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Appropriately Ambitious:

A Special Education Legal Blog 

“But [the student’s] educational program must be appropriately ambitious in light of his circumstances …. The goals may differ, but every child should have the chance to meet challenging objectives”

Endrew F. v. Douglas Cnty. Scl. Dist. RE-1, 137 S.Ct. 988, 1000 (2017).

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  • Patrick G. Radel, Esq.

Come On Congress!


As a new session of Congress begins, here is my wish list of three changes I think should be made to federal special education law.


Here’s hoping a new Congress will mean better outcomes and brighter futures for students with disabilities!

 

Keeping All Students Safe Act – Stop Hurting Kids


I have heard heartbreaking stories during my time as a special education attorney.


Among the most difficult to hear are those involving the use of restraints and seclusion– and, really, that’s a polite way of speaking, since what we are really talking about is the use of violence (physical and/or psychological) against some of the most vulnerable members of our community.


If you want to see what I’m referring to click here (discretion advised).


Seclusion occurs when a student is forced to stay in a room or area alone and not permitted to leave. Restraint involves the use of force by an adult with his or her body, or mechanical or chemical means, to prevent the student from being able to move his or her body freely.


According to the U.S. Department of Education, 101,990 students were subjected to restraint or seclusion during the 2017-18 school year.


Although students with disabilities comprise only 13% of the overall school population, nearly 80% of students subjected to physical restraint were students with disabilities.


Currently, there is no federal law regulating the use of restraints and seclusion in school.


The “Keeping All Students Safe Act” (HR 3474, S. 1858 in the last Congress) would be the first.


Although the House and Senate versions different slightly, both bills ban mechanical and chemical restraints, limit restraints and seclusion to true emergencies when someone is in danger of immediate physical harm, require prompt notice to parents, and provide funding to train school personnel on evidence-based, proactive strategies to address challenging behaviors.

 

IDEA Fairness Restoration Act – Let’s Have a Fair Fight


IDEA (the main federal special education law) requires schools to provide students with disabilities a free appropriate public education in the least restrictive environment.


If a parent believes their school is not following the law, IDEA give them the right to bring a “due process” challenge through a hearing conducted by an impartial hearing officer or administrative law judge.


IDEA requires schools to do much more than they often do to support student success and inclusion. The due process hearing is a critical safeguard to make sure the law is followed.


However, many families find due process daunting.


During the hearing, the school presents its teachers, therapists, administrators, and psychologists as “experts” regarding the student’s needs and the program or placement they believe is appropriate for the student.


This can put the parent at a disadvantage unless they can bring in their own expert with the technical knowledge and experience to offer another perspective.


A good expert can make a decisive difference in the outcome of a due process challenge. It also ensures that the hearing officer is given a range of options and opinions to choose from, rather than receiving a one-sided presentation.


However, hiring a well-qualified expert is often expensive.


When a parent wins a due process challenge, IDEA requires the school to reimburse the parent's legal fees and “costs.” Some courts had said that the reimbursable “costs” included expert witness fees.


However, in 2006, the Supreme Court ruled that expert witness fees were not recoverable under IDEA, even if the parent wins their due process challenge.


As a result, many families, especially low- and middle-income families, are at a disadvantage when they seek to enforce their student’s rights.


These families, who are already facing additional financial burdens because of their child’s disabilities, must either litigate their due process challenge without an expert or use limited resources and savings to pay out of pocket, with no hope of reimbursement even if the school is found to be at fault.


The IDEA Fairness Restoration Act (HR 1208 and S 613) amends IDEA and provides that a parent is reimbursed for their expert witness fees when they win a due process challenge. This would bring IDEA in line with other civil rights statutes, including the ADA, which provide for reimbursement of expert witness fees in similar circumstances.


This bill would level the playing field and help make sure the rules and rights enacted in the halls of Congress are practiced in the halls of our schools.

 

IDEA Full Funding Act – Show Me The Money!


When Congress enacted IDEA in 1975, it promised to cover 40% of the cost of special education services.


Congress has not kept this promise and currently pays only about 15% of the cost, leaving states and school districts to cover the rest.


As a result, many schools lack the resources to properly support students with disabilities and/or divert funding from other programs to meet ever increasing expenses.


The IDEA Full Funding Act (HR 5984, S 3213) would increase federal special education funding each year over a 10-year period until Congress keeps the 40% funding promise it made nearly five decades ago.


If I might offer an amendment to this bill, I propose making the additional funding contingent on schools doing a better job of following the law’s Least Restrictive Environment (LRE) requirement.


According to the National Center for Education Statistics, “[l]ess than one-third of students with deaf-blindness (28 percent), intellectual disabilities (19 percent), and multiple disabilities (15 percent) spent 80 percent or more of the school day in general classes.”


This is not what Congress intended when it made LRE a central pillar of IDEA.


Given the well-established, significant benefits of inclusive education, and the major advances we have made in using technology and teaching techniques to support students with learning differences in general education, this should not be allowed to stand. States that commit to following the LRE standard and including all learners should be rewarded with additional resources.

 

Take Action if You Agree


Please consider calling, writing, or e-mailing your Representative and Senators to urge them to support these important improvements in the special education law.


We stand on the shoulders of the parents, educators, self-advocates, and other leaders who passed these protections into law so many years ago.


It now falls to us to improve and update the law, to carry the torch, to keep fighting for better, more inclusive schools.


For legal education only.  This does not constitute legal advice or establish an attorney-client relationship.

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