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IDEA under attack because of provision in CARES Act

posted Apr 4, 2020, 3:16 PM by Diane Willcutts   [ updated Apr 7, 2020, 11:58 AM ]

The recently passed CARES Act (an economic stimulus act in response to the coronavirus pandemic) includes a hidden provision that says that the U.S. Secretary of Education, Betsy DeVos, must issue a report within 30 days of the signing of the Act, making recommendations for waivers to IDEA (the Individuals with Disabilities Education Act), Section 504, etc. that could be enacted by law to provide states with "limited flexibility" to meet the needs of students with disabilities.  The Act was signed on March 27, 2020, so the clock is ticking. . .

Unfortunately, "limited flexibility" is undefined, and two powerful national organizations of special education administrators just sent a letter to Secretary DeVos that makes recommendations for waivers that would be disastrous for children with disabilities.  

In their letter, the Council of Administrators of Special Education (CASE) and the National Association of State Directors of Special Education (NASDSE) assert that they are "fierce supporters" of IDEA, an important law that protects children with disabilities.  However, IDEA emphasizes the critical role of parents, who are experts on their children, in developing appropriate educational programs.  In stark contrast, the CASE/NASDSE letter argues for "flexibilities" that would potentially eliminate parent participation in the IDEA process for a period of months—possibly 7 months or longer in Connecticut--and create unnecessary delays in providing appropriate services to children.  

So what does the CASE/NASDSE letter say?

 CASE and NASDSE are proposing to pause IDEA timelines as of the date of school building closure and to not restart them until the school buildings reopen.  And to then get another 45 SCHOOL DAYS (yes, more than two months) to meet the "deadline."  So which deadlines do they want waived?

  • Those for annual review PPTs (Planning and Placement Teams--what IEP meetings are called in Connecticut)
  • PPTs to transition a child from Part C to Part B (the transition from early intervention services provided by Birth to Three to special education services provided by the public schools), 
  • PPTs to review initial and triennial evaluations
  • State complaints
  • Due process hearings

For states like Connecticut where school buildings are closed now and are likely to remain closed until next fall, this translates to special education administrators potentially being able to limit/eliminate parent participation and to make unilateral decisions about a child's program for the next 7 months.

But aren’t health and safety the priority right now?  IDEA encourages PPTs to convene by telephone or video conference when needed.  Virtual PPTs present no risk to health or safety.  

But shouldn’t we be focusing on the provision of services rather than convening IEP meetings?  We need to do both.  School districts are always expected to do both.  IEP meetings are to ensure meaningful parent participation.  The pandemic has not changed that.  And certainly, with meaningful input of parents, who are experts on their children, services are more likely to be appropriate.

But don’t you understand, there is a pandemic?  For most of us, the main impact of the pandemic is that we are working in a different location.  Most of us are healthy.  We are not asking first responders or grocery store workers to participate in our IEP meetings.  Most Connecticut school staff are being paid to work right now.  And the U.S. Department of Education has issued several guidance documents related to waivers and flexibilities in response to disasters.  In those documents, two things are clear.  Timelines for annual reviews and most other timelines may not be postponed.  And parent participation may not be waived.  See here, here, and here

Another concern is that, if we do not convene PPTs now, we will not realistically be able to catch up in a reasonable period of time once school buildings re-open   March through June is the busiest time for PPTs, with many of the back-to-back meetings focusing on transitioning the child to the next grade, which brings new demands and requires revisions to IEPs to ensure appropriate programming is in place prior to the start of the school year.  Connecticut parents have let me know they are panicking because, even without any waivers from the federal government, many districts are already refusing to convene virtual PPTs and are saying that these meetings will not occur until the school buildings re-open.  Which could be in the fall.

Children who are turning three who require special education are supposed to receive services by the start of their third birthdays.  Again, two powerful organizations of special education administrators are advocating to permit school districts to unnecessarily refuse to do any planning for these students now but instead to extend timelines for over two months into the school year.

Due process hearings are needed to resolve disagreements between families and school teams regarding critical aspects of a child's program.  These are being done virtually in some states.  Delaying them is unnecessary.

The bottom line is that some school districts ARE convening virtual PPTs now, some are participating in virtual mediation, some are participating in virtual due process hearings. . . so we know it’s possible, despite the pandemic.  And there are school teams who are working with families in a meaningful way to provide appropriate programs during the school closures.  We can do this!

So what else is a concern?

The CASE/NASDSE letter also asks for "procedural flexibilities," recommending that “distance/continual learning plans” implemented during school closures not be part of the IEP, which means this would not require a PPT.  PPTs include parents as equal decision-makers, so doing this apart from the PPT is significant.  If the CASE/NASDSE proposal were passed through legislation, school districts  would be permitted to unilaterally make decisions about the child’s programming during the months of school closure.  Per CASE/NASDSE, parents would be “consulted” but would not be equal decision-makers with IDEA protections.  

CASE/NASDSE states their intention is to ensure that the IEP that was in place prior to school closure is the IEP that is in place once school buildings re-open.  This would be important in order to ensure that, in the event of a due process hearing, "stay put" is not homebound, distance learning.  (I suspect most families do not want "stay put" to be that either.)  However, the result of this proposal could be that districts will assert there is no need to obtain parent agreement about programming or to convene virtual PPTs at any time while the school buildings are closed.  

So what does the U.S. Department of Education (USDE) say?  In their Q&A related to the H1N1 influenza outbreak, the USDE proposed having a "contingency plan" as part of the IEP to address distance learning during school closure.  It said:

Question A-4:  May an IEP Team include a distance learning plan in a child’s IEP as a contingency plan in the event of an H1N1 outbreak that requires the school’s closure? 

Yes. IEP teams may, but are not required to, include distance learning plans in a child’s IEP that could be triggered and implemented during a selective dismissal due to an H1N1 outbreak. Such contingent provisions may include the provision of special education and related services at an alternate location or the provision of instructional telephone calls, homework packets, Internet-based lessons, and other available distance-based learning approaches, and may identify which special education and related services, if any, could be provided at the child’s home. 

Creating a contingency plan before an H1N1 outbreak occurs gives the child’s service providers and the child’s parents an opportunity to reach agreement as to what circumstances would trigger the use of the child’s distance learning plan and the services that would be provided during the dismissal. 

In this case, since the contingency distance learning plan was to be in place only during school closure, it was not “stay put” once the school buildings re-opened.  This USDE guidance recommends going beyond the CASE/NASDSE proposal that districts merely “consult” with parents and instead recommends giving the child’s service providers and parents the opportunity to make decisions together.  Since IDEA permits the IEP to be revised through a written amendment, provided the parties agree, this change to the IEP might not require a PPT.   Alternatively, the district would need to convene a virtual PPT to consider school team and parent proposals for the distance learning plan.  

My opinion:  Under no circumstances, should the distance learning plan be unilaterally determined by the school team, with the parents having no decision-making ability and no recourse if the program is inappropriate.

What about the CASE/NASDSE request for "financial flexibility" regarding Maintenance of Effort?


This CANNOT happen.  

 

IDEA explicitly requires a local educational agency (LEA or school district) to expend from local and state funds at least as much in the current year as it expended in the preceding year, except as provided in a very limited number of circumstances.  This provision is known as the maintenance of effort (MOE) requirement, which school districts must follow In order to be eligible to receive any IDEA funds.  The MOE requirement is to ensure that local districts aren’t constantly reducing their spending on special education and to ensure that federal IDEA funds are not simply being used to supplant local spending.   

CASE/NASDE is proposing that MOE be waived for the 2019-2020 school year--which would mean that school districts could spend less--dramatically less--on special education this year and going forward.

Waiving MOE for this year means that school districts can lower special education funding this year and would then get to base next year’s education funding on the lower funding level.  This provides an incentive for districts to not commit sufficient money to meet the needs of students with disabilities now and is an incentive to continue with the lower spending levels going forward.

Districts need to allocate resources to special education as much now as they ever have.  We need to ensure students have access to virtual learning, which doesn’t apply to all students but applies to most.  Laying off teachers and others during the pandemic is counter to what we should be doing.  We need to maintain contracts with private special education schools and contractors to ensure continuity of services when school buildings re-open.

In short, there is no reason for the Maintenance of Effort requirements in IDEA to be “flexible” now, as the immediate and long-term impacts would be devastating to students with disabilities.

So what about the positives?  I am aware of many special education administrators who have been leaping tall buildings to continue virtual IEP meetings, to include parents in decision-making as equal members of their child's team, and to provide services to every child to the maximum extent possible.  Heroes exist!

But the CASE/NASDE proposals?  The result could very well be no IEP meetings or hearings during school closures and beyond--which is becoming the norm in many Connecticut districts--and potentially nothing for months after school buildings re-open.  In short, no parent participation required.

So what are the next steps?  Please write to and call your Senators and your Representative in Congress to let them know that most of the proposed IDEA waivers are unnecessary, would be damaging to your child, and should not be included in any future legislation.  In case it's helpful, a sample letter I wrote to one of my Senators is here.  Please adapt as you wish!

My recommendations:  

1.    Timelines for initial evaluations and triennials that have already been completed and/or do not require in-person assessment should not be paused, as this is unnecessary.

2.    Timelines for initial evaluations and triennials that have not yet been completed and that require in-person assessment could be paused from the time school buildings were closed and should restart immediately once face-to-face contact can safely resume and/or when the school buildings re-open  Why pause the timeline at all? Because some protocols for standardized testing may require face-to-face assessment to ensure validity.  Check with the test publisher to find out what they are recommending.  

3.    Annual review IEP meetings, meetings to transition a child from Part C to Part B, due process hearings, and state complaints should proceed virtually, and timelines should not be paused.  

4.    EXCEPTION TO TIMELINES:  If parents initiate a written request to wait to convene the PPT until it can occur in person, the timeline could be paused until school buildings re-open and then resume at that time.  The request must be in writing and be initiated by parents, not by school district staff.  The reason for this is that, in effect, parents are waiving their child's right to a PPT, which is the parents' right, not the school district's.

5.   ANOTHER EXCEPTION to the timeline for Part C to Part B transition.  This could be paused during school closures, provided Part C services (Birth to Three) continue until there is a PPT to determine eligibility for special education.  (Thank you, Andy Feinstein, for that great suggestion!)

6.    Any temporary "distance/continuous learning plan" must be incorporated into the IEP as a contingency plan, remaining in effect while the school buildings are closed and not to be "stay put" once school buildings re-open.  Most contingency plans could be done through written amendment to the IEP--with parent and school district agreement.  Alternatively, a virtual IEP meeting could be convened. 

7.  No waiver of Maintenance of Effort requirements.

Consistent with IDEA and USDE guidance, parent involvement in the development of their child's individualized plan is not optional, and it is critical that children not lose IDEA protections while school buildings are closed.

The Council of Parent Attorneys and Advocates wrote their own letter to Secretary Devos, recommending no IDEA waivers, here.  


ACTION ALERT 2 - So what have you done for me lately?

posted Mar 20, 2020, 8:36 AM by Diane Willcutts   [ updated Mar 20, 2020, 2:08 PM ]

On the plus side, yesterday's effort worked!  The reason the awful "let's suspend IDEA for the next year or more" wasn't included in yesterday's stimulus bill is due to all the efforts of parents and disability rights organizations to virtually storm Congress!  

HOWEVER, this bill requires that the Secretary of Education provide a report with recommendations for possible waivers in regards to IDEA (special education law) AND also Section 504 (civil rights law protecting students with disabilities).  I.e., the IDEA and 504 waivers aren't part of this bill.  But having the Secretary of Education write a report recommending waivers is a step in the process to remove protections for our kids.  So. . . 

Please keep the pressure on Congress!  

Yesterday's action alert that includes contact information for members of Congress is here.

Today's action alert from the Council of Parent Attorneys and Advocates (COPAA) is here.

A sample letter to Congress is at the end of this post.

From Lou Geigerman (advocate in Texas--posted on Facebook 16 hours ago on 3/19/2020)
The provision that we were concerned about never was inserted in the bill that passed yesterday. However, a follow up stimulus bill that is being introduced tomorrow by Senator Alexander in HEN 20255 has the following language and needless to say it is very concerning to all of us and we need to contact our US SENATORS TO REMOVE ANY LANGUAGE RELATING TO WAIVERS FOR IDEA or other education policy:

6 SEC. 4511. NATIONAL EMERGENCY EDUCATIONAL WAIVERS.

18 (3) IDEA REPORT.—Not later than 30 days
19 after the date of enactment of this Act, the Sec-
20 retary of Education shall prepare and submit a re-
21 port to the Committee on Health, Education, Labor,
22 and Pensions and the Committee on Appropriations
23 of the Senate, and the Committee on Education and
24 Labor and the Committee on Appropriations of the
25 House of Representatives, with recommendations on

231

HEN20255 S.L.C.

5XT 2N J6H
1 any additional waivers the Secretary believes are

2 necessary to be enacted into law under the Individ-
3 uals with Disabilities Education Act (20 U.S.C.

4 1401 et seq.) and the Rehabilitation Act of 1973 (29
5 U.S.C. 701 et seq.) to provide limited flexibility to
6 States and local educational agencies to meet the
7 unique needs of students with disabilities during the
8 emergency involving Federal primary responsibility

9 determined to exist by the President under the sec-
10 tion 501(b) of the Robert T. Stafford Disaster Relief

11 and Emergency Assistance Act (42 U.S.C. 5191(b))
12 with respect to the Coronavirus Disease 2019
13 (COVID-19).


Diane Willcutts

(street address)

West Hartford, CT  06119

(860) 992-5874

DLK@toast.net

www.educationadvocacyllc.com

 

March 20, 2020

 

Senator Chris Murphy

U.S. Senate

(202) 224-9750 (fax)

 

Re:  COVID-19 Bill - Today's Attack on IDEA and Section 504

 

Dear Senator Murphy:

 

As I wrote yesterday, I am an advocate for Connecticut children with disabilities.  I am horrified to hear that there are continued efforts in Congress to ultimately permit the Secretary of Education to waive provisions of IDEA and now Section 504 of the Rehabilitation Act of 1973.  These attacks on protections for students with disabilities need to stop!

 

I urge you to reject any provision that would lead to waiver authority to the Secretary of Education regarding the Individuals with Disabilities Education Act (IDEA) or Section 504. 

  

I hope you will help schools by providing states with additional funding that can be used to provide teachers and school leaders and families with the tools they need to connect to teach and support students.

 

Please support the students with disabilities that rely upon the IDEA, Section 504, and the ADA to have equitable access to an education.  If I can be of any help, please let me know.

 

Sincerely,

 

Diane Willcutts


ACTION ALERT - Attack on IDEA may end up in COVID-19 stimulus bill

posted Mar 19, 2020, 11:08 AM by Diane Willcutts   [ updated Mar 19, 2020, 12:24 PM ]

Reportedly, U.S. Senator Lamar Alexander (R-TN) is seeking to waive the provisions of the Individuals with Disabilities Act (IDEA) for a year or longer.  This essentially means that districts would not be responsible for educating students with disabilities during that time.  Please contact your senators and representatives!  

Contact information for members of Congress is here.

The Council of Parent Attorneys and Advocates (COPAA) has issued an action alert with sample language and contact information, here.

The letter I sent to my representatives is below.  Feel free to steal whatever you would like!  

____________________________________________________________________________________________


Diane Willcutts

(home address)

West Hartford, CT  06119

(860) 992-5874

DLK@toast.net

www.educationadvocacyllc.com

 

March 19, 2020

 

Senator Chris Murphy

U.S. Senate

(202) 224-9750 (fax)

 

Re:  COVID-19 Bill - Attack on the Individuals with Disabilities Education Act (IDEA)

 

Dear Senator Murphy:

 

I am an advocate for Connecticut children with disabilities.  I am very concerned to hear that there are efforts from Senator Lamar Alexander to waive provisions of IDEA for a period of time, perhaps a year or longer.  The idea that the U.S. would possibly sanction losing a year of education for our most vulnerable children is frightening, and I hope you will help.  

 

While the COVID-19 outbreak has placed a tremendous and unprecedented strain on schools and districts, it is imperative that we work together to find solutions that allow children to receive equitable access to an education and the services that support them without undoing all of their civil and educational rights.  I urge you to reject any provision that would provide waiver authority to the Secretary of Education regarding the Individuals with Disabilities Education Act (IDEA). 

 

Over 7 million children rely on IDEA to receive special education supports and services.  And in fact, some districts, even this early on, are being very creative and are finding ways to meet children's needs, including providing tele-therapies and convening virtual IEP meetings to plan for their programs.  

 

To make sure all students have access to the internet, some districts are setting up locations to provide devices to all children to take home, and we are working to find ways for all families to have internet access.  THAT should be our focus.  If anything, this crisis is giving us the opportunity to find more equitable ways to provide education.  The answer isn't "let's not have any expectations for our schools to educate children."  The answer is "let's creatively trouble-shoot how we can meet our students' needs.”  And that includes all of our students.  

 

Right now, many of us are at home and are healthy.  We're not first responders.  We don't work in grocery stores.  Why wouldn't we take some time off from worrying to try to creatively trouble-shoot what we can do for all kids?  Without sanctioning widespread discrimination against children with disabilities.  

 

I hope you will help schools by providing states with additional funding that can be used to provide teachers and school leaders and families with the tools they need to connect to teach and support students. Schools can also be supported with funding to provide extended school year to students and other compensatory services.

 

Please support the students with disabilities and their families that rely upon the IDEA to have equitable access to an education.

 

Sincerely,


Diane Willcutts



School is closed because of COVID-19 (coronavirus). So now what?

posted Mar 14, 2020, 2:33 PM by Diane Willcutts   [ updated Mar 22, 2020, 5:12 PM ]

 INFORMATION ADDED TODAY IS IN RED.  

The Governor has ordered that Connecticut public schools end classes by the end of the day Monday, March 16, 2020, and remain closed through at least March 31, 2020.  This will likely be longer. 

What does this mean for students who receive special education services?

So far, we don't know much for sure.  We are still waiting for more guidance from the state.  A letter from SEEK (Special Education Equity for Kids) that makes recommendations to the Connecticut Commissioner of Education is here.  SEEK is Connecticut's first organization of parents, providers, advocates and attorneys, fighting for excellent education for the 70,000 Connecticut students with disabilities.

1.  What do we know for sure?  

Connecticut students are not going to be required to attend school in July.  

The state has waived the requirement that schools be in session for 180 days this school year and has said that districts can close at the usual time.  Districts are being encouraged to set up some form of distance learning.  The time/means of this will likely vary from district to district.  The executive order from the Governor is here.  And of course, the big challenge will be meeting the needs of students with disabilities who cannot benefit from online learning, not to mention all students who do not currently have the technology to engage in computer-based learning.  More to come!

2.  Does the school district need to provide special education services to my child while school is closed?

Welcome to the wild west.

Some districts are telling families yes.  Some districts are telling families no.

The state seems to say yes.

The federal government says "it depends."

I say, "Absolutely, as long as the child can safely benefit from this."  And if we truly can't provide appropriate services while the school building is closed, then we need to make up those services at a later time (e.g., through compensatory education).

So from the state:   "The federal law related to special education and students with disabilities does not specifically address a situation in which school would be closed for an extended period due to exceptional circumstances, such as a pandemic influenza. School districts, however, may not discriminate on the basis of disability when providing educational services, and remain responsible for the free appropriate public education (FAPE) for students."  (Bold added.)  This guidance is here.  That's about the extent of the direction, though; and I expect the state to issue more detailed guidance soon.

On the other hand, the U.S. Department of Education's Office of Special Education Programs (OSEP) issued guidance that says that, "if (a school district) closes its schools to slow or stop the spread of COVID-19 and does not provide any educational services to the general student population, then (the school district) would not be required to provide services to students with disabilities during the same time period."  OSEP's Q&A is here.    

HOWEVER, the Council of Parent Attorneys and Advocates (COPAA), which works on behalf of children with disabilities, disagrees and indicates that not providing IEP services would be a violation of IDEA.  Specifically, . . . "the Secretary (of Education) does not have the authority to grant waivers to FAPE under IDEA.  COPAA has grave concern with the (federal) Department of Education's proposition that students with disabilities are not entitled to services during a school closure.  COPAA believes the obligation remains.  COPAA's analysis is here.

OSEP at least acknowledges that, "If (a school district) continues to provide educational opportunities to the general student population during a school closure, the school must ensure that students with disabilities also have equal access to the same opportunities, including the provision of FAPE (a Free and Appropriate Public Education, as provided in the IEP).  The (state department of education, the school district) and schools must ensure that, to the greatest extent possible, each student with a disability can be provided the special education and related services identified in the student's IEP, or a plan developed under Section 504."

OSEP also acknowledges that compensatory education may need to be provided to make up for missed instruction.  

3.  What if my child's school district does not provide special education services or provides insufficient services?  Can I obtain services privately and then ask for reimbursement?

This would make sense, but as I said, it's the wild west, so who knows how this will play out.  To keep the door open for reimbursement, many attorneys have recommended that parents send a "10-day letter" to the district, which states that the existing programming is inappropriate, that parents/guardians are going to obtain appropriate private programming for their child, and that they will request reimbursement from the district.  A 10-day letter must be sent to the district at least 10 BUSINESS DAYS prior to the private services starting.  Note that I am not an attorney, so if you require legal advice, please contact an attorney.  If you need a list of attorneys with whom to communicate, just email me, and I will provide that.

4.  So what about PPTs (IEP meetings) and 504 meetings that were scheduled to occur during school closures?  Are these cancelled?

Most districts have asked to reschedule PPTs and 504 meetings that are to occur in the next two weeks and say they are planning to reschedule once the school buildings re-open, whenever that occurs.  I am asking my families to instead consider requesting that the districts convene these meetings even while the school building is closed--by conference call and/or online web service.  

Why?  

Because realistically, schools may be closed well beyond March 31.  And either way, there may not be enough time to reschedule all the missed PPTs and 504 meetings that need to occur prior to the end of the school year.

Yes, we can meet in the summer, but. . . most of these PPTs truly need to occur prior to the end of the school year.  PPTs are required to consider whether a child needs extended school year services (also known as ESY--special education services that occur during the summer), which requires that we make decisions about ESY before summer starts.  Many students need revisions to their IEPs and 504 plans prior to transition to the next grade.  And many students are due for annual review PPTs this time of year--which are meetings that IDEA requires occur no later than a year from the previous annual review.   

Note that the U.S. Department of Education's Office of Special Education Programs (OSEP) issued guidance related to another disaster, Hurricane Sandy, relative to meeting IDEA's timelines, indicating that we still do need to convene annual reviews within the time frame, even if virtually.  

I understand that many people are saying, "Shouldn't these procedural requirements be waived?  Where are your priorities?"  My priority is making sure that children with disabilities are not forgotten during this crisis.  IDEA was passed at a time when school districts were saying, "We don't know how to meet the needs of children with disabilities, so we're not going to even try."  IDEA requires that we figure it out.  And we are creative, capable people.  We can do this.

Fortunately, there are services like Zoom, Skype, Free Conference Call, FaceTime, etc. that can host meetings while school buildings are closed.  This isn't even close to a perfect solution because some families do not have access to web technology or even reliable phone service.  However, it would be enormously helpful to convene meetings however we can for however many children we can in the interim.  And if I hear about some more creative solutions, I will definitely pass them on!

5.  My child attends an outplacement (private special education school) that is still open.  But my district is closed.  Can my child still go to school?  

I'm not sure how many private schools are still open, but this definitely applied last week.  When the private school was open, some school districts said yes, the child could go to school, and the district still provided transportation.  Some school districts said yes but refused to provide transportation.  And some districts said, no way, your child is not allowed to attend, even if you agree to transport.  Needless to say, I applaud the first group.  Do not get me started on the other two.  To my knowledge, the state has not yet weighed in on this, and I hope they will, helping us to keep the focus on the needs of the child.

6.  What resources exist to help my children while they are at home?
  • For the next two weeks, many Connecticut districts have sent home packets and are providing online practice to "maintain skills."  Many families have been told that this work is optional and will not be graded.  Which is helpful, as much of this work is not truly accessible to children with disabilities or to families who do not have internet service, etc.  My understanding is that many districts are using this initial two-week period to figure out what kind of instruction they might offer if the school closures go on beyond two weeks.
  • Today, the Governor said that there will be a free online education module available to all students, but there were no details provided regarding when this would happen, what this would include, how it would be made accessible to children with disabilities, or how we would ensure that all students have internet access.  More coming as we learn more.
  • For those who do have internet access, many online education companies are providing free subscriptions due to the coronavirus outbreak.  Two comprehensive lists are here and here.  
    • For those looking for a curated list of resources, Amy Langerman, an attorney and special education consultant, has more ideas on her facebook page, here.  Search "education ideas" on her page.
    • Literacy How provides a list of websites that will help the new, accidentally homeschooling family.
    • The Connecticut State Department of Education just published a list of resources for instruction, including those that are subject-specific.
  • Wilson Language Services has attempted to provide guidance regarding continuing Wilson instruction during school closures, here.
  • NESCA (a neuropsychology group in Massachusetts) wrote an article on making the most of COVID-19 school closures, here.
  • Many experts suggest having a schedule for children to structure their day, and one example is below.  This image is also attached to the end of this post, in case people want to print it separately. 

Sample schedule for COVID-19 school closures

  • Many Connecticut districts continue to offer free breakfasts and lunches to their students through "grab and go" sites.  Check the individual school district web sites for information about locations.  Families can also call 211 to get information about where to obtain food.  
Some school "grab & go" resources that have showed up in my in-box are below (and please email me more if you have them):



Confused?  Overwhelmed?  You are not alone.  I'll post more as I learn more.  Stay safe!



Connecticut hearing decisions 2016-present - who went, who won, who decided?

posted Aug 17, 2019, 1:57 PM by Diane Willcutts   [ updated Aug 17, 2019, 2:08 PM ]

Most families of children with disabilities will never have to file for a due process hearing.  And in the cases where parents do have to file, approximately 95% of those cases settle without going to a full-blown hearing.   So what happens with that other 5%?

As part of my summer project, I reviewed all the hearing decisions from 2016 through the present and organized them in a table, listing the district, prevailing party, hearing officer, parent attorney, school board attorney, etc.  

It's important to note that parents were represented by attorneys only 42% of the time.  School boards were represented by (taxpayer-funded) attorneys 100% of the time.  When parents were represented by attorneys, they prevailed 42% of the time at the hearing level.  When parents went to a hearing pro se (without an attorney), they prevailed only 4% of the time.

The table I prepared--sorted by school district--is below and can be downloaded.

My child has passing grades, and the district is saying that this means she cannot be eligible for special education. Is that true?

posted Feb 27, 2018, 2:13 PM by Diane Willcutts   [ updated Feb 27, 2018, 2:15 PM ]

No.

From 300.101(c) of the IDEA regulations:

Each State must ensure that FAPE (a Free and Appropriate Public Education – special education) is available to any individual child with a disability who needs special education and related services, even though the child has not failed or been retained in a course or grade, and is advancing from grade to grade

It's also important to remember that special education is not just about academics.  There are some students with IEPs who do not receive any special instruction for academics but who may need special instruction in social/pragmatic skills, organization, emotional regulation, etc.  For example, the U.S. Department of Education has stated in the attached letter (see link below):

"The term 'educational performance' as used in the IDEA 'means more than academic standards as determined by standardized measures.'"

If questions, let me know!

How much progress is "appropriate?" Guidance from the U.S. Department of Education.

posted Feb 17, 2016, 5:04 PM by Diane Willcutts   [ updated Feb 17, 2016, 5:05 PM ]

Sometimes parents hear from school teams that it is unreasonable to expect a child with disabilities to progress more than a year in a year's time.  

A recent letter from the U.S. Department of Education says otherwise.

"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."

The letter is attached to this post.

Can a service or support that is available to all students go into the IEP?

posted Feb 13, 2016, 2:01 PM by Diane Willcutts   [ updated Feb 14, 2016, 8:11 AM ]

Yes.

Sometimes parents will hear that we can't put something in the IEP because it is just "good teaching" or is something that is available to all students, not just those receiving special education.  

However, if a student has an IEP and that service is essential to an appropriate program, it must go in the IEP.  

From the U.S. Department of Education's Office of Special Education Programs (OSEP) Letter to Chambers (bold added):

The IEP Team is responsible for determining what special education and related services are needed to address the unique needs of the individual child with a disability.  The fact that some of those services may also be considered “best teaching practices” or “part of the district’s regular education program” does not preclude those services from meeting the definition of “special education” or “related services” and being included in the child’s IEP.  The LEA must provide a child with a disability specially designed instruction that addresses the unique needs of the child that result from the child’s disability, and ensures access by the child to the general curriculum, even if that type of instruction is being provided to other children, with or without disabilities, in the child’s classroom, grade, or building.

This makes sense, as what is available to all children in one school may not be available to all children in another school.  If the child moves, their IEP goes with them, and it would need to be implemented by the new school.

OSEP's Letter to Chambers is attached to this post.

Controversy around CT's new restraint and seclusion law

posted Sep 29, 2015, 8:51 AM by Diane Willcutts   [ updated Oct 3, 2015, 11:27 AM ]

I was ecstatic when PA 15-141, Connecticut's new restraint and seclusion law, was passed a few months ago.  The new law limits the use of restraint and seclusion to emergency situations only.  Whereas the previous law also permitted the use of seclusion to be part of the IEP (Individualized Education Plan) as a planned intervention.  

So what's controversial?

The Connecticut State Department of Education (CSDE) is saying that the law doesn't mean what it says and has provided guidance to districts stating that they can continue to use seclusion as part of the IEP for a child with disabilities.  

This is in stark contrast to guidance provided by the Office of the Child Advocate and the Office of Protection and Advocacy, which states that schools can no longer use seclusion as a planned intervention but must limit its use to emergency situations.  

The CSDE's guidance also contradicts the legal interpretation of one of the largest Connecticut law firms representing school districts, Shipman & Goodman, who notified districts last June that they were no longer going to be permitted to use seclusion as part of the IEP.

So why is seclusion a bad thing?  Don't students sometimes need a quiet place to calm down?

Sure, many students can benefit from going to a quiet space.  But seclusion rooms (also known as "scream rooms") are not the average quiet space.  

Seclusion is defined in PA 15-141 as "involuntary confinement," and this usually involves a locked door or an adult blocking the student from exiting a space.  Too many students have been traumatized by being placed in scream rooms, some have been injured, some have urinated/defecated on themselves, some have ended up being restrained when they negatively reacted to staff putting hands on them to "escort" them to the scream room, etc.   

How often are scream rooms used?

According to the the CSDE's Annual Report on the Use of Restraint and Seclusion in Connecticut, 2013-2014, there were 12,350 emergency seclusions, resulting in 46 injuries.  423 of emergency seclusions lasted more than 60 minutes.  

There were 5,439 non-emergency seclusions (conducted as part of a planned intervention in the IEP), resulting in 32 injuries.  89 of the non-emergency seclusions lasted more than 60 minutes.

Why would anyone place a child in seclusion in a non-emergency situation?

Really, it makes no sense.  The State Department of Education says that seclusion should be placed in the IEP only after other positive, less restrictive interventions have been tried and failed.  But there is no research supporting that seclusion changes behavior.  Further, many school districts do not exhaust efforts to positively address the underlying causes of the behavior before putting seclusion in the IEP.  I have had students come to me who had seclusion in their IEPs, even though they had never been assessed by a Board Certified Behavior Analyst (BCBA), a specialist in behavior intervention.  No one had conducted an ecological assessment (which can help identify skill deficits that can trigger behaviors).  No inclusion specialist was consulted.  No psychiatric evaluation had been done.  In reality, putting seclusion in the IEP translates to the educators saying, "We give up."

If the new law says that restraint and seclusion cannot be used in non-emergency situations, why would the CSDE provide guidance saying it can be used in non-emergency situations?

I asked the CSDE about this and received an email from Gail Mangs, a consultant at the state Bureau of Special Education, which states, "This is based on our reading of Public Act 15-141 which includes Section 1(j)(1) in which it states that in recording each instance of physical restraint or seclusion it must be specified whether the use of seclusion was in accordance with an IEP."  I double-checked, and yes, indeed, that language is in the law.  I sent a reply to Attorney Mangs, copying Isabelina Rodrigues, the Chief of the CSDE's Bureau of Special Education, that said ". . . apart from the reference to data collection for seclusion in accordance with the IEP (which seems like it may have been an oversight), it looks like all the other language from the previous law regarding a District's ability to include seclusion as a planned intervention in an IEP was explicitly deleted.  I am very concerned that Districts are going to continue to seclude students in non-emergency situations, which seems to be in direct conflict with the intent of PL 15-141."  To date, I have received no reply.  

Where can I find more information?

Attached to this post:
  • A powerpoint of the CSDE's Bureau of Special Education's legislative update, which includes their guidance stating that districts may still use seclusion in non-emergency situations  
  • Guidance from the Office of the Child Advocate and the Office of Protection and Advocacy, which contradicts CSDE guidance
  • Guidance from Shipman & Goodwin, a large law firm that represents many Connecticut school districts, which contradicts CSDE guidance
  • A copy of PA 15-141.  Note that the bracketed items in the statute include language that was deleted from the law
  • The CSDE's Annual Report on the Use of Restraint and Seclusion in Connecticut, 2013-2014
If you want to see the CSDE's video presentation of their guidance (made to about 100 Connecticut special education directors), go to http://ctserc.org/bts15  Scroll down, and click the upper left-hand corner of the video screen for the playlist.  Select "Legislative Updates - Gail Mangs."

New CT Law Prohibits Expelling or Suspending Students in Grades PK-2.

posted Sep 11, 2015, 5:34 AM by Diane Willcutts   [ updated Sep 11, 2015, 5:39 AM ]

Believe it or not, this law is necessary.  In the 2013-2014 school year, Connecticut schools suspended students under the age of 7 over 1,200 times.  This law applies to all students, but we should note that students with disabilities are suspended 2-3 times as often as their peers without disabilities.  

Why was this happening? Because teachers often have not been provided with enough training or support in their classrooms to be able to effectively address "behavior" in a positive way.  Suspension and expulsion do not change behavior; they simply provide school staff with a break from the student. Instead of using these ineffective methods, we need to provide teachers with more support.  Supports could include providing teachers with training in effective positive behavior interventions, bringing in a Board Certified Behavior Analyst (BCBA) to analyze the function of the student's behavior and to advise how to effectively address it, consulting with a social worker, instituting smaller class sizes, exchanging our "zero tolerance" discipline policies for something effective, or something else.

Side note: it is not uncommon for students with disabilities to act out when their needs are not being adequately met, and many students with disabilities are not even identified.  Families and school staff need to be aware that Connecticut regulations require that students with even marginal behavior must be referred to a Planning and Placement Team meeting (PPT) to consider whether the child has a disability and is eligible for special education.  From 10-76d-7(d): "Provision shall be made for the prompt referral to a planning and placement team of all children who have been suspended repeatedly or whose behavior, attendance, including truant behavior, or progress in school is considered unsatisfactory or at a marginal level of acceptance."  This applies to students of any age.  Most parents and even school staff are not aware of this regulation, but following it could be a huge help to our teachers and students.

For further reading, the new law banning suspension and expulsion of young children is here.  The Connecticut special education regulations, including a description of when a student must be referred to a PPT, are here and here.  There are two links for the regulations because the new and old regulations have not yet been integrated into one document.



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