Category Archives: Dawg Bones

Dawg Bones

Toolbox Tuesday!! Here’s an opportunity for all you UBAs to become LBAs.

Are you a UBA?  I am.  I am an “Unlicensed Behavior Analyst.”  I never thought much about this until the passage of SB 589, which will create a group of LBAs—people who have a license to analyze behavior.  SB 589 creates the Behavior Analyst Licensing Act.  This new law puts “behavior analysts” under the jurisdiction of the Texas Department of Licensing and Regulation.

Of course this leads to the obvious question: what makes a person a “behavior analyst”? If a “behavior analyst” is a person who analyzes behavior then we are all behavior analysts. And we are doing this without a license!

I do most of my unlicensed analysis while driving. I analyze the other drivers and categorize them into “maniacs” (too fast) “idiots” (too slow) “selfish people” (won’t move over for me) and “those too stupid to operate heavy machinery” (those who apparently cannot read road signs).

There is nothing in this new law that will prohibit me from continuing my behavior analysis activities. However, I will not be able to describe myself as a “licensed behavior analyst.”  To hold myself out with that title, I will have to meet the licensing requirements set up by the new law.

But if I want to practice “applied behavior analysis” I will have to obtain a license. Here is the key definition:

The practice of applied behavior analysis is the design, implementation and evaluation of instructional and environmental modifications to produce socially significant improvements in human behavior.

The practice of applied behavior analysis includes the empirical identification of functional relations between behavior and environmental factors, known as functional assessment or functional analysis.

Applied behavior analysis interventions (1) are based on scientific research and the direct observation and measurement of behavior and environment; and (2) use contextual factors, motivating operations, antecedent stimuli, positive reinforcement, and other procedures to help individuals develop new behaviors, increase or decrease existing behaviors, and elicit or evoke behaviors under specific environmental conditions.

Many people do things similar to this, but are excluded from the scope of this new law.  The statute says that “applied behavior analysis” is not the same as: “psychological testing, psychotherapy, cognitive therapy, psychoanalysis, hypnotherapy, or counseling as treatment modalities.”

Then there is a lengthy list of people who do things involving behavior, but are not covered by this law. They include: 1) psychologists; 2) family members who are implementing a behavior treatment plan; 3) paraprofessionals working under proper supervision; 4) students, interns and fellows; 5) people pursuing supervised experience in the field; 6) temporary services provided by someone licensed in another state; 7) animal behaviorists or trainers; and 8) school employees.

The school employee exception says:

This chapter does not apply to a teacher or employee of a private or public school who provides applied behavior analysis services if the teacher or employee is performing duties within the scope of the teacher’s or employee’s employment.

However, that teacher or employee may not hold themselves out as a “behavior analyst” unless the services they provide are within their education, training and competence.  Nor can they be paid extra for these services, or offer them outside of their work responsibilities in the school.

There are many unanswered questions about this new law but we have plenty of time to sort it all out.  The requirement to hold a license does not go into effect until September 1, 2018.  That provides time for the Texas Commission of Licensing and Regulation to create the nine-member “Behavior Analyst Advisory Board” and to establish rules and licensure standards.

We talk a lot about behavior and how to improve it in the Toolbox training. This is an all day program focused on campus administrators and special education staff.  The goal is to equip educators to provide an appropriate education to every student, while maintaining a safe and orderly campus. If interested, let me know!

DAWG BONE: I INTEND TO CONTINUE WITH MY UNLICENSED BEHAVIOR ANALYSIS.  NOTHING ILLEGAL ABOUT THAT.

File this one under: LEGISLATION 2017

Tomorrow: a new law regarding dyslexia….

Dawg Bones

Scary thought for the day…..

Does your district have a website?  I thought so.  If I looked around on your website would I be able to find the Transition and Employment Guide?  If I can’t, then your district is in violation of Section 29.0112(e), which requires districts that have a website to “Post the transition and employment guide on the district’s website.”

This is the kind of obscure legislative mandate that can trip you up if you are in a dispute with a parent over the transition services a student is receiving.

So check your website. I’ve looked at hundreds of school district websites and I don’t think I’ve ever come across this document. Here it is in pdf format:

http://www.transitionintexas.org/cms/lib/TX01001018/Centricity/Domain/3/Texas%20Transition%20and%20Employment%20Guide%202014.pdf

DAWG BONE: CHECK YOUR WEBSITE!

File this one under: SPECIAL EDUCATION

Tomorrow: How a UBA can become an LBA. 

Dawg Bones

Letters for the Special Olympians

HB 1645 has been passed by the legislature and signed by the governor. It’s a short one.  It simply requires that if you give letters to students who participate in high school activities, you have to give a letter to the kids who participate in Special Olympics.

Everybody in the legislature got on board with this one. Good to see that our politicians can agree on a few issues.

DAWG BONE:  UNITY AMONG THE DEMS AND REPUBS!

 File this one under: LEGISLATION 2017

Dawg Bones

SB 748 on Transition

SB 748 deals with transition.  The transition provisions do not go into effect until the 2018-19 school year. They are:

1. Districts are required to be sure that parents and students are aware of “supported decision-making agreements” that are now available under the Texas Estates Code. This is a form of assistance many families will be interested in, as it is easier and less costly than obtaining guardianship or limited guardianship;

2. Issues to be discussed in conjunction with transition will include the use and availability of appropriate supplementary aids, services, curricula and other opportunities to help in developing decision-making skills. “Supported decision-making agreements” come up again in this context.

3. The Transition and Employment Guide is to be updated “in plain language” and parents and students must be notified of its availability. By the way—this Guide is supposed to be available on your district’s website. Is it?

4. State law now spells out the notice requirements for parents and students one year prior to age 18. TEA is to develop forms for this, and remember—all of this goes into effect in 2018-19, not this year.

DAWG BONE: MAY ALL STUDENTS MAKE A SMOOTH TRANSITION!

 File this one under: Legislation 2017

Dawg Bones

New legislation re: special ed due process hearings

We normally declare Tuesdays to be Toolbox Tuesdays around here, and we write about the Toolbox. But we are now inundated with new legislation that needs to be ‘splained. So we’re taking a break from the Toolbox Tuesday routine.

But this is at least somewhat related because it’s about what happens when you get completely crosswise with the parent of a student with a disability. You end up in a special ed due process hearing!  And it may be that the parent will be represented by a self-proclaimed “advocate” who is not a lawyer, but acts kinda like one. Well…there is a new law that applies to those situations.

SB 2141 will require non-lawyer advocates who receive monetary compensation for representing parents in due process hearings to abide by a “voluntary code of ethics.”  The Commissioner is required to develop rules about this, so presumably, that’s where the “voluntary code of ethics” will be.  Moreover, such advocates must have a written agreement with the parent that includes a method for resolving disputes between parent and advocate.

School lawyers have sometimes complained about the behavior and tactics of non-lawyer advocates because there is no way to hold them accountable.  A lawyer is subject to the ethical standards of the legal profession and may be called to account before the State Bar. No such mechanism exists with the non-lawyer advocate. That’s why we got this bill.

Some have wondered out loud how a code of ethics can be simultaneously “voluntary” and “required.” We’ll let Commissioner Morath figure that one out.

DAWG BONE: SB 2141: CODE OF ETHICS FOR PARENT ADVOCATES WHO ARE PAID.

File this one under: LEGISLATION 2017 and SPECIAL EDUCATION

Dawg Bones

Here’s a new law you need to know about!

This week we will be looking at new bills that have been signed into law.  Let’s start with HB 657.

Let’s say that Caleb is a 5th grader who is served in your special education program. He failed the STAAR math test that is required for promotion to 6th grade.  What happens now?

That’s the subject of HB 657, a bill that the governor has signed into law.  The new law provides a way for the ARD Committee to promote Caleb without him having to go through a second administration of the test.  Under prior law, the ARDC had to meet and determine if the student would be promoted or retained. The law also required the ARDC to decide how the student would participate in an accelerated instruction program.

HB 657 makes four important changes in the law.

1. It sets the timing of that ARDC meeting. It must take place prior to a second administration of the STAAR test.

2. It gives the ARDC the standard it should apply in determining whether or not the student should be promoted. The student can be promoted “if the committee concludes that the student has made sufficient progress in the measurable academic goals” in the IEP.

3. It makes it clear that if the ARDC decides to promote the student, the student does not have to take the STAAR again.

4. The school must give notice to each parent of the ARDC’s options when a student fails a STAAR test. This must be given by September 1 of each year.

DAWG BONE: ARDC CAN PROMOTE EVEN WHEN THE STUDENT FAILED A REQUIRED STAAR TEST.

File this one under: SPECIAL EDUCATION

Dawg Bones

7th Circuit Rules in Favor of Transgender Student

The 7th Circuit has ruled that a school in Wisconsin must permit a transgender boy to use the boys’ bathroom. The court held that offering the student the use of a private, gender neutral bathroom was not adequate.  The court held that the school’s policy about bathroom use amounted to discrimination based on sex in violation of Title IX, and a denial of equal protection in violation of the 14th Amendment to the U.S. Constitution.

The arguments made by both sides in this case are, by now, very familiar.  The student claims that he is being stigmatized, singled out for no good reason, discriminated against.  The school cites the desire for privacy for other students as they use the bathroom.

Different courts are going to come to different conclusions on these issues until the Supreme Court settles the matter. This might be the case that goes to the Supreme Court. The 7th Circuit seems to tee it up nicely for SCOTUS, relying heavily on the SCOTUS decision from 1989, Price Waterhouse v. Hopkins. That’s the case where the Court held that discrimination based on “gender non-conformity” was a form of sex discrimination.  Here’s a quote from the 7th Circuit:

A policy that requires an individual to use a bathroom that does not conform with his or her gender identity punishes that individual for his or her gender non-conformance, which in turn violates Title IX.

The court dismissed the school’s argument about the privacy rights of its other 22,160 students:

What the record demonstrates here is that the School District’s privacy argument is based upon sheer conjecture and abstraction.  For nearly six months Ash used the boys’ bathroom while at school and school sponsored-events without incident or complaint from another student.

And the court drew a distinction between concerns of the adults vs. those of the students:

In fact, it was only when a teacher witnessed Ash washing his hands in the restroom that his bathroom usage once more became an issue in the School District’s eyes.

…neither party has offered any evidence or even alleged that the School District has received any complaints from other students.  (Emphasis in original).

This is the first transgender case I have read that looks beyond the law, into biology.  Look at this:

Further, it is unclear that the sex marker on a birth certificate can even be used as a true proxy for an individual’s biological sex.  The marker does not take into account an individual’s chromosomal makeup, which is also a key component of one’s biological sex.  Therefore, one’s birth certificate could reflect a male sex, while the individual’s chromosomal makeup reflects another.

The decision is not binding here in Texas, but will be important in any litigation Texas schools get involved in.  And, of course, we await further developments on this from the legislature. Stay tuned!

The case of Whitaker v. Kenosha USD was decided by the 7th Circuit on May 30, 2017.  It can be found at 2017 WL 2331751.

DAWG BONE: MAYBE WE ALL NEED TO GO BACK TO BIOLOGY 101.

 File this one under: TRANSGENDER STUDENTS

Dawg Bones

No more 8.5%!

We knew this one was coming.  SB 160 tells the Commissioner that he must never again implement a system of monitoring schools by measuring how many, or what percentage, of students in the district are receiving special education services. Thus we mark the end of the controversy about the PBMAS indicator that targeted any district that identified more than 8.5% of its kids.

Thus we return to a fundamental principle of special education law: eligibility must be decided case-by-case, ARD meeting by ARD meeting, based exclusively on the evaluation data pertaining to that child. There should be no pressure, direct or indirect, from the district administration or from the state agency to make a particular child eligible, or not.

No one makes a child eligible for special education but the members of the ARD Committee. Not the parent. Not the principal. Not the president. Not the pope.

DAWG BONE: SO LONG, PBMAS INDICATOR #10!

 File this one under: SPECIAL EDUCATION and LEGISLATION 2017

Tomorrow:  A new and important decision about transgender students

Dawg Bones

WHAT YOU NEED TO KNOW ABOUT THE NEW LAW ON CAMERAS IN THE CLASSROOM

The legislature passed two bills dealing with cameras in the special education classrooms—SB 1398 and HB 61.  We don’t know which one the governor will sign, but it doesn’t make any difference. As to cameras in the classroom, the two bills are identical. The difference in the two bills is that HB 61 includes some other provisions as well.

So even though we don’t know which one Governor Abbott will sign, we are pretty sure he will sign off on one of them. So here is a quick summary:

  1. Installation of cameras is triggered only by a written request.
  2. Cameras only get installed in self-contained classrooms and other special education settings in which a majority of students in regular attendance are assigned to that setting for at least 50% of the day. This is not new.
  3. A parent’s request applies only to the classroom in which the parent’s child is served—not the entire campus.
  4. The only staff members who can make a request are the principal, the assistant principal, and others who are assigned to work in the self-contained classroom or other special education settings.
  5. Only the board as a whole—not individual board members—can make a request.
  6. If the request comes from the board, the principal or an assistant principal, the requestor may limit the request to specific classrooms or settings.
  7. The district must designate a central office employee as the coordinator for the provision of equipment. (Camera Coordinator?)
  8. Parents, teachers, aides and the assistant principal file their request with the principal, or designee, who forwards it to the Camera Coordinator. A request from the principal or the board goes directly to the Camera Coordinator, who sends a copy to the principal.
  9. Once installed, the camera stays in place for the rest of the school year, and for ESY, as long as the classroom continues to qualify as a setting in which cameras can be placed, unless the requestor withdraws the request in writing. However, the camera need not operate when students are not present.
  10. If the district discontinues operation of the camera during a school year it must give five days’ notice to each parent in that classroom; at least 10 school days prior to the end of the year, the school must give notice to each parent that the cameras will not operate next year unless a new request is filed.
  11. Cameras must capture video and audio for the entire classroom, including any attached setting used for timeout.
  12. The inside of a bathroom or changing area may not be visually monitored, except for “incidental coverage of a minor portion” due to the layout of the room.
  13. As a general rule, videos must be retained for three months. Previously this requirement was for six months.  However, if a request to view the video is made, then the video must be retained “until the person has viewed the recording and a determination has been made as to whether the recording documents an alleged incident.”  If the recording documents an alleged incident, the  recording must be retained “until the alleged incident has been resolved, including the exhaustion of all appeals.”
  14. An employee or the parent of a student “who is involved in an alleged incident” may view the recording upon request.
  15. Among the others who may have access the bill adds contractors or employees who incidentally view the recording while performing tasks relative to installation, operation and maintenance of the equipment.
  16. School policy must 1) include information about appealing district decisions; 2) call for a seven business day timeline for responding to a request for installation of a camera; 3) specify that if the request is denied, the response must explain why; 4) call for timelines for installation of cameras upon proper request (45 school business days); and 5) set timelines for installation based on parent requests for the following school year.
  17. A district, parent, staff member or administrator may request an expedited review by TEA if a request is denied. This could be a request for installation of cameras, a request to view the recording, or a request for an extension of time for activation of the equipment.
  18. The Commissioner is to adopt rules regarding expedited reviews.
  19. “A video recording under this section is a governmental record only for purposes of Section 37.10 Penal Code.” This is the section that makes it a criminal offense to tamper with a government record.

This is one of the new laws I will be featuring in my annual Back to School Tour this fall. We are bringing the BTS to nine locations in September and early October. You can register at www.legaldigestevents.com.  Hope to see you there.

DAWG BONE: BE GRATEFUL: IT’S AN IMPROVEMENT. 

 File this one under: SPECIAL EDUCATION and LEGISLATION 2017

Tomorrow: new law orders TEA to never again use that 8.5% indicator.