Feelin’ ALL RIGHT…INDEED…
Today is a GREAT day….myself and a dear friend/best ADVOCATE I will EVER KNOW….worked together like “Sherlock and Watson”. side by side, solving the mystery of A LIFE TIME…..SADDLY this mystery is “HOW TO GET SPECIAL NEEDS CHILDREN A FREE APPROPRIATE PUBLIC EDUCATION (in Knox County), which ALL kids have a right too, not according to a mother’s wish, BUT according to the FEDERAL LAW…..
If you have any interest and perhaps been wondering why I have not been posting as often as I normally do… please read the complaint below…I warn you it is LONG, but WORTHY…..I am so PROUD to be JACK”S MOTHER and SO PROUD TO BE ADVOCATING FOR HIM…..
what an amazing journey and count on …”to be continued”…..
CIVIL RIGHTS DISCRIMINATION COMPLAINT
Name: Stephanie and Matt Anderson
Address: 8529 Richland Colony Road
City, State, Zip: Knoxville, TN, 37923
Telephone #: 865-851-2820 (cell)
Date: September 29, 2014
This complaint is on behalf of a student, our son, Jack Matthew Anderson, who lives at the address above.
Institution or agency you believe behaved in a discriminatory manner:
Knox County Schools Special Education Department
Name(s) of individual(s) involved:
Student Support Services
Andrew Johnson Building
(865) 594-1540 Office
Check one of the following boxes to indicate the basis of the alleged discrimination:
disability race age national origin color sex religion age genetics other
Please explain what specific event(s) or action(s) occurred that lead to your belief that unlawful discrimination took place. Please give specific laws or regulations you think are applicable. Please give specific names, actions, and dates if possible:
We believe that our son, Jack Anderson, has been discriminated against by the Knox County Schools Special Education Department on the basis of his disability in the following areas:
1. The right to receive the full complement of curriculum-based progress monitoring assessments (CBM testing) as do students without disabilities,
2. The right to receive itinerant instruction in the general education environment as do students without disabilities, and
3. The right to access and progress in the Core Curriculum as do students without disabilities.
On September 3, 2014, we received a Prior Written Notice document from Ms. Massie explaining why our proposal – to move 1:1 direct instructional services for 2 hours per day by a Special Education Teacher from the Special Education Setting to the Regular Education Setting – was rejected by the school system. We assert that the listed justifications for refusing our proposal are not only incongruous with IDEA Law, but the purported information upon which these reasonings are based reflects blatant discriminatory practices by the KCS Special Education Department, led by Ms. Massie.
Background information: Jack received individual (1:1) instruction by a Special Education Teacher all through his 3rd Grade year for 2 hours per day. There is no dispute that this service has been very beneficial, and Jack’s change in placement within the past year from zero hours in a Regular Education Classroom (he was 35 hours in a Comprehensive Developmental Classroom – or “CDC” – up until the start of 3rd Grade) to 25 hours per week in a Regular Education Classroom setting has been successfully supported by this 1:1 modality of specialized instruction.
Because Jack is no longer part of the CDC program (with only 10 hours per week of direct services, a child does not qualify as enrolled in this Special Class now offered at Ball Camp Elementary School), and because we understood IDEA Law regarding Least Restrictive Environment and, specifically, the Principle of Portability (below), we requested that this service be moved from a more restrictive setting (special class) to a less restrictive setting (general education environment). Other Knox County students with autism have received 1:1 direct instruction from a Special Education teacher in 4th and 5th grade general education classroom settings in the past with excellent results, and we knew that it was Jack’s educational right to benefit from this same inclusive service delivery configuration.
In carefully examining Ms. Massie’s documented rationale for denying our proposal, we have discovered the above listed specific areas that impact Jack’s civil rights under the U.S. Department of Education’s Section 504 and Title II of the Americans with Disabilities Act of 1990 – to not be discriminated against based on his disability – along with the denial of his basic educational rights under IDEA.
We also plan to file an Administrative Complaint with the Tennessee Department of Education to address procedural and substantive issues involving Jack’s right to a Free Appropriate Public Education (FAPE); if we are able to achieve resolution through this Civil Rights Complaint, the Administrative Complaint procedure would be much simplified, as issues regarding FAPE are encompassed within civil rights protection.
Specific information supporting our allegation:
Re: 1. The right to receive the full complement of progress monitoring assessments as do students without disabilities
As Ms. Massie states in the Prior Written Notice (PWN) document she provided on September 3, Jack’s IEP goals are based on his Present Levels of Educational Performance (PLEP). However, the section “Describe each evaluation procedure, assessment, record, or report used as a basis for the school system’s refused action” does not include Curriculum Based Monitoring (CBM) testing, and this spurred us to request results of Jack’s CBM testing, which we understand to be the standard progress monitoring assessment for Knox County elementary school students. What we found is that Jack has been tested sporadically and minimally to where the efficacy of actually monitoring progress has been completely removed.
Below is the record of progress monitoring assessments for Jack:
2011 / 2012 – CBM
NO SEPTEMBER MATH
and NO READING ALL YEAR
2012 / 2013 – CBM
September: Reading and Math
NO READING OR MATH Jan/May
2013 / 2014 – CBM
NO MATH ALL YEAR
NO READING in Jan*/May
*Our family was in Georgia from January-March, which explains the absence of KCS testing in January 2014.
2014 / 2015 – Starr Renaissance
This September both Math and Reading
Students without disabilities receive the required battery of progress monitoring assessments — 3 times per year in both Reading and Math; we have anecdotal evidence of this in Jack’s siblings’ testing records (neither of Jack’s younger siblings has a disability). Without providing equal access to progress monitoring given to children without disabilities, we find that the Knox County Schools Special Education Department has discriminated against our son due to his disability, and lacks any credible or demonstrable basis for determining Jack’s actual and potential academic performance.
How Is CBM Used for Describing Present Levels of Performance on the IEP?
The IEP team can transform the student’s average initial scores on CBM tests into an IEP statement of present level of performance. Because neither test administration nor scoring procedures differ and because the difficulty level of the tests remains the same over time, CBM scores can be compared across testing occasions. Current performance can be compared to subsequent performance later in the year. Thus, present level of performance can be written in the same fashion as a measurable, long-term goal that includes the learner behavior and conditions or stimulus materials. However, instead of projecting what constitutes student mastery, present performance merely describes the student’s current level of attainment in an academic area affected by student disability. When the IEP team knows how children typically read or perform mathematics calculations at particular ages or grades, the present level of performance written with CBM data also suggests how substantially the disability affects student performance in that academic area. Usually, the first three to six CBM scores are averaged to determine the present level of performance.
Sample IEP Statement of Current Level of Performance in Reading
Given randomly selected passages at the third-grade level, J. R. currently reads aloud 65 words correct per minute.
Sample IEP Statement of Current Level of Performance in Mathematics
Given 25 problems representing the third-grade level, J. R. currently writes 20 correct digits in 3 minutes.
How Is CBM Used for Developing Long-Term Goals and Short-Term Objectives?
Instructional programming first is addressed by establishing expected year-end goals. Because the CBM tests represent skills the student is expected to master by the end of the year, the IEP team also can write a measurable CBM goal statement that reflects long-term mastery. Teams can refer to normative CBM information for assistance in establishing ambitious, yet realistic goals for students (e.g., Deno, Fuchs, Marston, & Shin, 2001; L. S. Fuchs, Fuchs, Hamlett, Walz, & Germann, 1993). A goal line on the CBM graph is depicted by connecting the student’s average initial performance (i.e., baseline) to the end-of-year goal and shows the rate of progress the student must maintain across the year in order to meet the long-term goal. By subtracting the average current performance from the long-term goal and dividing the difference by the number of weeks occurring between baseline and goal, the IEP team also can figure the weekly rate of improvement, or short-term objective, that the student needs to achieve in order to stay on track toward meeting the long-term goal. In fact, the teacher can use the goal line in benchmark fashion to determine at any point in time the level at which the student should be performing in order to make adequate progress toward the goal. The CBM graph showing both student performance data and the goal line, then, provides an efficient and effective visual tool for communicating student progress with parents or other professionals (Deno, 2003). The graph in Figure 1 shows a fourth-grade student’s progress in mathematics computation from October through March. October scores comprised Donald’s current level of performance, and the goal was set at the end of October. CBM scores reflect Donald’s actual performance across the year, and the goal line shows the expected rate of progress Donald must make in order to reach the year-end goal of 44 correct digits.
Sample IEP Long-Term Goal in Reading
Given randomly selected passages at the third-grade level, J. R. will read aloud 115 words correct per minute by the end of the year (or in 35 weeks).
Sample IEP Short-Term Objective in Reading
Given randomly selected passages at the third-grade level, J. R. will read aloud 1.4 additional words correct per minute each week [(115 – 65)/35 = 1.43].
Sample IEP Long-Term Goal in Mathematics
Given 25 problems representing the third-grade level, J. R. will write 40 correct digits in 3 minutes by the end of the year (or in 35 weeks).
Sample IEP Short-Term Objective in Mathematics
Given 25 problems representing the third-grade level, J. R. will write .6 additional correct digits in 3 minutes each week [(40 – 20)/35 = .57].
How is CBM Used for Monitoring Student Progress?
The goal line illustrates the average rate of progress the student must maintain across the year in order to meet the long-term goal. Using standard decision rules, teachers compare the rate of improvement (i.e., trend line) for CBM scores against the goal line at approximately monthly intervals to determine whether student progress appears adequate for eventual goal attainment. If the trend of CBM progress is steeper than the goal line, teachers raise the year-end goal. If the trend of CBM progress is less steep than the goal line, as had been the case for Donald in November-December, January, and February-early March, teachers modify instruction in some way to better address individual student needs. (Teaching changes are depicted as solid vertical lines on the graph in Figure 1.) In this way, teachers use CBM information to monitor student progress across the year and to determine the overall effectiveness of their instructional programs. Research validates this use of CBM: Students whose teachers used CBM to monitor academic progress and to make adjustments in instructional programs when necessary significantly outperformed comparable students whose teachers did not use CBM (Fuchs, Deno, & Mirkin, 1984; L. S. Fuchs, Fuchs, Hamlett, & Ferguson, 1992; Stecker & Fuchs, 2000). In addition to the graphed data, some computerized CBM systems (e.g., L. S. Fuchs et al., 1998, 1999; L. S. Fuchs, Fuchs, Hosp, & Hamlett, 2003) provide skills profiles that summarize student level of mastery for skills assessed by CBM across a particular unit of time. For example, in mathematics computation for fourth grade, boxes below the CBM graph represent student performance aggregated across 2-week intervals for the particular year-long skills assessed, such as A1: adding with regrouping, M3: multiplying by two digits, D1: dividing basic facts, and F1: adding and subtracting simple fractions (refer to Figure 1). Increasingly darker boxes represent higher levels of mastery, from a white box representing a skill that the student did not attempt to calculate during a 2-week interval to a completely blackened box representing skill mastery. By examining the skills profile, teachers can determine areas in which students need additional instruction or can identify previously instructed skills for which mastery has not been maintained (see Fuchs, 1998, and Whinnery & Stecker, 1992, for additional information about class-wide and individual skills analyses, respectively). The graphed CBM data help teachers decide whether particular instructional programs are strong enough to produce desired student achievement or whether an instructional program needs modification. When a program does need modification, the skills profile can yield specific information for instructional planning purposes. Consequently, teachers respond to unique student needs and characteristics by adjusting components in the instructional program that may enhance student achievement.
In summary, CBM comprises a research-validated assessment methodology that is particularly useful for IEP planning, documentation, and evaluation. CBM can assist in making IEPs educationally meaningful by aligning initial assessment information with instructional programming and progress monitoring. Software (e.g., L. S. Fuchs, Hamlett, & Fuchs, 1997, 1998, 1999) may assist with test administration, scoring, data interpretation, and skills analysis, so teachers can spend more time using CBM information to strengthen instructional planning and, subsequently, to enhance student achievement.
The Value of Progress Monitoring
Assessment informs parents, students, school staff, community members, and policy makers of just how well students are doing. When appropriately applied, it can also help teachers make decisions about what strategies to use to address the needs of their students with disabilities. When teachers use information collected regularly within their own classrooms, they are able to make adjustments to their instruction and help students succeed.
Progress monitoring is a research-based strategy that measures student achievement through the use of targeted instruction and frequent (e.g., weekly, monthly) assessment of academic performance. Based on the information collected, teachers can chart a student’s progress toward his or her individual goals and make adjustments when necessary—including adjustments to instructional approaches and to the number and types of accommodations used (Quenemoen, Thurlow, Moen, Thompson, & Blount Morse, 2004). Not insignificantly, such regular student assessment also allows teachers to pinpoint when a student is having difficulty (National Center on Student Progress Monitoring, n.d.).
Assessment strategies in progress monitoring can take many forms, as the box at the bottom of the page shows, including: curriculum-based measurement (CBM), classroom assessments (system- or teacher-developed), adaptive assessments, and large-scale assessments (including state and districtwide assessments).
Progress monitoring is especially useful with students who have difficulty showing what they know in typical assessments. When the accommodations specified in each student’s IEP are consistently provided, progress monitoring allows a real view of what skills and knowledge a student has (National Center on Student Progress Monitoring, n.d.). IEP teams and educators can then use the information from these assessments to ensure that students are taught in a way that meets their needs and helps them address their academic goals.
Continual progress monitoring also helps to determine whether or not a selected accommodation is having the desired effect. “Too often we assign accommodations, but we don’t evaluate whether they help the student or not,” states Melissa Fincher, Assistant Director of Georgia’s Department of Education’s Testing Division. Susan Kennedy, Education Manager of Connecticut’s NCLB Office, agrees, adding that teachers “should be keeping track of what’s helpful, what’s not helpful, and have that be the basis of their determination about whether they’re going to use it on the test.” Lynn Holland, of Georgia’s Department of Education’s Division for Exceptional Students, adds, “We do try to talk with teachers, through their directors usually, in thinking through and keeping data on what accommodations are actually producing results.”
The National Center on Response to Intervention offers a wide variety of resources to help educators build progress monitoring systems in their classrooms and schools. The Progress Monitoring Tools Chart, for example, helps teachers make decisions about which assessments to use. Assessments are evaluated along a number of important dimensions, including:
Reliability and validity
Sensitivity to student improvement
Improving student learning or teaching
Rates of improvement
Fundamentally, progress monitoring works when teachers use it regularly to reflect on how well instruction is supporting each student’s needs. “Progress monitoring in a standards-based system can be the key to unlocking powerful skills and knowledge for teachers and students and can result in success for the school, district, and state in an inclusive standards-based assessment and accountability system” (Quenemon et al., 2004, p. 16).
Progress Monitoring in Action
Juan is a 9 year-old boy from El Salvador who has lived in the United States since he was 3. At the age of 6, he was identified as having a learning disability.
Juan has been in a fully inclusive classroom since he began school. While Juan has never been a good student, the death of his father two years ago has had an enormous impact on his schoolwork. Since then, he’s had a very hard time focusing in school, which has led him to fall even further behind in his academics.
Juan’s IEP team is worried, but suspects that they may not have an accurate picture of what Juan knows and can do. He may struggle with memory and reading, but he can tell you all about the movie or the sports game he saw last weekend. This leads the IEP team (which includes school personnel directly involved with Juan and Juan’s mother) to consider how the testing situation might be adjusted to better support Juan in demonstrating his learning. They carefully review what they see as causing Juan trouble. They talk about his tendency to get frustrated when he has to sit and work on a task for extended periods of time and how quickly he turns to socializing with friends. He also gets confused when he has to process and organize a lot of text.
When the year began, Juan could only remember the end of a story and recognize 20 sight words. Although his teachers focused instruction on reading of sight words and comprehension skills in the next months, Juan appeared to be making little progress. This changed after the IEP team met and decided on accommodations that would better address Juan’s instructional needs and help him show what he really knows when being assessed. Last month, his sight vocabulary was measured at 50 words, and he could retell the entire story he read.
Both Juan and his mother talk about how much he enjoys his weekly reading assessments. He tells his teachers that he is having fun, and his mother says that he enjoys reading with his friends. He feels successful and doesn’t express frustration with the assessments.
The goal of school is learning. Assessments are just one way—albeit a very important way—in which we find out whether students have learned or not. For many students, especially those with disabilities, being able to show what’s been learned is greatly improved when teachers provide individualized instruction and appropriate accommodations in the classroom and in testing situations.
The sheer variety of accommodations and assessments allows IEP teams a range of tools by which to understand and maximize student ability. Progress monitoring along the way adds an extra and powerful tool for continually checking on student growth and adjusting instruction to match student need. Carefully selecting accommodations to address student strengths, challenges, and experiences means that students with disabilities have the supports they need to access classroom instruction and then demonstrate what they’ve learned.
Investigating and providing strategies such as accommodations that support student success can have obviously beneficial results for students—which is reason enough to provide them, plus it’s the law—but they can be beneficial for our schools as well. Schools and educational systems as a whole are accountable for the results they achieve and must demonstrate that their students are learning. As Dr. Lynn Boyer sees it, “You really try with all these options – including accommodations – that allow children to demonstrate what they know to not only get more accurate test scores but also to help the children to learn.” Providing students with disabilities with the equipment necessary to succeed in the classroom and show their knowledge and skills in a regular assessment format means that they are truly included in the world of education.
Re: 2. The right to receive itinerant instruction in the general education environment as do students without disabilities
Ms. Massie states in the Prior Written Notice document, “The special education setting allows opportunity for more specific intervention at Jack’s present levels of performance to focus on skill gaps.” The service Jack received for a full year in which he made tremendous progress was 1:1, not small group, instruction. The 1:1 service was implemented in the Comprehensive Developmental Classroom setting of which Jack was and is no longer a part (since the beginning of 3rd Grade last school year). In tape recordings of IEP meetings to discuss our proposal to move this 1:1 specialized instruction to Jack’s LRE (the regular education setting – a quiet space within the classroom or just outside the classroom), it was clearly determined that Jack was receiving 1:1 instruction from a Special Education teacher while the other children in CDC were otherwise occupied / being helped by the classroom aide. Not only do we find Ms. Massie’s statement unsupported by any data / studies as a general assessment of the special education setting (we addressed this in an email to which Ms. Massie did not respond – below), but in the case of 1:1 instruction, it makes no sense whatsoever that Jack benefits from being removed from the general education setting to a Comprehensive Developmental Classroom or any other Special Education setting. Receiving 1:1 instruction can and must, according to IDEA Law, be first considered in the general education environment.
Children without disabilities routinely receive individual and/or small group instruction that focuses on skill gaps in the general education environment. Reading groups (such as Voyager) and other itinerant instruction is provided just outside regular education classrooms in the hallway and is considered the general education environment. Jack’s 1:1 instruction last year was only being implemented in the CDC setting because of, as far as we can tell, administrative convenience (which is against the law). The services must follow the child to a less restrictive environment unless the segregated setting is proven to be superior (Principle of Portability – below).
As previously stated, students with autism have received 1:1 services from Special Education teachers in the regular education classroom with highly successful results. Ms. Michelle Flynn, present at our IEP meetings and collaborative meetings, is a Special Educator who personally served in this capacity back in 2008/2009 in a 4th Grade classroom. This 1:1 specialized instruction in the general education setting continued on into 5th Grade by Special Education certified Autism Support personnel. Once a service has proven successful, the data support continuation of such a service and the delivery configuration, and should be an example of successful programming to be implemented with future students.
There is no reason that Jack should be denied instructional support within the general education environment as do his peers without disabilities.
Stephanie Anderson <firstname.lastname@example.org>
MELISSA MASSIE <email@example.com>
MICHELLE FLYNN <firstname.lastname@example.org>,
BRANDON PRATT <email@example.com>,
Kim Kredich <firstname.lastname@example.org>,
Sun, Sep 7, 2014 at 6:16 AM
Request for Second Prior Written Notice/Request for Response
While nothing would surprise us anymore… Do you really mean to say that after all the discussions about the 3:1 Speech/Language Therapy model (3 Special Ed Setting: 1 Regular Ed Setting) you are making a decision that there is now no change in Speech Services? Jack’s IEP was clearly violated last year (and beyond). You yourself apologized at the most recent meeting for the fact that Speech Services were never – not once – implemented in the Regular Ed Setting as listed on Jack’s IEP for all of 3rd Grade. We understand you will not acknowledge the school’s proposed change from 1:1 direct services by a Special Ed Teacher to a “small group instruction” modality, and we understand you will not recognize that the schedule given to us at the beginning of this year clearly built over 30 minutes of travel/break time into the 2 hours of “instruction.” We will address those issues in our filing. If you are not going to honor the change in Speech Services then we will address this in our filing as well. Otherwise, we would like a PWN with the school’s proposal.
Additionally, we would like to give you an opportunity to respond to the following questions prior to our filing:
1. You wrote in the PWN that you sent:
“… time with typically developing peers and similarly performing peers allows for a variety of learning experiences to fully address the agreed upon goals.
Please clarify where in any Special Education law or published studies there is any preference or proven educational benefit to grouping students with disabilities together. Least Restrictive Environment law only allows removal of a child to a segregated setting (you choose an interesting way of describing a segregated Special Education environment as “time with similarly performing peers” – wow) if a child cannot be satisfactorily educated even with accommodations, modifications, supports and supplementary aide/services in a general ed setting. Where are any studies to support placement alongside disabled peers as beneficial to students with disabilities We can find none.
2. Your reason for rejecting our proposed change for location of services from a Special Ed Setting to a Regular Ed Setting appears to be based on your feeling that Jack would be more academically successful learning in the Special Ed Setting. He is already receiving modifications, paraprofessional support, etc., so the only remaining variable (since we reject that being grouped with disabled peers is any kind of benefit) is predicted academic success. Please address this issue in context with a clear directive from the TDOE 2014 Special Education Framework:
Placements Other than the General Education Environment
A student should not be removed from the general education setting solely on the basis or assumption that the child might make greater academic progress in the special education setting.
In Jack’s case, the statement above indicates an obvious assumption that the child might make greater academic progress in the Special Ed Setting because the school system has never tried providing the direct Special Education service to Jack in a General Ed Setting.
3. Along those lines, how does of your “data” (evaluation procedures, assessments, records, or reports that you listed) prove that Jack will not make progress if the direct service is moved from the Special Education Setting to the General Education Setting? We still do not understand how other students with autism and far greater “skill gaps” than Jack have successfully received direct services by special education teachers in the general ed setting and yet you will not consider this for our son.
With your current line of thinking (benefits of grouping with disabled peers, Special Ed Setting “opportunities,” etc.), would you consider it even possible for any child with a moderate to severe disability to be satisfactorily educated full-time in the General Ed Setting?
We just wanted to give you a chance to respond to these questions prior to our filing with TDOE.
Matt and Stephanie Anderson
From: National Dissemination Center for Children with Disabilities
In basic terms, LRE refers to the setting where a child with a disability can receive an appropriate education designed to meet his or her educational needs, alongside peers without disabilities to the maximum extent appropriate. As the Department explained in the Analysis of Comments and Changes to the final Part B regulations in the Federal Register:
The LRE requirements in §§300.114 through 300.117 express a strong preference, not a mandate, for educating children with disabilities in regular classes alongside their peers without disabilities. (71 Fed. Reg. 46585)
LRE has been a part of federal special education law from its inception in 1975. LRE’s basic statutory provision has remained intact for the past 30 years.
The Core of IDEA’s LRE Provisions
IDEA’s LRE provisions are found at §§300.114 through 300.117. We’ll be looking at these throughout this discussion. To begin, though, let’s look at the core of what IDEA requires.
Each public agency must ensure that—
(i) To the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are nondisabled; and
(ii) Special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only if the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. [§300.114(a]
Key Terms in LRE
The core of IDEA’s LRE provisions contains many key terms and phrases that, together, reveal the law’s strong preference for where children with disabilities are to be educated: the regular educational environment. Consider the specific wording and phrases in the provision:
Other removal from the regular educational environment
Occurs only if…
Since its earliest days, the law has displayed a strong preference for children with disabilities to be educated alongside their peers without disabilities, to the maximum extent appropriate. It recognizes that, in many cases, supplementary aids and services must be provided to a child with a disability to enable him or her to be educated in the general education classroom. Supplementary aids and services can play a pivotal role in supporting the education of individual children with disabilities in the regular educational environment.
Simply put, removal of a child with disabilities from the regular education class may occur only if the child cannot be satisfactorily educated in the regular educational environment with the use of supplementary aids and services.
What Other Settings Can Be Considered?
As already discussed, the frame within which placement determinations begin is the regular educational environment. If a child can be satisfactorily educated in that setting (with needed supplementary aids and services), then the general education class is that child’s LRE. Placing this child in a segregated class or separate program would directly violate the LRE provisions in IDEA.
However, the IEP team may determine that the child cannot be educated satisfactorily in the regular education classroom, even when supplementary aids and services are provided. An alternative placement must then be considered.
This is why schools have been, and still are, required to ensure that “a continuum of alternative placements is available to meet the needs of children with disabilities for special education and related services” [§300.115(a)]. These placement
instruction in regular classes,
home instruction, and
instruction in hospitals and institutions.
Provision must be made for supplementary services, such as resource room or itinerant instruction, in conjunction with regular class placement [§300.115(b)].
Having a continuum of placements available “is intended to ensure that a child with a disability is served in a setting where the child can be educated successfully in the LRE” (71 Fed. Reg. 46587). It also reinforces the importance of the individualized inquiry in determining what placement is the LRE for each child with a disability (Id.). As such, the requirement for a continuum of alternative placements supports the fact that determining LRE must be done on an individualized basis, considering “each child’s unique educational needs and circumstances, rather than by the child’s category of disability, and be based on the child’s IEP” (71 Fed. Reg. 46586).
However: Placement is not an “either/or” decision, where children are either placed in a regular education classroom or they’re not. The intent is for services to follow, or go with, the child, not for the child to follow services. Schools must make provision for supplementary services (such as resource room or itinerant instruction) to be provided in conjunction with regular class placement.
Considering the Meaning of “Regular Educational Environment”
The use of the term “regular educational environment” is longstanding in IDEA’s regulations. In response to a public comment on the scope of the LRE provision, the Department explained that the term “encompasses regular classrooms and other settings in schools such as lunchrooms and playgrounds in which children without disabilities participate” (71 Fed. Reg. 46585).
The settings in a school where children without disabilities participate are many and varied; all are considered part of the “regular educational environment.”
Considering “Supplementary Aids and Services”
Providing supplementary aids and services is essential for many children with disabilities to progress and learn. But just what are supplementary aids and services?
The term “supplementary aids and services” is defined at §300.42, as follow:
Supplementary aids and services means aids, services, and other supports that are provided in regular education classes, other education-related settings, and in extracurricular and nonacademic settings, to enable children with disabilities to be educated with nondisabled children to the maximum extent appropriate in accordance with §§300.114 through 300.116.
Suppose a child needs a specific supplementary aid or service that’s typically provided in separate environments, not in the regular education classroom? Does this mean that the needed supplementary aid or service doesn’t have to be provided? Or that the child’s placement may then be somewhere other than the regular educational environment?
No, to both questions. As mentioned above, the school system is responsible for providing the supplementary aids and services that the IEP team determines the child needs and lists in the child’s IEP in order to enable the child to be educated in regular education settings. As stated in the language of the LRE provision, supplementary aids and services are to enable the child with a disability to be educated in regular classes with nondisabled children to the maximum extent appropriate. The fact that supplementary aids and services often play a decisive role in whether or not the child can be satisfactorily educated in the regular educational environment makes it all the more important that the school system meet its responsibility to provide them and to educate the child in the LRE to the maximum extent appropriate. If the IEP team has determined that the child can be satisfactorily educated in the regular classroom with the support of a given supplementary aid or service, those aids or services must be specified in the child’s IEP and must be provided to the child. Section 300.116 is sufficiently clear that placement decisions must be based on the individual needs of each child with a disability. Therefore, school systems must not make placement decisions based on their needs or available resources, including budgetary considerations and the ability of the school system to hire and recruit qualified staff. (71 Fed Reg. 46588)
Federal Court Cases:
Roncker v. Walter, 700 F2d. 1058 (6th Circuit Court 1993)
addressed the issue of “bringing educational services to the child” versus “bringing the child to the services”. The case was resolved in favor of integrated versus segregated placement and established a principle of portability; that is, ” if a desirable service currently provided in a segregated setting can feasibly be delivered in an integrated setting, it would be inappropriate under PL 94-142 to provide the service in a segregated environment” Questions used to determine whether mainstreaming can be accomplished.
1) What is it in the segregated program that makes it better than a mainstreaming program?
2) Can these things (modified curriculum, teacher) be provided in the regular school environment?
“It is not enough for a district to simply claim that a segregated program is superior: In a case where the segregated facility is considered superior, the court should determine whether the services which make the placement superior could be feasibly provided in a non-segregated setting (i.e. regular class). If they can, the placement in the segregated school would be inappropriate under the act (I.D.E.A.).” (Roncker v. Walter, 700 F.2d 1058 (6th Cir.) at 1063, cert. denied, 464 U.S. 864 (1983))
The Roncker Court found that placement decisions must be individually made. School districts that automatically place children in a predetermined type of school solely on the basis of their disability (e.g., mentally retardation) rather than on the basis of the IEP, violate federal laws.
Oberti vs. Board of Education of the Borough of Clementon School District
(3rd Circuit Court, 1993)
upheld the right of Rafeal Oberti, a boy with Down syndrome, to receive his education in his neighborhood regular school with adequate and necessary supports, placing the burden of proof for compliance with IDEA’s mainstreaming requirements on the school district and the state rather than on the family. The federal judge who decided the case endorsed full inclusion, he wrote “Inclusion is a right, not a special privilege for a select few”. The Oberti Court stated … “that education law requires school systems to supplement and realign their resources to move beyond those systems, structures and practices which tend to result in unnecessary segregation of children with disabilities.
“We emphasize that the Act does not require states to offer the same educational experience to a child with disabilities as is generally provided for non-disabled children…. To the contrary, states must address the unique needs of a disabled child, recognizing that that child may benefit differently from education in the regular classroom than other students. …. In short, the fact that a child with disabilities will learn differently from his or her education within a regular classroom does not justify exclusion from that environment.” “Indeed the Act’s strong presumption in favor of mainstreaming…would be turned on its head if parents had to prove that their child was worthy of being included, rather than the school district having to justify a decision to exclude the child from the regular classroom.”
Sacramento City Unified School District vs. Holland (9th Circuit Court, 1994)
upheld the district court decision in which Judge David S. Levi indicated that when school districts place students with disabilities, the presumption and starting point is the mainstream. The parents challenged the district’s decision to place their daughter half-time in a special education classroom and half-time in a regular education classroom, they wanted their daughter in the regular classroom full-time. Rachel Holland an 11 year old with mental retardation, and was tested with an I.Q. of 44. The District contended Rachel was too “severely disabled” to benefit from full-time placement in a regular class. The court found in favor of including the child. The 9th Circuit Court established a four-part balancing test to determine whether a school district is complying with IDEA.
1) the educational benefits of placing the child in a full-time regular education program;
2) the non-academic benefits of such a placement. (The court noted social and communications skills as well as her self-confidence from placement in a regular class)
3) the effect the child would have on the teacher and other students in the regular classroom;
4) and the costs of supplementary aids and services associated with this placement
(The court said cost is only a factor if it would ” adversely affect services available to other children.) The Clinton administration, via the Office of Special Education Programs, filed a “friend of the court” brief with the Court of Appeals in Support of Rachel Holland’s placement in general education.
Greer vs. Rome City School District (11th Circuit Court, 1992)
Court stated “Before the school district may conclude that a handicapped child should be educated outside of the regular classroom it must consider whether supplemental aids and services would permit satisfactory education in the regular classroom.” Parents said the school determined the child’s “severe impairment” justified placement in a self- contained special education classroom. The district argued that the costs of providing services in the classroom would be too high The court sided with the parents and said the school had made no effort to modify the kindergarten curriculum to accommodate the child in the regular classroom.. The court said that the district cannot refuse to serve a child because of added cost. The Court also said school officials must share placement considerations with the child’s parents at the IEP meeting before a placement is determined.
Daniel R.R. v State Board of Education , 874 F.2d 1036 (5th Circuit Court 1989) found that regular education placement is appropriate if a child with a disability can receive a satisfactory education, even if it is not the best academic setting for the child. Non-academic benefits must also be considered. The Court stated that “academic achievement is not the only purpose of mainstreaming. Integrating a handicapped child into a nonhandicapped environment may be beneficial in and of itself…even if the child cannot flourish academically.” The Circuit Court developed a two-pronged test to determine if the district’s actions were in compliance with the Individuals with Disabilities Education Act (IDEA):
1) Can education in the regular classroom with the use of supplemental aids and services be achieved satisfactorily?
2) If it cannot, has the school mainstreamed the child to the maximum extent appropriate?
(Note – The Court stated that “In this case, the trial court correctly concluded that the needs of the handicapped child and the needs of the non-handicapped students in the Pre-kindergarten class tip the balance in favor of placing Daniel in special education”.)
Board of Education v. Rowley, 458 U.S. 176 (2nd Circuit Court 1982)
Supreme Court found that individualized decisions based on the unique needs of each child were essential under federal law. Schools who let one criterion, such as a specific disability, automatically determine the placement are likely to be held in violation of federal law.
Re: 3. The right to access and progress in the Core Curriculum as do students without disabilities
Jack’s disability should not deny him access and the right to progress in the core curriculum – that is, the “core academics” such as English/Language Arts, Mathematics, Science, and Social Studies, plus Special Areas such as Music, Art, Gym, Library, and Technology.
In a recent News Sentinel article (Sunday, August 24), we (specifically, Stephanie) are quoted as saying, “[Jack] loves his CDC teacher, she’s great… but it’s not the same curriculum.” Preceding that quotation, Ms. Massie is quoted as claiming something completely different: Melissa Massie, executive director of student support services for Knox County… said all students, even in CDC (Comprehensive Development Class, which is special education), are taught the state standards.
“All our students have access to the general education curriculum, it’s just a matter of what does that look like for the student, even in CDC,” Massie said. “There is not a separate curriculum in CDC. The instructional materials for a student may be different, addressing their IEP goals, but the standards are the same.”
As parents of a child who has been placed in the full-time Special Ed/CDC setting until last year – his 3rd Grade year (and only then because we became knowledgeable of our son’s educational rights and how to effectively advocate for them), we cannot understand how Ms. Massie can make such statements. In our experience, the CDC program only focuses on each student’s handful of IEP goals, and those goals are academically limited to basic skills in Reading and Math. This limited scope in goals is appropriate for, say, students with Learning Disabilities (LD – these students make up approximately 43% of the Special Education population) for whom specialized instruction in skill gaps of Reading and/or Math, when addressed, will presumably provide the necessary foundation for their better acquisition of all content areas. However, Jack’s disability of autism impacts potentially every aspect of his education, not just Reading and Math. We have found that unless and until a child can do addition and subtraction, then double digit addition and subtraction (borrowing/regrouping, etc.), count coins, tell time – as in, “basic math skills” -, state standards for geometry, parts of a cell, the water cycle, pioneers, etc. – namely, CONTENT areas that a child could and should learn – are basically held hostage because a child has not fully learned the “basics” of Reading and Math. Knox County has repeatedly refused to consider academic goals in Science and Social Studies (or Music, and other Encore subjects which each possess state standards for learning), claiming that Jack’s specialized instruction needs to focus only on “skill gaps.” This is, in our opinion, what has kept kids in CDC who could benefit academically (and, of course, socially/emotionally) from more inclusive placements. They could learn about trapezoids and parallel lines in elementary school even though they may not be able to display “basic computation skills” or even master “time and money” (all conceptual vs. concrete) until high school. They could learn about Native American jewelry and weather systems in elementary school even though they may not test as “proficient” in Reading Comprehension (an obvious challenge for our son, who has a communication disorder, despite above grade-level ability in Reading). The reason we dismiss Ms. Massie’s claim that CDC students learn the same standards and do not have a separate curriculum is that there is no available modified material for content areas such as Science and Social Studies in Knox County Schools as there would be if CDC programs were actually teaching students Science and Social Studies standards of learning.
What should have changed dramatically this year and in the time frame of our proposal (again, to move 1:1 instruction for 2 hours per day from the Special Ed Setting to the General Ed Setting) is the connection of Jack’s educational program to the Core Curriculum via “Instructionally Appropriate IEPs” which should create a more balanced specialized education program relating to all areas of study affected by Jack’s disability.
We feel that this limited scope of school-recommended IEP goals to “basic academic and functional skills” denies Jack the right to gain full access and monitored progress in the general curriculum as do students without disabilities. Too much time is being spent on “getting Jack to learn double digit subtraction” (when he can certainly use a calculator and complete grade level work in the general education classroom, as his IEP stipulates), and this takes away from other, more appropriate learning opportunities in Math and all other subjects that draw on Jack’s strengths in, for example, memorization and computer use. Furthermore, Ms. Massie’s interpretation of what constitutes a satisfactory education (apparently functional skills, ABCs and 1,2,3’s) is far afield of what we understand to be the intent of IDEA and the new focus on academic outcomes.
We want our child to be educated in all subject areas; this requires a broad, balanced approach in developing academic goals for a child whose disability may affect/impact all areas of his education. If the KCS Special Education Department’s restrictive and prohibitive approach to academic access and achievement is the basis for denying our son’s 1:1 specialized instruction in the general education setting, then we assert this is discriminatory in nature because it denies our son the right to appropriately access and progress in the core curriculum as do students without disabilities.
Knox County Schools has recently been designated as “Needs Assistance” in Special Education based on the TDOE Annual Performance Report (APR) data:
A district is placed into the needs assistance category if they fall into one of the following three areas: (1) generated less than 60% of all possible determination points based on the summation of all determination data inputs; (2) had less than 65% or more students with disabilities graduating with a regular education diploma; OR (3) had less than 52% of students with disabilities in the general education setting 80% or more of the school day. A district is placed into the needs intervention category if they fall into category (1) or (2) AND (3). Essentially area (3) acts as a trigger.
As parents proposing a simple, lawful shift in educational placement for existing 1:1 instruction from the “Special Ed Setting” to “Regular Ed – Inclusion” on Jack’s IEP, we have now discovered data that does not exist, statements by Ms. Massie that are not backed up by any legal precedent or studies, and what we feel is a fundamentally flawed and discriminatory IEP process due to goals that oppress and prohibit students with moderate to severe disabilities of ever moving past their “skill gaps” to fulfilling their educational potential in their rightful inclusive setting.
Our firm belief, based on our experience in this district for the past six years, is that a culture of discrimination is at the root of our system’s failures. Our sincere hope is that this new focus on accountability for academic outcomes will lift our school district out of its damaging ways and into a new era of educational equality for our son and all children with disabilities.
TDOE Special Education Framework 2014
Instructionally Appropriate Individualized Education Plans
The Individualized Education Program (IEP)
An IEP is a written statement for a student with a disability that the IEP team develops, reviews, and revises. The IEP is the tool that ensures a student with a disability has access to the general education curriculum and is provided the appropriate learning opportunities, accommodations, adaptations, specialized services, and supports needed to progress toward achieving the same learning standards as students without disabilities, and to meet his or her unique needs related to the disability. Each student with a disability must have an IEP in effect by the beginning of each school year. Federal and state laws and regulations specify the information that must be documented in each student’s IEP.
The IEP as the Cornerstone of the Special Education Framework
The IEP is a strategic planning document that should have a far-reaching impact. An IEP identifies a student’s unique needs and how the school will strategically address those needs. IEPs identify how teachers will provide specially designed instruction, support students in the general education curriculum, and provide access to the same learning standards as nondisabled students. IEPs guide how a school will configure its special education resources to meet the needs of students with disabilities.
IEPs identify how schools will incrementally prepare students for adult living and provide an important accountability tool for school personnel, students, and parents. Schools should use an IEP to determine if they have appropriately allocated resources to provide opportunities for a student with disabilities to achieve desired outcomes by measuring a student’s progress toward goals and objectives.
Writing Instructionally Appropriate IEPs Tied to Common Core State Standards
TN Department of Education
Curriculum & Instruction
What is the difference between
the Traditional and Instructionally Appropriate IEP?
Instructionally Appropriate IEP
•Focused on acquiring basic academic, access, and/or functional skills
•Little relationship to a specific academic area or grade-level expectations
•Directly tied to the Common Core standards
•Both the student’s present level of academic achievement and functional performance (PLP) and the annual IEP goals are aligned with and based on the state’s grade-level standards
What are the benefits of a Instructionally Appropriate IEP?
Ties the IEP to the general education curriculum
Provides positive directions and goals for intervention
Utilizes standards to identify specific content critical to a student’s successful progress in the general education curriculum
Promotes a single educational system that is inclusive through common language and curriculum for special and general education students
Ensures greater consistency across schools and districts Encourages higher expectations for students with disabilities
Disability Discrimination: Overview of the Laws
OCR enforces two laws that prohibit discrimination based on disability. Section 504 of the Rehabilitation Act of 1973 prohibits discrimination based on disability in programs or activities receiving federal financial assistance. The U.S. Department of Education gives grants of financial assistance to schools and colleges and to certain other entities, including vocational rehabilitation programs. The U.S. Department of Education’s Section 504 regulation is enforced by OCR and is in the federal code of regulations at 34 CFR 104.
Title II of the Americans with Disabilities Act of 1990 prohibits discrimination based on disability in public entities. OCR is the agency designated by the U.S. Department of Justice to enforce the regulation under Title II with respect to public educational entities and public libraries. The Title II regulation is in the federal code of regulations at 28 CFR 35.
Examples of the types of discrimination prohibited include access to educational programs and facilities, denial of a free appropriate public education for elementary and secondary students, and academic adjustments in higher education. Section 504 and Title II also prohibit employment discrimination; complainants may choose whether to pursue such complaints with OCR or with the Equal Employment Opportunity Commission.
Section 504 and Title II both prohibit retaliation for filing an OCR complaint or for advocating for a right protected by the two laws, and harassment of students or others because of a disability.
Please note: A copy of this complaint will be forwarded to the department head or supervisor of the department involved in your grievance. If you need additional space you may use the back of these pages or insert additional pages.