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Susan Luger Associates Newsletter |
Happenings in the World of Special Education September 2010
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Notes to Our Readers
Through some Internet magic, we have secured a new domain called "SLA72.com" and this new domain feeds our normal "SLugerAssociates.com" domain. What that means is, instead of struggling with the longer name in an email, you can simply ask for Susan@SLA72.com or Michelle@SLA72.com, etc.
Which brings us to our second note. If you click 'Reply', Art gets the email. If you click 'Forward' and then enter Susan's email or Michelle's, Susan or Michelle will get the email. Fastest way to communicate with the brains of the organization is 'Forward', not 'Reply'. |
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Paul Kelly Defies Euclidean Geometry
State Review Officer Twists Self, Law into Fundamentally Different Universe
Paul Kelly, the NY State Review Officer has finally done it -- he has succeeded to defy the laws of Euclidean geometry in his ruling 10-039. Kelly, well-known for his favoritism of school districts over parents, has criss-crossed his earlier rulings and enbageled (I think I made that word up!) special education law to the extent that attorneys and advocates familiar with the ruling are shaking their heads in disbelief.
The litigation was brought by a renowned NYC special education law firm on behalf of parents seeking reimbursement for their unilaterally placed child. In typical fashion, the DOE had offered an "integrated co-teaching" environment (formerly called "collaborative team teaching" -- CTT) to a child needing extensive one-on-one teaching and attention focusing. The parents sent a letter in early July rejecting the recommendation, and sent it within the required timeframe. When no response from the DOE was forthcoming, the parent sent a second letter, which was outside the required timeframe.
Mr. Kelly finds "that the district failed to offer the student a FAPE for the 2009-10 school year". Wow, Paul Kelly said that, in the Prong 1 test, the district failed their legal burden. "O brave new world, That has such people in't!"
But wait, it gets better. Mr. Kelly finds that the school where the parents placed their child was appropriate. Double wow, Paul Kelly said that the Prong 2 element favored the parent. Who is this doppelganger inhabiting the body of Paul Kelly?
Then we get the Paul Kelly we know and rant about in the Prong 3 test -- equitable considerations. Kelly finds that "the parents did not comply with the IDEA statutory notice requirement". Mr. Kelly disingenuously finds that the parent did not state their decision to unilaterally place their child at the May IEP meeting. [To have done so, even if it was in the parents' minds, would have been premeditation and an IDEA no-no].
Remember that on-time letter of early July? That letter stated that the parents could not determine the appropriateness of the program since the class was in summer recess. But, based on viewing another such program, the program was inappropriate.
The later letter, which was out of (time) compliance, stated that the parents would view and determine the appropriateness of the program when in session, also stated that the child would be kept in the private school and that the parents would seek reimbursement.
Ah, says Mr. Kelly. The LATE letter is the statement of keeping the child in the unilateral placement and the aim to seek reimbursement. TOO LATE. OUT OF COMPLIANCE. NO MONEY FOR YOU.
So, the district failed to offer an appropriate placement. The parents' selected private school is appropriate for the child. But, your second letter, with the appropriate words, is late.
The twisting and non-Euclidean geometry comes into play with a 2004 Kelly decision. In this earlier decision, Mr. Kelly found that the district's knowledge of the private school placement and the parents' statement of dissatisfaction with the district's placement offer were sufficient for equitable considerations (i.e., granting the parents tuition reimbursement).
From Mr. Kelly's record:
The ... IEP contains a statement by the CSE acknowledging that "Student is presently (parent placed) in XYZ School", and the record reveals that the child had been at XYZ School for the entire prior school year, which the school district was well aware of as early as November 2002, since that placement had been the subject of an earlier impartial hearing resulting in a settlement agreement wherein respondent agreed to pay for some of the costs of the child's tuition at XYZ School for the 2002-03 school year.
What could have changed in Mr. Kelly's universe? |
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Fetal Alcohol Spectrum Disorder (FASD) describes a continuum of permanent birth defects caused by maternal consumption of alcohol during pregnancy. It is estimated that 1% of children suffer from some degree of FASD. But studies show that 6 out of 7 first graders are not diagnosed; a hospital released 40 new borns with FASD, without proper diagnosis.
Research and clinical experience show that a range of effects (including physical, behavioral, and cognitive) could arise from prenatal alcohol exposure. Understanding that this is a spectrum with none or few or most of these features, key features include growth deficiency, facial abnormalities, and central nervous system damage resulting in behavioral and cognitive impairments.
There is no cure for FASD, but research shows that early intervention treatment services can improve a child's development. Early intervention services help children from birth to 3 years of age (36 months) learn important skills. Services include therapy to help the child talk, walk, and interact with others. Therefore, it is important to talk to your child's doctor as soon as possible if you think your child has an FASD or other developmental problem.
A child may qualify for early intervention treatment services under the Individuals with Disabilities Education Act (IDEA), which states that children younger than 3 years of age who are at risk of having developmental delays may be eligible for services. For IDEA services of kids over 3 years, the diagnosis must fall into the 13 categories of classification (LD, ED, OHI, etc.). FASD per se is not among the IDEA classifications.
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| Court says you can't boot a kid from Special Ed based on grades | |
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An interesting case in Pennsylvania: a student diagnosed with LD in the 3rd grade was given an IEP and received support services in Resource Room. Her support was 45 minutes per day and was weaned down to 10 minutes per week by the end of the 5th grade.
In the 6th grade, a reevaluation was performed with no new assessment tools, tests or procedures. The school district concluded that the student did not have a disability and was not in need of special education.
In the 7th and subsequent grades, the district's psychologist found weaknesses in her testing but did not recommend special education, based on her functioning at grade level.
The court ruled that the student was denied FAPE from the time she was released from special education. |
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Community Corner | |
Aaron Academy in partnership with Pace University presents "College Bound: Diverse Learners and the Transition from High School to College" on Monday, Sept 27th, from 5:30-8:30PM.
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War on Special Ed: Autistic Children vs. the Charter School | |
A public school on the lower East Side had dedicated a group of classrooms to be used as a separate school for autistic children. This was one of the few autism programs available to limited income families in the area.
When some gentrifying citizens were looking for space for a publicly-financed private school -- oops, I mean a charter school -- they happened upon the autistic program space. Needless to say, the autistic kids were booted out and the space was made available to the charter school.
But wait! The parents of the autistic kids filed suit and the NYS Department of Education sided with the autistic kids and their parents.
So, what do our illustrious "education" mayor and chancellor do? (The latter does nothing that the former doesn't want.) The Chancellor uses his "emergency" powers to override the NYS Department of Ed, and gives the classrooms back to the charter school.
Then someone wised up and called in the press. The NY Times article lambasted the Chancellor. The Chancellor rescinded his power grab and returned the classrooms to the autistic program, nice new wooden floors and furnishings, compliments of the NYC taxpayers and intended for the luxury of the charter school attendees. | |
August 6th NY TIMES. |
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Focusing the Related Service Staff | |
In an Alabama school, a student with a hearing impairment was provided with a deaf education interpreter during all oral instruction, as per the student's IEP. However, the interpreter sometimes provided services to two other hearing impaired students.
The courts ruled that the staffer assisting the other two students was, possibly, not always available for the first student. The IEP was violated and FAPE denied to this student.
The moral of the story: the IEP is the important document -- what it says in writing and what it doesn't say in writing determine services. | |
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End Notes
In the 1976 movie 'Network', character Howard Beale (played by Peter Finch) says the famous line: "I'm as mad as hell, and I'm not going to take this anymore!". Famous words that seem relevant in 2010, some three decades later.
Today, we have Tea Partyers in primary upsets, incumbent politicians being booted out of previously "safe" positions, the public mystified by the shenanigans of both political parties at the federal and state levels, and a general malaise that says we're losing our primary importance in the universe.
So, I am mad as hell! When I hear politicians saying that the school system is improving and is succeeding for today's students, I wonder what city or country he's talking about. Our worldwide standing, educationally, puts us somewhat above third world countries but well below European and Asian standards -- and that's general education! Don't even think about special education. Don't even think about the latter 21st century.
We organize special education, then reorganize, then re-reorganize. It is like an uncomfortable mattress, where one tosses and turns all night but never gets results. The answer is simple, expensive and is staring the politicians in the face: appropriate programs and a lot of hard work (by educators, professionals, students and parents -- not even the politicians). Stop this feel-good, new-age, America's-got-talent, everyone-can-be-taught-in-a-single- fishbowl baloney and listen to those who truly know.
Yes, I am mad as hell! And I'm not going to take this anymore! I'm going back to work and file more Impartial Hearing Requests.
Sincerely,
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