Seven Suggestions to Help Districts Avoid Special Education Hearings: A Short-Term Win May Be a Long-Term Loss

Dear Colleagues,

 [CLICK HERE to read this Blog on the Project ACHIEVE Webpage]

Introduction

   Earlier this summer, I served as an Expert Witness for a High School student trying to get more extensive special education services for a very serious and rare medical condition. While we made the best case possible for the Administrative Law Judge, the student lost.

   While I legally understood the Judge’s ruling, the fact is that school districts historically have won the vast majority of special education lawsuits in this country—at both the Due Process and State or Federal Court levels.

   At the same time—having testified many times in State and Federal Court for both students and school districts—I would like to suggest that some Districts focus more on the short-term “Win,” not understanding that, inadvertently, they are also incurring a long-term “Loss.”

   More on this later.

   In the next few years, special education litigation is expected to skyrocket due to the direct and/or related services not provided to Students with Disabilities (SWDs) during the pandemic. In fact, the U.S. Office of Special Education Programs (OSEP) telegraphed this coming “storm cloud” when they published an official Guidance Letter to state and local education agencies on August 24, 2021—while our country was still in the midst of the pandemic.

   The Guidance reiterated OSEP’s “commitment to ensuring children with disabilities and their families have successful early intervention and educational experiences in the 2021-2022 school year.” The byline to the Press Release stated: “Regardless of the COVID-19 pandemic or the mode of instruction, children with disabilities are entitled to receive a free, appropriate, public education.”

   And, the Press Release quoted U.S. Secretary of Education Miguel Cardona: 

"Serving all children and students with disabilities in our public schools isn't just written into law—it’s a moral obligation and strong equitable practice. When we recognize and celebrate these differences as strengths, and when we help all children make progress toward challenging educational goals, everyone benefits."

_ _ _ _ _

   Critically, the pandemic has no “statute of limitations.”

   Thus, it is possible that the parents of a kindergarten student with disabilities—who was not appropriately educated during the pandemic—could file a lawsuit ten years later when that student is failing his/her sophomore year in high school.

   The primary claim? That the pandemic-year loss of services in 2021 created a multi-year “educational cascade of student failure and frustration” in 2031.

   NOTE that I am not saying that these parents will “win” the case.

   What I am saying—for anyone in a district or school who has had to prepare for and participate in a Due Process or Federal special education court case—is that the case still needs to be tried.

   And this will involve countless hours of staff documentation, preparation, and participation. . . not to mention the emotional toll during the entire process.

   Given this, I would like to provide my own “guidance” of what to do and not do when parents of SWDs express serious and ongoing concerns about their child’s IEP services. . . and litigation appears to be on the horizon.

   I do this as a school psychologist who has worked in schools for over 40 years, and as an experienced Expert Witness who has consulted with and/or testified in court for both parents and school districts many times

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Seven Suggestions to Help Districts When Special Education Litigation Looks Inevitable

Suggestion #1. Admit Mistakes/Don’t Focus on Being Right

   Too many times, district or school personnel have made legitimate and important (or, at least, questionable) errors when delivering IEP services. And yet, they fear that these errors will result in sanctions or penalties, and they take a hard line, denying the mistakes while hoping that they can create enough uncertainty to “scare” the parents (or guardians) from filing a formal complaint.

   Here, I suggest taking a page out of the “Corporate Handbook.”

   We have found time and again that—when big companies make major errors—the fall-out is moderated when the CEO sincerely and publicly admits the mistake and outlines a plan to address the breach and make amends.

   In most cases, when legitimate special education mistakes are litigated, the result is a ruling requiring compensatory services.

   Given this, why would a district not admit its mistake(s) to the parents, sincerely apologize, and offer the compensatory services that will likely be required anyways after a long, emotional, and relationship-damaging due process or court case?

_ _ _ _ _

Suggestion #2. Remember that Younger SWDs (and their Parents) may be in Your District for Another 10 Years

   Expanding on my “relationship-damaging” comment above, district and school personnel need to remember that—while a SWD’s administrators and teachers change over time, a student’s parents typically do not change and they often have long memories.

   Thus, when an emotional, relationship-breaking special education disagreement (with or without a due process or court hearing) occurs early in a SWD’s educational career, this may negatively affect the parents’ attitudes, beliefs, expectations, interpretations, and interactions with school district personnel for many years to come.

   While I am not suggesting that we placate parents who have SWDs, I am saying that (as above) districts may “win” the short-term battle over IEP services, but lose the long-term relationship war.

   And remember, that loss may impact every annual IEP review meeting, every three-year re-evaluation, and many well-meaning staff who don’t know the history, but experience the tension (or worse) nonetheless.

_ _ _ _ _

Suggestion #3. Make Sure that All Communications and Discussions are Clear

   Educators—and, especially, special educators—live in a jargon-filled world. And even when we boil the jargon down to essential special education terms, parents still do not always fully understand these terms.

   For example, do parents of SWDs really understand what the “appropriate” in the phrase, “free and appropriate public education,” really means?

   No.

   Parents hear this phrase and think only about what they belief or know is “appropriate” for their child’s education. They do not understand the case law and the functional (and limited) meaning of this loaded term.

   District and school personnel need to do some soul-searching and analyze what they say when “communicating” with parents of SWDs. These professionals need to especially focus on determining what the parents actually understand versus what they think they communicated.

   The best approach here is to watch parents’ facial and physical reactions during meetings, to listen to their words and intonations, and to respectfully ask them what they thought they heard when there appears to be a disconnect.

   This will go a long way toward clear, consistent, accurate, and parent-centered communication.

   In contrast, the worst approach is to plow through the agenda, get the reports done, and hand the parents the state’s Special Education Procedural Safeguards Manual, checking that step off the meeting checklist while suggesting that they read it.

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Suggestion #4. Know that Parents Know What They Know, Not What You Know

   Related to #3 above, districts and schools need to understand that, when unhappy with their child’s special education program, parents with SWDs consult three primary sources: (a) friends or other parents with SWDs; (b) Google; and (c) formal or informal advocates.

   Thus, they only “know what they know.”

   From an advocacy perspective, educators are responsible for educating parents about their child’s status and needs, their roles and responsibilities, and their rights and safeguards.

   Indeed, when educators have their own SWDs, they expect no less.

   For example, some parents come into IEP meetings with specific interventions or programs that their child “must have” in order to succeed.

   When this occurs, some (special) educators at the meeting—for a variety of professional and personal reasons—implicitly or explicitly disallow these suggestions, sometimes citing IDEA and case law saying that “parents are not allowed to dictate specific interventions on an IEP.”

   A more collaborative tact is to first “seek to understand” (a) what the parents’ educational goals are for their child, and (b) how they found and what they understand about the intervention they’ve suggested. This can then move to an educative tact where parents (if true) can be shown how the current (or school-recommended) interventions have the same goals, are more evidenced-based, and have a higher probability of success for their child.

   And, who knows? Maybe the parents have found an intervention that actually is better. . . not just for their child, but for many other SWDs in the school or district.

   The “take-away” here is that educators are too often afraid of educating and empowering parents, because they fear that their “good will” will be turned against them down the road.

   In the end, none of us is an expert on every topic in education. District and school personnel are encouraged to view their work with parents—even “challenging” parents—as a growth experience, especially as they try to understand where they are coming from and how they got “there.”

_ _ _ _ _

Suggestion #5. Parents often go through the “Stages of Grief”—They are Afraid, Anxious, Angry, or in Denial

   Building onto the suggestions above, district and school personnel need to consider how parents’ emotions—relative to their SWD—are impacting their interactions and behavior.

   For example, it’s scary to have a “child with exceptional needs” when you were expecting (and “everyone else” has) a perfect child. . . and your child is causing financial and other stress within the family unit, and you don’t know what the future will bring—tomorrow or even after your child graduates from high school.

   It’s frustrating when you thought “the school” was committed to your child’s best interests, they “irresponsibly” failed to implement important parts of the IEP, and now you are questioning yours “hands-off” approach and “blind” trust.

   Or, it tests your faith when, as in the Court case I was just involved in, your child has a rare medical condition, no one in the school is listening to you or your doctors, and teachers are questioning the validity of the condition, suggesting that your child is lazy, not sick.

   While parents typically have but one child with a disability, districts are often educating hundreds of SWDs. For this reason, it is easy for district and school personnel to lose the “personal, individual perspective” that parents expect for their child.

   And so, it is not a bad thing for these professionals to continually ask themselves:

   “What would I do if I were this parent and responsible for this child’s life, education, and well-being? And what would I expect of the educators responsible for my child for six hours each day and 180 days each year?”

   Perhaps, these two questions would engender the understanding (I originally wrote, “humanity”) that we all need to fully serve not just our SWDs, but their parents, siblings, and extended families as well.

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Suggestion #6. Keep it Professional, Not Personal

   I fully understand that, at times, frustrated parents “cross the line” and “make it personal.” It’s not appropriate, but it happens.

   I remember a Building Principal who would approach this situation by “killing the parents with love.”

   In essence, this Principal was comfortable “in her own skin,” and she was confident both with her professional motivation and expertise, as well as with how much she cared about her students (and staff).

   She also knew that confronting “fire with fire” would not work, and that she needed to interact with challenging parents with understanding, empathy, and love.

   And even if her love did not change the parents right now, it could be the foundation for change in the future.

   And even if the parents never changed, she—at least—could go home each night knowing that she did everything in her power to work with them professionally and in good faith.

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Suggestion #7. Don’t Mediate if You Don’t Intend to Moderate

   My last recommendation is more procedural than personal. . . except that it often becomes more intensely personal for parents when school districts do it.

   When there are serious special education disagreements, it often is strongly suggested that districts engage in formal dispute mediation with the parents of the SWD involved.

   My recommendation is that districts should not do this if they know ahead of time that they will not change their position(s) during the mediation session.

   Said a different way: Don’t go through the “charade” (never mind the time and expense) of a mediation that has no hope of resolution. The likely result is that you (a) further infuriate the parents; (b) redouble their efforts to “beat you” at the next level (i.e., litigation); and (c) demonstrate—at least to the parents—that you do not have their child’s best interests at heart.

   Districts do not get “brownie points” from Hearing Officers because they were open to negotiation, and “tried” mediation.

   Hearing Officers do not care. They are focused on the facts, the law, and the decisions they have to make when a case comes to their docket.

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Summary

   This Blog has discussed seven suggestions not just to help districts avoid special education litigation, but—really—to help them (a) to truly educate all students with disabilities; and (b) to collaborate with their parents or guardians with empathy, understanding, sensitivity, and professionalism—even when things get tense or confrontative.

   While legally, school districts have a much higher probability of success during special education litigation, and they may “win” most of their cases, the erosion of their good working relationships with parents of SWDs may result, in the long-term, in a “district-net-loss.”

   Indeed—and especially in today’s political environment where parents are being encouraged to confront districts’ educational policies, procedures, and practices—parents of SWDs talk with other parents of SWDs.

   This creates the potential that one parent’s grievance triggers many parents’ shared grievances.

   I am not trying to predict a disaster here. I am trying to write a “cautionary tale.”

   And the suggested “morals” of this tale involved:

·       Suggestion #1. Admit Mistakes/Don’t Focus on Being Right

·       Suggestion #2. Remember that Younger SWD (and their Parents) May Be in Your District for Another 10 Years

·       Suggestion #3. Make Sure that All Communications and Discussions are Clear

·       Suggestion #4. Know that Parents Know What They Know, Not What You Know

·       Suggestion #5. Parents often go through the “Stages of Grief”—They are Afraid, Anxious, Angry, or in Denial 

·       Suggestion #6. Keep it Professional, Not Personal

·       Suggestion #7. Don’t Mediate if You Don’t Intend to Moderate

   In the end, while a short-term, litigation win by a district may result in a long-term parent-relationship loss. . . a short-term special education resolution often creates the foundation for the long-term success of the involved students, staff, and parents.

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   Thanks for reading this important Blog.

   As always, know that I am always available for a free one-hour consultation conference call to help you and your colleagues apply the information and perspectives above into practical, day-to-day action.

   Even if you disagree with some of the suggestions above, I often find that a more personal Zoom discussion identifies both areas of consensus and opportunities for professional and personal growth.

   Please feel free to reach out if you want to “give it a go.”

Best,

Howie

[CLICK HERE to read this Blog on the Project ACHIEVE Webpage]

Should the U.S. Supreme Court Limit the Powers of the U.S. Office of Special Education Programs (OSEP)?

How OSEP Has Taken “Liberties” with the Law, and Spent Tax-Payers’ Money on Flawed Frameworks

[CLICK HERE to read this Blog on the Project ACHIEVE Webpage]

Dear Colleagues,

Introduction

   One on the ongoing frustrations in my professional life is having to undo the direct and indirect damage done to students, staff, schools, and parents by ineffective practices. . . especially those advocated by and politically pushed by the U.S. Department of Education (USDoE).

   I have experienced this frustration first-hand as a practicing school psychologist, a university professor, and in my work for thirteen years at the Arkansas Department of Education [in a position, coincidentally, funded by the U.S. Department of Education’s Office of Special Education Programs (OSEP)].

   But I am especially dismayed when I consult across the country (like last week), and still find schools and districts implementing these ineffective practices, thereby delaying services to students in academic or social-emotional need and, thus, causing psychoeducational harm to these students.

   And I don’t blame the school professionals.

   They are largely doing what their state departments of education are inappropriately telling them to do. . . because they often mistakenly assume that their state department colleagues know what they are talking about. . . and they don’t have the time to independently validate their advice.

   Similarly, the state department folks often assume that the “national experts” (usually university folks who get credit for the USDoE grants they secure) know what they are talking about. But, sometimes, the USDoE also indirectly suggests that a state’s Title I or IDEA funding could be contingent (see below) on using the ineffective practices that they (the USDoE) are advocating.

   This subtle message is even more alarming when you understand that the USDoE is annually evaluating—especially in special education—every state’s educational outcomes (see below), and that it can withhold funds or financially penalize states for poor outcomes.

   [Can you spell “conflict-of-interest” and “double-jeopardy”?]

   So. . . many states assume that: "If I use USDoE-recommended practices, I will be protected” (which is not true). And, districts and schools then get the same “trickle down” message and advice to use ineffective, unvetted practices.

   Of course, if you confront the USDoE on the advocacy of their frameworks or practices, you risk going on their unofficial “black list,” and they give you the well-honed line that,

“The USDoE is not allowed by law to advocate or recommend any single framework, program, or practice.”

   If you doubt what I say, remember that I worked at Arkansas Department of Education for thirteen years, that I was directly responsible (100 feet away) to the State Director of Special Education, and that I experienced all of this first-hand—even as our proven approaches were more effective than the USDoE’s, eliminated the flaws from their frameworks, and demonstrated consistently more positive student outcomes.

   Indeed, if you really want to understand how insidious this process has been—for well over two decades—feel free to read two past Blogs written on February 15, 2020 and March 30, 2019, respectively:

Did a Misguided U.S. Department of Education E-mail “Confirm” Its Improper Favoritism of the PBIS Behavioral Framework?

Using the School Climate Transformation Grant to Misrepresent, Re-Brand, and Strong-Arm Educators toward Only "Department-Approved" PBIS Consultants

[CLICK HERE to Link to Blog]

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The Art of Doubling Down: How the U.S. Department of Education Creates Grant Programs to Fund and Validate its own Frameworks

Call Congress: The Tainting of RtI, PBIS, MTSS, and SEL

[CLICK HERE to Link to Blog]

_ _ _ _ _

   But my purpose today is not to re-hash the past, but to reflect the present.

   This will be done by triangulating three things. . .

·       A recent U.S. Supreme Court decision limiting the power of the U.S. Environmental Protection Agency; 

·       OSEP’s two recent announcements regarding (a) how schools should be disciplining students with disabilities, and (b) that the vast majority of state departments of education are not in compliance with the Individuals with Disabilities Education Act (IDEA, 2004); and by 

·       Reviewing some of the critical flaws historically recommended by a handful of National Technical Assistance Centers—funded by OSEP—that are still negatively impacting multi-tiered services and supports to students in our schools.

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A Recent U.S. Supreme Court Decision Limited the Power of the EPA

   I’m sure that many of you are wondering why I am discussing the Environmental Protection Agency (EPA) in a column about education.

   So I’ll be quick.

   Last month on June 30th, the U.S. Supreme Court ruled that the Environmental Protection Agency had overstepped its authority by writing regulations that went too far beyond the original legislation passed by Congress. 

   According to Forbes (July 5, 2022):

Last week, in a case brought to the Supreme Court–West Virginia v EPA–in a 6-3 decision the Court restricted the Environmental Protection Agency’s (EPA) ability to regulate greenhouse gases. This sets a precedent that could limit government agencies’ capacity to establish certain new regulations.

 

The Court’s decision is grounded in the “major questions doctrine” which was deployed in this case for the first time. The upshot of this doctrine is that government agencies, such as EPA, have little leeway in setting new regulations of “major economic and political importance” that rely on powers not clearly spelled out in detail by Congress.

 

The major questions doctrine holds that in such instances federal agencies must be able to point to specific Congressional authorization for their actions. In the West Virginia v EPA case, the Court’s decision substantially limits the EPA’s rulemaking authority.

 

Throughout history, when Congress established federal regulatory agencies, it purposely adopted wide-ranging language that wouldn’t narrow the agencies’ mandate to specific sets of rules and regulations. Indeed, regulatory agencies have always been meant to interpret laws, carry out their intent, and create regulations in an ever-changing societal dynamic that involves evolving challenges.

 

In this context, Congress relies on the expertise of federal agencies, such as the EPA and others like the Food and Drug Administration (FDA), to implement new rules and regulations as they see fit. This is partly due to lawmakers not being as knowledgeable, or at least not sufficiently so, to regulate the specifics of issues which may impact the public.

 

How could the Court’s decision affect other agencies, such as the FDA? In light of acute and ongoing public health challenges there are new regulations that the FDA might try to formulate and implement. The major questions doctrine is not fully defined or delineated, so it’s unclear which of the regulations would be a target of the doctrine.

 

Nevertheless, if new regulations go against existing practice and conflict with certain stakeholders’ interests, they could be subsumed under the major questions doctrine. Accordingly, these regulations could be subject to litigation. The precedent created by West Virginia v EPA could then be used to legally challenge such regulations. 

_ _ _ _ _

   My point here is that the U.S. Department of Education (USDoE) has similarly overstepped is regulatory authority in some cases. . . and this has occurred more due to the Department’s employed and tenured staff, and not to the Secretary of Education who currently holds that political position.

   And while the USDoE has written some exceptionally well-crafted regulations, there are major concerns about its history in the areas of special education, PBIS, RtI, and MTSS.

   Critically, we cannot depend on a state to sue a federal agency—as in the case above.

   Instead, districts and schools need to hold the USDoE accountable when it writes unnecessary, impractical, or inappropriate regulations to operationalize laws passed by Congress. This is accomplished by knowing the limits of what a state or federal agency can do when it advocates for ineffective practices.

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Understanding the Contexts and Limits of OSEP’s “Reach”

   Over the past few weeks, the U.S. Office of Special Education Programs (OSEP) has had its hand in two major announcements.

Announcement 1

   On July 19, 2022, U.S. Secretary of Education Miguel Cardona unveiled new guidance related to school discipline and students with disabilities.

   This was largely done through four new resources that included (a) two guides on how Section 504 of the Rehabilitation Act of 1973 and the Individuals with Disabilities Education Act protect students from discriminatory discipline practices; (b) a guide for stakeholders on “positive, proactive approaches to supporting the needs of children with disabilities;” and (c) a letter from Cardona on the importance of supporting the needs of students with disabilities.

   While I will leave an analysis of this guidance and these documents for another time, here is the point related to today’s Blog topic:

   Educators need to know the law, understand the limits of a guidance document, and resist the pressure that follows these documents from the USDoE.

   These documents can get pretty scary for districts and schools.

   For example, in breaking the story about Secretary Cardona’s announcement, Education Week’s first line in the article was: 

Schools must determine if a student’s behavior is related to their disability before disciplining them, according to new U.S. Department of Education guidance meant to further clarify federal protections against discrimination. 

   This, of course, is true. . . if you know the law.

   In the “Placement in Alternative Educational Setting” section of IDEA (2004), it says:

(C) ADDITIONAL AUTHORITY- If school personnel seek to order a change in placement that would exceed 10 school days and the behavior that gave rise to the violation of the school code is determined not to be a manifestation of the child's disability pursuant to subparagraph (E), the relevant disciplinary procedures applicable to children without disabilities may be applied to the child in the same manner and for the same duration in which the procedures would be applied to children without disabilities, except as provided in section 612(a)(1) although it may be provided in an interim alternative educational setting.

   Thus, the Education Week line was really saying that, if a student is already identified as a student with a disability under IDEA, then the school must conduct a “Manifestation Determination.”

   Education Week (and the law) do not say that every student committing a disciplinary offense must be assessed to determine if s/he has a disability.

   But there is a more important point.

   Relative to 504, the newly-published July 2022 guidance document echoes IDEA. It states:

1. Evaluations Prior to a Disciplinary Removal that Significantly Changes the Placement of a Student with a Disability

 

Section 504 requires school districts to evaluate students with disabilities prior to any significant change in a student’s placement. In the context of a significant change of placement due to a proposed disciplinary removal, the purpose of the evaluation (referred to in this guidance as a manifestation determination) is to decide whether the behavior for which discipline is proposed is based on the student’s disability, and, if so, whether changes in the student’s placement are required to ensure the student receives FAPE.

 

Under Section 504, OCR’s longstanding interpretation (my emphasis added) of a significant change in placement in the context of discipline has been an exclusion of more than 10 consecutive school days or a similar pattern of removal. Examples include an expulsion or an out-of-school suspension or other disciplinary removal of more than 10 consecutive school days.

   Note the emphasis on “interpretation.” This interpretation is based on IDEA (see the footnotes in this section of the guidance document) and court decisions that have supported this interpretation.

_ _ _ _ _

   But the “bigger picture” is that this is a guidance document.

   In footnotes on Page 1 of this document, it states:

(Footnote) 2. The Department has determined that this Dear Colleague Letter is significant guidance under the Office of Management and Budget’s Final Bulletin for Agency Good Guidance Practices, 72 Fed. Reg. 3432 (Jan. 25, 2007). If you are interested in commenting on this guidance, please email us your comment at OCR@ed.gov or write to us. . .

 

(Footnote) 3. This guidance is issued to provide recipients with information to assist them in meeting their obligations, and to provide members of the public with information about their rights, under the civil rights laws and implementing regulations that the Department enforces. The Department’s legal authority is based on those laws. Except for the underlying statutory or regulatory requirements referenced in this Dear Colleague Letter, this significant guidance is nonbinding and does not create or impose new legal requirements. Instead, it provides information and examples to inform recipients about how the Department evaluates whether covered entities are complying with their legal obligations (my emphasis added).

   The point here (note my underlines) is that this guidance document is “nonbinding and does not create or impose new legal requirements.”

   Often, USDoE (or state department of education) representatives will cite a guidance document’s recommendations as if the recommendations are law.

   Critically, if you know the law and are complying with the law in ways that are different than the recommendations, you are still following the law.

   At the same time, most School Board Lawyers will recommend a conservative approach (because their goal is to keep the District in compliance with a federal agency and/or out of court), and say, “Just follow the guidance document’s recommendations.”

   But what if the recommendations do not reflect effective practice—in general or as applied to the students in the District?

_ _ _ _ _

Announcement 2

   The second OSEP announcement related to its annual review of every state department of education in the country on seventeen Indicators that are tracked in a public State Performance Plan.

   For all students with disabilities in a state, these indicators are:

·       Indicator 1: Graduation Rates

·       Indicator 2: Drop-Out Rates

·       Indicator 3: Assessment

·       Indicator 4: Suspension/Expulsion

·       Indicator 5: Least Restrictive Environment – School Age

·       Indicator 6: Least Restrictive Environment – Preschool

·       Indicator 7: Preschool Outcomes

·       Indicator 8: Parental Involvement

·       Indicator 9: Disproportionality in Special Education by Race/Ethnicity

·       Indicator 10: Disproportionality in Classification by Race/Ethnicity

·       Indicator 11: Child Find

·       Indicator 12: Early Childhood Transition

·       Indicator 13: Secondary Transition

·       Indicator 14: Post-School Outcomes

·       Indicator 15: Hearing Requests Resolved by Resolution Session

·       Indicator 16: Mediation Agreements

·       Indicator 17: State Systemic Improvement Plan

_ _ _ _ _

   A July 18, 2022 article in Disability Scoop titled “Most States Repeatedly Fail To Meet Special Ed Responsibilities, Education Department Finds,” reported:

More than half of states have failed to meet their obligations to students with disabilities under the Individuals with Disabilities Education Act for at least the last two years, federal officials say.

 

In an annual report evaluating each state’s special education performance, the U.S. Department of Education determined that just 21 states qualified for the designation of “meets requirements” for the 2020-2021 school year for students with disabilities ages 3 through 21.

 

All other states were labeled “needs assistance,” a category that 26 states and Washington, D.C. have fallen into for two or more consecutive years, the agency said.

 

Under IDEA, states must report each year to the federal government about their performance in providing special education services. Then, the Secretary of Education issues a determination letter assigning them to one of four categories.

 

States that don’t qualify for the “meets requirements” designation for two or more years are subject to various Education Department enforcement actions, which may include being required to access technical assistance, implementing a corrective action plan or funds being withheld, among other things.

 

The states that achieved the threshold of “meets requirements” in the current report include Connecticut, Florida, Georgia, Illinois, Indiana, Kansas, Kentucky, Maine, Massachusetts, Minnesota, Missouri, Nebraska, New Hampshire, New Jersey, Oklahoma, Oregon, Pennsylvania, South Dakota, Virginia, Wisconsin and Wyoming.

_ _ _ _ _

   The essential points related to the seventeen Indicators are:

·       OSEP established these Indicators based on their interpretation of the requirements in IDEA. 

·       Every district receiving federal funds must provide their state department of education the data represented on the State Performance Plan. Thus when a state is out of compliance with OSEP, the state department of education identifies its out-of-compliance districts and holds them accountable (with potential oversight and penalties). 

·       Guided by OSEP benchmarks, the states largely determine the statistical criteria to identify its out-of-compliance districts. These criteria, however, must be approved as part of the State Performance Plan process by OSEP. 

·       Most states establish their out-of-compliance criteria for each Indicator so that approximately 5%  to 10% of the districts in their state “trigger” on an Indicator. Thus, each year, there may be districts not providing appropriate services to students with disabilities that do not statistically trigger. 

·       There are no universal district criteria across states on virtually all of the Indicators, thus there may be large differences in the quality of services across states.

   In addition, there are two critical issues here that relate to today’s topic.

   First, there are times when OSEP does go beyond its legal authority.

   For example, Indicator 17, was unilaterally established by OSEP around 2013—almost ten years after IDEA was passed in 2004. Here, OSEP requires each state to create a State Systemic Improvement Plan (SSIP) that identifies a specific area where the state’s general and special education units work together to accomplish a set of stated outcomes.

   However, every state gets to choose its own improvement area, the districts that will be involved, and how the collaboration will be implemented.

   Significantly, this Indicator is not specifically required by IDEA. And yet, no state department of education has chosen to “call” OSEP on this statutory over-reach.

   Second, for some of the Indicators, OSEP has established outcome criteria that cannot be traced directly back to IDEA. For example, Indicator 5 relates to ensuring that school-aged students with disabilities are educated in the least restrictive environment.

   In 2020, for example, the USDoE spreadsheet, outlining the State Performance Plan’s evaluation criteria [CLICK HERE], defined the evaluation criterion for Indicator 5 as:

5. Percent of children with IEPs aged 5 who are enrolled in kindergarten and aged 6 through 21 served: A. Inside the regular class 80% or more of the day; B. Inside the regular class less than 40% of the day; and C. In separate schools, residential facilities, or homebound/hospital placements. (20 U.S.C. 1416(a)(3)(A)) 

   Critically, in national meetings, OSEP continually tells state departments of education that all students with disabilities should be educated inside a regular education classroom 80% or more of their school days.

   The problem is that OSEP’s legal rationale (20 U.S.C. 1416(a)(3)(A)) for this Indicator states:

(3) Monitoring Priorities. The Secretary shall monitor the States, and shall require each State to monitor the local educational agencies located in the State (except the State  exercise of general supervisory responsibility), using quantifiable indicators in each of the following priority areas, and using such qualitative indicators as are needed to adequately measure performance in the following priority areas: (A) Provision of a free appropriate public education in the least restrictive environment.

   Thus, OSEP uses a generic monitoring requirement as its legal and statistical rationale to establish the Indicator 5 criterion that it then uses to evaluate states and (as part of the downward extension) districts.

   This criterion has no legal basis in IDEA. OSEP has never provided any research or practice evidence to support the criterion. The criterion is impossible to attain for students with severe disabilities. And, no state to my knowledge has ever attained or sustained this criterion.

   This is yet another example of OSEP’s over-reach. . . here, as related to its monitoring responsibilities. And, despite the “double-jeopardy” of OSEP both creating, evaluating, and adjudicating its (sometimes unattainable) criteria, there are real political, financial, and educational (for districts, schools, staff, and students) ramifications to OSEP’s over-reach.

   This is the type of over-reach that is directly relevant to the recent Supreme Court decision.

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Post-Script

   Meanwhile, the guide for stakeholders on “positive, proactive approaches to supporting the needs of children with disabilities”—released by U.S. Secretary of Education Miguel Cardona on July 19, 2022— has numerous references advocating the use of OSEP’s Positive Behavioral Interventions and Supports (PBIS) and Multi-Tiered System of Supports (MTSS) frameworks.

   In fact, the OSEP-funded PBIS and MTSS National Technical Assistance Centers, respectively, continually mis-state federal law in this regard.

   In IDEA (2004), the words “positive behavioral interventions and supports” appears only in lower case words, and never with the PBIS acronym.

   In the Elementary and Secondary Education Act (2015), the words “multi-tiered system of supports” appears only in lower case words, and never with the MTSS acronym.

   Thus, contrary to what OSEP and its National TA Centers say, federal law does not require districts or schools to use the PBIS or MTSS frameworks.

   This is yet another example of OSEP’s disingenuousness. And critically, OSEP will only clarify and validate this fact when directly confronted with their “sleight-of-hand.”

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Multi-Tiered Flaws and Fixes

   Related to its advocacy of the MTSS framework, OSEP and its funded National TA Centers—have allowed and promoted ineffective response-to-intervention and multi-tiered systems of support procedures and strategies for almost two decades.

   OSEP has rationalized this by periodically stating (once again, when under pressure) that (a) it cannot and does not advocate for any single program or approach; and (b) it simply is providing a “framework” of practices that individual districts and schools can choose from.

   As noted, OSEP has created a “monopoly of thought and implementation” through its TA Centers by “influencing” state departments of education practices (through its annual evaluation and oversight process), as well as by providing “free” training—funded by taxpayer money—using only its frameworks.

   At this point, however, it is not about OSEP. It is about getting the most effective services, supports, strategies, and interventions to students with academic and social, emotional, and behavioral challenges.

   To this end, we would like to revisit seven RtI/MTSS flaws that have been built into OSEP’s MTSS framework, and then provide a link to a free resource that identifies the ten resulting practices that need to be included in a multi-tiered services re-design.

·       Flaw #1. Missing the Interdependency between Academics and Behavior. 

Many multi-tiered systems do not evaluate, early on, whether a student is behaviorally acting out because of academic frustration. Thus, they miss the need to address the problem through academic assessment with resulting instructional interventions.

Conversely, many systems do not evaluate, early on, whether an academic problem is due to social, emotional, or behavioral root causes. Thus, they attempt to remediate this problem through academic interventions. . . an approach that will ultimately fail.

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·       Flaw #2. Missing the Continuum of Instruction.

Many multi-tiered systems do not have a braided instructional continuum (from preschool through high school—for both academic and social, emotional, and behavioral problems) that includes effective differentiated instruction and curriculum-based progress monitoring; assistive classroom instructional supports; data-driven remediation, accommodation, and modification; strategic and intervention supports and interventions; and compensatory decision-rules and strategies.

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·       Flaw #3. Avoiding Diagnostic or Functional Assessment until it is Too Late.

Many multi-tiered systems, unlike medical doctors and car mechanics, conduct diagnostic or functional assessment at Tier 3, rather than at Tier 1. This reinforces a “wait-to-fail” system that (a) “allows” students to fail multiple times over multiple tiers for long periods of time. These practices actually intensify some student problems resulting in high levels of student (and staff) resistance to intervention.

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·       Flaw #4. Not Linking Assessment to Intervention.

Many multi-tiered systems do not validate (beginning in Tier 1, as above) the root causes of students’ academic or social, emotional, or behavioral problems. Most assessments, instead, re-identify (albeit more specifically or normatively) the student problem. This is compounded by the failure to directly link the results of a root cause analysis to recommended interventions that address the root cause.

Many Tier 2 interventions, moreover, are based on screening or interim assessment results, rather than diagnostic or root cause analysis results. Many Tier 2 interventions are generic and given to all students (albeit in a group, and often using paraprofessionals), rather than truly targeted and individualized.

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·       Flaw #5. Focusing on Progress Monitoring rather than on Strategic Instruction or Intervention Approaches.

Many multi-tiered systems focus (relative to staff time and analysis) more on progress monitoring than on intervention. Some multi-tiered systems are grounded in the belief that progress monitoring (with its goal and trend lines) is actually an intervention, when it simply exists to evaluate the efficacy of an intervention.

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·       Flaw #6. Establishing Rigid Rules on Students’ Access to More Intensive Services.

Many multi-tiered systems are designed such that students must sequentially move from Tier 1 to Tier 2 to Tier 3—thereby creating a history of failure, and delaying needed interventions to many students.

Other multi-tiered services are not providing general education teachers with the training and supervision such that they learn to implement selected and relevant strategic or intensive interventions—thereby creating a systemic dependence on Tier 2 or Tier 3 services.

Effective multi-tiered systems are designed to provide early intervention services, and to give students, as quickly and efficiently as possible, the intensity of services, supports, strategies, and/or interventions that they need to be academically and/or behaviorally successful.

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·       Flaw #7. Setting a “Price” on Access to Multidisciplinary Consultation.

Many multi-tiered systems require general education teachers to do a specified number of interventions over a specific period of time, and to show the data that indicate that a student has not made sufficient progress and is not responding to the interventions.

This results in teachers implementing low probability of success interventions that delay services, and that may make student problems worse and more resistant to change. This is often done in the name of “punching teachers’ tickets” to give them access to multidisciplinary team attention, consultation, or student-specific consideration.

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   If districts or schools have built any of these flaws into their current multi-tiered systems, we recommend a redesign that includes one or more of ten effective practices.

   These are outlined in a free resource:

A Multi-Tiered Service & Support Implementation Blueprint for Schools & Districts: Revisiting the Science to Improve the Practice:

[CLICK HERE to find this Resource on this Webpage]

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Summary

   Should the U.S. Supreme Court strike down specific regulations and legal interpretations made by the U.S. Office of Special Education Programs?

   That question will only be answered when one or more states take action against OSEP because of how it has historically and continually exceeded its authority.

   But this is unlikely to happen—because many state departments of education across this country feel dependent on OSEP, and many districts and schools do not understand either this dependency or how OSEP over-steps specific legal boundaries.

   OSEP controls millions of dollars a year in direct grants to state departments of education to fund state and district special education services. It also controls millions more that it uses to give grants, for example, to fund technical support and research by “non-for-profit” organizations (e.g., the American Institute for Research, WestEd), and university research, training, and student stipends.

   And, once again, it is important to understand that OSEP’s operations and decisions are driven more by tenured staff than the political appointees at the top of its organizational pyramid.

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   So. . . short of litigation, what can be done?

   For schools and districts, you need to start small.

   You need to Know, Prepare, and Question.

   First, Know: Begin by re-reading (and researching beyond) the information in this Blog so that you understand the current and historical areas where OSEP and the U.S. Department of Education have exceeded (and may in the future) their legal authority.

   We began this process by triangulating three things for you. . .

·       A recent U.S. Supreme Court decision limiting the power of the U.S. Environmental Protection Agency.

This puts the U.S. Department of Education on notice that they are similarly accountable for times when they have exceeded their legal authority.

·       Two recent announcements by OSEP regarding (a) how schools should be disciplining students with disabilities, and (b) that the vast majority of state departments of education are not in compliance with the Individuals with Disabilities Education Act (IDEA, 2004).

Here, we showed you the limits of a Guidance Document, and how OSEP can establish evaluative criteria that potentially impact your funding, practice, and services to students with disabilities.

·       The critical flaws historically recommended by a handful of National Technical Assistance Centers—funded by OSEP—that are still negatively impacting multi-tiered services and supports to students in our schools.

Here, we especially emphasized that you are not legally required to use either of OSEP’s PBIS or MTSS frameworks, and that you need to revisit any of the flaws that you have embedded in your current social, emotional, and behavioral self-management or multi-tiered service-delivery systems.

   Remember: As we have done in writing this Blog, it does not take a lot of time to, for example, (a) read a Guidance Document—and, especially, its footnotes specifying its legal limitations; or (b) follow-up a legal citation—that is being used to “support” a state or federal agency’s “authority” to “needlessly intrude into your psychoeducational services and practices.”

   And so. . . adapting an earlier point in this piece:

   Educators need to know the law, understand the limits of the law (by the USDoE and your state department of education), and resist any pressure that occurs when ineffective practices—based on a misinterpretation or over-reach—are recommended (or “required”).

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   Second, Prepare: Next, you need to prepare yourself as you apply the law, the research, and effective practice to your students, staff, and schools.

   Here, you need to analyze and summarize the direct effects of a misinterpretation or over-reach of the law on the efficacy of services and the attainment of academic and social, emotional, and behavioral outcomes for your students.

   This should then be contrasted with the results you have or will attain by using a different, legally-acceptable multi-tiered approach.

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   Third, Question: Armed with both one and two immediately above, question those who are suggesting (or “requiring”) an evaluative criterion or a psychoeducational practice that you feel is a misinterpretation or over-reach of the law or their authority under the law.

   Along a continuum, you may need to question your school or district supervisor, your school board lawyer, your state education department representative or director or commissioner, your federal USDoE representative or director or secretary.

   In my experience—at all of the continuum levels above—when an over-reach has occurred, and your colleague is questioned, they acknowledge the truth and the reality. . . and if you have a better, legally-sound alternative, they will back down.

·       Knowledge is Power. . . 

·       Preparation is Key. . . and 

·       Questions turn into Desired Permission and Results.

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   I hope that this information has been useful to you, and that it motivates you to evaluate both what you are being asked to do by the USDoE and/or your state department of education, and what you need to do on behalf of your students, staff, and schools.

   Please feel free to contact me with any questions, or to set up a free, one-hour consultation to discuss these and related issues with your colleagues, teams, school, or district/agency departments.

Best,

Howie

[CLICK HERE to read this Blog on the Project ACHIEVE Webpage]