Political Doublespeak, Students with Disabilities, and Common Sense: A Legal Case Study on Students’ Rights and Standards-based IEPs

How Departments of Education Use Language, Fear, and Ignorance to Get their Way

Dear Colleagues,

   I now do a lot of Expert Witness work around the country- - usually helping parents and legal advocacy firms to get the services that their children and adolescents with disabilities need and deserve under the law.

   While this typically involves testifying in federal or state court, it also often results in me continuing to work with the parents and students with disabilities (SWD) in (Individualized Education Program) IEP meetings at their schools to extend (and enforce) the process.

   Over the past three weeks, I have been doing the latter work... attending IEP meetings for an older adolescent with both physical and cognitive/learning disabilities who is attending an independent public school devoted to students with those disabilities (obviously, confidentiality requires this oblique description).

   The case actually began in a Due Process hearing where I was actually instrumental in suspending the legal proceedings and helping to negotiate a Settlement Agreement.  This resulted in the meetings where our goal was to write the student’s IEP and Transition Plan.

   In writing these Plans, it is essential to note that the student was reading at the 4^th to 5^th grade level, had mastered math at the 5^th to 6^th grade level, needed significant curricular modifications and instructional accommodations to learn, required assistive supports, and had few independent learning skills.

   And it is exactly here, that the proceedings of the IEP meetings (we actually needed three separate meetings to accomplish our task) went awry. 

   The Issue?  The School’s Special Education Director insisted that it was a requirement of the Arkansas Department of Education’s Special Education Unit (ADE-SEU), because the student was in 11^th grade, that all of the academic goals be written at the 11^th grade level. . . using, as appropriate, the 11^th grade Common Core Standards.

   In fact, he stated that if the goals were not written at this level, his school could be found “out of compliance” when they were monitored by ADE-SEU. . . and that “penalties” could be assessed.

   All of this, he told me, was “the law.”

_ _ _ _ _ _ _ _ _ _ 

Analyzing this Case Using:  The Sting

   The 1974 Academy Award Winner for “Best Film” was The Sting.  Set in Chicago in September, 1936, the movie was about a young con man (Robert Redford) who wanted revenge for the murder of his partner.  He teamed up with a “master of the big con” (Paul Newman), and together they swindled the criminal banker (Robert Shaw) who ordered the “hit,” by getting him to bet on an elaborately-staged horserace.

   Different sections of the film were introduced using slang references for different parts of the con:  for example, the “Set-Up,” the “Hook,” the “Line,” and the “Sting.”

   For this Case, however, the “actors” are the U.S. Department of Education’s Office of Special Education Programs (OSEP), the Arkansas State Department of Education’s Special Education Unit (ADE-SEU), and the School’s Local Education Agency Special Education Supervisor- - where we were writing the IEP.

_ _ _ _ _ _ _ _ _ _

Scene 1:  The “Set-Up”

   Given the “Issue” described above, there are three elements to the “Set-Up” in this Case:  Language, Fear, and Ignorance.

   Relative to Language:  The OSEP uses the “language” of the law- - most notably the Individuals with Disabilities Education Act of 2004 (IDEA)- - to write statutes with regulatory “language” that then operationalizes the law.  It then periodically follows this up with “Dear Colleague” letters that, according to its website: “(are to) provide information, guidance and clarification regarding implementation of IDEA. . . “

   Critically:  Unless a “Dear Colleague” letter specifically references actions written into law or statute, much of the letter could reflect OSEP’s interpretations, preferences, or recommendations.

   The problem:  is when OSEP’s “interpretations, preferences, or recommendations” either:

   * Are incorporated into their annual State Performance Plan (SPP) and Annual Performance Review (APR) processes- - such that state departments of education are held accountable for these actions; or

   * State department of education (SEA) personnel take OSEP statements as literal facts, and then require school districts to comply with actions that have not been codified in law.

_ _ _ _ _

   In the former situation, over many years, OSEP has “forced its will” by requiring states to do or demonstrate all sorts of special education practices that either are their interpretations of the law, or their beliefs regarding effective practice. 

   Unless Congress (the Legislative branch) or the Courts (the Judicial branch) “change” or “confront” OSEP’s preferences (the Executive branch), OSEP will continue to dictate the agenda.

   The latter situation results in a “kick the dog” scenario.  That is, the state departments of education take what OSEP is “requiring” them to do, and then “require” the same of their districts and schools.

_ _ _ _ _

   The “Kicker” (pun intended) is that when confronted, OSEP routinely “backs off” of their preference- - saying that it is “just one way to comply with the law.”  But, they do not make this statement unless confronted.

   Unfortunately, the state departments of education often do not do this- - unless they question OSEP, and that’s usually when one of their helpful “Dear Colleague” letters is written.

   Parenthetically, this has occurred for over 20 years as OSEP has pushed its own PBIS, RtI, and Multi-Tiered Service approaches on SEAs (and, thus, LEAs).  But when confronted in national meetings (as I have done), they fully acknowledge that “every state and school can choose its own approaches, programs, and strategies.”

   [CLICK HERE to see my Blog specifically on this topic.]

_ _ _ _ _

   Relative to Fear:  The fact that state departments of education (SEAs) are annually evaluated by OSEP (through their State Performance Plan- - SPP and Annual Performance Review- - APR processes, as noted above). . .

and school districts are similarly evaluated annually (through submitted data) and approximately every three years (through a “Monitoring Visit”) by their SEAs. . .

is significant.

   I have had State Directors of Special Education tell me explicitly that they are afraid to either (a) question OSEP on some of its statutory interpretations, or (b) use approaches other than those “recommended” by OSEP (e.g., PBIS, RtI, and Multi-Tiered Services), because they are afraid that their annual performance reports will receive more scrutiny.

   Even in the IEP meetings at my school this week, I had a special education teacher tell me that they had to write IEP goals at the student’s chronological (instead of functional) level, because the ADE-SEU monitors would “red-flag” the goals as being out-of-compliance.

_ _ _ _ _

   Critically:  there are ramifications for states (relative to OSEP) and districts (relative to their SEAs) when they are seen as being “different, resistant, or combative,” their annual performance data receive greater scrutiny, and then. . . they are found to be “out-of-compliance.” 

   * First, they can eventually be directed by the authority above them to write and execute a remediation plan, and use their federal special education dollars to fund that plan; or

   * They can receive fewer (or no) federal special education dollars to help fund their special education programs.

   They are also publicly identified as “needing assistance”- - something that does not help one to maintain a positive reputation with one’s constituents and publics.

   [CLICK HERE for an Education Week story on this year’s States identified by OSEP as “Needing Assistance.”]

   Thus, there is a “fear factor” here- - the fear of questioning OSEP’s or the SEA’s interpretations of IDEA, or the fear of “not complying” with their interpretations, and incurring their respective attention, increased scrutiny, and/or “wrath.”

   One of the ways that SEAs “dilute” this fear is through its National Association of State Directors of Special Education (NASDSE).  Indeed, when NASDSE questions OSEP on one of its policy-level interpretations, individual State Special Education Directors are protected.

   BUT:  Special education directors in individual school districts rarely have this same protection through their state professional association.

_ _ _ _ _

   Relative to Ignorance:  Some professionals “do not know what they don’t know,” they cannot find “the time to know,” or they assume that OSEP and/or their state departments of special education “must certainly know.”

   I understand that we are all overwhelmed with both professional and personal responsibilities, and that we need to prioritize what we do and how we pursue areas where we are deficient.

   In the first area, I am particularly concerned with the number of new district special education directors at the state level. . . and their (lack of) intimate and detailed understanding of IDEA and state special education law.  In one Southern state, I have been told that more than one-third of the district special education directors are new within the past two years. . . and that many of these directors have no special education certification or experience.

   How can this be?  And, how will this affect the quality of special education services in their district and schools?

_ _ _ _ _

   But beyond this - - Some special education directors cite an interpretation of federal or state special education law, believe it is true, and defend their assertion by simply saying “It’s the law”. . .  without having read or considered the actual law.   

   I apologize for being blunt. . . but this is “simply” ignorant.

   Moreover- - others blindly assume that those working at OSEP or within our SEAs (while good people) are always working in our best interests- - and more importantly in the best interests of our students, staff, and schools- - without being influenced by politics, professional regard, or personal gain (e.g., promotions, tenure, and merit pay).   

   Once again, this is simply ignorant.

   In the context of today’s message:  there are times when OSEP or an SEA interprets a law or statute incorrectly, from a single professional perspective, or because of its own agenda or preference. 

   When these interpretations- - and even their underlying explanations- - are contrary to effective practice (even if only in one state or one individual district), could be improved on (using a different program or enhanced practices), or are potentially harmful to students. . . they must be questioned. . . if not contested.  It is not acceptable to blindly trust. . . or naively accept. 

   As W. Edwards Deming said: “In God We Trust, All Others Must Bring Data.”

_ _ _ _ _

   In summary:  Unfortunately, there are times when Language, Fear, and Ignorance occur- - in isolation or collectively- - and students are harmed. 

   Everything that we do as educators must reflect a direct consideration of student outcomes.

   We must be data-driven.  We must experiment and question.  But, we also must courageously focus on common sense and the common good.

_ _ _ _ _ _ _ _ _ _

Scene 2:  The “Hook”

   Returning now to my Case:  You will remember that the Issue is. . .

   the School’s Special Education Director’s insistence that the IEP Team was required to write IEP academic goals that used the Common Core (or other state) Standards that were at the student’s chronological 11^th grade level- - even though the student was reading at the 4^th to 5^th grade level, had mastered math at the 5^th to 6^th grade level, needed significant curricular modifications and instructional accommodations to learn, required assistive supports, and had few independent learning skills.

   [Parenthetically, isn’t it interesting that the OSEP, the ADE-SEU, and the School’s Special Education Supervisor are NOT requiring the student’s behavioral goals to be written at the 11^th grade level !!!]

   Clearly, I knew that the Special Education Director’s statement was either (a) not true, or (b) not in the student’s best interest.  But not being a full-fledged expert in Standards-based IEPs, I decided to investigate.

   In fact, after the first IEP planning meeting, I sent an e-mail to the Arkansas Department of Education—Special Education Unit Supervisor in charge of this area asking for a “definitive” statement to clarify this “policy.”

   The Supervisor’s response was as follows:

   I am linking a Dear Colleague letter from November 2015 that addresses this issue.

   [CLICK HERE for letter.]

  I am also attaching a link from CCSSO (the Council of Chief State School Officers- - the National Association of all of the State Education Commissioners across the country) regarding this question and ESSA. 

   [CLICK HERE for link.]

_ _ _ _ _

   After reading the e-mail’s attachments, I e-mailed the ADE-SEU Supervisor back:

    Thank you for this information and your quick response.  I am aware of both of these documents.

   I need a definitive statement from you. . . or someone from the ADE or ADE-SEU.

   The CCSSO holds no legal or statutory authority over the United States or Arkansas. 

   Moreover, the OSEP "Dear Colleague" letter that you sent to me is advisory (not mandatory--regardless of what language they use) in nature.

_ _ _ _ _

   Thus, my question again:  The Special Education LEA that I am working with says that the academic IEP goals--for this 18-year-old cognitively impaired student-- MUST be taken from the 11th grade Common Core Standards.  The "MUST" (in his opinion) is a state-specific legal requirement.  He has told me that the ADE-SEU "requires" this. . . and that his district would be deemed to be "not in compliance" by the ADE-SEU should his district be officially monitored-- and it was determined that the 12th grade Common Core Standards were not used in this situation.

   Is this true?  Obviously, IDEA does not require this. . . nor does the recently reauthorized ESEA.

   So, I need to know-- definitively and WITHOUT ADE-SEU "double-speak"-- is this a statutory requirement in Arkansas?  If so, can you send me the law or regulation that requires this?

   If this is not a statutory requirement, how did this LEA come to believe this, and why is he requiring this in the writing of the IEP in question? 

   Finally, as an expert for the Department in (these areas), how does it make sense to use the 11th grade literacy Common Core Standards for a student with an IQ in the 60s, and a reading level below the 5^th grade?

_ _ _ _ _

   Commentary.  There are two “hooks” here.

   The first hook is the “Hook of Action.” 

   That is, rather than accept or debate the School Special Education Supervisor’s IEP “requirements,” I actually sent an e-mail to the ADE-SEU to get the Department’s position and policy clarified.  Related to this was the fact that I also asked the ADE-SEU to go “on the record” with a definitive statement regarding how Standards-based IEP goals could/should be written.

   The second hook is the “Hook of Validation.”

   I had to take the information provided by the ADE-SEU Supervisor and validate whether she answered my questions, and answered them accurately.

_ _ _ _ _

   In reality, she did and did not answer my questions.  While she did not give me a definitive statement that I could then quote to the School’s Special Education Supervisor, she did give me the “national” information that (I presumed) the ADE-SEU was basing its Standards-based IEP policy and practice on.

   BUT:  Those documents again demonstrate one of the essential points of this message:

   The documents largely reflect:

   * The interpretations, preferences, or recommendations of the CCSSO and OSEP based on law;

   * These interpretations are advisory in nature, and not required of state departments of education, districts, or schools; and

   * Many times the documents use language that makes it look like their recommendations are required.

_ _ _ _ _

Sidebar:  What the CCSSO (and Federal Law) Really Says About Standards-based IEPs for Students with Disabilities

   In reviewing the two documents sent by the ADE-SEU Supervisor:

   If you look at the “Standards” section of the Council of Chief State School Officers’ document, ESSA:  Key Provisions and Implications for Students with Disabilities (Link provided above), the paper misquotes or (due to its paraphrasing) misrepresents the new Elementary and Secondary Education Act (ESEA, also known as ESSA).

   The CCSSO paper states:

Challenging State Academic Standards. ESSA requires (my emphasis added) the same academic content and achievement standards for all students (except alternate academic achievement standards for students with the most significant cognitive disabilities).

   The actual ESSA law states:

‘‘(1) CHALLENGING STATE ACADEMIC STANDARDS.—

     ‘‘(A) IN GENERAL.—Each State, in the plan it files under subsection (a), shall provide an assurance that the State has adopted challenging academic content standards and aligned academic achievement standards (referred to in this Act as ‘challenging State academic standards’), which achievement standards shall include not less than 3 levels of achievement, that will be used by the State, its local educational agencies, and its schools to carry out this part.

   A State shall not be required to submit such challenging State academic standards to the Secretary.

     (B) SAME STANDARDS.—Except as provided in subparagraph (E), the standards required by subparagraph (A) shall—‘‘(i) apply to all public schools and public school students in the State; and ‘‘(ii) with respect to academic achievement standards, include the same knowledge, skills, and levels of achievement expected of all public school students in the State."

  

   Analysis:  Nowhere does ESSA say that a student’s Individualized Education Program (IEP) must have goals that are based on same-aged academic standards.

   Moreover, the “not less than 3 levels of achievement” is a reference to “Basic,” “Proficient,” and “Advanced” characterizations of a student’s assessed skill in a specific academic area (as on the National Assessment of Educational Progress- - NAEP).

   Finally, my interpretation of Paragraph (B) above is that ESSA requires one set of standards- - determined by each state- - in specific academic areas (at least “mathematics, reading or language arts, and science, and. . . any other subject determined by the State”) for all students (except- - as noted in the CCSSO paper- - students with the most significant cognitive disabilities).

   That is, ESSA does not permit states to develop different academic standards, for example, for gifted students, typical students, low average students, disabled students, students from impoverished backgrounds, etc.

_ _ _ _ _

   The CCSSO paper goes on to accurately cite and quote ESSA’s section on “Alternative Academic Achievement Standards for Students with the most significant Cognitive Disabilities."

   Indeed, ESSA says that:

 ‘‘(i) IN GENERAL.—The State may, through a documented and validated standards-setting process, adopt alternate academic achievement standards for students with the most significant cognitive disabilities. . . . “

   This section of the law goes on to state that these alternative standards must be “designated in the individualized education program developed under. . . the Individuals with Disabilities Education Act. . . for each student as the academic standards that will be used for the student.”

   Parenthetically:  ESSA refers to the “individualized education program” for students with disabilities four times in the entire law:  three times for students with the most significant cognitive disabilities (in the academic standards section, as above), and once relative to English Language Learners and their “Language Instruction.”  

   ESSA never uses the term “individual education plan,” or even the acronym “IEP” in its text.

_ _ _ _ _

   The CCSSO paper also states:

"Proposed regulations under ESSA would require each SEA to provide evidence demonstrating that:

   * it has adopted challenging academic content standards and aligned academic achievement standards in the required subjects and grades;

   * its alternate academic achievement standards for students with the most significant cognitive disabilities meet the requirements of section 1111(b)(1)(E) of the ESEA, as amended by the ESSA."

   NOTE:  that the paper uses the words, “Proposed regulations.”

_ _ _ _ _

   Finally, with a direct statement connecting ESSA’s Academic Standards to special education IEPs, the CCSSO paper states:

   "Individualized Education Programs (IEPs) must be aligned to state academic content standards for the grade level in which the child is enrolled. While this requirement is not new, the Office of Special Education and Rehabilitative Services (OSERS), in a November 2015 Dear Colleague Letter, clarified this requirement, which has important implications for both instruction and assessment."

   Analysis:  While the CCSSO paper makes this statement in a column titled “Implications/Questions,” it uses the term “must”, and references the same OSEP “Dear Colleague” letter sent to me by the ADE-SEU Supervisor in her e-mail to me as support for the ADE-SEU's Standards-based IEP approaches.

   Undefined in the CCSSO’s statement, however, is the construct: “must be aligned.”

   But:  let’s review the OSEP "Dear Colleague" letter.

_ _ _ _ _ _ _ _ _ _

Sidebar Continued:  What OSEP (and Federal Law) Really Says About Standards-based IEPs for Students with Disabilities

   OSEP’s “Dear Colleague” Letter (November 16, 2015) states:

   “To help make certain that children with disabilities are held to high expectations and have meaningful access to a State’s academic content standards, we write to clarify that an individualized education program (IEP) for an eligible child with a disability under the Individuals with Disabilities Education Act (IDEA) must be aligned with the State’s academic content standards for the grade in which the child is enrolled.”

   This statement is footnoted as follows:

   “The Department has determined that this document is a “significant guidance document” under the Office of Management and Budget’s Final Bulletin for Agency Good Guidance Practices, 72 Fed. Reg. 3432 (Jan. 25, 2007). The purpose of this guidance is to provide State and local educational agencies (LEAs) with information to assist them in meeting their obligations under the IDEA and its implementing regulations in developing IEPs for children with disabilities. This guidance does not impose any requirements beyond those required under applicable law and regulations. It does not create or confer any rights for or on any person.”

   Analysis:  With this footnote, OSEP is saying that this document is a guidance document, and that educators are responsible only for the regulations that are required under applicable law and regulations. 

   And yet, OSEP’s statement that a student’s IEP must be aligned with the State’s academic content standards for the grade in which the child is enrolled is notable as it goes beyond the law.

_ _ _ _ _

   The OSEP “Dear Colleague” Letter goes on:

   “Under the IDEA, the primary vehicle for providing FAPE is through an appropriately developed IEP that is based on the individual needs of the child. An IEP must take into account a child’s present levels of academic achievement and functional performance, and the impact of that child’s disability on his or her involvement and progress in the general education curriculum. IEP goals must be aligned with grade-level content standards for all children with disabilities.”

   Analysis:  The Letter cites IDEA’s legal reference to FAPE, and it correctly (in the second sentence above) describes some of IDEA’s criteria for an appropriate IEP.

   BUT:  The next statement regarding IEP goals being aligned to grade-level content standards is nowhere (based on my extensive word-search) in the law. 

   In fact, the only place in IDEA where the term “content standards” exists (one citation in the entire law) is related to where the “Special Education Research Center” was mandated to “examine State content standards and alternative assessments for students with significant cognitive impairment.”

   At the same time, the OSEP Letter does note that:

   “The U.S. Department of Education (Department), in its regulations implementing Title I of the ESEA, has clarified that these standards (i.e., the challenging academic content and achievement standards that all States must apply to all schools and all children—my insertion based on the 2001 No Child Left Behind ESEA Act) are grade-level standards. 34 CFR §200.1(a)-(c). To assist children with disabilities in meeting these grade-level academic content standards, many States have adopted and implemented procedures for developing standards-based IEPs that include IEP goals that reflect the State’s challenging academic content standards that apply to all children in the State.”

   While the cited regulation must be followed (i.e., the use of grade-level standards), once again no federal education law has connected these grade-level standards to the writing of IEP goals.

   Moreover, any citations in the OSEP Letter to the Elementary and Secondary Education Act of 1965 (ESEA) and its 2001 No Child Left Behind amendment have now been replaced by the 2015 Every Student Succeeds Act (ESSA) amendment.

_ _ _ _ _

   The OSEP “Dear Colleague” Letter goes on in a section titled “Implementation of “General Education Curriculum’”:

   “Under the IDEA, in order to make FAPE available to each eligible child with a disability, the child’s IEP must be designed to enable the child to be involved in and make progress in the general education curriculum. 20 U.S.C. §1414(d)(1)(A). The term “general education curriculum” is not specifically defined in the IDEA. The Department’s regulations implementing Part B of the IDEA, however, state that the general education curriculum is “the same curriculum as for nondisabled children.” 34 CFR §300.320(a)(1)(i). In addition, the IDEA Part B regulations define the term “specially designed instruction,” the critical element in the definition of “special education,” as “adapting, as appropriate to the needs of an eligible child, the content, methodology, or delivery of instruction to address the unique needs of the child that result from the child’s disability and to ensure access of the child to the general curriculum, so that the child can meet the educational standards within the jurisdiction of the public agency that apply to all children.” 34 CFR §300.39(b)(3) (OSEP’s emphasis added). Otherwise, the IDEA regulations do not specifically address the connection between the general education curriculum and a State’s academic content standards.”

   And now, here is the next “kicker.” 

   The OSEP letter, in an “Analysis” and then an “Implementation of the Interpretation” section, states the following:

   “Analysis:  The Department interprets (my emphasis) “the same curriculum as for nondisabled children” to be the curriculum that is based on a State’s academic content standards for the grade in which a child is enrolled. This interpretation, which we think is the most appropriate reading of the applicable regulatory language, will help to ensure that an IEP for a child with a disability, regardless of the nature or severity of the disability, is designed to give the child access to the general education curriculum based on a State’s academic content standards for the grade in which the child is enrolled, and includes instruction and supports that will prepare the child for success in college and careers.

   Implementation of the Interpretation:  Based on the interpretation of “general education curriculum” set forth in this letter, we expect annual IEP goals to be aligned with State academic content standards for the grade in which a child is enrolled (my emphasis).  This alignment, however, must guide but not replace (my emphasis) the individualized decision-making required in the IEP process.  In fact, the IDEA’s focus on the individual needs of each child with a disability is an essential consideration when IEP Teams are writing annual goals that are aligned with State academic content standards for the grade in which a child is enrolled so that the child can advance appropriately toward attaining those goals during the annual period covered by the IEP. In developing an IEP, the IEP Team must consider how a child’s specific disability impacts his or her ability to advance appropriately toward attaining his or her annual goals that are aligned with applicable State content standards during the period covered by the IEP.  For example, the child’s IEP Team may consider the special education instruction that has been provided to the child, the child’s previous rate of academic growth, and whether the child is on track to achieve grade-level proficiency within the year.”

   Analysis:  So, based on the bolded statements above, here- - going back to my Case- - is the source of the School’s Special Education Director’s (through the ADE-SEU) belief that annual IEP goals must be aligned with grade-level State academic standards.

   BUT (as above), this is not explicitly required by either ESSA or IDEA, and (as immediately above) it is based on two-levels of inductive reasoning by OSEP:  first, its interpretation of “the same curriculum as for nondisabled students”. . . and second, its decision on how its own interpretation should be implemented.

_ _ _ _ _

   However:  it appears that OSEP’s guidance and interpretation relative to IEP goals being aligned with grade-level State standards has become what some departments of education have emphasized, and what district special education directors have heard.

   What has not also be emphasized is a statement toward the end of OSEP’s “Dear Colleague” letter:

   “In a case where a child’s present levels of academic performance are significantly below the grade in which the child is enrolled, in order to align the IEP with grade-level content standards, the IEP Team should estimate the growth toward the State academic content standards for the grade in which the child is enrolled that the child is expected to achieve in the year covered by the IEP. In a situation where a child is performing significantly below the level of the grade in which the child is enrolled, an IEP Team should determine annual goals that are ambitious but achievable. In other words, the annual goals need not necessarily result in the child’s reaching grade-level within the year covered by the IEP, but the goals should be sufficiently ambitious to help close the gap (again, my emphasis). The IEP must also include the specialized instruction to address the unique needs of the child that result from the child’s disability necessary to ensure access of the child to the general curriculum, so that the child can meet the State academic content standards that apply to all children in the State.”

   Analysis:  With the statement above, OSEP has fully deployed a “safety net” such that no one can accuse it of acting “outside of the law.”

   But if state departments of education communicate or emphasize the first “Implementation of the Interpretation” part of the letter, and not the second part of the letter (with their districts and schools), then this becomes a misinterpretation of and over-reach relative to the IDEA law, and a potential disservice to students with disabilities.

   Moreover, if state departments of education monitor and evaluate districts and schools based on the first “Implementation of the Interpretation” part of the letter, and not the second part, then this- - technically- - is inappropriate at best.

   Clearly, the Council of Chief State School Officers (CCSSO) believed the first part of the letter- - never referencing the second.  In fact, remember, the CCSSO paper says that “IEPs must be aligned to state academic content standards for the grade level in which the child is enrolled” and it then references the OSEP “Dear Colleague” letter.   

   And now (in all likelihood), all of the State Commissioners of Education believe that this is true.

   Moreover, remember that the Arkansas ADE-SEU Supervisor cited both the CCSSO statement and the “Dear Colleague” letter as an initial attempt to support the use of grade-level standards-based IEP goals.

_ _ _ _ _

   Finally:  If one were only to read the “Summary” of the OSEP “Dear Colleague” letter, one would leave with a focus on the “Implementation of the Interpretation” part of the letter, and not the second part of the letter.

   The "Dear Colleague" Letter ends:

   “In sum, consistent with the interpretation of “general education curriculum (i.e., the same curriculum as for nondisabled children)” based on the State’s academic content standards for the grade in which a child is enrolled set forth in this letter, an IEP Team must ensure that annual IEP goals are aligned with the State academic content standards for the grade in which a child is enrolled. The IEP must also include the specially designed instruction necessary to address the unique needs of the child that result from the child’s disability and ensure access of the child to the general education curriculum, so that the child can meet the State academic content standards that apply to all children, as well as the support services and the program modifications or supports for school personnel that will be provided to enable the child to advance appropriately toward attaining the annual goals.”

_ _ _ _ _ _ _ _ _ _

Scene 3:  The “Line”

   Returning now to my Case.

   The Arkansas Department of Education Special Education Unit (ADE-SEU) Supervisor responded to my second e-mail in the following way:

Howie,

   I would suggest that you look through the Standards-Based IEP training materials that we have linked to our website.

Thank you.

_ _ _ _ _

   My response was:

 

   Please. . . I have an IEP meeting tomorrow early afternoon, and need clarification directly from you (or someone else at ADE or ADE-SEU) on the question/issue posed by me before this meeting.

   I do not need references. . . As requested earlier, I need a definitive statement.

   The question I posed is not a difficult question. It is either a "Yes" or "No" question.  Beyond that, if the ADE requires that the 11th grade Common Core Standards must be used for this student's IEP, I need to simply know the citation of the law or regulation that requires this.

   Again, this is not complicated.

   I look forward to a timely and direct response to my question.

_ _ _ _ _

   Unfortunately, the ADE-SEU Supervisor was giving me “the Line.”  It appeared that the Supervisor was avoiding my requested “definitive statement”- - perhaps, fearing that it would fully clarify (expose) what I have already described above, and create a “new precedent” for the state.

   Maybe there were other reasons. . .

   Regardless, I was not going to bring “my interpretation” of the materials that she cited into my IEP meeting- - and have them dismissed because they were “my interpretations.”

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Scene 4:  The “Sting”

   The Arkansas Department of Education Special Education Unit (ADE-SEU) Supervisor responded to my third e-mail in the following way:

Howie,  

   I’m attaching a presentation that the program advisors provided across the state last year.  I would suggest that you look at slide 9 as it indicates that the information comes from Section 8 of our special education regulations.  Also, please see the citations on slides 13, 14, and 15.

   We have told districts to align goals with grade-level standards and to document the grade-level standards they are prioritizing for goal areas. We have not said the goal must always be on grade level.  The notes section of slide 17 states, “It does not mean writing goals that are just a restatement of the standards… It does not mean that we will only be looking at grade level content for every student.  There may be some precursor skills the student needs to work on.”

   The notes on slide 18 state, “What it DOES mean is that we refer to the standards to determine and to understand what the expectations are at the grade level.

   We use them as a guide to determine what is important for students to learn and be able to do.  If we want our students to meet those expectations at grade level, we have to know what those expectations are, and we have to use them as a guide.

   We then conduct an analysis to determine the gap between what is expected at grade level and the student’s current skills and knowledge base.”

   The new pilot IEP does not require that each goal be directly tied to one specific grade-level standard.  The guidance that we will give the pilot districts is that the IEP team should consider grade-level standards in order to determine where the student is in relation to that grade-level standard.  The goal should be written to help close the gap between the student’s current instructional level and that grade level expectation.

Section 8 of the Arkansas Procedural Requirements and Program Standards addresses the content of the IEP including alignment with grade level curriculum.

8.08.1 General. The IEP for each child with a disability must include:

A statement of the child’s present levels of academic achievement and functional performance, including -

  1.  How the child’s disability affects the child’s involvement and progress in the general education curriculum (i.e., the same curriculum as for nondisabled children); or meet each of the child’s other educational needs that result from the child’s disability;

  2.  For preschool children, as appropriate, how the disability affects the child’s participation in appropriate activities;

A statement of measurable annual goals, including academic and functional goals designed to -

  1.  Meet the child’s needs that result from the child’s disability to enable the child to be involved in and make progress in the general education curriculum; and

  2.  Meet each of the child’s other educational needs that result from the child’s disability. . . “

   You asked for a simple “Yes” or “No.”  It truly isn’t that simple.  IEP teams must use grade-level standards (Arkansas Content Standards) to determine the strengths and needs for each student.  The goals are written to address the gap between the student’s functioning and those standards.

_ _ _ _ _

   From my perspective, this was a success! 

   While the ADE-SEU Supervisor reviewed and reiterated both State regulation and previous Department training, clearly the comprehensiveness of the statements above were not those understood by the School’s Special Education Supervisor.

   And, let’s remember:  Special education personnel at the School in question told me that they were monitored and evaluated on writing grade-level standards-based IEP, and that they would be “out-of-compliance” if such IEP goals were not written.  But. . . we can address that at another time.

   I had my “definitive” statement, and I had it in writing.  And, I brought copies of this statement, the relevant Arkansas State regulations, and the relevant powerpoint handouts from the State’s Standards-based IEP training to the IEP meeting.

   Moreover, I personally wrote 26 standards-based IEP goals for my client. . . but these goals were written at the student’s functional skills and not chronological grade level.

   The Result:  All 26 of these IEP goals were incorporated into the IEP, and- - most importantly- - we agreed on an excellent IEP that will guide this student’s educational program for the next year.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

  

Summary

   In my 30+ years of doing this, I have seen too many examples where the U.S. or State Departments of Education use “Language, Fear, and Ignorance” to push their own interpretations of law and statute.

   As noted earlier, I understand that we are all overwhelmed with both professional and personal responsibilities, and that we need to prioritize what we do and how we pursue areas where we are deficient.

   But, there are times we need to parse the Language in- - for example- - “Dear Colleague” letters and/or in technical assistance documents disseminated by important educational leadership groups- - like the Council of Chief State School Officers.

   When we find the interpretations of the Language inaccurate- - or there are other interpretations, we need to set aside our Fear of scrutiny or reprisals on behalf of our students and question the Language.

   To assume that our departments of education or educational leaders’ statements or interpretations are always true and accurate without our own analyses, is simply (again, with apologies) Ignorant.

   And Most Critically:  This Ignorance may harm our students (especially those with disabilities) to the degree that they do not receive the instruction, services, supports, and strategies that they need- - and are legally due to them.

   Said a different way:  Don’t get “Stung” by the “Set-Up,” the “Hook,” or the “Line.”

_ _ _ _ _

   I hope that this “Case Study,” and the analyses of law, regulation, and interpretation have been interesting and meaningful to you.

   I hope that your new school year has begun and is proceeding well.

   As always, if I can help your school(s) or district in any of the areas related to these discussions, please do not hesitate to contact me. 

   Your comments are always welcome.

  

Best, 

Howie