Special Education Law Blog

Inclusive Preschools

More than 700,000 preschool children in this country, or 6.4% of the preschool population, have been identified as having special needs.  And research has made it clear that many of these children will benefit from inclusive preschool placements where they can learn with and from their non-disabled peers.  Four reviews of the literature undertaken since 1980 indicate that children with special needs placed in inclusive settings make at least as much progress on standardized measures of cognitive, language, motor, and social development as children in self-contained special education settings. According to researchers, inclusive placements afford preschool children with special needs learning opportunities that they will not have in a non-inclusive setting.  In addition, some researchers feel that placement in non-special education settings is simply the right and ethical thing to do for these children and their families.

Federal law reflects this understanding by requiring that preschool children with special needs (ages 3 through 5) be provided a free and appropriate public education (FAPE) in the least restrictive environment (LRE) to the maximum extent appropriate. (Whether or not 2 year olds should be included in the LRE requirement is left to the discretion of individual states.)   IEP teams must consider for each special needs preschooler whether an inclusive setting, with appropriate aids and supports, will enable the child to be educated alongside his or her non-disabled peers.  Preschoolers may be placed in special needs programs only if the severity or nature of the child’s disability makes a non-inclusive placement impractical.  The rub, however, is that most school districts do not offer preschool programs for non-disabled students.   

OSEP (Office of Special Education Programs) has made it clear that lack of school-run preschools does not absolve school districts from their obligation to educate special needs preschoolers in the LRE.   In a February letter from OSEP, school districts are reminded not only of their statutory requirements regarding preschoolers, but also told to be creative in finding alternatives for those young students for whom inclusive settings (defined as a program in which at least 50% of participants are non-disabled) will be beneficial. In securing a non-inclusive setting for a preschool child with special needs, school districts should consider the appropriateness of a kindergarten placement, Head Start programs, public or private preschool programs, community-based child development centers or care facilities, or a child’s home.  If the district determines that a private preschool program is most appropriate, it must be paid for by the school district and not the family to ensure FAPE.

It’s obviously not enough to simply place a preschooler in an inclusive setting and assume all will be well.  The IEP team must plan for success. Many modifications may need to be considered, including environmental adaptations, instructional or curricular modifications, specialized instructional strategies, peer supports, team teaching strategies, assistive technology, or additional adults in the classroom.  These adults may be special ed aids, special education teachers, or itinerant service providers.  A child’s therapy and other related services can also be provided within the classroom.  Classroom teachers and support staff will also need specific support, including training, in order to address IEP goals within the classroom.  With everything properly in place, the special needs preschooler can hopefully learn and play alongside his or her non-disabled peers.

 

Maintenance of Effort Maintained

Advocacy groups and special education students won a recent victory this April when the Department of Education’s Office of Special Education Programs rescinded its instructions to school districts from last June that would have effectively allowed school districts to make permanent reductions in their spending on special education. School districts, however, are not happy as they want flexibility to cut and reallocate funds from special education  budgets.

Parents' Frustration with IEPs With Video Humor

It this video was not so true it would be very funny. It rings so true to a number of cases that I have had especially in this age of RtI.

 

Incarcerated Youth with Disabilities

It is extremely difficult for youth who have been living in correctional facilities to return to their communities, families, schools, and employment.  Because the youth are very likely to be returning to the very same environments into which they got into trouble in the first place (e.g., poverty, chaotic schools, substance abuse issues, or dysfunctional families), their rate of recidivism is extremely high.  According a new report from Project Forum released last December, approximately 55% of youth return to detention facilities or prisons within 12 months of their release. And that number is even higher for youth with disabilities.  As one researcher commented, “the most difficult part of many youths’ experience in the juvenile justice system is not being confined, but returning home.”

How many youth are incarcerated in our country, and what disabilities do they have?  In 2007, more than 87,000 youths were held in juvenile correctional facilities; an additional 3,650 were in state prisons.  Of these numbers, youth with disabilities are overrepresented.  One study showed that whereas only 9% of youth in our nation’s schools are eligible for special education services, an estimated 37% of youth in the juvenile justice system receive services under IDEA. Some reports suggest that the number of incarcerated youths with special needs in fact ranges from 30 to 70% of the population.  Of incarcerated youth, between 65% and 90% could be diagnosed with at least one mental health disorder.  Additionally, it is estimated that approximately 10% of incarcerated youth have learning disabilities, 50% have emotional disorders, 12% have intellectual disabilities, and as many as 50% have AD/HD. 

These youthful offenders have likely been served poorly by their home schools.  They have also likely been served poorly through the educational programs offered by the juvenile justice system.  Even though incarcerated, students who receive special education services are still entitled to FAPE (free and appropriate public education).  But the provision of FAPE can be problematic for youthful offenders. Incarcerated youth can be moved frequently, IEPs and educational records (if they are even obtained from home schools) do not always follow the offenders, families are minimally involved with educational planning, and some of the disciplinary procedures used for offenders are unhelpful to them educationally.  This is regrettable, because we know that youths who progress academically while incarcerated will have lower recidivism rates.

Despite the glum numbers, we know youth with disabilities who are engaged in work or school during the first three months of their release are 3.2 times less likely to return to custody and 2.5 times more likely to remain working or enrolled in school 12 months after leaving the correctional facility. These youth can successfully be returned to society. Thus, it is imperative that good transition programs are developed for these youth to ensure successful outcomes for them. 

To that end, Project Forum conducted a review of programs in four states (Arizona, Georgia, Hawaii, and Oregon) that offer what are considered “best practices” in their reentry programs for incarcerated youths. Historically, re-entry programs for youth tend to be fragmented, and too many offenders fall between the proverbial cracks of the system.  One of the main problems is that youth leaving correctional facilities are aging out of child-oriented social programs and being funneled into adult-oriented services.  Many of these adult programs are developmentally inappropriate for youthful offenders, who can be left floundering.

 To address these gaps in service, each state identified by Project Forum offered comprehensive, multi-disciplinary wrap-around programs to ensure that the needs of youth are met upon release.  Key to each of the programs is the use of a transition coordinator, who establishes relationships with the youths before their release, ensures that community-based services are set in the community upon release, and then continues to follow the youth once they are back in the community. In addition, each state is addressing the educational, employment, social and behavioral, substance abuse, housing, and transportation needs of recently released youth. 

 It is not inevitable that incarcerated youth will return to detention facilities, but the odds are stacked against them.  But as demonstrated by the Project Forum report, youth can be successfully transitioned back into their communities. However, it will take a lot of effort on the part of the juvenile justice system, communities, and social services agencies as well as the released youths and their families to succeed.

 

Bullying: The Sad Reality

Back in 2010, Education Secretary Arne Duncan convened a “bullying summit” in which he characterized bullying as a “gateway to hate,” which when left unchecked, could escalate into further violence and abuse.  The Department of Education was announcing a shift in its approach to this issue by reframing bullying as a civil rights issue in which the federal government would take a more proactive role in investigating, enforcing, and monitoring compliance of school districts. To that end, the Office of Civil Rights expanded its data collection and for the first time gathered data on bullying related to racial, sexual, or disability harassment.  The OCR recently released data on the 2009-2010 school year.  The data, which were gathered from 85% of the nation’s schools, or 7000 school districts, revealed some surprising results.  Of the 20 largest school districts in the country, 14, including the public school systems of New York City and Los Angeles, had absolutely no reports of bullying or harassment. 

Restraint and Seclusion, Opposing Viewpoints

The Department of Education recently released the new Civil Rights Data Collection that analyzed equities and disparities in educational opportunities in our nation’s schools during the 2009-2010 school year.  Data were gathered from 72,000 schools, or roughly 85% of students.  Among the data examined was the frequency with which students were secluded or restrained.  Almost 70% of the 38,792 students who were restrained during the past calendar year had disabilities, although students with disabilities comprise only about 12% of the student population.  African-American males, who make up only 21% of the student population with disabilities, represented 44% of those students restrained.  And finally, although approximately half of students with disabilities are male, 70% of students with disabilities who were restrained were male.  According to TASH and other disability groups, the data are sobering.  TASH characterizes the use of restraint and seclusion as an issue of “national significance,” which leads to “traumatic physical and emotional harm, and even death.”  In a press release, Barb Trader, the executive director of TASH, states, “Our students need equitable access to education and protection for their personal safety under the law, and clearly that’s not happening for students with disabilities or those from diverse backgrounds.  It is a national tragedy that any child, especially the most vulnerable, is not safe in school.”  

Changes to the DSM V- A Personal Perspective by: Marilyn Green-Rebnord

Like many parents with a child diagnosed on the autistic spectrum, I’ve been following the controversy over the proposed revisions for the new Diagnostic and Statistical Manual of Mental Disorders (DSM) 5.  Under the proposed new revisions, the categories of autism, PDD-NOS, and Asperger’s syndrome would all be collapsed into the label “Autism Spectrum Disorder.” Criteria for this new diagnosis, which are much more stringent than those used in the previous DSM IV, are causing the autism world to buzz with concern that many higher functioning individuals could “lose” their diagnoses.   Dr. Fred Volkmar of the Yale Child Study Center, who had been a member of the panel involved in the rewriting of the DSM before his resignation, recently reported his results of a study in which he claimed that up to 45% of individuals on the higher ends of the spectrum would no longer be diagnosed with a spectrum disorder. Somewhat speciously, Dr. Volkmar in a New York Times article heralded the “end of the autism epidemic.”

Specifically, Dr. Volkmar and colleagues examined the case records of 1000 children diagnosed with autism in 1993, identified 372 of the highest functioning children, and then applied the proposed DSM 5 criteria to them.  Of these children, about a quarter of those who had been diagnosed with autism, about three quarters who had been diagnosed with Asperger’s, and 85% of those diagnosed with PDD-NOS would not be diagnosed with an autism spectrum disorder under the proposed new criteria.  But members of the American Psychiatric Association (APA) who are involved in the DSM diagnostic changes are crying, “Not so fast” to Dr. Volkmar’s report, which is scheduled to be published this spring.  Dr. Volkmar’s critics, including Dr. Catherine Lord who serves on the DSM panel, are saying that the data are inadequate to re-diagnose the 1993 cohort using the new criteria.  The study is simply not valid.

Standardized Testing Accommodations: The Fundamental Tension

It is that time of year that many high school students dread--ACT/SAT test taking time. These standardized tests are used to gain admission to colleges and graduate programs and to obtain certain professional licenses.  These exams, which are designed to predict either the test taker’s future academic success or to test his or her knowledge of certain areas, are designed to be administered under uniform conditions and with time limits.  However, these constraints may make taking the tests difficult for persons with disabilities.  Without accommodations, the tests may instead reflect the individual’s disability, and not his or her aptitude. 

Using RtI Data To Your Advantage this IEP Season

I was asked to write an article on preparing for your next IEP meeting for the website specialneeds.com.  Here is the article that I hope will be useful this IEP season.

Documentaries Accurately Portray Disability-Related Issues

Although there have been recent complaints that both actors and characters with disabilities are underrepresented on television, two excellent documentaries about disabilities have aired in the past year.  Journey into Dyslexia, which appeared on HBO in May of 2011, profiles students and adults who have dyslexia.  According to the HBO web page, many of the adult professionals who struggled to learn in school now consider their dyslexia a gift and a defining reason for their successes.   Critics called the straightforward interviews with the persons with dyslexia, including children, the most powerful part of the documentary, which was made by Academy-award winning filmmakers Alan and Susan Raymond.  Among those interviewed are a professor at Johns Hopkins University, inventors, entrepreneurs, and consumer advocate Erin Brockovich.  Additionally, the HBO website accompanying this documentary is rich with information on dyslexia. Another documentary from the Sundance film festival on dyslexia is called The D Word.