Special Education Tips

Sunday, May 28, 2017

Important Special Education Cases

     Interested in reading special education cases? Here is a timeline of some of the more important cases.
     Think back to your high school civics class. We have three branches of federal government. The Legislative Branch is known as Congress (Senate and House of Representatives). The US Congress passed IDEA 2004. Then there is the Executive Branch. That's the President and the 5 million people who work for him/her. In the Executive Branch, we find the US Department of Education. They must enforce the law that Congress passed. The also promulgate regulations that are consistent with the law.  The third branch is the Judicial Branch. It includes the US Supreme Court that has 9 Justices. They interpret laws according to the Constitution. The federal judicial system also has lower courts located in each state to hear cases involving federal issues. These special education cases have been decided by courts, based on the law that Congress passed.



Can be viewed as the first LRE case! Segregated public schools are inherently unequal.

IQ tests used to track students were culturally biased because they were standardized on a white, middle-class sample. It is unconstitutional as it discriminates against low income or African American students.

First Amendment rights are available to teachers and students, subject to application in light of the special characteristics of the school environment.

Assessments must be non-biased and given in student's native language. In two landmark California cases, Diana v. State Board of Ed in 1970 and Larry P. v. Wilson Riles in 1971, plaintiffs complained about the disproportionately high minority enrollments in EMR (Educable Mentally Retarded) classrooms. Plaintiffs’ victory resulted in changes in the identification of students with the EMR label and their programs.

“Expert testimony in this action indicates that all mentally retarded persons are capable of benefiting from a program of education and training… It is the Commonwealth’s obligation to place each mentally retarded child in a free, public program of education and training appropriate to the child’s capacity.”

Mills expanded the impact of the P.A.R.C. case beyond children with developmental disabilities. Must provide services regardless of district's ability to pay.

Students with disabilities may be entitled to extended school year.

IQ tests were most likely culturally biased, assuming in effect that black children were less intelligent than white children. African American students can no longer be forced into EMR (Educable Mentally Retarded) classes via discriminatory testing.

Class action lawsuit regarding insufficient and discriminatory evaluation procedures which led to inappropriate school placements. The case led to defined timeline requirements for identification, referral, and evaluation, development of the program and placement of education.

Class action law suit resulted in changes in assessment practices, including pre-referral intervention, curriculum based assessment, and in-service training for assessment staff.

First special education case. US Supreme Court defines FAPE. See Endrew F case in 2017 for undated ruling on FAPE.

If a student with a disability requires residential placement then the school district must provide it

"Congressional preference for educating handicapped children in classrooms with their peers is made unmistakably clear."

Court’s first attempt to define the distinction between “school health services” and “medical services.” Related services include health services that do not require a licensed physician.

School must pay for necessary residential placements

Government cannot zone group homes out of neighborhoods. The denial of the permit was based on irrational prejudice against individuals with intellectual disabilities, thus invalid under the Equal Protection Clause of the Fourteenth Amendment.

Parents cannot be forced to waive their right to reimbursement if they place their child in an alternative school from the one recommended in the IEP. Parents who unilaterally change their child’s placement do so at their own financial risk, but they may be reimbursed if the placement is deemed to be an appropriate available option.

Zero rejection – a core principal of IDEA, must be adhered to.

School discipline case. U.S. Supreme Court clarified procedural issues designed to protect children with disabilities. Schools cannot not expel students for behaviors related to their disabilities.

Least Restrictive Environment - FAPE means student has right to be educated with their non-disabled peers to the maximum extent possible

District may pay for student services if needed even when the student with a disability attends a Catholic school without violating separation of church and state.

If schools do not provide FAPE and a private school does, the parents are entitled to reimbursement, even if the placement is not a state approved special education school.

The presumption is that the student with a disability will be included with supplementary aids and services because it is “a fundamental value of the right to public education for children with disabilities.” If placement outside the classroom is necessary, the school district must then include the child in as many school programs with children who do not have disabilities “to the maximum extent appropriate.”

Landmark victory regarding the right of students with disabilities to be educated alongside their nondisabled peers.

The exception for "medical services" from IDEA's related services provision only if services must be provided by a physician.

Absent some sort of resolution on the merits, or a judicial determination altering the legal position of the parties, attorney’s fees are not warranted.

A school voucher program is not in violation of the Establishment Clause even though the vast majority of participating private schools are affiliated to a religious group. Program did not violate the US Constitution Establishment Clause because it passed a five-part test developed by the Court in this case - the Private Choice Test. 

The failure of the district to provide critical information is a denial of the parent's right to participate.

The district's predetermined methodology violated the IDEA because it failed to consider the individual educational needs of the student prior to determining "appropriate" services.

Supreme Court held that the burden of proof in a due process hearing that challenges an IEP is placed upon the party seeking relief. However – this does NOT require that states who place the burden on the schools to change that.

IDEA does not authorize the payment of the experts' fees of the prevailing parents.

Supreme Court resolved the issue as to whether a nonlawyer parent of a child with a disability may prosecute IDEA actions pro se in federal court. Court said that the parents enjoy enforceable rights at the administrative stage, and it would be inconsistent with the statutory scheme to bar them from continuing to assert these rights in federal court.

IDEA authorizes reimbursement for private special-education services when a public school fails to provide a FAPE and the private school placement is appropriate, regardless of whether the child previously received services through the public school. You do NOT have to try the public school before you get reimbursed for private school!

If a parent was not included in the IEP meeting, then procedural process under IDEA was violated, and the IEP is invalid.

A settlement agreement written between school and parent, if not honored by school, is a breach of contract that is enforceable by the courts.

"We hold that exhaustion is not necessary when the gravamen of the plaintiff's suit is something other than the denial of the IDEA's core guarantee - what the Act calls a 'free appropriate public education.”

Supreme Court rejects the “de minimis” standard of FAPE! “A student offered an educational program providing ‘merely more than de minimis’ progress from year to year can hardly be said to have been offered an education at all.”

Cases compiled by Attorney Anne I. Treimanis

Thursday, December 8, 2016

Tips for Special Education Meditation

These are a few tips from my latest book, "Do Not Tweet at an IEP Meeting."

Tips to prepare for Mediation – these are the tips I give my clients in Connecticut. Find out what the differences might be in your state.  

If you cannot resolve your differences at the IEP meeting, consider going to mediation. Here are some mediation tips…

1.   Bring the student’s file. But more importantly, make sure it is organized to the point where you pull out quickly whatever it is that you are looking for. When you fumble for papers, it's distracting and an inefficient use of time. Try to predict what you will need and have it handy.

2.   Court room appearance is not necessary, but don't be too casually dressed.

3.   Bring water, food, and snacks. In the worst case scenario, we will be trapped in a room until 6pm with no refreshments and there will not be a lunch break. Some districts will provide coffee, water, and a few snacks, but you cannot count on this. Most mediations end by 4 at the latest. The mediator may leave us for a few minutes and return, or 2 hours and return - as h/she goes back and forth between rooms. There is no way to predict when h/she returns so we need to always stay put.

4.   I always bring something to share with the mediator and often they are thrilled to accept. But they don't want to feel like they are taking "your stuff." So, if you have ice tea, then you must have 3 bottles so it's clear to see that there is extra. Or if you have snacks, there must be a large amount so it's clear you couldn't possibly eat that much.

5.   Bring copies of any invoices that you hope to get reimbursed for. If there are several expenses, write them all out on a spread sheet.

6.   Bring a real calculator; do not depend on the calculator feature of your iPhone. Bring pens and pads of paper.

7.   The mediator may begin by having the parties together and allowing each side to give an opening statement. If h/she doesn't want an opening statement, h/she might ask us to simply state the issues, and then ask the other side to restate what they heard. Then h/she will separate the Board and the family into different rooms. Or h/she may keep us separate from the very beginning. We need to be prepared for each scenario.

8.   Mediation depends not only on the law, but on relationships. While we do not have to compromise the student's rights, we need to keep positive, professional, and pleasant.

9.   The mediator will need help staying on top of facts, as will the Board and the student's team. The family has been living the case day and night, and all the facts and issues are ready to spill out. But everyone else in the room is a professional, with other clients. While I expect that the professionals will be fully prepared, it's helpful to have a list of key points at our fingertips. Each mediator comes to the table with different levels of skill and different levels of preparation. In the past, I have prepared outlines of the issues, timelines, or lists of facts for the mediator and offered to give it to him/her if h/she wants to accept it. Usually the mediators are appreciative.

10. Bring a laptop or iPad in case we want to quickly research something. My laptop and iPad have a Verizon card in it and it works wherever there is cell service.

11. Make sure that you don’t have appointments or childcare issues so you do not have to worry and stare at the clock. But do wear a watch in case there is no clock in the room and you are wondering about the time.

12. Bring Tylenol or Advil or whatever you need for headaches and stress. Stay hydrated.  

Monday, February 15, 2016

Tips to Advocate for Effective Reading Instruction for Students with Intellectual Disabilities

Tips to Advocate for Effective Reading Instruction for Students with Intellectual Disabilities

          Can students with the label of ID become proficient readers? In three words… Yes, Yes, Yes! Consider the following study from Southern Methodist University by researchers Jill H. Allor, Patricia G. Mathes, J. Kyle Roberts, Jennifer P. Cheatham, Stephanie Al Otaiba:
Is Scientifically Based Reading Instruction Effective for Students With Below-Average IQs?Abstract: This longitudinal randomized-control trial investigated the effectiveness of scientifically based reading instruction for students with IQs ranging from 40 to 80, including students with intellectual disability (ID). Students were randomly assigned into treatment (n = 76) and contrast (n = 65) groups. Students in the treatment group received intervention instruction daily in small groups of 1 to 4 for approximately 40 to 50 min for 1 to 4 academic years. On average, students in the treatment group made significantly greater progress than students in the contrast condition on nearly all language and literacy measures. Results demonstrate the ability of students with low IQs, including students with mild to moderate ID, to learn basic reading skills when provided appropriate, comprehensive reading instruction for an extended period of time.
Jill Allor, Professor, Department of Teaching and Learning, Simmons School of Education and Human Development, P.O. Box 750381, Southern Methodist University, Dallas, TX 75275-0381 (e-mail: jallor@smu.edu).

 Here are some of my favorite tips to advocate for effective reading programs:

 What Can Parents Do?

Students who get the best educational programs tend to be those who have the most empowered parents. How can parents help their child develop reading skills?

     Show your child through your actions that you value reading.

     Have a variety of reading materials in your home.

     Read to your child regularly.

     Set the bar high.

     Go to seminars, go online, and take classes on reading.

     Understand the laws that protect your child.

     Your participation on the IEP team is critical. But it must be meaningful. Get copies of reading evaluations and proposed reading goals prior to the IEP meeting.

     Make sure that the reading goals are measurable. Instead of “Zak will improve his reading, demonstrating one year’s growth,” consider “By May 15, Zak will be able to read a passage of text orally at the 8.2 grade equivalent level as measured by the GORT-5 (Gray Oral Reading Test).”

     Ask the following four questions about your child’s reading program:

1. Does my child’s reading program contain the five components of instruction recommended by the National Reading Panel?

2. Is the bar set high enough?

3. Is the person implementing the reading intervention qualified? What training has s/he received?

4. Is the child getting systematic, explicit instruction in reading? 

     If your child has the label of ID or ASD, do not accept a sight word program like Edmark or Reading Milestones. Such interventions do not teach critical phonetic concepts, necessary to “sound out” – and spell – unmemorized words.  Most likely your child will require a program that uses the Orton-Gillingham methodology.

     Work with local parent groups to arrange for seminars and conferences on reading in your area.

     Request a reading evaluation for your child. The reading subtests of the Woodcock Johnson IV or the WIAT do not, in themselves, constitute a reading evaluation – and frequently the information they provide are of little value for a student with an intellectual disability. Use the template below to ask for a reading evaluation (thanks in large part to Wrightslaw.com for this letter).   

What Can Attorneys and Advocates Do?

Throughout the 1970s and 1980s, much of the research on teaching reading to children with significant disabilities focused on sight-word approaches that provided children with functional reading skills (the ability to read a recipe, bus schedule, weather report, etc.) rather than skills in decoding or "sounding out" unfamiliar words. However, since the mid-eighties, many studies have shown that students with intellectual disabilities are capable not only of learning words by sight, but of reading new, unknown words by sounding them out. Thanks in great part to the No Child Left Behind Act, IDEA 2004 requires school districts to hold children with disabilities to higher academic standards. Nevertheless, many schools exclude children with significant disabilities from high quality reading instruction. We need to battle this. Here are some things to do:

     LEARN THE TOOLS OF THE TRADE!!! Go to seminars, go online, and take classes on reading. Understanding reading will help you spot issues when advocating for your clients.  Two great publications are:

Put Reading First: Kindergarten through Grade 3, and Put Reading First: Helping Your Child Learn To Read: A Parent Guide: Preschool Through Grade 3. Get these free publications at www.edpubs.org. 

“I attended a 16 hour COPPA  Pre-Conference course in Orton-Gillingham methodology and it forever changed the way I practiced law. Let’s face it, if you were a medical malpractice attorney, you would need to understand a few things about the human body! Similarly, if you engage in special education law, you MUST understand the fundamentals of reading. Otherwise you’ll be bamboozled by the school district just like the parents are.”   Attorney Treimanis 

     Understand the qualifications and recommendations of the National Reading Panel. Learn more at www.nationalreadingpanel.org.  

     If your client is not a proficient reader, do NOT assume it’s due to his/her disability. Ask the parents to request a comprehensive reading evaluation, performed by a qualified reading specialist (see template below).

     Forge strong relationships with reading specialists in your state. The input of friends and colleagues who are reading experts can be invaluable to preparing for IEP meetings.

     Grow the local reading specialists. Most of them live in the “LD world.” Help them understand that students with intellectual disabilities can become proficient decoders.

     When a reading evaluation is completed, check the recommendations carefully. The evaluation may be accurate, but the school reading specialist may not envision students with intellectual disabilities as readers, hence recommending a sight word program. Do not hesitate to ask for an Independent Educational Evaluation for reading.

     Request an assistive technology (AT) evaluation to see if there are high, mid, or low level AT options that compliment the client’s reading program and increases access to content. 

     Remember that decoding is very distinct from comprehension. Comprehension is more closely tied to intellectual challenges; decoding ability is usually relatively independent of IQ measures.

     Do NOT assume that Special Education Teachers are qualified to do reading evaluations or teach reading. In many states, a highly qualified Master level special education teacher does NOT have to take any reading classes!

     Ask for the resume of anyone doing a reading evaluation on your student. Do not assume the “Literacy Coach” or special education teacher has credentials. If a teacher claims to be “trained” in Wilson, find out if s/he went to the 5 hour class – which essentially shows you how to use the materials – or completed the requirements to achieve certification.  Similarly, a teacher cannot claim to be “Orton-Gillingham trained” unless s/he has achieved certification at the Certified level – a multi-year commitment.  

     Embedded within the specific requirements provided by IDEA 2004 guaranteeing a Free and Appropriate Public Education (FAPE) for students with disabilities in the Least Restrictive Environment (LRE) is the provision that students, including those with significant disabilities such as ID or ASD, be given evidence-based reading programs. LRE does not require that reading be taught in the general education settings. Frequently, individual instruction or small group instruction with like peers is required in a separate setting. One of the best ways to become fully included in life is to know how to read!

     In later grades, it is NOT appropriate for older students to give up on reading and turn to “functional” skills, such as shopping and learning to do laundry.  Reading is the quintessential functional skill – necessary to obtain and retain a job, navigate transportation options, read recipes or the back of food containers, stay safe, read prescription bottles, go on Facebook, text friends, and have a chance to survive in our print-based community. As proclaimed in Connecticut’s Blueprint for Reading Achievement (2000), “Teaching children to read is a central—arguably the central—mission of formal schooling.”    

Favorite Websites on Reading

Template to Request a Reading Evaluation from the School District

Thanks to Attorney Pete Wright for this – I have been using it for years and I am fairly certain it came from his website…..

February 15, 2016

Nelly Koch, Special Education Teacher

Happy Elementary School

345 Main Street

Stamfire, CT  06906

Re:  Request for reading evaluation for Jimmy Smith

Faxed and also send via first class mail

Dear Ms. Koch,

     My son Jimmy Smith is a 10 year old boy in the 5th grade, yet he reads on a kindergarten level and has made minimal progress during his 7 years at Happy Elementary School. Despite his significant challenges, he has never had a formal reading evaluation nor has he had services from a reading specialist in Stamfire Public Schools.

     What is the plan to bring Jimmy’s reading ability to grade level?

     I am requesting a comprehensive reading evaluation by a qualified reading specialist to determine what peer-reviewed, evidence-based reading program Jimmy needs to become a proficient reader.  In order to avoid any misunderstanding as to what exactly I am asking for, I have provided below a list of reading definitions from No Child Left Behind. Given the enormous reading gap between Jimmy and his same-age peers, I am asking that this request be attended to without any delay. 

Thank you.

Amy R. Smith

Copy to: Molly Arbet, Principal of Happy Elementary School

Sally Simpson, 5th grade teacher, Happy Elementary School 


Four Definitions About Reading in No Child Left Behind

1. Legal definition of reading The term 'reading' means a complex system of deriving meaning from print that requires all of the following:

(A) The skills and knowledge to understand how phonemes, or speech sounds, are connected to print.

(B) The ability to decode unfamiliar words.

(C) The ability to read fluently.

(D) Sufficient background information and vocabulary to foster reading comprehension.

(E) The development of appropriate active strategies to construct meaning from print.

(F) The development and maintenance of a motivation to read.

2. Legal definition of the essential components of reading instruction

The term 'essential components of reading instruction' means explicit and systematic instruction in-

(A) phonemic awareness;

(B) phonics;

(C) vocabulary development;

(D) reading fluency, including oral reading skills; and

(E) reading comprehension strategies.

3. Legal definition of scientifically based reading research

The term 'scientifically based reading research' means research that-

(A) applies rigorous, systematic, and objective procedures to obtain valid knowledge relevant to reading development, reading instruction, and reading difficulties; and

(B) includes research that-

(i) employs systematic, empirical methods that draw on observation or experiment;

(ii) involves rigorous data analyses that are adequate to test the stated hypotheses and justify the general conclusions drawn;

(iii) relies on measurements or observational methods that provide valid data across evaluators and observers and across multiple measurements and

observations; and

(iv) has been accepted by a peer-reviewed journal or approved by a panel of independent experts through a comparably rigorous, objective, and scientific review.
4. Legal definition of a diagnostic reading assessment The term 'diagnostic reading assessment' means an assessment that is-

(i) valid, reliable, and based on scientifically based reading research; and

(ii) used for the purpose of-

(I) identifying a child's specific areas of strengths and weaknesses so that the child has learned to read by the end of grade 3;

(II) determining any difficulties that a child may have in learning to read and the potential cause of such difficulties; and

(III) helping to determine possible reading intervention strategies and related special needs.