Transcript Legal Issues in Special Education Reform Prepared by Dr

The Changing Face of Service Delivery and
How to Avoid Being Rolled On by Your
Administrator While Still Acknowledging
the Need to Evolve
Prepared by Dr. Tom Green, Chief School Transformation Officer
Alum Rock Union Elementary School District
[email protected]; [email protected]
CARS Plus
February, 2015
Core Premises
• Research tells us that 95+% of the human
population has the intellectual and neurological
ability to meet or exceed grade level standards.
• If your program is not meeting this goal, changes
in service delivery and practice are warranted.
• Change is complicated and requires a significant
investment in resources to be successful.
Core Premises
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Base all change work on DATA
Be calm, respectful, and solution-oriented
Effective change must be collaborative
Any plan for effective change must account for
adequate resource allocation: money, people,
expertise, time, and procedures.
• Change can be incremental (and usually is)
Core Premises
• Know the rules
• In order to effect change, you may have to use
the rules to support the change, work around
the rules, reinterpret the rules, bend the rules,
or even break the rules.
Key Issues
Federal law pertaining to both
general and special education
requires that all students be
supported to meet or exceed
grade level standards.
Key Issues
• This Federal requirement can only be
accomplished by the effective
coordination of general education
with remedial education, English
Learner services, extended learning
programs, and special education,
with an emphasis on early
intervention.
Key Issues
• This means that all Service
Delivery Models, BY DESIGN, will
address the needs of both special
education and non-special
education students.
Key Issues
• Legal responsibility for implementation rests
with the local school district, with guidance
from the state. California state guidance is
extremely weak compared to other states,
resulting in significant variance in
interpretation, implementation, and practice
at the local school district and school site
levels, and places significant responsibility on
local educational staff to lead necessary
changes in practice.
Key Issues
• Federal and state education laws, California
Education Code, federal implementing
regulations, and CDE policy memos allow
special education staff to serve both identified
and non-identified students. However, much
of the language is vague, even contradictory in
practice, and interpretation and detail of
implementation are critical.
Key Issues
• It is in the best interest of our
profession to learn the rules
and to actively participate in
the development and
implementation of service
delivery models.
Workshop Goal #1
• To carefully examine the legal
underpinnings of service delivery,
with the hope that by enhancing
understanding of what the laws,
codes, and regulations actually say,
special educators can be empowered
to effect improvement in local
service delivery models.
Workshop Goal #2
• To provide tools to analyze the strengths
and opportunities for change of existing
service delivery models. Participants will
be guided through an interactive process
in assessing not only the program in
which they work, but in the interrelated
systems that are critical to student
success.
Workshop Goal #3
• To create an analysis of existing and proposed
service delivery models. This analysis should
include all resources: money, people, time,
organizations, and expertise. The intent is to
equip the participant with an increased
understanding of the service delivery models
to improve practice and outcomes for target
students.
Workshop Goal #4
• To collaborate with colleagues
on addressing service delivery
concerns and proposed
changes in practice.
Laws, Codes and Policies
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Federal Law
California State Law
California Education Code
Special Education Law
Contract Law/Collective Bargaining
Federal Law
• Elementary and Secondary Education Act of
2001 (No Child Left Behind):
– “A local education agency may consolidate and
use funds under this part, together with other
eligible Federal, State, and local funds, in order to
upgrade the entire educational program of a
school…”
Federal Law
• Individuals with Disabilities Education Act of
2004 (IDEA):
– “The education of children with disabilities can be
made more effective by coordinating this title with
other local, educational service agency, state, and
federal school improvement efforts, including
improvement efforts under the Elementary and
Secondary Education Act of 1965, in order to
ensure that such children benefit from such
efforts…”
Federal Law
• IDEA 2004:
– “In determining whether a child has a specific
learning disability, a local educational agency may
use a process that determines if the child
responds to a scientific, research-based
intervention as a part of the evaluation process.”
Federal Law
• These provisions in federal law are brief and
vague. They have, however, been used by the
federal government as the basis for extensive
development of guidelines to be used by state
and local educational agencies to comply with
the intent of the laws.
Federal Law
• The federal government has primarily used
two agencies, in partnership with many
universities and state education departments,
for this development. Their websites are
excellent resources:
– The United States Department of Education
– The National Association of State Directors of
Special Education
United States Department of
Education
www.rti4success.gov
• “(RtI) is the practice of providing high-quality
instruction and interventions matched to
student need, monitoring progress frequently
to make decisions about changes in
instruction or goals and applying child
response data to important educational
decisions.”
United States Department of
Education
www.rti4success.gov
• “RtI should be applied to decisions in general,
remedial, and special education, creating a
well-integrated system of
instruction/intervention guided by child
outcome data.”
National Association of State Directors
of Special Education (NASDSE)
www.nasdse.org
• There are critical components of RtI implementation
that if not attended to can render otherwise
acceptable implementations ineffective.
• The school building is the unit of change in RtI.
Multiple buildings within a district can implement RtI,
but their implementations will likely be somewhat
different.
• District-level supports must be systematically built in to
support building-level implementation.
• State-level supports must be systematically built to
support district- and building-level implementation.
California State Policy
www.cde.ca.gov/ci/
cr/ri/rtiresources.asp
• The State of California has endorsed the
federal recommendations that RtI be used as
the model for the coordination of general
education with all support services to support
below grade level students. All pertinent state
documents can be retrieved from the url
above. The CDE website in general is very
difficult to use as a resource.
California State Policy
www.cde.ca.gov/ci/
cr/ri/rtiresources.asp
• Two state documents in particular clearly
delineate the state position:
– Response to Instruction and Intervention
11/13/2008
– Determining Specific Learning Disability Eligibility
Using Response to Instruction and Intervention
RtI2 2009
California State Policy
www.cde.ca.gov/ci/
cr/ri/rtiresources.asp
• “Analyzing how students respond to
instruction and interventions is an
organization principle for structures and
programs that already exist in our schools.
These existing programs utilize personnel in
specialized ways; allocating these highly
trained personnel into other areas maximizes
resources effectively.”
California Education Code
• Response to Intervention is not specifically
addressed in California Education Code (Ed
Code). However, key components of an
effective coordinated support program, such
as teacher assignments, instructional
groupings, and caseloads are defined by Ed
Code.
California Education Code
• Ed Code Section 44258 states that “A teacher
authorized as a specialist teacher may be
assigned, with his consent, to teach in his area
of specialization at any grade level…”,
California Education Code
• “The holder of a credential authorizing
instruction in a self-contained classroom may
provide instruction in a team teaching setting
or may regroup pupils across classrooms in
subjects authorized by the governing board of
the school district.” Ed Code Section 44258.15
California Education Code
• Ed Code 44258.3 (a) states that “The governing
board of a school district may assign the holder of
a credential, other than an emergency permit, to
teach any subjects in departmentalized classes in
kindergarten or any of grades 1 to 12, inclusive,
providing that the governing board verifies, prior
to making the assignment, that the teacher has
adequate knowledge of each subject to be taught
and the teacher consents to that assignment.
California Education Code
• The governing board shall adopt policies and
procedures for the purpose of verifying the
adequacy of subject knowledge on the part of
each of those teachers. The governing board
shall involve subject matter specialists in the
subjects commonly taught in the district in the
development and implementation of the
policies and procedures … “
California Education Code
The Role of the Resource Specialist
• A key component of an effective coordinated
support system such as Response to Intervention
is the role of the Resource Specialist. Ed Code
Section 56362 addresses this position. Although
Ed Code Section 56362 9(c) states that “No
resource specialist shall have a caseload which
exceeds 28 pupils,” a close reading of the entire
section, plus CDE bulletin “Service Delivery for
Students with Disabilities 3/27/2009” clarifies
that this caseload is 28 students who have IEP’s.
California Education Code
The Role of the Resource Specialist
• It is permissible under Ed Code Section 44258
(previously cited) for a Resource Specialist, with
his consent, to serve non-identified students as
well. Ed Code Section 56362 (d) states that,
“Resource specialists shall not simultaneously be
assigned to serve as resource specialists and to
teach regular classes.” This section has often
been misinterpreted to mean that a resource
specialist may not serve non-identified students
or students in excess of a caseload of 28.
California Education Code
The Role of the Resource Specialist
• Again, an accurate reading of all of Ed Code
Section 56362 and Ed Code Section 44258
establishes that a resource specialist must first
meet the legal obligation to provide services
specified under IEP’s to his/her caseload, but
may, with his consent, provide services to
non-identified students consistent with his
credential and “his area of specialization.”
California Education Code
The Role of the Resource Specialist
• Both the resource specialist and the school
system providing support under a coordinated
model of service delivery must be able to
demonstrate that all IEP-specified services are
being provided as specified by the IEP. As long
as this condition is met, the resource specialist
may provide services for which he is qualified
to teach to non-identified students, and may
do so in excess of 28 identified students.
California Education Code
The Role of the Resource Specialist
• Reason must prevail, however,
and any such assignment must
be with the consent of the
specialist and to the
educational benefit of the
students served.
Special Education Legal Requirements
• Because an effective coordinated support
model involves flexible instructional grouping
supporting all students below grade level, the
model includes by definition both general
education and special education students and
staff. It is critical to inform students, staff, and
parents regarding the model.
Special Education Legal Requirements
• As established earlier, a special education
teacher may provide services to a nonidentified student. As long as the service is a
general education service, it is not necessary
to obtain informed, written consent as
required by special education law. However, it
must be very clear to all concerned parties
that the service is a general education service
and is part of a systemic coordinated support
model.
Special Education Legal Requirements
• Federal and state law cited earlier clearly
establish that the legal intent is to coordinate
general education, remedial education, special
education, English language development, and
extended learning instruction. Under this
model it is a given that instructional groupings
will mix identified and non-identified
students.
Special Education Legal Requirements
• Instruction provided to a non-identified student
by special education staff must clearly and
defensibly be specialized general education
services provided to other general education
students as well. The instructional groupings
must be flexible and students must regularly
move in and out of groupings based upon
changes in instructional needs. Parents, students,
and staff must be informed at all times of the
rationale for the groupings and the progress of
the students
Special Education Legal Requirements
• Students who do not respond adequately to
the intervention must be referred for Student
Study Team services and changes in duration,
frequency, and intensity must be made in an
attempt to accelerate the student’s progress
towards meeting or exceeding grade level
standards.
California Credential Requirements
• Conflicts with all other legal references in this
document arise in credential requirement
language. Prior to 1997 all applicable special
education credentials required general
education authorization. Consequently any
credentials issued prior to 1997 clearly allow
the holder to serve both special education and
general education students.
California Credential Requirements
• Subsequent to 1997 this requirement was
removed, and “The Education Specialist
Instruction Credential: Mild/Moderate
Disabilities authorizes the holder to provide
instruction, and Special Education Support to
individuals with a primary disability of specific
learning disabilities” (retrieved from CTC
website 3/3/2011).
California Credential Requirements
• Although I do not interpret this language as
restricting service to general education students,
CTC currently does. Further, CTC credential
language pertaining to Resource Specialists states
“Holders of a Resource Specialist Certificate or an
Education Specialist Credential may NOT provide
services to general education students unless the
individual also holds an authorization for general
education in the subject area and grade level of
the assignment. (Administrator’s Assignment
Manual, CCTC September 2007, p. F-11).
California Credential Requirements
• I have had direct conversation with the CTC on this
issue. They acknowledge that this language is in
conflict with the other legal sources cited in this
document, and defer to the CDE to address this
conflict. In reality, districts across the state are
reconciling this conflict by adhering to Ed Code, CDE
policy, and federal law and policy, and addressing the
credential limitations through mutual agreement
between district administration and teaching staff. It
has not been addressed at the state level. It also
presents problems with Highly Qualified Teacher
federal requirements.
Contract Law/Collective Bargaining
• The collective bargaining agreement will often
need to be addressed in any implementation
of a coordinated support system. Any contract
language regarding assignments, credentials,
caseloads or student contact limits often
requires negotiated changes.
Contract Law/Collective Bargaining
• Provisions in Ed Code such as Ed Code Section 44258.3
(a) stating “The governing board shall involve subject
matter specialists in the subjects commonly taught in
the district in the development and implementation of
the policies and procedures …” suggest at a minimum
that instructional staff be fully involved in the
development and implementation of the Response to
Intervention model and give consent to
implementation and any resultant changes in teaching
assignments, and that a decision be made regarding
whether or not to include that involvement in the
collective bargaining process.
Contract Law/Collective Bargaining
• Realistically, it can be a significant challenge
for staff concerned about the implementation
of a coordinated support model to work with
negotiation teams on both sides of the table
to understand the issues and priorities
involved.
Legal Issues-Conclusions
• Regardless of whether or not the district
chooses to address service delivery models
through collective bargaining, coordinated
support for all below grade level students can
be successfully and legally implemented under
existing federal and state law.
Legal Issues-Conclusions
• The key is the use of best educational
practices that truly benefit accelerated
achievement by low achieving students. If
data can be produced demonstrating
significant growth by students participating in
a coordinated support program, most sound
educational practices will be legally defensible
under federal and state laws.
Legal Issues-Conclusions
• Federal law is specifically designed to
coordinate general education, special
education, remedial education, English
language development instruction, and
extended learning instruction. This applies to
instructional strategies, materials, staffing,
resource allocation, assessment practices, and
instructional groupings, and requires changes
to traditional practice in all of these areas.
Service Delivery Analysis
• If 90+% of your students are not
making progress towards meeting
or exceeding grade level
standards, then changes in your
practice and/or the service
delivery model are warranted.
Service Delivery Analysis
• Changes in service delivery models are based
on tremendous improvements in our
knowledge of teaching and learning, are
research-based, are proven to improve
student achievement and warrant the
considerable time and effort necessary to
change our practices. What, then, are the
implications for your local program?
Service Delivery Analysis
• Most changes in practice are
locally mandated without
collaborative analysis or buy in,
and without the allocation of the
resources (time, people, training,
materials) to support effective
implementation.
Service Delivery Analysis
• If a change in the model is being proposed, it
is necessary to engage in an analysis of the
current and proposed models.
• Do not accept the change without question.
• Neither should the proposed change be
automatically rejected. Attitude is important
to develop the essential collaborative analysis
regardless of outcome.
Service Delivery Analysis:
Current and Proposed
• Target Students: Reflecting on your school or program data, who exactly
are the students who are currently not adequate progress toward meeting
or exceeding grade level standards?
• Student Support Team: Who makes up the student support team? Think
both programmatically and realistically. Think in terms of both formal or
legal programs or staff and other, non-traditional supports.
• Existing Services (site): List what currently is available to you and your
students. You may want to note what is missing as well!
• Existing Resources (site): We are using Resources in the broadest possible
sense- people, expertise, money, materials, facilities, and time. (Programs,
People/Expertise, Money, Curriculum/Materials/Training, Time/Schedule)
Service Delivery Analysis:
Current and Proposed
• Strengths: What does your data tell you are the strengths of
the programs? What aspects of the program are effective in
supporting students to make sufficient progress to eventually
actually meet or exceed grade level standards?
• Concerns: What are the ineffective aspects of the programs?
Again- think of resources in the broadest sense.
• Existing Resources: People, money, skills, materials,
organizational structures
• Strategies: What is a short list of concrete actions or next
steps necessary to implement any changes to the service
delivery model?
• Needed Resources: What would you need to implement those
concrete actions? Who will provide those resources? (Again,
don’t limit yourself to traditional practices or roles.)
Final Thoughts
• Research tells us that 95+% of the human
population has the intellectual and neurological
ability to meet or exceed grade level standards.
• Unless 90+% of the students are making
appropriate progress to meet or exceed those
standards, changes are needed to improve
student achievement.
• It can be risky, but we did go into this business to
save the world through its children.
Final Thoughts
• Do not wait for the State of
California (or the feds, or the county
office, or the SELPA)
• The legally responsible agency is the
local school district.
• We may be resource-poor, but we
have resources that can be moved.
• If not now, when?
The Changing Face of Service Delivery
and How to Avoid Being Rolled On by
Your Administrator While Still
Acknowledging the Need to Evolve
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Assume best intentions
Focus on collaborative solutions
Remain open minded, listen actively
Take notes
Restate, reflect, review
The Changing Face of Service Delivery
and How to Avoid Being Rolled On by
Your Administrator While Still
Acknowledging the Need to Evolve
• Analyze both the current and proposed
service delivery models in detail
• Identify needed changes and resources
• Identify preliminary possible solutions,
remain open-minded
The Changing Face of Service Delivery
and How to Avoid Being Rolled On by
Your Administrator While Still
Acknowledging the Need to Evolve
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Stay focused on actionable outcomes
Review the agenda and outcomes
Summarize next steps, agree on timelines
Find a way to conclude on a positive note
Be diligent about follow up and
accountability for next steps