What documents should be in your child’s special education binder?

If you are a parent of a special education student or advocating for one, do yourself a favor and . . .

PRINT OUT THIS ARTICLE (or at least the plan below).

Not only will this article save you time and lots of money, it will help you understand how best to help your child with a disability.

When clients contact me, most are armed with a box (or seven) of documents about their child’s special education.  It is wonderful that they are documenting their child’s path and what the school district is doing (or not doing) for their child.  It should be the mantra of every parent of a child with a disability: DOCUMENT EVERYTHING!

But . . .

Usually, the documents clients provide me are overkill and disorganized.  Inside the box(es) is a pile of papers, often not in order. I doubt highly that a client wants me to bill them at $375.00/hour to go through those papers to organize them and figure out what I need.  Thus, before you meet with a lawyer or advocate, you should organize your child’s special education documents first.  You should do this even if you are advocating for your own child.

Here is a plan to explain which documents you need, which documents you don’t need, and how to organize them.

THE PLAN

1. Get a 2″ 3-ring binder with dividers.  Label the dividers as follows: MEDICAL, FAMILY BACKGROUND, EVALUATIONS, IEPs / 504 PLANS, and SCHOOL DOCS.

2. Under MEDICAL, include any papers from the original diagnosis of your child.  Also include any changes to that diagnosis (e.g. ADHD -> Autism Spectrum Disorder).  Also include a list of any major medical events, such as surgeries, hospital in-patient stays, broken bones, major or chronic illnesses, and allergies (don’t forget dental events, such as tonsillectomies, baby teeth extractions, etc.)  As best you can, document the dates and locations of these medical events, as well as treatments received.  Finally, if there are any related medical or psychological disorders in the immediate family, note those here as well (e.g. grandfather diagnosed with Alzheimer’s, uncle diagnosed with ADHD, etc.)  Finally, in the front of this section, place a list of all current physicians and medical providers seen by your child – primary care physician, occupational therapist, physical therapist, psychiatrist, psychologist, speech therapist, etc.  Make sure you have their name, the service they provide, and contact information (phone number, email address, website).

3. In the FAMILY BACKGROUND section, include notes of milestones in your child’s development (e.g. date first crawled, date first walked, date first spoke, first spoken words, etc.), especially any noted delays in such development.  Also provide a narrative of your family makeup and any major changes, such as number of living grandparents, parents, child’s siblings, aunts, uncles, etc.  It is critical to be honest about family events, such as divorces or separations, geographic relocations, domestic violence, financial or other stress, etc.  Place in this section other matters of importance in your family culture, such as religious beliefs, school history including any changes in school, ethnic celebrations, etc.  If you are in a divorced family, you should include anything that changes the name of the child and also any court order regarding physical custody, visitation, and especially legal custody or who has the right to make educational decisions for the child.

4. Do not include every evaluation of the child ever performed.  In EVALUATIONS, place only the most recent evaluations of the child.  These evaluations should be no more than 3 years old.  If the evaluations occurred more than 3 years ago, do not include them.  Thus, if this section is empty, one of the things you will be requesting is a new comprehensive educational evaluation of your child.

5. Like EVALUATIONS, within the IEPs/504 PLANS section do not include every IEP or 504 Plan since your child’s birth.  (That’s supposed to be humorous.)  My recommendation is to only include the current approved IEP or 504 Plan and all approved ones going back two school years.  You should only include a draft IEP or 504 Plan if it is related to the current approved IEP or 504 Plan (to show how the school changed or omitted certain information) or it is a current proposed IEP or 504 Plan with which you disagree.  Old drafts should be discarded because approved IEPs and 504 Plans overrule those drafts. Thus, this section should be at a maximum, 3-5 documents, especially since these are typically very long documents (you may consider only including pages from prior plans or drafts that conflict with the one currently at issue.)

6. The SCHOOL DOCS section is the trickiest of all.  My rule of thumb is when in doubt, include it.  First, if you haven’t done so already, send a FERPA request to the school for your child’s records.  (Click on the link to the left to read more about FERPA requests.)  At the beginning of this section, provide a list of all contact points at the school with names, phone numbers and email addresses of the superintendent, principal, assistant principal, all teachers that see your child, all service providers that see your child, all persons involved in lunch and/or playground monitoring, and any other person that your child may encounter in school.  Also include anyone on the IEP Team (Child Study Team) that is not included in the prior list, such as school psychologist.  [Why do this? First, it will assist your attorney or advocate into knowing who the players are.  Second, it will show the IEP Team that you are more than prepared when you show up at an IEP Team meeting with the list.  Can you imagine the fear on the faces of the IEP Team members when they see their names and contact information on a list in your notebook? Make sure you turn to that page in your binder when you first sit down.]  You should include here results from your child’s standardized tests, report cards, any disciplinary reports, absent/tardy reports, progress reports (triggered by the current IEP or otherwise), and any other key documents that discuss your child’s current levels of academic achievement and functioning in the school environment (sometimes emails from teachers or among teachers and administrators provide the true story).

Your binder may be huge, but volume is not the problem.  Disorganization is the problem which the binder resolves.  You, your attorney, or your advocate will appreciate this effort.  And, as stated previously, it will help zero in on the real issues your child with a disability is facing in the school environment.

[This article and other helpful tips for your child’s IEP are in our FREE report 5 Easy Steps for a Successful IEP MeetingDownload your copy here.]

For more on this and related topics, consider purchasing the book SchoolKidsLawyer’s Step-By-Step Guide to Special Education Law: Workbook for Parents, Advocates and Lawyers available now from Amazon.com or direct from SchoolKidsLawyer.com.

Is special education instruction by a paraprofessional legal?

Recently, I was asked this (not so) hypothetical:

“4th grade child has an IEP (high functioning Down Syndrome) and is placed in a life skills classroom. There is one special education teacher and seven aides rotating through the classroom.  Reading and math instruction is being solely taught by an aide with the teacher touching base with the child once a week for this instruction. Are there any laws or regulations that say direct instruction can be delivered by a paraprofessional?”

Here is my analysis and answer:

A State may only receive federal funding for special education under IDEA if: “The State educational agency has established and maintains qualifications to ensure that personnel necessary to carry out this subchapter are appropriately and adequately prepared and trained, including that those personnel have the content knowledge and skills to serve children with disabilities.”  20 U.S.C. Sec. 1412(a)(14)(A).

“The qualifications under subparagraph (A) include qualifications for related services personnel and paraprofessionals that— (i) are consistent with any State-approved or State-recognized certification, licensing, registration, or other comparable requirements that apply to the professional discipline in which those personnel are providing special education or related services; (ii) ensure that related services personnel who deliver services in their discipline or profession meet the requirements of clause (i) and have not had certification or licensure requirements waived on an emergency, temporary, or provisional basis; and (iii) allow paraprofessionals and assistants who are appropriately trained and supervised, in accordance with State law, regulation, or written policy, in meeting the requirements of this subchapter to be used to assist in the provision of special education and related services under this subchapter to children with disabilities.”  20 U.S.C. Sec. 1412(a)(14)(A) (emphasis added.)

So, first, paraprofessionals in the special ed environment (implementing an IEP) must be properly certified in the discipline they are teaching.  This is true for reading and math.  You must look to the State’s education code on who has the proper certification and/or licensing to meet this certification requirement.

They must also be appropriately TRAINED and SUPERVISED.

What does “trained” mean?

All special education teachers must be HIGHLY QUALIFIED.

“Each person employed as a special education teacher in the State who teaches elementary school, middle school, or secondary school is highly qualified.”  20 U.S.C. Sec. 1412(a)(14)(C); 20 U.S.C. Sec. 6319(a)(1).

This is especially true for core academic subjects.  20 U.S.C. Sec. 6319(a)(2).

For paraprofessionals (aides), specific requirements are set forth in the No Child Left Behind Act.

“Each local educational agency receiving assistance under this part shall ensure that all paraprofessionals hired after January 8, 2002, and working in a program supported with funds under this part shall have— (A) completed at least 2 years of study at an institution of higher education; (B) obtained an associate’s (or higher) degree; or (C) met a rigorous standard of quality and can demonstrate, through a formal State or local academic assessment— (i) knowledge of, and the ability to assist in instructing, reading, writing, and mathematics; or (ii) knowledge of, and the ability to assist in instructing, reading readiness, writing readiness, and mathematics readiness, as appropriate.”  20 U.S.C. Sec. 6319(c) and (d).

What does “supervised” mean?

Again, the No Child Left Behind Act explains the duties of a paraprofessional (aide).   20 U.S.C. Sec. 6319(g).

“A paraprofessional may not provide any instructional service to a student unless the paraprofessional is working under the direct supervision of a teacher consistent with this section.”  20 U.S.C. Sec. 6319(g)(3)(A).

The question is whether the special ed teacher checking in once a week is appropriate direct supervision.  This will depend on the facts of what the teacher means by “touching base” with the student.  In other words, is the teacher ever observing or monitoring how the aide is providing instruction?

Conclusion

So, can paraprofessionals teach core subjects under an IEP?  Maybe, but doubtful.  (1) They must be properly certified; (2) “highly qualified”; and (3) properly supervised.  Investigation into the facts of each case will determine if these three required elements are being satisfied.

Sorry to give the age old lawyer answer of “it depends”, but each case can be different and the only way to give a definite answer is by what the detectives on Dragnet always said, “Just the facts, ma’am, just the facts.”

 

 

The Dangerous Use of the Word “Cure”

I’m shocked. It takes a lot to shock me these days, but I am admittedly shocked. My alarm has been set off by numerous recent studies into the “cause” of Autism. I’m not alarmed purely because of the research, but rather what it may implicate and the resulting frightening thoughts of how we, as a society, would implement a “cure”.

There were studies attempting to link childhood vaccinations to Autism, but those studies were found to be faulty and in one case “an elaborate fraud”, but nevertheless absent of a link between vaccines and Autism.  See Autism Speaks Policy Statement on Vaccinations and Autism; and CNN report about the British Medical Journal’s retraction of Dr. Wakefield’sstudies as fraudulent.

Another recent study published in the August 12, 2013edition of the Journal of the American Medical Association Pediatrics links induced or augmented labor to Autism.  Still another report by the New York Times attempting to say that Autism and cancer were linked via a “cancer gene” was exposed as extremely unreliable.

This brings me to my concern; actually, two concerns.

The first – that because Autism is a hot topic and the rapid increase in the number of cases of Autism in the population is startling to some (disregarding the fact that proper techniques to diagnosis Autism are a recent event proving that there is not an increase in the development of Autism, but rather an increase in number of discovered incidence) the media jumps on any report that seems to find the “cause” of Autism – I can do nothing about.  What sells “news” and media is beyond my control and I can do nothing other than be exasperated.

The second concern, about which I believe I CAN do something, is what I believe is the next step that follows the discovery of the “cause” of Autism – the “cure” for Autism.  This should be a source of alarm and concern for everyone and, frankly, is a disturbing and dangerous use of the otherwise constructive term “cure”.This dangerous use is attempting to redefine “cure” to mean “prevention” rather than its true definition.

Most dictionaries define “cure” as follows:

cure: n. 1. a means of healing or restoring to health; remedy. 2. a method or course of remedial treatment, as for disease. 3. successful remedial treatment; restoration to health.

Source: Dictionary.com, http://dictionary.reference.com/browse/cure?s=t

Thus, “cure” means to “restore to health” or “remedy”.  In other words, if you have a virus or disease, the cure may be a drug or treatment that restores you to health. In a sense, chicken soup may be viewed as the cure for the common cold.  (I know several Jewish mothers who swear by that.)  This definition refers to healing people who are currently alive.

How can this be bad?

On August 14, 2013, the Autism Support Network’s Facebook page posted this question: “Would you terminate your pregnancy if you knew your child would have autism?”  Thankfully, the responses were unanimously “no” and several people were puzzled why an “Autism support network” would even pose that question.  The members of this network are parents of children with Autism who have already been born.

The insidious and heinous implication of this question is that we, as a society, will view abortion or intra-uterus genetic alterations as a “cure” for Autism.  People are seeking to prevent Autism.  While that, too, sounds like a noble pursuit, it is extremely dangerous and Orwellian in its possibilities.  What is next? Sterilization of those who have a gene that causes Autism or those who have Autism?  Government-imposed removal of reproductive parts of people who have Autism in their family history?

I know these examples are extreme and hopefully absurd, but I do wonder how this urge to find the cause of Autism has led to tenuous research projects and where such research might lead.

I have a better idea.  Rather than spend millions (perhaps billions) of dollars on fruitless research into the cause of Autism (which is most likely genetic and not “curable” absent one of the horrific methods I describe above), redirect those funds to research into therapies or providing services for families that have living, breathing, wonderful children with Autism.  The daily lives of such families are rife with challenges and they deserve all of the help and support that we, as a society, can muster.

If you want to redefine the word “cure” when it comes to Autism, redefine it to mean “support”.


Are Special Education Advocates Performing UPL (Unauthorized Practice of Law)?

The answer to the question posed in the title is, typically, lawyerly – it depends.

What is the “practice of law”? “Unauthorized practice of law (UPL)”?

First, let’s discuss what is the “practice of law” and “UPL”.  Virtually every licensed occupation is regulated by the State.  For example, in Pennsylvania, the Bureau of Professional and Occupational Affairs regulates almost every licensed occupation, such as accountants, nurses, barbers, funeral directors, dentists, etc.  However, lawyers are regulated exclusively by the highest court of the state – in Pennsylvania, it is the PA Supreme Court.  This regulation includes the power to define what constitutes the practice of law.  See PA. Constitution Article V, Section 10(c).

That is not as easy as it sounds. Courts don’t face this issue very frequently. Generally, there are three categories of activities / services reserved to those who are admitted to the bar: (1) advising clients as to what the law is to enable them to act and pursue their affairs; (2) preparation of documents that require familiarity with legal principles an ordinary person wouldn’t know (such as preparing a court document); and (3) appearing before a public tribunal, such as a court or administrative hearing.  Put another way, a person who doesn’t have a license to practice law should not tell someone what the law is and advise them to act accordingly, prepare a legal document, or show up in court on behalf of anyone but him/herself.  Doing so would be the unauthorized practice of law, or “UPL”.

A person can get in serious trouble for UPL.  In fact, in most states it is a crime.  In Pennsylvania, for example, it is a misdemeanor of the 3rd degree for a first time offender; misdemeanor of the 1st degree for a repeat offender.  See 42 Pa.C.S. Section 2524(a).  It may also be a violation of a state’s Unfair Trade Practices and Consumer Protection Law, which would subject them to civil (money) penalties.

Special Ed Advocates and UPL

So how does this apply to Special Education Advocates?  Again, it depends.  A description of the typical special education law case timeline is helpful.

Briefly, the first event is that a child is diagnosed with a disability that triggers the right to have special education in school.  The next event is that a team of school personnel, physicians, and the parents decide what should be in the special education program for that child (this is called an Individualized Education Plan or “IEP”).  Sometimes there is disagreement over what should be in the IEP or how the school is implementing it.  What comes next may be a due process complaint and hearing.  This is a semi-formal process where the school and the parents put on a case before a hearing officer (not always even a lawyer).  The hearing officer decides whether the services are appropriate or not.  If either the school or the parent disagrees, they can then appeal that hearing officer decision to a court.

The laws and regulations make it clear that parents are entitled to have “other individuals who have knowledge or special expertise regarding the child, including related services personnel as appropriate” with them at IEP meetings.  See 20 U.S.C. §1414(d)(1)(B) and 34 CFR §300.321(a)(6).

As a result of this language in the laws, a cottage industry of advocates, mostly made up of parents of disabled children themselves who are veterans of the battles with schools over special education, has developed and flourished.

Do not misunderstand me – I think advocates are wonderful and perform great services to parents, especially since most parents of special needs kids are heavily burdened with medical and other expenses making lawyers unaffordable at almost every level.  Well-trained advocates offer objective, yet passionate assistance to parents so that they can make informed decisions without the emotions getting in the way.

However, there are limits to this participation.  The portion of the law quoted above comes under the definition of an “IEP team”.  Matching that with the description above of what is the practice of law, an advocate should stick to helping a parent to prepare for and make it through the IEP meeting in an informed manner.  The advocate should be careful not to suggest a path for a parent based on an interpretation of the law – this is acting like a legal advisor and is likely UPL.  However, an advocate can certainly tell a parent, “the law states that an IEP should include . . .” or that the law requires certain procedures to be followed.

So what CAN’T an advocate do?  This depends a great deal on state law.  While some states permit advocates to act as lawyers in due process hearings, most states still do not.  To be safe, an advocate should not prepare a due process complaint, represent a parent at a due process hearing, or draft an appeal of the hearing officer decision in a court pleading.  These are all the practice of law and if an advocate, not licensed to practice law in that state, provides one of those services, it is UPL.  Of course, there are licensed attorneys who provide advocacy services, so they are entitled to provide any and all of these services.

Why is UPL a bad thing?

The reason why the above-described tasks are UPL may not be so obvious.  Many people might think, “I represented myself in my own divorce case, so why can’t someone help me with my special ed case?”  And therein is the answer – you can represent YOURSELF in any legal proceeding (that is called acting “pro se” or for yourself), but someone else cannot represent you.  Why?  Lawyers are trained to understand, not just the law, but legal procedure.  For example, it is important in a due process complaint to make sure you plead every option available to you; failure to do so might give up a right or two or seven.  In some states, you may have a civil rights case under Section 504 or the ADA, but many advocates don’t know this or even if they do, they don’t know you MUST include those allegations in your due process complaint.

Two other critical examples are the Rules of Evidence and Appellate Procedure.  Most advocates don’t know the rules of how documents or testimony get “into evidence” so that a judge can consider them.  Further, if you have to appeal an administrative decision to court, it is like an appeal and sometimes only the record that is made at the due process hearing is considered by the court and if you don’t get the information in at the due process level, you might have to fight a battle at the appeal level to get it in – and you might lose.  Many well-trained advocates don’t know these rules because they aren’t licensed lawyers.

To conclude, Advocates are a necessary and crucial part of the special education process.  There is no better (and more affordable) help with making sense of this maze of special education law, especially when you are simply trying to get services for your child at school, than a well-trained advocate.  However, remember that they are limited in what they can do and when it comes to advising you on a legal path or preparing your complaints or representing you at a hearing, only licensed attorneys can help you in those situations.


Recommended reading: “Guidelines for Choosing an Advocate” from COPAA.

 

The Law on Independent Educational Evaluations (IEEs)

Evaluations of your disabled child are critical to your child’s success in school and life.  If done properly, they can provide insights into services, therapies and accommodations that your child needs to access a “free appropriate public education” or FAPE.  But if not done properly, it can prevent your child from ever getting a proper education and destroy his/her future.

The PLAAFP

If your child is eligible for an IEP, his/her IEP must accurately reflect a child’s “present levels of academic achievement and functional performance” or PLAAFP.  20 U.S.C. §1414(d)(3); Schaffer v. Weast, 546 U.S. 49, 53, 126 S.Ct. 528, 163 L.Ed.2d 387 (2005) (“Each IEP must include an assessment of the child’s current educational performance, must articulate measurable educational goals, and must specify the nature of the special services that the school will provide.”)  An IEP must address all of the student’s needs, which should be detailed in the PLAAFP part of the IEP.

How to make sure the PLAAFP is accurate

The only way a PLAAFP is accurate (and then the goals are appropriate) in an IEP is to make sure the evaluations of your child are valid and accurate.

The main body of IDEA 2004 enables schools to perform evaluations of children with disabilities.  See 20 U.S.C. §1414.  That section talks about initial evaluations and reevaluations and how they are performed and used by school district personnel in making special education decisions, like IEPs.

What if the school’s evaluations are not accurate or finding what you or your child’s doctor suspect?

If a school’s assessments are not matching what you have observed or your child’s outside medical personnel are documenting, you may need to get independent evaluations of your child.  But that is expensive, especially if your insurance doesn’t cover them.

Perhaps one of the more important sections of IDEA is found in the federal regulations.  34 C.F.R. §300.502 is the regulation for Independent Educational Evaluations or “IEEs”.  Here are the most critical portions:

  • “The parents of a child with a disability have the right under this part to obtain an independent educational evaluation of the child” subject to some rules.
  • “A parent has the right to an independent educational evaluation at public expense if the parent disagrees with an evaluation obtained by the [school] . . . .”
  • “If a parent requests an [IEE] at public expense, the [school] MUST, without unnecessary delay, either (i) File a due process complaint . . . or (ii) Ensure that an [IEE] is provided at public expense unless the [school] demonstrates in a [due process hearing] that the evaluation obtained by the parent did not meet agency criteria.”

The most important parts of this are that (a) the parents have a RIGHT to request an IEE if they disagree with the school’s evaluation; (b) the IEE must be at public [the school district’s] expense; (c) the school district has ONLY two options – to enable the IEE or to challenge it via a due process hearing.  Very simple.

The school district’s delay tactics

But, the school districts want to try to make this more difficult.  How?  They delay, delay, delay in responding to a request for an IEE.  They believe this is defensible because of the clause “without unnecessary delay.”  The school district will argue that a few days, a few weeks, even a few months is not unnecessary delay.  The courts have not really dealt with this issue decisively yet.  I think it is a very fair counterargument by the parents that a few days is OK, but a few weeks or longer is not OK.  After all, the further an IEE is delayed, the further a revised or improved IEP is delayed, and thus the further the child’s FAPE is delayed.

Do NOT allow a school district to linger on your request for an IEE.  If you have valid reasons to request an IEE, keep sending reminders to the school of your request.  If they delay too long, contact a special education lawyer or file a due process complaint on your own on this ground.

If you wish to demand an IEE for your child, download our FREE special education forms packet which includes a letter IEE demand.


Pass the IEP, please!

You remember at the dinner table (perhaps most notably the Thanksgiving Dinner table) when you would ask someone to pass something along?  Maybe it was the stuffing bowl; maybe it was the cranberry sauce; maybe it was the dinner rolls; or maybe it was the fruit cake (OK, I know it wasn’t the fruit cake because no one asked to have that passed, unless it was to pass it along to the waste basket).

The point is, you wanted to make sure everyone at the table had equal and full access to every part of the meal.  Wouldn’t you have felt left out if you didn’t get any mashed potatoes? or Pumpkin Pie?  or [insert your favorite part of the meal here]?  Of course you would.

The same principle applies to your child’s IEP.  You want to make sure each and every teacher and school staff member that may encounter your child has equal and full access to your child’s IEP.

Failure to do so might result in one teacher violating the IEP unknowingly or not knowing how to respond to a certain situation.  For example, if the gym teacher doesn’t know that Tina isn’t supposed to be required to participate in group sports and the gym teacher makes her the pitcher in softball, Tina may have a complete meltdown or other reaction that triggers her disability.  Then Tina may have to miss her remaining classes for the day, all because the gym teacher didn’t even know Tina had an IEP and wouldn’t have assigned her to that task had she known.

As a parent, do not assume the school has circulated your child’s IEP to all of the contact points.  You need to handle this yourself.  Whether that means sending an electronic copy to each contact person by email or even walking a hard copy in to every person, you need to assure that this is done.  You need to consider every potential aspect of your child’s day: special education teachers; general education teachers; “specials” teachers (art, music, gym, computer lab, etc.); school nurse; school guidance counselor; director of special education; vice principal; principal; even the janitor, if that person interacts with your child.  So what if they’ve already received it?  A duplicate is not going to harm them (and an electronic duplicate doesn’t harm the environment).

This is not a silly concept.  If your child is experiencing some aspect of his/her disability, let’s say it is epileptic attacks, and a teacher encounters your child not knowing what is going on, they may make an incorrect and potentially dangerous decision.  A simple thing like providing these personnel with the IEP at least will clue that person into the fact that someone in special education or the medical staff need to be alerted to the situation.

So, much like the salt and pepper on the dinner table, make sure you pass the IEP to everyone at your child’s school to avoid any misunderstandings and help your child succeed in the system – even if they never have need of the IEP (like the salt).


What Everyone Should Know About Special Education Funding

There has been a rush to judgment lately, by those without disabled children and those without children at all, that the increase in costs for special education is the fault of the parents of disabled children demanding too many services for their children.  Aside from the natural anger towards the attitude that disabled children don’t deserve an equal opportunity at education, I believe that there is a lot of misinformation and confusion on how special education is actually funded and what causes the costs to exceed school budgets.  Hopefully this brief blog post will clear up the misunderstanding and expose the realities about special education funding.

Where do schools get the funds for special education?

While there is some variation from state to state, most states get some of their funding through state and/or property taxes.  However, that is not the source of the majority of funding.  Believe it or not, a majority of the funding comes from the federal government (good ol’ Uncle Sam) through the U.S. Department of Education.  From the mandate of IDEA (Individuals with Disabilities Education Act) and other federal legislation, the federal government must provide funding to states that set up programs for special education of disabled students.

So, even though some of your local taxes do go to help local disabled children, it is a very small part because those taxes are actually part of the general education fund.  Only a portion of that is broken away for special education (if any at all).

And, yes, I agree, it is still “your tax money” that goes to the IRS that ultimately funds special education and the USDOE, but that is where we get to whether the money is wisely distributed, spent or not.

How are state funds distributed for special education?

The federal laws that fund special education on the state level require that states set up special education programming in the schools.  If the states comply, they get funds.  If they don’t, they don’t get funds.  Thus, there is a HUGE motivation for states to set up such educational programs and (to my knowledge) all of them have complied (even D.C., the US Virgin Islands, Puerto Rico, etc.)

It gets tricky on how the states distribute that money once received from the feds.  Some states distribute it evenly across their school districts, regardless of whether there are even special needs students in those districts.  Some states distribute the money based on population models.  Some states distribute it based on economic models, where the lower income districts get more money.  None of these methods accurately track the proportion of disabled students in each district.

Pennsylvania recently passed legislation which will distribute these funds proportionately based on the number of special education students in each district.  In other words, the funds will be “tied” to the special needs kids in each district.  This is a much more accurate and targeted use of those funds and should be modeled by other states.

How do schools spend the special education funds?

Once the states distribute the funds to the school districts, it gets even trickier on how those funds are spent.  Theoretically, those funds should only be spent on special education services and equipment.  They are targeted to support the special education kids in those schools.  Unfortunately, this is not always how it works in reality.

Some schools and school districts have been caught taking special education funds and putting them into the general education fund.  Big deal, you ask?  Well, think of it this way.  The schools that do this spend the money on extracurricular activities (for example, new football uniforms or equipment) when they should be paying for teaching aides, occupational therapy, physical disability modifications, etc.  Essentially, special ed kids are missing out on their education so the cheerleaders can have new pom poms.

Now, I don’t mean to sound crass and I do appreciate extracurricular activities, but take a closer look at that word – extracurricular.  Emphasize the “extra” part.  That means it is something beyond the basic curriculum.  Perhaps those activities should be privately funded, but certainly should not come out of the special education funds that have been hijacked into the general education fund.

Still, there is a far worse culprit for how special education funds are wasted.

Why is special education always causing the schools to go over budget?

AHA!  The answer to this is definitely NOT parents of disabled children seeking services for their kids.  In fact, if schools appropriately provided services to disabled children without unreasonable hesitation, the federal funds for special education might never be used up in a given academic year.  WHOA, TJ, this is not what we’ve been told.  I repeat, AHA!

Unfortunately, school districts have developed a mentality that is counter-intuitive to educating disabled children.  They view the request for special services to be an annoyance and meddling in their budgets.  They do everything they can do create a negative PR campaign about how special education is destroying their budgets and they can’t afford all these special services.

BALONEY! (or Bologna, as its properly spelled)

School district administrators, who rarely understand the federal mandate to provide an equal education opportunity to disabled children (i.e. THE LAW), make every effort to block special education services.  They hire attorneys who bill at astronomical hourly rates to fight these special education services.   These attorneys are not only making a mint off of representing school districts, they are providing training on how to fight special education battles.

Take a guess the source of funds to pay the school district attorneys?  Yep, that’s right, the federal special education funds.  And if that runs out, they take from the general education funds.  Thus, logically . . . wait for it . . . YOUR TAX DOLLARS pay for the school districts and their attorneys to fight against providing special education to disabled children.  YOUR TAX DOLLARS are making school district attorneys very wealthy.  VERY wealthy indeed.

Is that really how you want your tax dollars spent?  Wouldn’t it be smarter to spend the money on actual special education and not have any more tax hikes or complaints that special education is causing school budgets to explode?

I think so.  What do you think?