and the opportunity to submit a rebuttal. I feel that the described events are a clear violation of my rights to participation in my son’s education and his right to a free and appropriate education. I ask that DESE intervene in this situation and mandate the Lee’s Summit R-7 School District to comply with the law. I believe that compensatory services are warranted as the district has prohibited my son from making progress and receiving the free and appropriate education that is federally mandated.
Respectfully,
Curtis and Sherri Tucker
1200 SE London Way
Lee’s Summit, MO 64081
816-554-3017
autism@kc.rr.com
Enclosures
Attachment 1 – Autism Social Skills Profile
Attachment 2 – Email Discussing Social Skills Program, dated December 28, 2008
Attachment 3 – Graph of Autism Social Skills Profile
Attachment 4 – Email stating evaluator list is inaccurate, dated December 26, 2008
Attachment 5 – Email requesting IEE, dated December 19, 2008
Attachment 6 – Email with amended evaluator list, dated December 29, 2008
Attachment 7 – Email with information from psychologist, dated December 30, 2008
Attachment 8 – Email re: Modification Changed, dated January 7, 2009
Attachment 9 – Secondary School Experiences of Students With Autism
Attachment 10 – Vineland Comparison Graph
Attachment 11 – Full Scale IQ vs. Beery-Buktenica Developmental Test
Attachment 12 - Full Scale IQ vs. CELF-4
Attachment 13 – Full Scale IQ vs. TOPL-2)
Attachment 14 – Full Scale IQ vs. TLC-E)
Attachment 15 – WISC-IV
Attachment 16 – Full Scale IQ vs. WNV
Attachment 17 – Full Scale IQ vs. WIATT-II
Attachment 18 – Full Scale IQ vs. TOWL-3
Attachment 19 – Child Complaint Model Form
January16, 2009
Missouri Department of Elementary and Secondary Education (SEAP)
Division of Special Education Compliance
C/O Child Complaint Coordinator – Ms. Jackie Bruner
P.O. Box 480
Jefferson City, MO 65102-0480
Dear Ms. Bruner,
This child complaint is written regarding my son, Jacob Edward Tucker. I am unable to resolve issues with our school district, Lee’s Summit R-7. I have written to the IEP team and the district’s superintendent and have not been able to get a response from them about my concerns.
My concerns revolve around parent participation. During meetings, my comments are either ignored and no changes are made or they listen to my concerns and state that they don’t agree and no changes are made. Any suggestions that I have made regarding Present Level are ignored. I state that I don’t agree with their description of the Present Level and they tell me that I may include that in the Parent Concerns. I submit my concerns to be included in the Parent Concerns and they edit this document. I asked for tests score to be placed in the Present Level to guide services proposed and I am refused. I was allowed no input in relation to the goals and/or services. My son has an eligibility category of Educational Autism. He is in regular education classes with no supports besides 40 minutes of speech per week. I feel that decisions have been made prior to the meeting regarding my child’s IEP. The district has removed items from the Modifications/Accommodations page without my approval. It was discussed in the meeting and the decision was made to change the frequency from As Needed to Daily; not to delete it entirely. The meeting notes taken by the District were incomplete and rarely reported the discussions held in the meeting. I specifically wrote the Superintendent asking to record the meeting due to the fact that the recorder could not accurately describe the events as tape recording is against District policy, although legal in Missouri. I have not received an answer to this request to date. I requested a notice of action refused for the District’s refusal to include my changes in the Present Level and for editing my Parent Concerns without my approval. The district responded to this request on January 6 in an e-mail but I have received no such document.
Applicable sections of IDEA law are described below:
Integral to the design of IDEA is the substantive involvement of parents in assessing student needs and planning how to address those needs. In its Finding section, IDEA 2004 states that:
(5) Almost 30 years of research and experience has demonstrated that the education of children with disabilities can be made more effective by...
(B) strengthening the role and responsibility of parents and ensuring that families of such children have meaningful opportunities to participate in the education of their children at school and at home... (20 U.S.C. $ 1400 (c) (5) (B).)
State education agencies and local school districts must have in place policies and procedures that ensure the opportunity for parents to participate in meetings related to the identification, evaluation, program and placement of their children (20 U.S.C. $ 1415 (b) (1)). Participate is the operative term. The school must enable meaningful participation in discussion and decision-making. Mere attendance at meetings satisfies neither the spirit nor the letter of the law. The requirement applies to all meetings in which decisions will be made except for routine meetings among staff to discuss day-to-day instructional planning necessary to implement an existing IEP.
Recent decisions affirm the essential role of parents in designing their children's special education. Precluding parent participation through staff predetermination of services or placement egregiously violates IDEA. School districts should be aware that courts have become more alert to this problem and less likely to excuse it (Deal v. Hamilton Co. Bd. of Ed.; Knable v. Bexley City Sch. Dist.).
Also see attached documentation in support of my claims listed above. I request a copy of all responses that the District provides and the opportunity to submit a rebuttal. I feel that the described events are a clear violation of my rights to participation in my son’s education. I ask that DESE intervene in this situation and mandate the Lee’s Summit R-7 School District to comply with the law. I believe that compensatory services are warranted as the district prohibited my participation thus meaningfully impeding my son’s education.
Respectfully,
Curtis and Sherri Tucker
1200 SE London Way
Lee’s Summit, MO 64081
816.554.3017 Home
E-mail: autism@kc.rr.com
Enclosures
Attachment 1 – Child Complaint – Model Form
Attachment 2 – Letter to District re: Parent Participation, dated December 22, 2008
Attachment 3 – Letter to District re: My Parent Concerns, dated December 23, 2008
Attachment 4 – Letter from Joy Rose re: Notice of Action, dated January 6, 2009
Attachment 5 – Letter to District re: Modification Changed, dated January 7, 2009
Attachment 6 – Copy of District Notes, dated August 27, 2008
Attachment 7 – Request to Tape Record, dated January 7, 2009
Attachment 8 – Parent’s Meeting Notes, dated August 27, 2008
Attachment 9 – District Refusal to Include Parent’s Notes, dated October 13, 2008
Attachment 10-Request for Notice of Action, dated December 30, 2008
Attachment 11-Request for Changes in Present Level, dated December 30, 2008
- Making a positive difference through education and service -
March 23,2009
Dr. David McGehee
Superintendent
Lee's Summit R-VII School District
301 N.E. Tudor Road
Lee's Summit, MO 64086-5702
Curtis and Sherri Tucker
1200 SE London Way
Lee's Summit, MO 64081
Re: Jacob Tucker
Dear Dr. McGehee and Mr. and Ms. Tucker:
The Department of Elementary and Secondary Education has completed its investigation of the child complaint filed against the Lee's Summit R-VII School District by Curtis and Sherri Tucker on behalf of Jacob Tucker. The complaint was received on January 22,2009.
The attached decision, containing findings and conclusions, shall constitute the final decision of the Department of Elementary and Secondary Education.
Bert Schulte
Interim Commissioner of Education
c: Mr. Jerry Keimig, Special Education Contact,
Lee's Summit R-VII School District
Ms. Janet Hoskins, Assistant Director, Special Education Compliance
Ms. Julie Bower, Supervisor, Special Education Compliance
Ms. Jackie Bruner, Director, Special Education Compliance
Ms. Pamela A. Williams, Coordinator, Special Education Services
Ms. Cynthia Quetsch, Legal Counsel, Division of Special Education
Ms. Heidi Atkins Lieberman, Assistant Commissioner, Division of Special Education
Child Complaint Decision
Re: Jacob Tucker
Findings and Conclusions
1. Allegation: March 23, 2009
The Lee's Summit R-VII School District, in violation of state and federal regulations implementing the Individuals with Disabilities Education Act (IDEA), failed to develop an Individualized Education Program (IEP) with appropriate goals to address Jacob Tucker's needs.
Findings:
Curtis and Sherri Tucker, parents of Jacob Tucker, allege the Individualized Education Program (IEP) team did not develop appropriate IEP goals that address Jacob's needs. Ms. Tucker opines that Jacob's goals do not state how Jacob will achieve the goals, what the method of therapy or services will be used to help him achieve the goals, who will perform those services, how often those services will be provided, and what the services are. In addition, she opines that the goals
developed for Jacob are not appropriate or achievable given his disability.
Jerry Keimig, director of special education, indicated the IEP team met on December 15, 2008, and developed IEP goals based upon Jacob's evaluation data and current educational performance. (Jerry Keimig was not a part of the IEP team) Conference notes reflect a discussion among IEP team members regarding the appropriateness of Jacob's goals.
The present level of academic and functional performance (PLAAFP) of Jacob's IEP dated December 15,2008, states that Jacob's disability affects his functional and academic involvement and progress in regular education curriculum in the following manner: class participation, staying on task, understanding and following directions, completing and turning in work on time, organization, self advocating for make-up work, taking notes, expressing himself through lengthy forms of written expression, test taking skills, understanding emotions of peers and teachers, and general social skills. In addition, the PLAAFP indicates that Jacob continues
to need improvement with the following skills: following written directions, self advocacy, organization, study skills, pragmatic language, coping skills, and social skills. Jacob's IEP has five (5) goals which address increasing self advocacy, organization and study skills, pragmatic social skills for maintaining conversations, identifying the impression he makes, and inferring meaning from different social scenarios. The goals are measurable as they include specific numbers to record level of attainment. (These goals are not measurable and they are not appropriate)
Decision:
State and federal regulations implementing the Individuals with Disabilities Education Act (IDEA) require Individualized Education Program (IEP) teams to develop measurable annual goals (including academic and functional goals) to meet the child's needs resulting from the child's disability, enable the child to be involved in and make progress in the general education curriculum, and meet each of the child's other educational needs that result from the child's disability. Jacob's IEP dated December 15,2008, includes IEP goals that are related to the areas identified as skill deficits in the present level of academic achievement and functional
performance (PLAAFP) and the areas in which Jacob's disability affects his functional and academic involvement and his progress in the general education curriculum. (His goals will not meet his needs, enable him to be involved in and make progress in the general education curriculu, or meet other educational needs that result from his disability.)
Goal #1 Increase self-advocacy by asking for help at least 2 times in each class per semester
Goal #2 Increase organization/study skills by independently following written directions and completing task 2 times in each class per semester
Goal #3 Jacob will increase pragmatic/social language skills by maintaining a conversation using concise and relevant information with peers/adults with no more than one prompt on 3 consecutive days.
Goal #4 Jacob will improve pragmatic skills by identifying the impression he feels he is making in an interaction with peers/adults and adjusting his behavior appropriately in a structured small-group setting in 4/5 opportunities on 3 consecutive data days.
Goal #5 Jacob will improve pragmatic skills by inferring meaning from different social scenarios and identifying appropriate responses to the emotions of others in these situations with 80% accuracy on 3 consecutive data days. The state and federal regulations do not require that goals state how a student will achieve the goal, the method of therapy or services, and who will provide the services. The services summary of the IEP must include how often the services are provided and what the services are but that information is not required to be written in the IEP goals. The service summary of Jacob's IEP includes that information.
It is an IEP team's responsibility to develop appropriate goals on an individual basis based on the academic and functional needs of the child. In this case, the IEP team met and developed goals based upon Jacob's evaluation data and current academic achievement and functional performance. Goals must be measurable. Jacob's goals were measurable. Based on the foregoing, the Lee's Summit R-VII School District is found not out of compliance.
2. Allegation:
The Lee's Summit R-VII School District, in violation of state and federal regulations implementing the Individuals with Disabilities Education Act (IDEA), failed to include areas of weakness and current evaluation results in Jacob Tucker's Individualized Education Program (IEP).
Findings:
Curtis and Sherri Tucker, parents of Jacob Tucker, allege the Individualized Education Program (IEP) team failed to address any of Jacob's areas of weakness and refused to put his current evaluation scores in the present level of academic achievement.and functional performance section of the IEP, therefore, resulting in Jacob's IEP not addressing his real needs.
Jacob's IEP dated December 15,2008, states that Jacob's disability affects his functional and academic involvement and progress in the general education curriculum in the following manner: class participation, staying on task, understanding and following instructions, completing and turning in work on time, organization, self-advocacy for make-up work, taking notes, expressing himself through lengthy forms of written expression, testing-taking skills, understanding the
emotions of peers and teachers, and general social skills. Jacob's IEP also states that Jacob continues to need improvement with the following skills: following written directions, selfadvocacy, organization, study skills, pragmatic language, coping skills, and social skills. Jacob's IEP dated December 15, 2008, states that the Wechsler Intelligence Scale for Children - 4th Edition (WISC-IV) indicated that Jacob's abilities to sustain attention, concentration, and exert mental control are a weakness relative to his nonverbal reasoning skills. Jacob's ability to process visual material quickly is also a weakness relative to his nonverbal reasoning skills.
Jacob's reevaluation dated December 2,2008, which is included in the December 15, 2008, IEP, states that his overall cognitive ability is within the average range as tested by the WISC-IV. The Wechsler Non-Verbal Scale of Ability (WNV) indicated that Jacob's cognitive ability was at the superior range. The Wechsler Individual Achievement Test - 2nd Edition (WIA T-II) indicated that Jacob's reading and written language skills are in the high average range, while math appears to be within the average range. The Vineland Adaptive Behavior Scales - 2nd Edition, indicates moderately low to adequate adaptive skills observed at school.
Decision:
State and federal regulations implementing the Individuals with Disabilities Education Act (IDEA) require Individualized Education Program (IEP) teams to consider the strengths of the child and the results of initial or most recent reevaluation results. In this case, the IEP team considered Jacob's strengths, weaknesses, and test scores; and the IEP includes strengths, weaknesses, and the most recent reevaluation results. Therefore, the Lee's Summit R-VII School District is found not out of compliance.
3. Allegation:
The Lee's Summit R-VII School District, in violation of state and federal regulations implementing the Individuals with Disabilities Education Act (IDEA), failed to allow Jacob Tucker's parents to be an equal participant in the Individualized Education Program (IEP) team process.
Findings:
Curtis and Sherri Tucker, parents of Jacob Tucker, allege the Individualized Education Program (IEP) team failed to make Ms. Tucker an equal partner on the IEP team. Ms. Tucker reports that she was told by the school district that she is the expert at horne and the district is the expert on Jacob at school. Ms. Tucker contends that the Lee's Summit R-VII School District's failure to allow her to tape record meetings and include her conference notes with the district's conference notes, indicates that she was not a full participant on her son's IEP team.
Documentation indicates that Mr. and Ms. Tucker were invited to and attended the IEP meetings on May 5, 2008, and December 15, 2008.
Jacob's IEP was amended on August 27,2008, and February 2,2009. The August 27,2008, IEP amendment indicates that Ms. Tucker was present and agreed to the changes made to Jacob's IEP. The February 2,2009, IEP amendment indicates that Ms. Tucker agreed to the IEP amendment via email. (This is a complete lie)
From: Sherri Tucker [mailto:autism@kc.rr.com] Sent: Sunday, February 08, 2009 11:21 AMTo: Jerry Keimig; David McGehee; Bower, Julie; Hoskins, JanetSubject: Letter About IEP
Below please find the letter that I received from the district and the changes that have been made to Jake's IEP.
It also included a Notice of Action and a note to sign and return the consent form. I don't believe that any of this was discussed or that I was included in these decisions. It states that these changes represent our views of Jacob's academic and functional performance and they modified the PLAAFP to accommodate some of my suggestions. How did we complete the IEP on 12-15-08 when I didn't agree to it?
Many of the items state that parents report. The district has a copy of the report from Jake's psychologist. He is on the district's list of approved independent evaluators. It was he that reported that Jake has an issue with visual-motor integration. His report is available in Jake's file.
February 2, 2009
Dear Sherri,
As you requested, please find attached Amendment of the IEP that we completed 12-15-08. We have reviewed your suggestions and modified the PLAAFP to accommodate some of your suggestions. These changes represent our view of Jacob's academic and functional performance. Please also find attached Notice of Action for these changes.
Respectfully yours,
Joy Rose
SPED Process Coordinator
Here are the changes in the schools part of the PLAAFP:
WISC-IV scores indicate that Jacob's abilities to sustain attention, concentrate, and exert mental control are a weakness relative to his nonverbal reasoning abilities. Jacob's ability to process visual material quickly is also a weakness relative to his nonverbal reasoning ability.
Here are the changes in the parent's concerns:
Parents note that while Jacob has shown improvement in writing grammatically correct sentences, paragraph construction, and written expression, he still has deficits in these areas. Parents report that they and psychiatrist do not see improvement in initiating, maintain, and ending conversations appropriately, nor identifying the emotions of others. They feel this is a major area of weakness for Jacob. Parents state that they feel that Jacob continues to need improvement in math reasoning. Parents also show a diagnosis of Early Infantile Autism with Kanner's Syndrome. Mr./Mrs. Tucker report that Jacob's skin picking is due to the anxiety that he experiences because of school and he can no longer take medication for it. They report that he was taking medication for it, but it damaged his liver. He is currently seeing a psychiatrist and he believes this to be the case. Parents also note concerns for visual-motor integration being lower than cognitive and academic functioning, citing slowness in dominant and non-dominant hands. Parents want the PLAAFP to include all of the diagnostic data. The district will not repeat all of the voluminous data here, because the information is available in Jacob's school file and is incorporated by this reference.
Parent concerns are set forth in Jacob's IEP. In addition, Joy Rose, special education process coordinator, informed Ms. Tucker on October 13, 2008, that all of Ms. Tucker's communications, including parent conference notes from IEP meetings, are placed in Jacob's special education file.
Documentation indicates there are multiple emails and correspondence dated January 23,2008, to January 27,2009, between Ms. Tucker and various district personnel. There were numerous communications about Jacob's progress, goals, and implementation of the IEP. Some of the parent's requests for evaluation were granted and some refused. Ms. Tucker was provided with draft IEPs prior to each IEP meeting. Ms. Tucker submitted a classroom observation report to
the IEP team with suggestions prior to the December 15, 2008, IEP meeting. The district responded to numerous issues raised by Ms. Tucker, but did not always provide the relief Ms. Tucker requested. The district offered to meet with her to discuss her concerns.
The Lee's Summit Board of Education policy states that the use of audio, video, or other recording devices at IEP meetings or Section 504 meetings is strictly prohibited in accordance with the Rehabilitation Act of 1973. The policy also states that exceptions to this policy will only be made when such recordings are necessary to ensure parental rights that are guaranteed under Part B of the_IDEA. These requests must be made within a-reasonable-period oftime prior to the scheduled meetings.
Decision:
State and federal regulations implementing the Individuals with Disabilities Education Act (IDEA) require that input be considered from all IEP team members when developing a student's Individualized Education Program (IEP) and that the district take steps to ensure that parents are present and given an opportunity to participate. There is no requirement that parents be an "equal" decision-maker nor is there any standard to determine the quantity or quality of participation. Considering input and allowing participation does not require the team to include all the input in the student's IEP. In this case, documentation reflects that Ms. Tucker was given an opportunity to participate as a member of the IEP team. Therefore, the Lee's Summit R-VII School District is found not out of compliance.
January 17, 2009
Missouri Department of Elementary and Secondary Education (SEAP)
Division of Special Education Compliance
C/O Child Complaint Coordinator – Ms. Jackie Bruner
P.O. Box 480
Jefferson City, MO 65102-0480
Dear Ms. Bruner,
This child complaint is written regarding my son, Jacob Edward Tucker. I am unable to resolve issues with our school district, Lee’s Summit R-7. I have written to the IEP team and the district’s superintendent and have not been able to get a response from them about my concerns.
My concerns revolve around the goals that the team have for him. I don’t think that they are appropriate and do not address all of his needs. He recently had a reevaluation and he had quite a scatter of scores. His IEP doesn’t address many of the areas of his weaknesses. The District refused to put his evaluation scores in his Present Level and therefore the IEP doesn’t address his real needs.
My son's PLAAP is just what the district brought to the table and hardly any of my input was used. That does not make me an equal partner on the IEP team. While the composite test scores might give a picture of what Jake can or can't do, the subtests give the real picture of his strengths and weaknesses. To make a statement such as, "he performed within the average" does not address his strengths and weaknesses.
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)]. 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).
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.
3. A statement of how the disability impacts the student’s involvement/progress in the general curriculum.
4. A description of area(s) of educational need.
Previously, IEPs were required to include "a statement of the child's present levels of educational performance ..." Under IDEA 2004, the IEP must include "a statement of the child's present levels of academic achievement and functional performance ..." Present levels of academic achievement and functional performance require objective data from assessments.
If the school insists on using subjective teacher observations, an independent observer (the hearing officer, for example) will conclude that the school is not interested in monitoring the child's educational progress. This is exactly the conclusion you want this person to draw.
I asked for an ADOS to be performed. The Autism Coordinator suggested that the Autism Social Skills Profile would be a better tool. I agreed to that test, but I stated that I didn’t want my scores averaged in with the teacher’s scores. My son is in high school and his teachers aren’t familiar with his disability and they only see him one hour a day. To use their observations, and to average them with mine, would not give an accurate picture. The District agreed to do that.
The District had twelve teachers and me fill out the profile. There was no test score for this instrument. Instead, there was a summary at the end of the evaluation. I made my own graph to make it easier to read. This information was not available at the meeting to discuss the evaluations. There was only a rough draft without the summary or any explanation of how the data would be used. The class observation was not available either. Instead, the evaluator had written notes on notebook paper and read them aloud at the meeting. The following is the summary that was provided by the district.
Following are the items which at least 7 of the 13 raters indicated as being "never" observed (items 1-36): invites peers to join him in activities, interacts with peers during unstructured activities, asks questions to request information about a person, requests assistance from others, offers assistance to others, initiates greetings with others, introduces self to others, politely asks others to move out of his way. Following are the itemswhich at least 7 of the 13 raters indicated as being "often/very often"(items 37-49) observed as a concern: engages in solitary interests and hobbies, engages in solitary activities in the presence of others.
My son’s evaluations show some serious deficits. These are not truly addressed in his present IEP. The following are his goals:
1. Goal #1 Increase self-advocacy by asking for help at least 2 times in each class per semester.
2. Goal #2 Increase organization/study skills by independently following written directions and completing task 2 times in each class per semester.
3. Goal #3 Jacob will increase pragmatic/social language skills by maintaining a conversation using concise and relevant information with peers/adults with no more than one prompt on 3 consecutive days.
4. Goal #4 Jacob will improve pragmatic skills by identifying the impressions he feels he is making in an interaction with peers/adults and adjusting his behavior appropriately in a structured small-group setting in 4/5 opportunities on 3 consecutive data days.
5. Goal #5 Jacob will improve pragmatic skills by inferring meaning from different social scenarios and identifying appropriate responses to the emotions of other in these situations with 80% accuracy on 3 consecutive data days.
These goals do not state how he will do these things, what the method of therapy or services will be to help him do these things, who will perform these services, how often these services will be provided, and what the services are. How can a goal be achieved when there is nothing in place to achieve it?
1. Goal # 1 What does this mean? Who is he to ask? What phrasing will he use? What kind of help can he expect? What is the time frame for the response?
2. Goal #2 This goal would allow him to fail. If he only completes a task 2 times per semester, he would fail.
3. Goal #3 So if they prompt him, he will concisely say, “Hi. How are you?” This is not a measurable goal. What is relevant or irrelevant information? Who measures this? Who decides? What is the relevance meter?
4. Goal #4 How can he self reflect and self repair language? Is his impression measurable? He is being expected to remember to adjust his disability.
5. Goal #5 How will he improve? How will you know which he is doing on which of three days?
How are they going to help him achieve these goals because it looks like they're making him responsible for everything (ie he'll ask for help; he'll maintain the conversation")What are THEY going to do to help HIM be successful?What do they mean by "maintaining a conversation using concise and relevant information?" Who defines what's "concise" or "relevant"? What are his disabilities and known areas of need? For example, can he identify what "impression" he "feels" he's making? Will he be able to "adjust his behaviors accordingly" once he "recognizes his impressions"? How will he master that goal? By teacher observation of his interactions? Is there going to be someone there to "moderate" his interactions with others? For example, will a teacher or therapist stop to ask him, "What impression do you think you're making on your peers?" either after the interaction is over or would they ask him in front of his peers? What is his baseline for "inferring meaning" in social situations now? Does he have one? How do they know this is an area of need?What "social situations" are they going to use to try to teach him to infer meaning?Can he identify an "appropriate response to the emotions of others"? What specifically do they mean by an "appropriate response" to emotions of others? Are they trying to teach compassion, sympathy, how to diffuse someone who is angry with him? It seems like they want him to tailor his actions to someone else's "reactions." Can he do this? How are they even measuring 80% accuracy over 3 consecutive days? They haven't defined what their criteria are yet (i.e. He'll engage in a 5 minute give and take conversation about some social situation - I don't know, say, how to act in a restaurant - so, maybe how to interact with a waiter when ordering a meal).
Because there are no evaluations in the Present Level we don’t even know what his areas of deficits are. We only know that sometimes he is average, sometimes he is above average, sometimes he is below average, but overall he seems to be quite average.
I asked for an independent evaluation in hopes that I would be able to get more information about my son’s deficits and have someone to help me with analyzing the data. The district did not send me the same information, about providers, that they send other parents. The list that they sent me was inaccurate and forced me to find the updated information on my own. I notified the district of this. I have received no response from them.
INDEPENDENT EDUCATIONAL EVALUATIONS
34 CFR §300.502
General
As described below, you have the right to obtain an independent educational evaluation (IEE) of
your child if you disagree with the evaluation of your child that was obtained by your school
district.
If you request an independent educational evaluation, the school district must provide you with information about where you may obtain an independent educational evaluation and about the school district’s criteria that apply to independent educational evaluations.
My son’s evaluations show that he has a weakness in oral expression. His standard score in that area was an 80. His full scale IQ is 102. Our district standard states that a 20-point difference qualifies you for services. This is per Jerry Keimig. This area needs a goal. His standard score for Pragmatic Language Usage Index was an 86. This area needs a goal. His standard score for Contextual Conventions was a 90. This is not a solid skill and this area needs a goal. His standard score for Sentence Assembly was 80. This area needs a goal. His standard score for Language Memory was an 88. This area needs a goal and accommodations. His age equivalent score for the Interpersonal Relationships subtest of the Vineland II was <3:0. His age equivalent score for the Expressive was 6:10. His age equivalent for Play and Leisure Time was 3:6. His age equivalent for Coping Skills was 3:2. These were observations from a teacher that sees him one hour a day. The Vineland II scores that come from the parent rating report are: Receptive, age equivalent 1:6, Expressive, age equivalent 5:4, Personal, age equivalent 5:10, Domestic, age equivalent 5:6, Interpersonal Relationships, age equivalent 0:1, Play and Leisure Time, age equivalent 1:10, Coping Skills, age equivalent 3:10. His Internalizing was at the Clinically Significant Level, his externalizing was at the Elevated Level, and his Maladaptive Behavior Index was at the Clinically Significant Level. He needs help to improve in all of these areas. His standard score for Working Memory Index was 88. He needs goals and accommodations in this area.
I don’t believe that his deficits are being addressed and the District seems to be complacent about this. His overall scores aren’t that significant and they are not addressing the subtest scores.
I have attached documentation in support of my claims listed above. I request a copy of all responses that the District provides and the opportunity to submit a rebuttal. I feel that the described events are a clear violation of my rights to participation in my son’s education and his right to a free and appropriate education. I ask that DESE intervene in this situation and mandate the Lee’s Summit R-7 School District to comply with the law. I believe that compensatory services are warranted as the district has prohibited my son from making progress and receiving the free and appropriate education that is federally mandated.
Respectfully,
Curtis and Sherri Tucker
1200 SE London Way
Lee’s Summit, MO 64081
816-554-3017
autism@kc.rr.com
Enclosures
Attachment 1 – Autism Social Skills Profile
Attachment 2 – Email Discussing Social Skills Program, dated December 28, 2008
Attachment 3 – Graph of Autism Social Skills Profile
Attachment 4 – Email stating evaluator list is inaccurate, dated December 26, 2008
Attachment 5 – Email requesting IEE, dated December 19, 2008
Attachment 6 – Email with amended evaluator list, dated December 29, 2008
Attachment 7 – Email with information from psychologist, dated December 30, 2008
Attachment 8 – Email re: Modification Changed, dated January 7, 2009
Attachment 9 – Secondary School Experiences of Students With Autism
Attachment 10 – Vineland Comparison Graph
Attachment 11 – Full Scale IQ vs. Beery-Buktenica Developmental Test
Attachment 12 - Full Scale IQ vs. CELF-4
Attachment 13 – Full Scale IQ vs. TOPL-2)
Attachment 14 – Full Scale IQ vs. TLC-E)
Attachment 15 – WISC-IV
Attachment 16 – Full Scale IQ vs. WNV
Attachment 17 – Full Scale IQ vs. WIATT-II
Attachment 18 – Full Scale IQ vs. TOWL-3
Attachment 19 – Child Complaint Model Form
January16, 2009
Missouri Department of Elementary and Secondary Education (SEAP)
Division of Special Education Compliance
C/O Child Complaint Coordinator – Ms. Jackie Bruner
P.O. Box 480
Jefferson City, MO 65102-0480
Dear Ms. Bruner,
This child complaint is written regarding my son, Jacob Edward Tucker. I am unable to resolve issues with our school district, Lee’s Summit R-7. I have written to the IEP team and the district’s superintendent and have not been able to get a response from them about my concerns.
My concerns revolve around parent participation. During meetings, my comments are either ignored and no changes are made or they listen to my concerns and state that they don’t agree and no changes are made. Any suggestions that I have made regarding Present Level are ignored. I state that I don’t agree with their description of the Present Level and they tell me that I may include that in the Parent Concerns. I submit my concerns to be included in the Parent Concerns and they edit this document. I asked for tests score to be placed in the Present Level to guide services proposed and I am refused. I was allowed no input in relation to the goals and/or services. My son has an eligibility category of Educational Autism. He is in regular education classes with no supports besides 40 minutes of speech per week. I feel that decisions have been made prior to the meeting regarding my child’s IEP. The district has removed items from the Modifications/Accommodations page without my approval. It was discussed in the meeting and the decision was made to change the frequency from As Needed to Daily; not to delete it entirely. The meeting notes taken by the District were incomplete and rarely reported the discussions held in the meeting. I specifically wrote the Superintendent asking to record the meeting due to the fact that the recorder could not accurately describe the events as tape recording is against District policy, although legal in Missouri. I have not received an answer to this request to date. I requested a notice of action refused for the District’s refusal to include my changes in the Present Level and for editing my Parent Concerns without my approval. The district responded to this request on January 6 in an e-mail but I have received no such document.
Applicable sections of IDEA law are described below:
Integral to the design of IDEA is the substantive involvement of parents in assessing student needs and planning how to address those needs. In its Finding section, IDEA 2004 states that:
(5) Almost 30 years of research and experience has demonstrated that the education of children with disabilities can be made more effective by...
(B) strengthening the role and responsibility of parents and ensuring that families of such children have meaningful opportunities to participate in the education of their children at school and at home... (20 U.S.C. $ 1400 (c) (5) (B).)
State education agencies and local school districts must have in place policies and procedures that ensure the opportunity for parents to participate in meetings related to the identification, evaluation, program and placement of their children (20 U.S.C. $ 1415 (b) (1)). Participate is the operative term. The school must enable meaningful participation in discussion and decision-making. Mere attendance at meetings satisfies neither the spirit nor the letter of the law. The requirement applies to all meetings in which decisions will be made except for routine meetings among staff to discuss day-to-day instructional planning necessary to implement an existing IEP.
Recent decisions affirm the essential role of parents in designing their children's special education. Precluding parent participation through staff predetermination of services or placement egregiously violates IDEA. School districts should be aware that courts have become more alert to this problem and less likely to excuse it (Deal v. Hamilton Co. Bd. of Ed.; Knable v. Bexley City Sch. Dist.).
Also see attached documentation in support of my claims listed above. I request a copy of all responses that the District provides and the opportunity to submit a rebuttal. I feel that the described events are a clear violation of my rights to participation in my son’s education. I ask that DESE intervene in this situation and mandate the Lee’s Summit R-7 School District to comply with the law. I believe that compensatory services are warranted as the district prohibited my participation thus meaningfully impeding my son’s education.
Respectfully,
Curtis and Sherri Tucker
1200 SE London Way
Lee’s Summit, MO 64081
816.554.3017 Home
E-mail: autism@kc.rr.com
Enclosures
Attachment 1 – Child Complaint – Model Form
Attachment 2 – Letter to District re: Parent Participation, dated December 22, 2008
Attachment 3 – Letter to District re: My Parent Concerns, dated December 23, 2008
Attachment 4 – Letter from Joy Rose re: Notice of Action, dated January 6, 2009
Attachment 5 – Letter to District re: Modification Changed, dated January 7, 2009
Attachment 6 – Copy of District Notes, dated August 27, 2008
Attachment 7 – Request to Tape Record, dated January 7, 2009
Attachment 8 – Parent’s Meeting Notes, dated August 27, 2008
Attachment 9 – District Refusal to Include Parent’s Notes, dated October 13, 2008
Attachment 10-Request for Notice of Action, dated December 30, 2008
Attachment 11-Request for Changes in Present Level, dated December 30, 2008
Sunday, January 25, 2009
Co-Teaching How Effective Is It?
Read the whole article at http://teachingld.org/pdf/Alert6.pdf
Co-Teaching
Co-teaching is a special education service delivery model in which two certified teachers, one general educator and one special educator, share responsibility for planning, delivering, and evaluating instruction for a diverse group of students, some of whom are students with disabilities. Co-teaching has emerged as a very popular alternative to the more traditional Resource Room or pull-out special education service delivery models and as a way to support inclusion of students with disabilities in general education settings. Coteaching draws on the strengths of both the general educator, who understands the structure, content, and pacing of the general education curriculum, and the special educator, who can identify unique learning needs of individual students and enhance curriculum and instruction to match these needs.
According to its advocates, co-teaching is supposed to accomplish three goals: First, co-teaching is expected to make available to all students, including those with disabilities, a wider range of instructional alternatives than would be possible with just one teacher. Second, co-teaching is expected to enhance the participation of students with disabilities as full classroom members. Third, co-teaching is expected to improve performance outcomes for students with disabilities. In theory, when co-teaching is implemented, both educators are delivering substantive instruction, and the instruction from both teachers occurs within the confines of a single classroom. In practice, when co-teaching is implemented, the roles and responsibilities of the general and special education teacher vary widely.
A search was conducted for research articles published within the last 20 years in refereed journals that compared teachers’ instructional practices, student engagement rates, and/or student academic progress in co-taught classrooms with those in alternative special education service delivery models. Only four articles were found in which the effectiveness of co-teaching was measured empirically and compared statistically with a control condition. Three of these reported on studies conducted in elementary schools, one on a study conducted in a high school.
Elementary Level
• Bear and Proctor (1990) studied the achievement gains of 47 third graders with high-incidence disabilities taught in Team Approach to Mastery (TAM) classrooms, compared to the gains shown by 31 students with high-incidence disabilities served in resource rooms. In TAM classrooms, students with high-incidence disabilities are taught together with non-disabled peers for 100% of the school day, at the ratio of approximately one student with disabilities to every three without disabilities. Two teachers, one certified in general education, the other in special education, jointly provide instruction to all students in the same classroom. The researchers used scores from the Comprehensive Test of Basic Skills, available in students’ permanent records, to show that achievement gains of students with disabilities in TAM classes were consistently greater than (in math) or equal to (in reading) the gains made by students in the resource room. They concluded that TAM classrooms are “at least as effective” as resource rooms.
• Schulte, Osborne, and McKinney (1990) randomly assigned students with learning disabilities in grades 1 to 4 to one of three service delivery models: one period of resource room services per day (n=19), consultative services to the general education teacher who had students with disabilities in his/her class (n=14), and consultative services with co-teaching (n=19). They measured students’ academic progress using both standardized achievement tests in reading, writing, and mathematics, and a criterion-referenced reading measure. Like Bear and Proctor, Schulte and her colleagues found that consultation plus co-teaching was “as effective as” the other service delivery models in producing academic gains.
• Marston (1996) compared reading progress of elementary students with high-incidence disabilities served in inclusion-only (n=33), pull-out only (n=171), and combined (n=36) service delivery models. In inclusion-only models, students with disabilities were provided all their IEP services in the general education classroom through co-teaching. In pull-out only, all special education services were delivered in a resource room. The combined model included pullout resource room services and co-teaching provided jointly by the general and special education teacher in the general education classroom. By comparing curriculum-based measures taken in fall and spring, Marston demonstrated that reading progress of students served in the combined model was significantly greater than that of students served in either the inclusion-only (co-teaching) or pull-out only models. Once again, co-teaching was ‘as effective as” resource in producing reading growth, but this study also showed the value-added of combining both coteaching and pull-out service delivery systems.
High School Level
• Boudah and colleagues (1997) studied the effects of co-teaching (referred to as collaborative instruction) on the performance of high school students with disabilities on content subject quizzes and test scores. They found that the performance of students with high-incidence disabilities (n=16) actually worsened during the experimental, co-teaching treatment. Furthermore, even with two teachers in the room, students in co-taught settings were only minimally engaged in instructional tasks. Despite the current and growing popularity of co-teaching, research on student outcomes in this service delivery model is very limited. Only four studies could be found. In the three elementary studies co-teaching was just as effective in producing academic gains as resource room instruction or consultation with the general education teacher; in the high school study, students’ quiz and exam grades actually worsened during the co-teaching experiment. If the goal of coteaching is to allow students with high-incidence disabilities to access the general education curriculum and to “do no harm” to them in terms of academic achievement, then the three elementary studies provide modest support for a co-teaching model in elementary schools. If the goal, however, is to achieve greater academic gains than have been traditionally achieved in a resource program, then co-teaching has not yet proved itself useful. Furthermore, the research suggests that the prevailing assumptions about the effectiveness and usefulness of co-teaching for students with disabilities in inclusive classrooms need to be reexamined.
Co-Teaching
Co-teaching is a special education service delivery model in which two certified teachers, one general educator and one special educator, share responsibility for planning, delivering, and evaluating instruction for a diverse group of students, some of whom are students with disabilities. Co-teaching has emerged as a very popular alternative to the more traditional Resource Room or pull-out special education service delivery models and as a way to support inclusion of students with disabilities in general education settings. Coteaching draws on the strengths of both the general educator, who understands the structure, content, and pacing of the general education curriculum, and the special educator, who can identify unique learning needs of individual students and enhance curriculum and instruction to match these needs.
According to its advocates, co-teaching is supposed to accomplish three goals: First, co-teaching is expected to make available to all students, including those with disabilities, a wider range of instructional alternatives than would be possible with just one teacher. Second, co-teaching is expected to enhance the participation of students with disabilities as full classroom members. Third, co-teaching is expected to improve performance outcomes for students with disabilities. In theory, when co-teaching is implemented, both educators are delivering substantive instruction, and the instruction from both teachers occurs within the confines of a single classroom. In practice, when co-teaching is implemented, the roles and responsibilities of the general and special education teacher vary widely.
A search was conducted for research articles published within the last 20 years in refereed journals that compared teachers’ instructional practices, student engagement rates, and/or student academic progress in co-taught classrooms with those in alternative special education service delivery models. Only four articles were found in which the effectiveness of co-teaching was measured empirically and compared statistically with a control condition. Three of these reported on studies conducted in elementary schools, one on a study conducted in a high school.
Elementary Level
• Bear and Proctor (1990) studied the achievement gains of 47 third graders with high-incidence disabilities taught in Team Approach to Mastery (TAM) classrooms, compared to the gains shown by 31 students with high-incidence disabilities served in resource rooms. In TAM classrooms, students with high-incidence disabilities are taught together with non-disabled peers for 100% of the school day, at the ratio of approximately one student with disabilities to every three without disabilities. Two teachers, one certified in general education, the other in special education, jointly provide instruction to all students in the same classroom. The researchers used scores from the Comprehensive Test of Basic Skills, available in students’ permanent records, to show that achievement gains of students with disabilities in TAM classes were consistently greater than (in math) or equal to (in reading) the gains made by students in the resource room. They concluded that TAM classrooms are “at least as effective” as resource rooms.
• Schulte, Osborne, and McKinney (1990) randomly assigned students with learning disabilities in grades 1 to 4 to one of three service delivery models: one period of resource room services per day (n=19), consultative services to the general education teacher who had students with disabilities in his/her class (n=14), and consultative services with co-teaching (n=19). They measured students’ academic progress using both standardized achievement tests in reading, writing, and mathematics, and a criterion-referenced reading measure. Like Bear and Proctor, Schulte and her colleagues found that consultation plus co-teaching was “as effective as” the other service delivery models in producing academic gains.
• Marston (1996) compared reading progress of elementary students with high-incidence disabilities served in inclusion-only (n=33), pull-out only (n=171), and combined (n=36) service delivery models. In inclusion-only models, students with disabilities were provided all their IEP services in the general education classroom through co-teaching. In pull-out only, all special education services were delivered in a resource room. The combined model included pullout resource room services and co-teaching provided jointly by the general and special education teacher in the general education classroom. By comparing curriculum-based measures taken in fall and spring, Marston demonstrated that reading progress of students served in the combined model was significantly greater than that of students served in either the inclusion-only (co-teaching) or pull-out only models. Once again, co-teaching was ‘as effective as” resource in producing reading growth, but this study also showed the value-added of combining both coteaching and pull-out service delivery systems.
High School Level
• Boudah and colleagues (1997) studied the effects of co-teaching (referred to as collaborative instruction) on the performance of high school students with disabilities on content subject quizzes and test scores. They found that the performance of students with high-incidence disabilities (n=16) actually worsened during the experimental, co-teaching treatment. Furthermore, even with two teachers in the room, students in co-taught settings were only minimally engaged in instructional tasks. Despite the current and growing popularity of co-teaching, research on student outcomes in this service delivery model is very limited. Only four studies could be found. In the three elementary studies co-teaching was just as effective in producing academic gains as resource room instruction or consultation with the general education teacher; in the high school study, students’ quiz and exam grades actually worsened during the co-teaching experiment. If the goal of coteaching is to allow students with high-incidence disabilities to access the general education curriculum and to “do no harm” to them in terms of academic achievement, then the three elementary studies provide modest support for a co-teaching model in elementary schools. If the goal, however, is to achieve greater academic gains than have been traditionally achieved in a resource program, then co-teaching has not yet proved itself useful. Furthermore, the research suggests that the prevailing assumptions about the effectiveness and usefulness of co-teaching for students with disabilities in inclusive classrooms need to be reexamined.
Thursday, January 1, 2009
IDEA Litigation Challenging State Noncompliance
Back to School on Civil Rights
V. IDEA Litigation Challenging State Noncompliance
A. Introduction Under the Individuals with Disabilities Education Act (IDEA), parents and families of children with disabilities play a key role in enforcing the law. They initiate litigation and raise issues that otherwise may not gain attention. In order to pursue these issues, parents must find attorneys who are knowledgeable about IDEA and willing to accept cases where fee payment may be deferred or delayed until the case is settled. In other words, the attorney may not get paid unless the client wins and the court awards attorney's fees. Damages are rarely awarded in these cases, which are often protracted and expensive. During the pendency of the cases, until they are settled, the attorneys must be in a position to work without compensation.
Litigating attorneys in the private bar who are experts on IDEA are not commonplace.
Frequently specialty public interest organizations will accept such cases. The Protection and Advocacy systems (P&As), which provide legal representation and advocacy for people with disabilities in every state in the country, represent families in many special education cases.
"As you look at the priorities that are being set by the [P&As], almost all of our cases now are expulsion/suspension cases. We're just trying to keep kids in the classrooms."-- Curt Decker, Executive Director, National Association of Protection and Advocacy Systems (NAPAS), on the need for OSEP to fund legal advocacy for parents[289]They are federally funded to provide such support. Nonprofit organizations such as the Disability Rights Education and Defense Fund (DREDF), the contractor for this report, also provide such representation, but usually without federal funding. Both organizations report that they do not have sufficient resources to respond to all the requests for assistance that they receive from parents of students in special education. Without adequate support these organizations are unable to assist parents in raising issues, such as the following ones, which generate IDEA compliance.
B. Summary of Litigation in California, Illinois, and Texas In three recent cases, parents have challenged their state's monitoring and enforcement system in failing to address local noncompliance. Although the local education agency (LEA) and, ultimately, the state education agency (SEA) have responsibility for ensuring FAPE to all children with disabilities in the state, when the LEA fails in its responsibility to provide services and the SEA fails to properly monitor and enforce the law, as the following cases reflect, the burden of enforcement falls on parents.
In Corey H. v. Board of Education of the City of Chicago, Chicago public school students with disabilities brought a class action against both the City of Chicago Board of Education (CBE) and the Illinois State Board of Education (ISBE).[290] The students sought declaratory and injunctive relief to correct CBE's and ISBE's widespread failure to educate children with disabilities in the least restrictive environment (LRE).[291]
Although CBE agreed to settle with an extensive plan for correcting the LRE violations, ISBE continued to argue that it fulfilled the IDEA's LRE mandate.[292] ISBE claimed that IDEA (20 U.S.C. 1412(6)) requires only that it provide oversight and general supervision of CBE's LRE efforts.[293] ISBE also argued that its monitoring efforts were adequate because OSEP had approved Illinois' state plan including its monitoring plan. The court, however, found that Congress intended to place final responsibility and accountability in one agency, and held that once ISBE had accepted IDEA funds, it was responsible to ensure compliance with the IDEA's LRE requirements.[294] As the court put it, "the evidence presented at trial demonstrates beyond doubt that, despite the fact that the LRE mandate has been on the books since 1975, the Chicago public schools have languished in an atmosphere of separate and unequal education for children with emotional, mental, and behavioral difficulties."[295] The fact that OSEP may have approved Illinois' plan was not dispositive.[296] The court affirmed the right of parents to enforce their children's rights and ensure compliance with IDEA independent of OSEP's actions or inaction. To the court, ISBE clearly violated its duty to establish its own effective monitoring and enforcement system.[297]
The Corey H. court found numerous systemic failures in ISBE's monitoring and enforcement of IDEA's LRE requirements: students with low-incidence disabilities were placed in highly restrictive placements, ISBE's funding formula perpetuated segregating children with disabilities, and when the CBE failures were pointed out to ISBE, ISBE took little or no action to ensure the failures were corrected.[298] The court ordered the ISBE to identify and correct its LRE violations, inform its teachers and administrators of their IDEA responsibilities regarding LRE implementation, certify teachers according to LRE requirements, and establish a state funding formula that reimburses local agencies for educating children in the least restrictive environment appropriate to their individual needs. The court has since appointed its own expert to develop an effective monitoring and enforcement system for Illinois. A monitoring system currently in development will closely follow the focused monitoring approach being tested in Texas.
Another recent case challenging a state's failure to monitor and enforce LEA compliance with IDEA is Angel G. et al. v. TEA. Filed in 1994, this case was brought by parents on behalf of their children who resided in Texas Residential Care Facilities (RCF). The case alleged that the Texas Education Agency (TEA) failed to meet three responsibilities required of a state education agency by IDEA: (1) child find, (2) development of interagency agreements, and (3) effective monitoring and enforcement of LEA compliance with IDEA.
In 1996, the court in Angel G. approved a settlement agreement that resolved both the child find and interagency agreement issues but left open the issue of the effectiveness of TEA's monitoring system. TEA continued to fail to assure that its RCFs provide a free appropriate public education (FAPE) to children and youth with disabilities who reside in these facilities. An independent consultant issued a report finding TEA's monitoring system to be "fundamentally flawed" and recommended that TEA convene a group of experts to develop a replacement or supplemental system of special education monitoring. TEA initially refused to implement this recommendation but later informed the court that it had made substantial changes to its current monitoring system to ensure compliance with IDEA. The court requested that each party submit their plans for an effective special education monitoring system and held oral argument on the adequacy of these plans. Following this hearing, the court issued an order setting the case for an evidentiary hearing to begin on August 9, 1999, and to continue as needed.[299] At this hearing, the court will examine "whether the components of the plan TEA filed in this case on August 14, 1998, are adequate to enable TEA to meet its burden as an SEA...."
In the most recent of these cases challenging the state's monitoring system, a group of eight children with disabilities in East Palo Alto, California, brought a class action lawsuit in November 1996 against their school district, the Ravenswood City Elementary School District, for extensive violations with all of the substantive and procedural requirements of IDEA;[300] (e.g., failure to provide FAPE, extensive LRE violations, failure to ensure parent participation, utilizing discriminatory evaluation procedures, etc.).
The plaintiff children in this case, Emma C. v. Eastin, also sued the California Department of Education (CDE) for failing to monitor and enforce the law despite repeated findings of noncompliance in the school district.
After a period of intensive law and motion activity, the U.S. district court made a number of critical rulings in Emma C. The court held that (1) all available remedies, including money damages and compensatory education, are available under IDEA against the CDE and against members of California's Board of Education in their individual capacities; (2) that the nature of the systemic problems alleged in the suit made exhaustion of administrative remedies futile and therefore unnecessary; and (3) that the CDE was at that time incapable of ensuring compliance in the district because of the substantial inadequacies in its own monitoring and complaint systems.[301] The court certified a class comprised of all past, present and future special education students in the district.
Following these court rulings, the plaintiff children in Emma C. and the CDE entered into a tentative settlement agreement in which CDE agreed to undertake a comprehensive step by step approach to bring Ravenswood into compliance. Plaintiffs also reached agreement with the district in which the district primarily agreed to abide by any corrective action plan developed by the state and independent monitors and provided for compensatory education to all eligible children.
Plaintiffs and the CDE are negotiating an agreement to change California's monitoring system to the focused monitoring approach proposed by the plaintiffs in the Angel G. litigation. The CDE has taken substantial steps already to convert to this approach, including commitment to a pilot program to test whether it will result in greater compliance.
C. Development of More Effective Monitoring Systems A group of these experts convened by the plaintiffs designed a proposed focused monitoring system for Texas.[302] Known as the Chicago Group because the meeting was held in Chicago, these experts continue to flesh out the details of the system.[303] In addition, advocates and experts in the states of Texas, California, and Illinois are reviewing the proposed system to refine and delineate it and address the many related complex issues. The state of California has committed to adopting this focused monitoring system and planned to conduct its first pilot program in 1999. The following is an overview of the proposed focused monitoring system.
The Texas work articulated five principles that provide the underpinnings for an effective state IDEA monitoring system. The system must (1) address all legal requirements and educational results for students, (2) include public involvement, (3) build on existing student data to increase system efficiency, (4) direct resources to areas of greatest need, and (5) result in timely verification or enforcement of compliance. Their approach is based on the notion of continuous improvement with a data-based accountability system.[304]
The three components of the compliance monitoring system are (1) performance review, (2) policy review, and (3) complaint management. These three system components take place within the context of three ongoing activities: (1) the Comprehensive System of Personnel Development (CSPD), (2) oversight and enforcement, and (3) data design, analysis, and review.[305]
At the heart of this system is the performance review process, which works as follows. The state agency conducts a performance review of each LEA. The outcome of the review is used by the SEA, in part, to place LEAs into one of four categories: (1) Continuous Improvement District --no additional compliance activities required by the state agency; (2) Data Validation District--sixty LEAs randomly selected annually to verify reported data and examine procedural compliance; (3) At-Risk District--self-study supplement to district improvement plan required; or (4) Focused-monitoring district--on-site investigation of specific areas of noncompliance conducted by the state.[306]
In order to determine the category of each LEA, the state must develop a template for analyzing special education performance data and measuring compliance. Critical variables or indicators must be determined. Variables could include measures of graduation rates, drop-out rates, academic achievement levels, and placement (LRE) data. Standards must be developed for three types of trigger values. The first trigger value, which would apply to each variable, is the "at-risk" trigger. This trigger identifies LEAs that are "at risk" in their performance in that area. Critical variables would receive one trigger in addition to the "at risk" trigger. The second trigger for critical variables is the focused monitoring trigger, which identifies the districts that will receive a focused monitoring visit. The third value is used as a benchmark for each critical variable. The benchmark serves as the statewide performance goal for the critical variables designed to improve the performance levels.[307]
The focused district monitoring occurs when an LEA exceeds the trigger for any critical data variable. The state creates an investigation plan that is tailored to the identified areas of noncompliance prior to the visit. The plan is individualized for each LEA and must incorporate several features including focusing on measurable data that indicate compliance or noncompliance with the identified issue, classroom observation, and input from parents and students. Districts that are designated as "at-risk" or "focused monitoring" must have plans for correcting areas of noncompliance. Technical assistance and personnel training should be provided to the LEA by the SEA if needed. The SEA must develop written procedures that outline the progression from noncompliance findings to enforcement so that they are consistently applied for each noncompliant LEA. These procedures should be clear to LEAs so that there is no doubt about the consequences for ongoing noncompliance.[308]
Likewise, the state must have a system of progressive sanctions to use whenever any LEA fails to correct noncompliance within a specific time line. The proposed range of sanctions is as follows in ascending order:
Mandatory First-Level Sanctions require the state to send a letter of continued noncompliance to all families of students with disabilities served by the LEA and members of the state legislature.
A public hearing is held by the district's school board and the noncompliance information is a consideration in the evaluation of the LEA superintendent and relevant principals.
Mandatory Second Level Sanctions, which are to be implemented within 60 days of the first level of sanctions if noncompliance continues, require lowered accreditation of the noncompliant LEA and suspension or termination of responsible administrative officials.
Mandatory Third Level Sanctions, which are imposed 60 days after Level 2 sanctions if noncompliance continues, require a choice of one of the following options: (1) transference of federal and state special education funds to a neighboring LEA for oversight of the provision of special education in the noncompliant district; (2) partial withholding of federal and state special education funds while the LEA must continue to provide required services; (3) withholding of all federal and state special education funds while the LEA must continue to provide required services; and (4) recovery by the state of previously awarded federal and state funds.[309] The elements of this proposed system have potential for correcting some long-standing weaknesses in Texas, California, and Illinois state monitoring. The proposed system has been implemented on a "pilot" basis only in California; more time is needed to test its effectiveness.
D. Findings and Recommendations
Finding # V.1 Parent advocacy and litigation have been critical means for exposing and remedying persistent and systemic IDEA noncompliance. The law depends on litigation in order to function effectively. Parents of children with disabilities are uniquely situated to identify and raise the legal issues related to persistent noncompliance with IDEA. Their financial situations, however, typically do not permit sustained private legal action, and not enough public resources are available to assist them.
Recommendation # V.1A Whenever Congress and the President approve an increase in the funding to be distributed to local schools under Part B of IDEA, Congress and the President should appropriate at the same time an amount equal to 10 percent of the total Part B increase to fund free or low-cost legal advocacy services to students with disabilities and their parents through public and private legal service providers, putting competent legal assistance within their financial reach and leveling the playing field between them and their local school districts. Litigation by parents is still a necessary recourse when administrative action at the state level to obtain FAPE for their child has failed. In some states, litigation has also been a vital catalyst to a more effective implementation of IDEA across the board. Access to legal assistance that could result in obtaining an appropriate education for their children remains beyond the financial reach of too many families. Federal funds currently available for low-cost legal services under the Developmental Disabilities Act, the Technical Assistance Act, the Rehabilitation Act, and the Protection and Advocacy for Individuals with Mental Illness Act must be supplemented to begin to address the need. This will be a start toward putting families on a more equal playing field with school districts that use tax dollars to hire legal counsel to assist them in avoiding compliance with IDEA requirements.
Recommendation # V.1B
OSEP should endorse the allocation of additional funding to public and private legal service providers, including the state PTIs, P&As, and IL centers, the private bar and nonprofit legal services centers, for the purpose of carrying out a coordinated strategy for making legal advocacy services more available to students with disabilities and their families.
Finding # V.2
Pilot programs in compliance monitoring and enforcement at the state level are testing the use of a broad range of flexible enforcement options in the context of corrective action plans linking specific noncompliance findings with agreed upon enforcement options and time lines.
Recommendation # V.2
OSEP should develop and test the use of state compliance agreements that incorporate appropriate sanctions selected from a broad range of enforcement options, and link them to the state's failure to correct specific noncompliant conditions within the agreed time frame. OSEP should also encourage the state's use of sanctions in this manner when the state's compliance monitoring indicates that LEAs are failing to correct findings of noncompliance.
V. IDEA Litigation Challenging State Noncompliance
A. Introduction Under the Individuals with Disabilities Education Act (IDEA), parents and families of children with disabilities play a key role in enforcing the law. They initiate litigation and raise issues that otherwise may not gain attention. In order to pursue these issues, parents must find attorneys who are knowledgeable about IDEA and willing to accept cases where fee payment may be deferred or delayed until the case is settled. In other words, the attorney may not get paid unless the client wins and the court awards attorney's fees. Damages are rarely awarded in these cases, which are often protracted and expensive. During the pendency of the cases, until they are settled, the attorneys must be in a position to work without compensation.
Litigating attorneys in the private bar who are experts on IDEA are not commonplace.
Frequently specialty public interest organizations will accept such cases. The Protection and Advocacy systems (P&As), which provide legal representation and advocacy for people with disabilities in every state in the country, represent families in many special education cases.
"As you look at the priorities that are being set by the [P&As], almost all of our cases now are expulsion/suspension cases. We're just trying to keep kids in the classrooms."-- Curt Decker, Executive Director, National Association of Protection and Advocacy Systems (NAPAS), on the need for OSEP to fund legal advocacy for parents[289]They are federally funded to provide such support. Nonprofit organizations such as the Disability Rights Education and Defense Fund (DREDF), the contractor for this report, also provide such representation, but usually without federal funding. Both organizations report that they do not have sufficient resources to respond to all the requests for assistance that they receive from parents of students in special education. Without adequate support these organizations are unable to assist parents in raising issues, such as the following ones, which generate IDEA compliance.
B. Summary of Litigation in California, Illinois, and Texas In three recent cases, parents have challenged their state's monitoring and enforcement system in failing to address local noncompliance. Although the local education agency (LEA) and, ultimately, the state education agency (SEA) have responsibility for ensuring FAPE to all children with disabilities in the state, when the LEA fails in its responsibility to provide services and the SEA fails to properly monitor and enforce the law, as the following cases reflect, the burden of enforcement falls on parents.
In Corey H. v. Board of Education of the City of Chicago, Chicago public school students with disabilities brought a class action against both the City of Chicago Board of Education (CBE) and the Illinois State Board of Education (ISBE).[290] The students sought declaratory and injunctive relief to correct CBE's and ISBE's widespread failure to educate children with disabilities in the least restrictive environment (LRE).[291]
Although CBE agreed to settle with an extensive plan for correcting the LRE violations, ISBE continued to argue that it fulfilled the IDEA's LRE mandate.[292] ISBE claimed that IDEA (20 U.S.C. 1412(6)) requires only that it provide oversight and general supervision of CBE's LRE efforts.[293] ISBE also argued that its monitoring efforts were adequate because OSEP had approved Illinois' state plan including its monitoring plan. The court, however, found that Congress intended to place final responsibility and accountability in one agency, and held that once ISBE had accepted IDEA funds, it was responsible to ensure compliance with the IDEA's LRE requirements.[294] As the court put it, "the evidence presented at trial demonstrates beyond doubt that, despite the fact that the LRE mandate has been on the books since 1975, the Chicago public schools have languished in an atmosphere of separate and unequal education for children with emotional, mental, and behavioral difficulties."[295] The fact that OSEP may have approved Illinois' plan was not dispositive.[296] The court affirmed the right of parents to enforce their children's rights and ensure compliance with IDEA independent of OSEP's actions or inaction. To the court, ISBE clearly violated its duty to establish its own effective monitoring and enforcement system.[297]
The Corey H. court found numerous systemic failures in ISBE's monitoring and enforcement of IDEA's LRE requirements: students with low-incidence disabilities were placed in highly restrictive placements, ISBE's funding formula perpetuated segregating children with disabilities, and when the CBE failures were pointed out to ISBE, ISBE took little or no action to ensure the failures were corrected.[298] The court ordered the ISBE to identify and correct its LRE violations, inform its teachers and administrators of their IDEA responsibilities regarding LRE implementation, certify teachers according to LRE requirements, and establish a state funding formula that reimburses local agencies for educating children in the least restrictive environment appropriate to their individual needs. The court has since appointed its own expert to develop an effective monitoring and enforcement system for Illinois. A monitoring system currently in development will closely follow the focused monitoring approach being tested in Texas.
Another recent case challenging a state's failure to monitor and enforce LEA compliance with IDEA is Angel G. et al. v. TEA. Filed in 1994, this case was brought by parents on behalf of their children who resided in Texas Residential Care Facilities (RCF). The case alleged that the Texas Education Agency (TEA) failed to meet three responsibilities required of a state education agency by IDEA: (1) child find, (2) development of interagency agreements, and (3) effective monitoring and enforcement of LEA compliance with IDEA.
In 1996, the court in Angel G. approved a settlement agreement that resolved both the child find and interagency agreement issues but left open the issue of the effectiveness of TEA's monitoring system. TEA continued to fail to assure that its RCFs provide a free appropriate public education (FAPE) to children and youth with disabilities who reside in these facilities. An independent consultant issued a report finding TEA's monitoring system to be "fundamentally flawed" and recommended that TEA convene a group of experts to develop a replacement or supplemental system of special education monitoring. TEA initially refused to implement this recommendation but later informed the court that it had made substantial changes to its current monitoring system to ensure compliance with IDEA. The court requested that each party submit their plans for an effective special education monitoring system and held oral argument on the adequacy of these plans. Following this hearing, the court issued an order setting the case for an evidentiary hearing to begin on August 9, 1999, and to continue as needed.[299] At this hearing, the court will examine "whether the components of the plan TEA filed in this case on August 14, 1998, are adequate to enable TEA to meet its burden as an SEA...."
In the most recent of these cases challenging the state's monitoring system, a group of eight children with disabilities in East Palo Alto, California, brought a class action lawsuit in November 1996 against their school district, the Ravenswood City Elementary School District, for extensive violations with all of the substantive and procedural requirements of IDEA;[300] (e.g., failure to provide FAPE, extensive LRE violations, failure to ensure parent participation, utilizing discriminatory evaluation procedures, etc.).
The plaintiff children in this case, Emma C. v. Eastin, also sued the California Department of Education (CDE) for failing to monitor and enforce the law despite repeated findings of noncompliance in the school district.
After a period of intensive law and motion activity, the U.S. district court made a number of critical rulings in Emma C. The court held that (1) all available remedies, including money damages and compensatory education, are available under IDEA against the CDE and against members of California's Board of Education in their individual capacities; (2) that the nature of the systemic problems alleged in the suit made exhaustion of administrative remedies futile and therefore unnecessary; and (3) that the CDE was at that time incapable of ensuring compliance in the district because of the substantial inadequacies in its own monitoring and complaint systems.[301] The court certified a class comprised of all past, present and future special education students in the district.
Following these court rulings, the plaintiff children in Emma C. and the CDE entered into a tentative settlement agreement in which CDE agreed to undertake a comprehensive step by step approach to bring Ravenswood into compliance. Plaintiffs also reached agreement with the district in which the district primarily agreed to abide by any corrective action plan developed by the state and independent monitors and provided for compensatory education to all eligible children.
Plaintiffs and the CDE are negotiating an agreement to change California's monitoring system to the focused monitoring approach proposed by the plaintiffs in the Angel G. litigation. The CDE has taken substantial steps already to convert to this approach, including commitment to a pilot program to test whether it will result in greater compliance.
C. Development of More Effective Monitoring Systems A group of these experts convened by the plaintiffs designed a proposed focused monitoring system for Texas.[302] Known as the Chicago Group because the meeting was held in Chicago, these experts continue to flesh out the details of the system.[303] In addition, advocates and experts in the states of Texas, California, and Illinois are reviewing the proposed system to refine and delineate it and address the many related complex issues. The state of California has committed to adopting this focused monitoring system and planned to conduct its first pilot program in 1999. The following is an overview of the proposed focused monitoring system.
The Texas work articulated five principles that provide the underpinnings for an effective state IDEA monitoring system. The system must (1) address all legal requirements and educational results for students, (2) include public involvement, (3) build on existing student data to increase system efficiency, (4) direct resources to areas of greatest need, and (5) result in timely verification or enforcement of compliance. Their approach is based on the notion of continuous improvement with a data-based accountability system.[304]
The three components of the compliance monitoring system are (1) performance review, (2) policy review, and (3) complaint management. These three system components take place within the context of three ongoing activities: (1) the Comprehensive System of Personnel Development (CSPD), (2) oversight and enforcement, and (3) data design, analysis, and review.[305]
At the heart of this system is the performance review process, which works as follows. The state agency conducts a performance review of each LEA. The outcome of the review is used by the SEA, in part, to place LEAs into one of four categories: (1) Continuous Improvement District --no additional compliance activities required by the state agency; (2) Data Validation District--sixty LEAs randomly selected annually to verify reported data and examine procedural compliance; (3) At-Risk District--self-study supplement to district improvement plan required; or (4) Focused-monitoring district--on-site investigation of specific areas of noncompliance conducted by the state.[306]
In order to determine the category of each LEA, the state must develop a template for analyzing special education performance data and measuring compliance. Critical variables or indicators must be determined. Variables could include measures of graduation rates, drop-out rates, academic achievement levels, and placement (LRE) data. Standards must be developed for three types of trigger values. The first trigger value, which would apply to each variable, is the "at-risk" trigger. This trigger identifies LEAs that are "at risk" in their performance in that area. Critical variables would receive one trigger in addition to the "at risk" trigger. The second trigger for critical variables is the focused monitoring trigger, which identifies the districts that will receive a focused monitoring visit. The third value is used as a benchmark for each critical variable. The benchmark serves as the statewide performance goal for the critical variables designed to improve the performance levels.[307]
The focused district monitoring occurs when an LEA exceeds the trigger for any critical data variable. The state creates an investigation plan that is tailored to the identified areas of noncompliance prior to the visit. The plan is individualized for each LEA and must incorporate several features including focusing on measurable data that indicate compliance or noncompliance with the identified issue, classroom observation, and input from parents and students. Districts that are designated as "at-risk" or "focused monitoring" must have plans for correcting areas of noncompliance. Technical assistance and personnel training should be provided to the LEA by the SEA if needed. The SEA must develop written procedures that outline the progression from noncompliance findings to enforcement so that they are consistently applied for each noncompliant LEA. These procedures should be clear to LEAs so that there is no doubt about the consequences for ongoing noncompliance.[308]
Likewise, the state must have a system of progressive sanctions to use whenever any LEA fails to correct noncompliance within a specific time line. The proposed range of sanctions is as follows in ascending order:
Mandatory First-Level Sanctions require the state to send a letter of continued noncompliance to all families of students with disabilities served by the LEA and members of the state legislature.
A public hearing is held by the district's school board and the noncompliance information is a consideration in the evaluation of the LEA superintendent and relevant principals.
Mandatory Second Level Sanctions, which are to be implemented within 60 days of the first level of sanctions if noncompliance continues, require lowered accreditation of the noncompliant LEA and suspension or termination of responsible administrative officials.
Mandatory Third Level Sanctions, which are imposed 60 days after Level 2 sanctions if noncompliance continues, require a choice of one of the following options: (1) transference of federal and state special education funds to a neighboring LEA for oversight of the provision of special education in the noncompliant district; (2) partial withholding of federal and state special education funds while the LEA must continue to provide required services; (3) withholding of all federal and state special education funds while the LEA must continue to provide required services; and (4) recovery by the state of previously awarded federal and state funds.[309] The elements of this proposed system have potential for correcting some long-standing weaknesses in Texas, California, and Illinois state monitoring. The proposed system has been implemented on a "pilot" basis only in California; more time is needed to test its effectiveness.
D. Findings and Recommendations
Finding # V.1 Parent advocacy and litigation have been critical means for exposing and remedying persistent and systemic IDEA noncompliance. The law depends on litigation in order to function effectively. Parents of children with disabilities are uniquely situated to identify and raise the legal issues related to persistent noncompliance with IDEA. Their financial situations, however, typically do not permit sustained private legal action, and not enough public resources are available to assist them.
Recommendation # V.1A Whenever Congress and the President approve an increase in the funding to be distributed to local schools under Part B of IDEA, Congress and the President should appropriate at the same time an amount equal to 10 percent of the total Part B increase to fund free or low-cost legal advocacy services to students with disabilities and their parents through public and private legal service providers, putting competent legal assistance within their financial reach and leveling the playing field between them and their local school districts. Litigation by parents is still a necessary recourse when administrative action at the state level to obtain FAPE for their child has failed. In some states, litigation has also been a vital catalyst to a more effective implementation of IDEA across the board. Access to legal assistance that could result in obtaining an appropriate education for their children remains beyond the financial reach of too many families. Federal funds currently available for low-cost legal services under the Developmental Disabilities Act, the Technical Assistance Act, the Rehabilitation Act, and the Protection and Advocacy for Individuals with Mental Illness Act must be supplemented to begin to address the need. This will be a start toward putting families on a more equal playing field with school districts that use tax dollars to hire legal counsel to assist them in avoiding compliance with IDEA requirements.
Recommendation # V.1B
OSEP should endorse the allocation of additional funding to public and private legal service providers, including the state PTIs, P&As, and IL centers, the private bar and nonprofit legal services centers, for the purpose of carrying out a coordinated strategy for making legal advocacy services more available to students with disabilities and their families.
Finding # V.2
Pilot programs in compliance monitoring and enforcement at the state level are testing the use of a broad range of flexible enforcement options in the context of corrective action plans linking specific noncompliance findings with agreed upon enforcement options and time lines.
Recommendation # V.2
OSEP should develop and test the use of state compliance agreements that incorporate appropriate sanctions selected from a broad range of enforcement options, and link them to the state's failure to correct specific noncompliant conditions within the agreed time frame. OSEP should also encourage the state's use of sanctions in this manner when the state's compliance monitoring indicates that LEAs are failing to correct findings of noncompliance.
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