Parent Advocating For Her Children Thrown In Jail

What kind of message is it sending to Americans when a mother who fights to give her children a good education is thrown in jail?  Ms. Kelley Williams-Bolar, a single mother raising two daughters in Ohio, was sentenced to time in jail for falsifying documents so her children could attend a good school.  Because falsifying records is a felony in Ohio, and an individual with a felony conviction may not obtain a teaching degree under Ohio law, Ms. Bolar's ability to become a teacher is in jeopardy.  (She was pursuing a degree in education and working as a special needs teaching assistant at a high school.)  But what is the bigger message here?  Doesn't the government share in the blame for a parent having to lie and deceive in order for her children to get a decent education?  In New York City, in the debate about the quality of our public schools, so much emphasis is placed on parents' needing to do more for their kids, do homework with their kids, be there fore their kids.  But here is a parent who was trying to get for her daughters what every child in America deserves and is entitled to - an appropriate education - and she is thrown in jail.  She is now going to sit in jail and her daughters will be motherless during that period.  Precious dollars that could be spent improving the system are now being wasted on prosecuting this case and providing a jail cell.  Falsifying information is wrong but it never should have come to that.  Was it not just two nights ago during his State of the Union address that President Obama spoke about education being the key to set us apart from other nations, make us #1.  How are we going to achieve that when we jail the very people who are fighting for our children.  Parents should not feel compelled to lie and cheat to get their children what they deserve and the government needs to start answering some tough questions about the state of our public schools.     

Change of Current Educational Placement

In a recent Pennsylvania case, R.B. v. Mastery Charter School, although the procedural history is a bit messy, the district court ruled in favor of the parent on the issue of pendency where the school had decided, without the parent's consent, to disenroll the child from school due to her frequent absences.  The child in this case was a teenage girl with Down's syndrome and a number of other cognitive and physical disabilities, and her frequent absences were related to these physical disabilities.  The school believed that she was hurting their "attendance figures" and eliminated her from the program.   

The district court, in the course of ruling for the parent, clarified the difference between a change in a child's educational placement (which triggers the stay-put provision) vs. a change in the location of the program (which does not trigger stay-put).  A change in placement means a fundamental change in the program that signifcantly affects the child's leanring experience as opposed to some other inconsequential modification.  The court, reasonably, decided that unilaterally disenrolling a child from your school is a change in the child's program/placement because the child was totally removed from the school and completely deprived of services, and the school did nothing to identify an alternate placement.  The child, therefore, had a right to continue at the public school and the court ordered the school to reinstate R.B.'s school enrollment until the legal proceedings are concluded. 

NOTE:  In some sitiuations where it doesn't significantly affect the child's program, a school may change the location of the student's program without triggering stay-put.  But here, the school did nothing to find R.B. another location and basically just left the family out to dry, violating its responsibility under the law.  In this case it may not have made a difference anyway because there was support for the fact that the child needed to attend this particular school due to its proximity to her home and her doctor.     

Sudbury Public Schools v. Student

In a recent case Sudbury Public Schools v. Massachusets Department of Education, the U.S. District Court of Massachusetts upheld an impartial hearing officer's decision to grant reimbursement for tuition at The Carroll School, a private school approved by Massachusetts as appropriate for the instruction of special education students.  Three interesting point come out of this case:  

1) General education for social studies and science = no good
On appeal, the school district maintained that it had created an appropriate IEP and had recommended an appropriate public school for the 2009-2010 school year as evidenced by the fact that the child was in special education classes for some subjects and in a program for students who have language disabilities.  And therein lies the problem - the court found it problematic, and ultimately fatal, that only "some" of the child's classes were in a special education setting (social studies and science would have been in a gen ed setting).  A neuropsychological report said that the child would become disnegaged from school and his academic skills would slip if he were not surrounded by students with similiar learning needs and the IHO and the court took this to mean that being in a gen ed classroom for social studies and science would impede his academic progress.  Therefore, the offered placement was not appropriate. 

2) Doesn't matter that parent was set on private school
What is interesting about this case is how the court discounted the fact that the mother was set on this private school from the start in order to grant reimbursement.  The mother testified that the family moved to this school district with the intention of enrolling her son at Carroll; she didn't contact the school district until after he was enrolled in Carroll; she explicitly told the IEP team that she wasn't interested in public school services; and she didn't observe the district's recommended program.  The court was well aware of all these points but overlooked them in favor of the parent's testimony that she would have accepted an IEP for public school placement if she had felt it was appropriate, and the fact that the mother otherwise cooperated by participating in meetings and sharing evaluations.  The district court added that since the parents had not obstructed the IEP process, there was no reason to find that they had done anything to prevent reimbursement. 

3) Pendency
The court decided pendency in favor of the parents despite remarks by the IHO that could have been interpreted to limit the availability of "prospective relief."  The court also explained that pendency applies even when the period of the challenged IEP has expired.

In short, this is a good decision for parents.

A Mom Taks With The Director Of Special Education

The video you see below was produced by a colleague in Pennsylvania who practices special education law. It is a parody of the dynamic between a parent and the school district. Parents may be surprised to find that this parody mirrors what their actual interactions with the school district have been like.

LIFO Layoffs

"LIFO," a term generally understood in the context of accounting, is also used in the context of teacher layoffs.  This is because, under current state law, a policy of "Last In First Out" prevails:  the more senior teachers are protected from being fired and the newer teachers with the least time on the job must be fired first.  It makes no sense to have this as an absolute rule.  That would mean that even where the newer teachers are more effective than the more senior teachers, the newer/younger ones must be fired first.  It is horrifying to see the fury with which people like Randi Weingarten have stood firmly by this principle.  I understand how this policy came into being but I cannot understand how it continues to operate as an absolute.  Neither can Mayor Bloomberg, as evidenced by his announcing his intention to rectify this problem.  Kudos.

New Jersey Governor Christie Proposes New Schools For Educating Children With Autism

NJ Governor Chris Christie has announced a proposal to create additional specialized schools for educating children with autism in the manner they require.  Many students with autism require individualized, 1:1 support all day long which becomes extremely expensive.  Many parents are faced with the dilemma of continuing there children in a system that strives to offer the proper education but cannot, or place them in private school and incur exorbitant tuition rates.  Chris Christie in NJ seems to be aware of this dilemma and wants to create additional specialized public schools specific for autism which would ensure a quality of instruction that existing public schools are unable to achieve.  The bottom line is that children with autism need to be instructed in a very specific, scientific manner, and they need to receive this type of intensive intervention early on.  I applaud Governor Christie for acknowledging that a problem exists and attempting to do something about it.  I would like to know more about what these programs will offer, namely: will there be full-day 1:1 instruction for each child, will the teachers trained, certified, and experienced in ABA and/or other methodologies, what other services/resources will be available.

One of the biggest problems we have in NYC is the scarcity of effective specialized schools for children with autism.  In New York, children with autism are oftentimes placed in what is known as District 75, which is something of a misnomer because it's not an actual geographic district but rather a metaphorical district that spans the entire NYC area.  But in many cases District 75 is not able to offer the type of instruction that a particular child needs.  If NYC could acknowledge this problem and make a plan of attack to fix it, it would save itself millions of dollars per year and get on track to offer the kind of free and appropriate education that every child with autism is entitled to.

United States vs. Nobel Learning Communities, Inc.

On Friday, the United States Department of Justice announced a settlement agreement in a pending lawsuit based on the Americans with Disabilities Act against Nobel Learning Communities, Inc., a private for-profit organization that runs a group of preschools, elementary schools, and secondary schools around the country (although not in NY).  The allegations were basically that this organization excluded children with disabilities from their learning programs.  Private schools are not immune from the responsibility of providing equal access to education free of discrimination and the settlement reached here is an aknowledgment of that obligation.  As a result, Nobel Learning Communities has agreed to pay $215,000 to the affected children (which really doesn't seem like a whole lot of money); implement a formal policy to conduct its programs in a non-discriminatory way; establish a means of considering parents' requests for reasonable modifcations to the program to address a child's disabilities; as well as other tasks of spreading awareness and monitoring compliance.  These provisions are somewhat airy but it's a step in the right direction and the DOJ will keep a close eye on the situation, as the company is required to track and report its progress over the next couple of years.         

Program Recommendations and Related Services Recommendations

An issue that continues to be very hot is whether parents are entitled to related services when their children are enrolled in private schools, including when they intend to seek tuition reimbursement.  On the one hand, this really shouldn't be an issue and the parents should continue to receive the services.  On the other hand, school districts have been making various arguments to say that parents are not so entitled.  One such argument is that the related services are specifically tailored to supplement the specific program and placement recommended by the DOE and it would be wrong for the parents to be able to separate the services from the program. 

It doesn't seem like that argument has been persuasive yet the districts continue to make it.  In SRO 10-112, the district tried to argue that SEIT services were not available as a pendency placement because the student had become school-aged and the related services were specifically tailored for the specific preschool placement.  The SRO did not buy this argument and explained that "in order to comply with its obligation under pendency, [the district] must provide those special education and related services that are not in dispute. . . .  The district has not provided a sufficient legal basis for its argument that the parents must accept either all or none of the student's previously agreed upon special education and related services. . . ."  Therefore, even though the child had become school-age, he was still entitled to SEIT services (which are normally meant for pre-school-age children).   

In SRO 09-125, the district attempted a similar argument.  This case involved a child transitioning from preschool (CPSE from April 2009) to a school-age program (CSE IEP dated May 2009).  The district said the parent could not get a "hybrid pendency placement" which would mean implementing related services from the April CPSE IEP while the child was currently placed in the program from the May CSE IEP.  Again, the district is arguing for an "all or nothing" approach.  The SRO (Kelly, not Bates) then used some fancy footwork to help the parents get what they were looking for.  He said that the April IEP was "the last implemented non-disputed IEP" but that the parents then agreed to accept the kindergarten class and related services from the May IEP.  But, he said, this should not prevent the parents from getting those other home-based services from the April IEP.  Therefore, the parents were awarded the home-based services that were not accounted for in the May IEP, including SEIT services even though the child had now become school-aged.           

SRO 10-095

This case is mainly about a parent seeking reimbursement for the Lindamood Bell program which aims to develop the fundamental skills that a child needs to succeed with reading, spelling, comprehension, etc.  The impartial hearing officer concluded that the placement recommended by the DOE was appropriate but the parents appealed that decision and maintained that the program offered was not appropriate.  The SRO's determination on this issue boiled down to one important question: Does the Committee on Special Ed have to consider private evaluations submitted by the parent, to what extent, and did they?  (Okay, maybe a few questions...)

So the answer is, yes, the committee must consider an evaluation submitted by a parent.  So what does it mean to adequately "consider" something and to what extent does the CSE have to do this?  Citing to another case (T.S. v. Bd. of Educ.), the SRO said that an evaluation is adequately considered when: it is read by the director of special education, portions of the report were read and summarized for the CSE, and the CSE minutes show discussion about the issues raised in the report.  The CSE has to consider the results of the initial or most recent evaluation; the concerns of the parents; the academic, developmental, and functional needs of the student; etc.  In this case, there was no evidence that the CSE discussed or considered either the private psychoeducational report or the private speech-language eval.  As a result, the description of the child in the IEP was not accurate and his needs were not adequately identified, which means that the goals were not appropriate because they did not address the right needs and issues.

The SRO ruled that the DOE's program was therefore not appropriate.  He subsequently determined that Lindamood Bell (based on the various supports that it offers and the student's obvious progress) was appropriate, and the only thing standing between the parent and reimbursement was the fact that the parent never sent the standard "ten day notice letter" (meant to inform the school district that the child will be enrolled in a private program and the parents will seek reimbursement)...

Which brings us to the next important question...which SRO Bates is going to resolve in favor of the parents: Is it fatal to your reimbursement claim if you neglect to write a ten-day notice letter to the school district?  Bates says, "In this case, parents are off the hook."  He relied on the fact that the parents had filed an impartial hearing request about two weeks before they enrolled their child in Lindamood Bell and pointed out that the filing of these papers put the school district on notice.  He swiftly shot down the DOE's argument that a separate ten-day notice letter is required under the law and said that "the argument that a parent is required to go through the exercise of providing a duplicative written notice is unpersuasive and not supported by the IDEA."  The parents therefore prevailed and were awarded full reimbursement for the cost of the program.   

NOTE: This case does not directly address what would happen if the parents did not file for an impartial hearing prior to enrolling their child in the private program and also did not send a ten-day notice letter.  But other cases recently decided by SRO Bates suggest that he would just reduce the percentage of the tuition that the parents are entitled to instead of denying their claim in its entirety.

Value-Added Assessments

Some of you may have been following the issue of whether "teacher data reports" (i.e., teacher performance rankings) should or should not be released to the media and the public.  Well, the NY Supreme Court gave the green light and ruled that the information must be released to those who requested it under FOIL (Freedom of Information Law) and I agree with the court's determination.  Not to say that the data is flawless or that the reliance on standardized test scores is ideal because it's not.  But this is one measure of evaluating teachers and it's useful when considered alongside other data.  If the teachers' union has such strong concerns, it should start focusing on how to improve this tool instead of trying to eliminate it.  Then we can debate what other measurements should be used in addition to teacher data reports in order to determine teacher effectiveness.  The teachers' union will be appealing the decision so no teacher scores will be released just yet.     

SRO 10-110

In SRO 10-110, SRO Bates addresses two important issues regarding pendency: (1) What effect does a stipulation of settlement between the parent and the school district have on pendency; and (2) If a student changes schools for a given school year, what effect does that have on a previous order of pendency (does pendency continue or is it a "change in placement" such that pendency is dead). 

Pendency is the legal concept that allows a child to continue in his "then current placement" at the school district's expense while legal proceedings are pending.  The difficulty lies in determining what constitutes the "then current placement" and to what extent can a settlement agreement impose limitations. 

When a settlement agreement is limited to a specific year, the DOE will typically include language to the effect of "this agreement cannot be relied upon to establish that the school we are paying for is the 'then current placement' for purposes of future litigation." Some courts have ruled that this language is sufficient to achieve that purposes, and that is reinforced by SRO 10-110.  Since the DOE used this language in its settlement agreement covering payment for Manhattan Children's Center (MCC) during the 2009-2010 school year, the SRO held that this agreement could not be the basis for saying that MCC was the "then current placement" for the 2010-2011 year.

BUT...an Impartial Hearing Officer (IHO) decision from August 2008 could be.  In that decision, the IHO determined that the David Gregory School (where the child was enrolled during the 07-08 school year) was the child's then current placement.  The child went to David Gregory for the 08-09 year too, but during the 09-10 school year he was enrolled in MCC.  So, getting back to question #2: does the pendency carry over, or is this a "change in placement" such that the DOE has no obligation to pay for 2010-2011?

The IHO concluded that the DOE acquiesced to MCC being the then current placement for 10-11 because it had agreed to pay for the 09-10 school year while knowing very well that the child was attending MCC!  According to the IHO, the DOE is therefore prevented from arguing otherwise. 

Well, upon review, the SRO said "Hey, it's a bit more complicated than that."  Under federal law, pendency does not require that the child remain in a particular location, and in order for there to be "a change in placement," there has to be a "fundamental change in . . . a basic element of the educational program."  Bates cited to the Office of Special Education Programs which sets forth various factors that should be considered, including whether there have been changes in the child's educational program on his IEP or his opportunities to be mainstreamed.  But the SRO slapped this one back down to the IHO for further consideration because, in his estimation, there was not enough information in the record for the IHO to make the determinatino that there was no fundamental change in the nature of the programs.

MMR & Autism Study Fraudulent?

Surely by now you have caught wind of the firestorm of criticism and hostility targeted at the author of the scientific study that said MMR vaccinations cause autism.  It has been reported in newspapers and discussed on blogs around the world.  Interviews with Dr. Andrew Wakefield, the author of the scaldingly controversial study, which have been widely televised and are easily viewable on YouTube, will stir you up inside.

The debate will continue to be just that, a debate, and I am in no position to comment on the validity or speciousness of the study.  But I can say that the current allegations that the findings of the study were knowingly falsified is very disturbing.  A movement came into existence as a result of Wakefield's report.  Jenny McCarthy, whose child was diagnosed with autism, became the face of anti-vaccination autism advocacy and gave numerous interviews about the harms of vaccinations.  Many parents have relied on those findings and adamantly opposed the administration of vaccinations to their children.  Some of these children have contracted illnesses that would normally have been prevented. 

I have read neither the actual report nor Wakefield's book on the subject, which he has been plugging incessantly (an interview with Anderson Cooper shows a brazen attempt by Wakefiled to self-promote).  For months there have been serious concern about Wakefield's research -- e.g., the size and randomness of the sample group (only 12 children were studied and reports suggest those 12 were not randomly selected), the issue of when the children's developmental problems were first identified, and the integrity of the study.  These are the issues that led to the study being retracted about a year ago by the journal that published it.  But now the suspicions are that Wakefiled deliberately falsified certain information and he is being accused of fraud.   

The thought that the autism community has been clinging to information that was fabricated -- or, at the very least, seriously flawed -- is a big blow to a group which is desperate for and deserves clear answers.

Public School Recommendations and IEP Meetings

Some parents going through the IEP process expect that the CSE will recommend an actual public school site by the conclusion of their IEP meeting.  This point, and the issue of whether the CSE has an obligation to give a specific school site recommendation at that meeting, has been the source of litigation.  Some courts have held that federal law requires that an IEP provide a description of the type of program that would be appropriate for the child but does not require a specific school site recommendation.  See T.Y. v. New York City Department of Education, 584 F.3d 412 (2nd Circuit).  Of course, the Department of Education does have an obligation to find a suitable school site for the child but this is typically left up to the Department's central placement office rather than the CSE.  The thinking is that by mainstreaming the process in this manner the Department will be better able to identify appropriate school sites.  But the frequency with which the Department recommends schools that are totally not appropriate suggests that the system is not running quite as it should be.     

More Change In The State Review Office

There is a new sheriff in town...maybe.  The last 7 SRO decisions have been penned by a man named Justyn P. Bates.