Special Education Law Blog
A special education legal resource discussing case law, news, practical advocacy advice, and developments in state and federal laws, statutes and regulations. Postings include insight and sometimes humor from Charles P. Fox, a Chicago, Illinois attorney who is also a parent of child with special needs, and other guest authors.
IDEA 2004 has brought many changes to special education law. School districts have used the new provision which allows attorneys’ fees shifting to parents in the event the due process is frivolous, abusive or brought for an improper purpose, to intimidate and chill due process filings. While this provision is new to IDEA, it tracks existing law from the Federal Code of Civil Procedure and other statutes. This body of law demonstrates that courts are reluctant to shift fees as a sanction and then only after the petitioning party (e.g. school district) has overcome significant hurdles.
It may seem quite futuristic but recent developments have demonstrated that robotic cars are increasingly capable. A race among robotic cars in the Mojave desert showed the strides such vehicles have taken in recent years. These vehicles rely on a series of sensors and GPS devices to navigate. They accept voice commands and are fairly autonomous. Although more than a few years in the future, driver’s education for special education students using robotic cars may allow students with special needs to drive who may not otherwise be able. Read the rest of the story and G.R.I.N. (see post from 12/2/05 re: G.R.I.N. technologies) the future is bright with possibilities.
I only met Liz Birt on one occasion but her dedication and commitment to the rights of children with autism was enormous. She left a permanent impression on me. I unfortunately must share this excerpt from the following obituary notice . "It is with great sorrow that we announce the passing of our dear friend and colleague Liz Birt. Liz was a co-founder of the "Coalition for SafeMinds" and was an active board member of the organization. She also founded Medical Interventions for Autism, was a founding board member of the National Autism Association, co-founder and board member of A-Champ and helped with the development of Extreme Sports Camp in Aspen, Colorado. Liz was a principal author of Mercury in Medicine, the staff report released by the House Government Reform Committee in 2003 that for the first time brought together the background and evolving science concerning the toxicity of mercury used as a preservative especially in childhood vaccines."
New human drug trials that may pave the way to treat the underlying biochemistry of learning disabilities are currently underway. The drug trials involve use of a familiar class of drugs known as statins, which up to now have been widely used for treatment of high cholesterol. As reported in the Los Angeles Times, the trials originate from researchers at UCLA. The technical details of the research appear in the November issue of Current Biology. The current hypothesis is that statin drugs will remedy the effects of a genetic defect that has been associated with learning disabilities. In experimental models using the drug, it has shown signs of improving the following: poor attention spans, difficulties carrying out tasks involving spatial abilities, and problems learning new tasks. This news has the potential to significantly change the current medical treatment for learning disabilities. While some parents may be willing to immediately embrace this potential new medical regime, others may be more cautious and skeptical. Fortunately, IDEA 2004 has a new provision that prohibits schools from requiring parents to engage in drug treatment as a condition of attending school, being evaluated, or receiving services. (See the .pdf version of 20 U.S.C. sec. 1412(25), […]
Every year at about this time, I think about how my life appears to be different from the lives of most people. For the first time in a long time, I’d like to focus on the similarities rather than the differences. So I’ve come up with a list of New Year’s resolutions just like everybody else’s. However, how I plan on achieving them may set me and Moms like me a bit apart. Please glean from them what you will, and together we can change the world.
Children require access to the information tools that are an integral part of both learning and our economy. This is especially true for children with special needs. Computers with the capacity for internet access are the obvious point of access for all of this wonderful information, educational resources, and vocational training and orientation. Among the many obstacles that have up to now impeded access to the internet are the cost of the technology and what I call the "geek factor” (discussed further below). The cost factor is obvious. Computers can be budget busters. In a time when some students, such as in Washington D.C. (see post from 12/26/05) are going through half a year without books, no less computers, access to the internet may appear a luxury for some. The unfortunate reality, however, is that books AND access to the internet are equally essential.
In a recent Washington Post editorial, the D.C. school system was taken to task for its failure to deliver books to all students, even as late as December 2005. The editorial described the school system as follows: "it is a warehouse for students and a pretty poor one at that." The scope of this failure is certainly an outrage, and it is severe enough to get the attention of the mainstream media. The rest of the story (which the editorial did not address) is that for special education students, such fundamental breakdowns in the system are all too commonplace.
While Illinois courts have refused to adopt specific legal requirements for FBAs and BIPs, there is guidance available from other states (as discussed below). Courts and hearing officers will definitely look at the sufficiency of the behavioral planning in determining whether a FAPE has been provided. The cases discussed below are illustrative cases from Illinois. Illinois does not endorse a specific legal scheme for BIPS, but there are worthwhile legal guidance from other jurisdictions. In the case Mason City Community School District, 38 IDELR 50 at 199-201 (2001), the review panel set out a four-part test to determine the sufficiency of a BIP under IDEA. First, the BIP must be based upon assessment data; second, the BIP must be individualized to meet the child’s unique needs; third, the BIP must include positive behavioral change strategies; and fourth, the BIP must be consistently implemented and monitored. Behavioral intervention is defined as an “[I]ntervention based upon the methods and empirical findings of behavioral science and designed to influence a child’s actions or behaviors positively.” 23 Ill.Adm. Code 226.75 (emphasis added). Both Federal and State regulations implementing IDEA reflect this emphasis on the need for positive behavioral interventions as part of the child’s […]
Behavioral intervention plans ("BIPs") can be effective at supporting a child’s education if properly done. The purpose of a BIP is to address a child’s behaviors that are interfering with the child’s education in a positive and proactive manner. Too often, however, BIPs are created in way that is not based upon good data, are not positive or proactive, and tend to be punitive in nature. Some brief articles on positive behavioral interventions for various disabilities can be found on the About Special Education website. These articles are a good starting point for designing better BIPs and understanding the process. The following are my personal observations and thoughts on BIPs. These points are based upon my work with many clients over a period of years and include ways that BIPs can be improved to better support students.
A Functional Behavioral Assessment ("FBA") is one of the most critical parts of an IEP for children who have behaviors that impede their education. As a preliminary matter, this planning process involves a good understanding of what is meant by the term "behavior". This term does not exclusively or even primarily mean acting out or violent conduct. A behavior is anything that the child does that interferes with learning, from being inattentive to falling asleep or having full-blown tantrums. The process begins with the FBA, which looks at the communicative intent of the behavior, or the functional aspect of the behavior. The underlying assumption is that all people behave in a certain way to communicate wants, needs, desires or some other meaning (e.g. I am overwhelmed, I am upset etc.) . FBAs take a holistic analysis of the child’s environment, typically in school. If well done, the FBA process will include the parents, it will be based on good data over a period of days and weeks, and it will be revisited over time to evaluate the validity of the hypothesis that grows out of the FBA. There can be many pitfalls in the FBA process. Too often, FBAs are […]