Tag Archives: Special Education

It’s Toolbox Tuesday!! Can you set a time limit on an ARD meeting?

One of the tools in the Toolbox is Leadership at the Non-Consensus ARD Meeting. We call this one Tool #9 (of ten).  The Toolbox is a full day training program focusing on the legal issues when students with disabilities violate the Code of Conduct, or otherwise cause disruption in the school.  Many times these issues have to be addressed in an ARD meeting. Those meetings can be contentious. Leadership is needed.

So we want to make you aware of a case from Arizona.  The school held an IEP Team meeting in November, 2012, and established a two-hour time limit on the meeting. The student’s mother was present, along with two advocates.  One of the advocates informed the Team that she could not stay past the allotted two hours.  Sure enough, the Team was not finished with its work when the two hour mark was met.  The advocate suggested that the Team should adjourn for now, and reconvene at a later time. The district’s administrative representative at the meeting rejected that suggestion.  Instead of adjourning, the Team completed its work on the IEP even though the parent and advocates had left.  The district’s representative was concerned about the fact that the existing IEP was about to expire. So the Team completed its work, but also told the parent that they would re-convene to address any concerns and/or to make amendments to the IEP.  And they did that.  The parent participated in the later meeting and the Team incorporated parental input into the IEP.

However, the parent alleged that she was denied the right to “meaningful participation.”  The court disagreed, holding that the district did not infringe on the parent’s right to meaningful participation in the IEP Team process. Key Quote:

While IDEA is particularly protective of the parents’ right to participate in the child’s IEP…in this case, the District acted reasonably in protecting Parents’ rights.

You can have a time limit for your meetings, as long as it is done with agreement, and takes into account concerns expressed by the parent.  Here, the district demonstrated reasonableness, which is always a key to success in a legal dispute.

The case is Pangerl v. Peoria USD, decided by the U.S. District Court for Arizona on February 15, 2017. We found it at 69 IDELR 133.


Tomorrow: a principal, a nude selfie, a hacker.  You don’t want to miss this one.

Is Endrew F. a Game Changer for Us?

That didn’t take long. We now have a decision from the 5th Circuit applying the “new” FAPE standard enunciated by the Supreme Court in Endrew F. v. Douglas County School District.  As the Dawg predicted (not to brag….) the court held that the supposedly new FAPE standard is not new at all.  It is consistent with the standard we’ve been using in Texas for a long time.   The district court in this case used the four-part test the 5th Circuit affirmed long ago.  When it went up on appeal to the 5th Circuit the court held:

Although the district court did not articulate the standard set forth in Endrew F. verbatim, its analysis of [the student’s] IEP is fully consistent with that standard and leaves no doubt that the court was convinced that [the student’s] IEP was “appropriately ambitious” in light of [her] circumstances.”

That “appropriately ambitious” phrase is from Endrew F.  So what the court is telling us is that the standard we have been using for years is “fully consistent” with the SCOTUS view expressed in Endrew F.

The case is C.G. v. Waller ISD decided by the 5th Circuit on June 22, 2017. It’s an “unpublished” decision, meaning that it will not be written up in the official reports and will not be cited as precedent in future cases. But we found it at 117 LRP 24920 and 2017 WL 2713431.


File this one under: SPECIAL EDUCATION

Have a good weekend, Readers! The Dawg barks again on Monday.

HB 1886 on dyslexia….

HB 1886 deals with two issues—dyslexia and transition.  These two issues are of equal importance, but the dyslexia provisions require more immediate attention. That’s because the transition provisions do not go into effect until the 2018-19 school year.  The new requirements regarding dyslexia will take effect with the upcoming school year.  So here’s what’s new with dyslexia:

1. Every ESC will have to employ as a “dyslexia specialist a person licensed as a dyslexia therapist” under the Occupations Code.  I’m not sure that all 20 ESCs have such a person now.  They may all have people with expertise in dyslexia, but are those folks licensed as a “dyslexia therapist”?

2. The new law requires “screening at the end of the school year of each student in kindergarten and each student in the first grade.” I attended a conference recently where a presenter informed the group (special ed types, mostly) of this new provision. There was an audible gasp.

3. Once a student is identified as having dyslexia, or is receiving accommodations due to dyslexia, the school may not re-screen or re-test the student for dyslexia without first reevaluating the information from the original screening/testing. There is an exception to this general rule if the second testing is required by law—presumably this refers to a full individual evaluation under IDEA.

TEA will annually develop a list of training opportunities for educators pertaining to dyslexia.


File this one under: SPECIAL EDUCATION

Tomorrow: How a verdict of $4.5 million can go away

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:



File this one under: SPECIAL EDUCATION

Tomorrow: How a UBA can become an LBA. 

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.


File this one under: LEGISLATION 2017 and SPECIAL EDUCATION

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.


File this one under: SPECIAL EDUCATION

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.


 File this one under: SPECIAL EDUCATION and LEGISLATION 2017

Tomorrow:  A new and important decision about transgender students


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.


 File this one under: SPECIAL EDUCATION and LEGISLATION 2017

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


It’s Toolbox Tuesday!! What do we need to know about Tool #9?

The Toolbox is an all-day training program focusing on the legal requirements when dealing with seriously disruptive and/or violent students with disabilities.   In a nutshell, the law requires school officials to do two things at the same time: serve each student appropriately, and in the LRE; and maintain safety and an orderly campus.

One of the tools is not really about student discipline—it’s about leadership.  Specifically, Tool #9 is about leadership at the non-consensus ARD meeting.

Many of the tools in the Toolbox involve a possible change in placement for a student.  That means an ARD meeting is needed.  Sometimes that change of placement is a disciplinary removal. Sometimes it is an educational change of placement. But regardless of the motivation, a change of placement must be approved by the ARD Committee and that means there is the possibility of disagreement with the parent.  That’s when leadership by the school administrator is essential.

One thing to keep in mind about ARD meetings: it’s the school’s meeting.  It is not the child’s meeting and not the parent’s meeting.  The meeting is about the child, and the parent’s participation must be meaningful.  But the meeting is initiated, conducted and staffed by the school district.  Moreover, it’s the school that has the legal responsibility for making sure that ARD meetings take place on time and with the right people.

So it’s your party. That means that the school bears primary responsibility for the quality of the meeting. The ARD meeting has a lot of legal implications, but it is not primarily a legal event. It’s a communication opportunity.  And every ARD meeting sends a message to the parent, and to the school staff. The way the meeting is conducted sends a message about the school’s professionalism and its caring for the child.

So we think administrative leadership is essential, especially in the so-called “Hard ARD.”  The administrator should serve as the representative of the local educational agency, and as such, should be in charge at the meeting. That does not mean that the administrator controls the outcome of the meeting. It means that the administrator controls the process.

That’s just one of the tools we talk about in the Toolbox training. If you are interested in me bringing the Toolbox to your school or ESC, just let me know.  Email at jwalsh@wabsa.com.


 File this one under: SPECIAL EDUCATION

Tomorrow: we summarize SB 7—one of the most important bills adopted by this year’s legislature.

What does “all” mean? Didn’t we settle this a long time ago?

In 1989, the 1st Circuit Court of Appeals told us that “all” means what it says. The context was a severely disabled child in New Hampshire, and whether or not he was eligible to receive special education services.  You might think it obvious that a child with severe and permanent disabilities was eligible. But the argument here was that the child was so low functioning that nothing that could be done for him came under the banner of “education.”  Certainly he needed medical care, love, and support….but he would not benefit from any educational services.

The 1st Circuit rejected that argument, citing the law’s simple mandate to provide a Free Appropriate Public Education to ALL children “regardless of the nature or the severity” of the disability.  That case is Timothy W. v. Rochester, N.H. School District, 875 F.2d 954 (1st Cir., cert. denied, 1989).

Now the issue has resurfaced in a school finance case. That’s right—a school finance case.  The plaintiff in the case is the Connecticut Coalition for Justice in Education Funding, Inc.  The plaintiff  asserts that Connecticut’s system of school finance is unconstitutional.  In September of 2016, the trial court issued a sweeping order in favor of the Coalition giving the state 180 days to develop a better plan. The case is on appeal to the state Supreme Court.

In its discussion of special education, the trial court says many things that I have heard people whisper quietly.  Here’s a sample:

*The state’s program of special education spending is irrational.

*Congress and the General Assembly have ordered school districts to bear immense financial burdens in the name of special education without giving them much help shouldering them.

*The cost of special education is staggering.

*The reason so much is spent is because someone has to take responsibility for saying that it shouldn’t be, and no one is willing to do it.

*Special education identification and intervention is unquestionably individualized, but that doesn’t mean it has to be chaotic.

The court’s opinion repeatedly puts the word education in bold font, by way of emphasizing that there are some kids who can’t benefit from anything a rational person would describe as education.  This is exactly the conclusion that the 1st Circuit rejected 28 years ago.

This is why the Department of Education was asked to weigh in on this issue.  In Letter to Wentzell, the Office of Special Education and Rehabilitative Services expressed its views on the Connecticut case:

Therefore, we are concerned with those portions of the [trial court’s opinion] that suggest that a school district need not provide programming or services to all IDEA-eligible children in all areas of need.

This one has a long way to go.  Furthermore, that OSERS letter came in the waning days of the Obama Administration. We don’t know if the Trump Department of Education will take the same view.

Stay tuned.  The Letter to Wentzell was issued on December 7, 2016 and can be found at 69 IDELR 79.  The trial court’s opinion in Connecticut Coalition for Justice in Education Funding, Inc. v. Rell was issued on September 7, 2016. It’s at 2016 WL 4922730.


 File this one under: SPECIAL EDUCATION