The seclusion and restraints bill, HR 4247, now known as the Keeping All Students Safe Act, passed the U. S. House of representatives by a vote of 262 - 153. Here is an account by the Policy Insider blog of the Council for Exceptional Children.

The bill now moves to the senate where it is sponsored by Senator Dodd and is called S.2860. The bill would make seclusion and restraints a last resort and would require training on the techniques and parental notification. There is also a competitive grant program established to encourage school-wide positive behavior supports. Here is a summary of the bill. Here is Sen. Dodd's description. This site has the full text of the bill.

Call or write your U.S. senators and tell them what you think of this bill. This official contact tool
of the U. S. senate may be useful in that regard.

Our ongoing poll is turning out to be a tight race. The question is what should be changed about IDEA. Currently there is only a five vote difference between the top five choices. The poll is on the lefthand side of the blog. Be sure to make your voice heard. Vote!









My plan here is to collect some of your responses and present them to Congress. Sure I've got some ideas, but why not flex our muscles. The readership of this blog is growing. I'm quite proud that many different kinds of special ed stakeholders are tuning in. We have won awards and recognition. Heck, we even were granted a lenghty exclusive interview with the new Assistant Secretary of Education.

If there is power in numbers, why not present some of our thoughts as a group? I'll try to be fair in any presentation I make and I'll try to separate out my opinions (and as you know they can be strong) from group opinions or from group lack of consensus. I think that this may be exciting. Please let me know how you would change the special ed laws.

I understand that Arne Duncan, the Secretary of Education is going to announce today that the Office of Civil Rights in his Department is about to step up the heat in diminishing discrimination in the schools. At the foot of the Edmund Pettus Bridge in Selma, Alabama, the scene of one of the bloodiest battled in the Civil Rights Movement, Duncan was set to announce that OCR will intensify its efforts to bring enforcement actions against discrimination in schools based on race, gender and disability. Here is a news account from the New York Times. According to the Washington Post, Duncan has been vocal in criticizing OCR under the previous administration for being lax in such enforcement actions.


In terms of kids with disabilities- what do you think? How widespread is discrimination? Has OCR been somewhat lax in enforcing the law prohibiting discrimination against children with disabilities?

There has been a lot in the news lately concerning the misuse of seclusion and restraints, especially the incidents involving children with disabilities that led to the pending legislation. There has also been a lot of cases in the last few years involving bullying and harassment of school kids, including kids with disabilities. I believe that we are seeing the beginning of a merging of what I had previously felt were two hot button issues.

What are your thoughts?

The Council For American Private Education, an umbrella group representing a large percentage of private schools in the United States, has written a letter to Congress asking that private schools be exempted from HR 4247, the new Preventing Harmful Restraint and Seclusion in Schools Act.In response, the group called the Alliance to Prevent Restraint and Aversive Intervention and Seclusion, an umbrella group of groups that advocate for parents and children with disabilities, issued their own letter to Congress opposing the CAPE letter. Here is an analysis of the controversy by the Disability Scoop blog.

We have run a number of posts about this issue. I believe that seclusion and restraints is the hot button issue of special education law for the current decade. For example, this is a prior post from this blog with a number of links to resources about the current house bill.

The Senate has not yet taken up this bill. Of course the Senate was recently held hostage by the Senator from Kentucky. (This dates me, but I remember Jim Bunning as a pitcher in the major leagues. It is unfortunate that he will now be remembered as the great enemy of the unemployed rather than the Hall of Fame hurler that impressed so many of us. ) In any event, the Senate is currently tied in knots on other issues. It may be a while before education issues surface there.

But in addition to the pending bipartisan House bill, a larger issue is whether IDEA reauthorization should deal more with behavior issues. IDEA currently only requires positive behavior supports after a proposed disciplinary change of placement is blocked by a finding that a manifestation of the child's disability. There is also a more general and somewhat vague section in the IEP development section that requires the IEP team to consider appropriate strategies if the student's behaviors impede the learning of the student or others. For citations, etc, see this previous post.

Many people think that these provisions need to be beefed up. What do you think?

The Government Accountability Office has released a report on federal education spending. You can review the entire report here. Those of us who crunch numbers enjoy these sorts of reports.

Although it is difficult to decipher in parts because special ed funds get disbursed through different programs and the federal budget is a big mess. Nonetheless, these reports are instructive. The main special ed program, the grants to states, makes up about 19% of the total federal education spending. The total of this program for Fiscal Years 2006, 2007 and 2008 was 32.3 billion dollars. This is another one of those reports that special ed professionals should save a copy of. You never know when you may be requested to quote stats!

Any thoughts about these numbers? Do they sound about right? Take a look at the report for all education programs and what we spend on them.

The United States Department of Education has released a study detailing the policies and laws of the individual states concerning the use of seclusion and restraints. You may read the entire study here. A summary of the report may be reviewed here.

More information about the history of the current hot button issue in special education law, including the shocking GAO report and the subsequent congressional hearings and the pending legislation on seclusion and restraints may be found on the Department's seclusion and restraints page.

The results vary dramatically by state, but many states have no laws regulating seclusion and restraints, while others have very little in terms of policy guidance. Here is an analysis by the disability scoop blog.

Be sure to review the information for your state. This controversy will not go away soon, and I don't think that it should.

One has to wonder about our electoral system. Exactly how does a person get elected to public office? I have read a lot recently about the Supreme Court's extreme judicial activism in relation to its shredding of the campaign finance laws. Is the result that our elected representatives are now truly the finest that money can buy?

My current discontent with all things elected is attributable to a Virginia state legislator, Delegate Robert G. Marshall (R. Prince William). He recently made a speech against Planned Parenthood and during his address he said that subsequent children born to women who have abortions are more likely to be "handicapped" because of vengeance and punishment from God. Here is the Washington Post story.

The logic here is stunning. This guy apparently believes that kids with disabilities are a curse. Has he ever met a kid with a disability? How could he possibly think this? I'm not so interested in the gotcha moment as I am in the underlying, and truly dark, belief about people with disabilities that this argument reveals. This was not a casual misuse of the "R" word, it was an insight into a way of thinking about people with disabilities that I thought that we as a society had outgrown. I'm shocked.

The people who write the special education laws on the state level are, unfortunately, people like this guy? Am I right to be worried?

President Obama told the National Governor's Association this week that it is not acceptable that American eighth graders rank 9th in the world in math and 11th in science. He told them that states are going to have to up their games, and he informed them that Title I funds (part of the Elementary and Secondary Education Act, better known as No Child Left Behind) will be linked to states adopting higher standards, either as a part of the movement for common standards or on their own in conjunction with state universities. Here is a news article from the Los Angeles Times.

The proposal has already met with opposition. For example, the influential National School Boards Association has adopted a position criticizing the proposal as coercion. Here is their press release.

How would the President's proposal affect kids with disabilities? What do you think?

You may have noticed my blog posts last week on the odd way we name special ed cases and why people hate lawyers. I have begun a new crusade to leave last names out of our case names in order to protect the privacy rights of children with disabilities.

My thinking in this respect was colored by my annual review of special ed cases. (Hey somebody has to do it!) I also criticized the lawyer who tried to get a pleading in a particular special ed case dismissed as an "anonymous pleading." As usual, I got carried away and suggested that these sorts of arguments are at least one factor explaining why people don't like lawyers.

Why would somebody make such an argument, I wondered? Well as I compared the 2009

Image by 10b travelling via Flickr

cases to 2008 versions, I found an answer. In another federal trial court in the same state as my offender, I found the decision in SR & MC ex rel MC v. Bd of Educ of New York City 49 IDELR 255 (S.D. NY 2/25/8). In this decision, the court held just the opposite. In other words, the court threatened dismissal of a special ed case unless the parents gave the full names of the parents and the child within a week. I now know why the lawyer made the argument. What I cannot explain is how the 2008 court could make this decision. This may be an example of why people don't like courts. The lawyer, however, had at least a basis for the argument.

What do you think?

In the previous post in this series I discussed the law requiring protection of personally identifiable information concerning kids with disabilities. I stated my opinion that courts do terrible job of naming cases. I ended by trying to start a movement to take all last names out of the case names in special ed law!

I was reminded of this problem during my review of 2009 special ed law cases. (Yes I have nothing better to do!) The names of cases sometimes hide the identity of the child and sometimes not so much. Please see the last post in this series.

Here is the case relating to this topic that reminded me why people don't like lawyers: In CB ex rel EB v. Pittsford Central Sch Dist 53 IDELR 75 (W.D.NY 9/18/9), the parents lawyer did a good job of filing the case so as to protect the identity of the child. The bad part comes next; the attorney for the school district filed a motion to strike the complaint as an "anonymous" pleading. These kinds of things are why people don't like lawyers.

What was the lawyer thinking? Was this serving his client? I understand that lawyers have an ethical obligation to zealously represent their clients, but isn't this pretty clearly over the line? What legitimate purpose could be served by naming the child?

The court denied the motion citing the privacy protections contained in IDEA. No harm done, but really?

Now I realize that there are other reasons why people do not like lawyers, many of them our own fault. But this example really drives the point home I feel.

As I made my way through the 2009 special ed law cases (I know it's an odd pilgrimage, but hey everybody likes something), I was reminded of the odd way that we name special ed cases. I have often wondered about this.

The premise is that we need to protect the identity of the children involved. I agree with that, and it is clearly supported by law. IDEA requires that public agencies preserve personally identifiable information related to children with disabilities. §617(c). See 34 C.F.R. § 300.625. FERPA has similar requirements. 20 U.S.C §1232, et seq and 34 C.F.R. Part 99.

So ok we need to have initials in case names, but sometimes the effort is really half-hearted. (NOTE: you probably get it, but to be sure: the following examples are purely fictional.) Some courts do it well: For example AG by JG v. Looney County Board of Education. In some places it may be JG ex rel AG v. Looney County Board of Education. ("ex rel" is Latin; I'm not sure of the precise translation, but it means "on behalf of") Both of these examples work. The identity of the child is preserved.

But I have seen many examples last year where the name of the case hides very little. For example this tells me too much: AG by Gerl v. Looney County Board of Education. When we spell out the last name in the case name, do we not tell everybody exactly who we are talking about. Especially where the county is rural, we are personally identifying the kid, aren't we? Even if Looney were a large urban school district, how many special ed kids named Gerl could there be?

I want to start a movement right here and now to stop using last names in pleadings involving special ed kids. Are you with me people?


In the next post in this series, I'll give you an example illustrating things lawyers do that causes people not to like them.

My review of the IDEA cases for 2009 raised a few red flags about the economy, but not so many as I had feared. In a previous post, I discussed the issue of furloughs in some states. This seems like a bad public policy on so many levels! Also, one state is threatening to stop contracting with related service providers. Once again, this is bad news for students, parents, not to mention OTs, PTs, speech therapists, and psychologists.

The 2009 cases had one other potentially disturbing trend- courts are talking openly in some cases about the cost or expense of services. Once again, at this point, these are red flags not even really alarms just yet. But we should pay attention.

I believe that the current state of the law is that expense or cost of a service is not an excuse for not providing the service if a child with a disability needs it in order to receive meaningful ( or some) educational benefit. I can even cite a Supreme Court decision for that proposition: Normal 0 false false false EN-US X-NONE X-NONE MicrosoftInternetExplorer4 Cedar Rapids Community Sch. Dist. v. Garret F. 526 U.S. 66, 119 S.Ct. 992, 29 IDELR 966 (1999).

But two recent and fairly high profile cases talk about expense. The decisions are: Ashland Sch Dist v. Parents of Student EA Normal 0 false false false EN-US X-NONE X-NONE MicrosoftInternetExplorer4 587 F.3d 1175, 53 IDELR 177 (9th Cir. 12/7/9); and Forest Grove v. TA 53 IDELR 213 (D.Oregon 12/8/9) .
Now it should be noted that these were both cases involving reimbursement for a residential placement and the decision in each case turned on other factors. The portions of the opinion I am concerned with are "dicta" (lawyer talk for language in a decision that is not critical to the reasoning of the outcome).

Nonetheless, in EA, the Ninth Circuit found that the District Court had not abused its discretion by considering the alleged excessive cost of a residential placement where the court concluded that the placement was for medical and not educational needs. And in TA, the Oregon District court weighed several equitable factors including the fact that the parents chose arguably the most expensive placement available.
So what do you think? Are these red flags that the economy is affecting special ed law? How many think I'm overreacting, raise your hands!

You can find a permanent link to the group on the lefthand side of the blog. Also there are links to special ed law groups on Ning, LinkedIn, Plaxo and Twitter. The groups vary, but the level of knowledge and the passion for kids with disabilities among many diverse types of stakeholders remains constant.

Also on the lefthand side of the blog is a place where you can register for a free subscription to this blog. You have three options, you can receive the posts by email, or by RSS feed in an reader or aggregator, or if you have your own blog or website, you can get a blidget (or blog widget) to insert directly into your website. It helps us if you subscribe. In the blogosphere, there is credibility in numbers. Our number of subscribers plus the Facebook and other social media membership plus our Twitter followers and the other followers and readers that consist of our posse, gives us a ton of credibility. It explains why we got the first big exclusive interview with Dr. Alexa Posny, the new Assistant Secretary of Education for OSERS. Thanks for subscribing and reading!

While you are checking out the other resources on the lefthand side of the blog, like the links to IDEA and the federal regs or the links to other blogs or the CEC widget (it's a blidget), don't to forget in our ongoing poll. The polls are not meant to be "scientific" measurements, but they are fun. The current topic is what would you like to see when they amend the special ed law when IDEA is reauthorized? Currently further regulation of seclusion and restraints is leading with a razor thin margin. Be sure to vote.

Like everybody else, I am obsessed with the bad economy. For those who have seen me do presentations, you know that I ask a lot of questions. Lately during a series of questions that are supposed to make people think, I have taken to asking, "how many are too worried about the recession to answer my questions." At that point almost everybody raises their hand.

I recently asked on the blog poll question- given the economy, should cost/expense be a defense. The answer was overwhelmingly no. And I believe that this is consistent with Supreme Court precedent.

However, some of our astute readers suggested that maybe the economy is coming in the back door. We have posted here before, for example, that the hearing officers who hear due process hearings in California have been forced to take days off without pay. Apparently they are not alone, teachers in Hawaii, including special ed teachers, have been forced to take 17 furlough Fridays throughout the school year. The federal trial court has rejected two challenges to the new policy as an alleged violation of IDEA. ND v. State of Hawaii, Department of Educ 53 IDELR 186 (D. Haw. 10/21/9) and DK & AK by Kellet v. State of Hawaii, Department of Educ 53 IDELR 187 (D. Haw. 10/22/9).

On top of that, I just came across an article on KHON2.com explaining how the special ed teachers are trying to make up the time. It was interesting that the Hawaii state superintendent also seems to indicate that outside contracts will be substantially limited. I'm going to go out on the limb once again and predict that this statement will lead to lots of hearings and lawsuits.

What is the relationship between appropriate education for kids with disabilities and the recession? What do you think? Are the back door effects of the recession serious?

The Committee on Education and Labor of the House of Representatives approved a bill limiting the use of seclusion and restraints on students. Here is the official release. The official name of the bill is H.R. 4247. Here is website with additional resources concerning the bill. An article in Disability Scoop also discusses the legislation

Among other things, the bill limits the use of these techniques to cases of imminent danger; requires that staff using these techniques be properly trained; outlaws mechanical restraints; requires parental notification and establishes oversight mechanisms.

The legislative effort follows the GAO report last spring that detailed a ton of abuses of school children, most of whom were children with disabilities. The GAO study followed a similar report by the National Disability Rights Network entitled "School is Not Supposed to Hurt."

The bill now moves to the full House for a vote. If you care about this issue, please call or write or email your Representative in the House. This website will help you find and contact your Congressperson.