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 4th to 5th grade
level, had mastered math at the 5th to 6th 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 11th
grade, that all of the academic goals be written at the 11th grade
level. . . using, as appropriate, the 11th 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.”
_ _ _ _
_
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.
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.
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 11th grade level- - even though the student was
reading at the 4th to 5th grade level, had mastered math
at the 5th to 6th 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 11th
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 5th 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.
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:
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.”
_ _ _ _
_ _ _ _ _ _
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
