Holding the Torch

VIRGINIA CRIME COMMISSION REPORTS INITIAL FINDINGS ABOUT THE TREATMENT OF JUVENILES AS ADULTS IN THE VIRGINIA JUSTICE SYSTEM.

The administration of adult penalties for juvenile offenders is a serious issue that has required a thorough review of Virginia’s transfer statutes.  On September 8 the Virginia Crime Commission staff reported the most recent findings for a study directed by the Commission.

The Virginia laws that govern the transfer and certification of juveniles to stand trial as adults give varying discretion to local prosecutors.  Prosecutors sometimes apply this discretion differently in different parts of the state creating the impression of justice by geography.  Depending on the underlying charges, juvenile court judges can be prevented from deciding whether a child is tried in juvenile court or will face adult penalties in the circuit court.

Advocates with the Don’t Throw Away the Key Campaign deserve significant credit for their continuing and effective efforts to shine a light on these issues.  The result is that the Crime Commission appears to be paying attention.

COLLABORATIVE EFFORT TO ESTABLISH A RESEARCH AND TRAINING CENTER FOR TEACHING CHILDREN WITH AUTISM IN VIRGINIA

This past week the Richmond Times Dispatch reported that Virginia Commonwealth University and the Virginia Department of Education are collaborating to establish a program to train teachers in better techniques to reach children with autism.  The Center for Excellence for Autism Spectrum Disorders was created to train teachers in ABA and other methodologies that will be applied at school districts throughout Virginia.

Virginia has realized a significant increase in the number of children identified as being on the autism spectrum; from 4,000 in 2003 to over 10,000 in 2009.  This new project is promising and long overdue as parents and educators have struggled for years trying to develop meaningful and effective public school programs for students with autism.

WHEN PARENTS ASK FOR CONTINUATION OF PRIVATE ESY SERVICES INTO THE SCHOOL YEAR

Parents of special needs children sometimes see that their children respond positively to private ESY (Extended School Year) summer tutoring services that are funded by the school district.  In response to these positive achievements, parents then ask for a continuation of these services during the school year only to be met with resistance by school staff in IEP meetings.

When evaluating the need for continued private services during the school year, parents must be able to show clear evidence that these services are necessary to provide FAPE and that the school program does not, or cannot, provide required services.  Here is where parents often have difficulty in advocating for such extended services.  To help evaluate the strength of the case, consider these suggestions:

· Be sure to schedule an IEP meeting well before the beginning of the school year.

· Ask private ESY providers to actively participate in the IEP meeting

· Progress on specific goals and objectives during ESY services must be clearly documented.

· Careful and objective assessment should be made to determine if the private services are needed because the school cannot or will not provide programs to address the needs served by the private ESY provider.

PLAN FOR TRANSITIONS FROM RESIDENTIAL TREATMENT BACK TO PUBLIC SCHOOL

Helping children transition from highly structured residential treatment programs to public school requires thorough planning and close coordination between treatment providers, educators and parents.  Long before the student returns to the less restrictive  learning environment of the public school, parents can ensure that certain steps are taken and supports are in place.  Some of these may include:

· With appropriate releases, residential counselors and therapists should share important information regarding the child’s present level of performance.  This can be done through records exchanges and participation in the transition IEP meetings.

 

· Arrangements can be made for the student to make preliminary visits to the receiving school.

 

· The student should have at least one identified teacher or administrator who acts as the point person to help transition, monitor adjustments and provides in-person support.

PARENTS SHOULD NOT CONSENT TO AN INADEQUATE IEP WHEN A SPECIAL EDUCATION STUDENT IS PLACED IN AN ALTERNATIVE SCHOOL FOR DISCIPLINE

We continue to see cases where parents are told by school officials that they must consent to a grossly inadequate IEP “or no services” will be provided to their special needs child when there is an alternative disciplinary placement.  School districts are wrong when they take this position and this “take or leave it” approach places parents and children in an unfair and difficult position.

The “Parental Consent Rule” does apply to disciplinary placements.  Virginia Regulation 8 VAC 20-81-170 E (1)(d ) states that informed parental consent is required before any changes are made to a child’s IEP services.  Furthermore the Virginia Department of Education (VDOE) has clarified that this rule applies when there is a change of placement for discipline reasons.  Special education services must be provided in the alternative setting. See VDOE Parent’s Guide to Special Education (page 45).

When challenged through the formal complaint process, school districts have been ordered by the Virginia Department of Education to comply with the law and to consider compensatory services to children when this rule is violated.   Since this problem persists, it remains to be seen if a number of school districts will get the message.

RECENT REPORT SHOWS THAT ONLY 38% OF VIRIGINIA'S STUDENTS READ PROFICIENTLY BY THE END OF THIRD GRADE.

The Alliance for Virginia’s Children recently cited a report from the Annie E. Casey Foundation and Voices for Virginia's Children that showed that by the end of the third grade, Virginia’s school children have a reading proficiency percentage “of 38% which is slightly better than the national average of 36%.”

Reading proficiency, “by the end of the third grade, for African American students is only 18% and 26% for Hispanics.  Only 18% of low income students are reading proficiently by the end of the third grade.”

Reading proficiency is an important indicator to a child's future success in school.  We need to pay attention!  Be sure to read the full report!

WHY DOES IT SEEM LIKE SCHOOL SUSPENSIONS INCREASE AT THE END OF THE SCHOOL YEAR?

Within the last six weeks our office has experienced a perceptible increase in the number of parents asking for information and assistance with long term school suspension and expulsion cases.  This phenomenon is echoed by school administrators and teachers who sometimes seem  overwhelmed by the stress of final exams and the increase in discipline referrals as the school year winds down.  I don’t have a table of statistics to point to, but the reasons may include a number of common observations.

By May and June, many teachers and students are just plain tired and see a long summer break just around the corner.  Students who have struggled in school all year are tempted to just give up because “there is no way I can pass this course anyway”.  Parents can get frustrated with their children’s’ evident lack of enthusiasm for the last weeks of school.  Finally, I have always believed that the arrival of nice weather can be a factor.

Except when necessary for the most serious offenses, imposing long term suspension and expulsion decisions at the end of a school year rarely teaches any positive lesson.  Whatever useful corrective measures are possible often get lost in the “just get them out of the school” mentality.  For the discouraged student it can be a dysfunctional affirmation that they really couldn’t make it anyway.  For meaningful school discipline there is always a need to balance realistic consequences with positive reintegration to school.  This is not easy and requires the best from educators and parents working together.  It is particularly difficult when everyone is tired.

RECENTLY RELEASED INFORMATION SHOWS THAT SATE FAILED TO DISCLOSE SERIOUS PROBLEMS AT A PRIVATE FACILITY FOR CHILDREN

The Richmond Times Dispatch recently reported that a Virginia State Commissioner failed to publicize serious problems at the Pines residential treatment facility after a State investigation.  In 2009 State licensing investigators found a number of serious incidents had occurred at the program which is privately operated by Psychiatric Solutions Inc., a national organization.  Responding to the newspaper’s request under the Freedom of Information Act, a State report revealed incidents that included:

•a choking that rendered one resident unconscious;

•staff members telling paramedics responding to a 911 call that a girl was suffering respiratory distress but not that she had attempted suicide;

•staff members failing to report two other suicide attempts to regulators;

•staff members telling regulators that the fire department responded to a false alarm instead of a small fire that forced an evacuation; and

•staff members allowing residents to run away—three of them at one point before any staff intervention, with that intervention unable to prevent a fourth from running away.

The Times Dispatch reports that “despite the list of problems, a recommendation to downgrade The Pines’ license to provisional—the most serious sanction short of shutting down the facility—was not approved.”  Further the violations were shielded from public disclosure.

Parents who are trying to make important decisions about the therapeutic placement of their children deserve complete, accurate and uncensored information about any verified licensing violations for residential treatment programs.  There is no excuse for the State to shield private companies from such disclosures.

INDEPENDENT EDUCATIONAL EVALUATIONS FOR SPECIAL EDUCATION STUDENTS ARE TO BE WITHOUT COST TO THE PARENTS

When parents disagree with the results of a school evaluation for special education students, the parent may request an independent educational evaluation (IEE) under the IDEA. (34 CFR 300.502.)   The independent evaluation is to be conducted by a qualified professional that is not employed by the schoool district and the cost is at public expense. This means that the school must pay the full cost of  the evaluation or ensure that there is no cost to the parent. (34 CFR 502(a)3(ii))   If the school disagrees, the school must file a request for a due process hearing to resolve the issue.
  
Recently we have become aware that some school districts in Virginia are setting caps on the amount that the school will pay for an IEE.  In a recent case, the school district limited the payment to $300 and gave the parent a referral to two “independent” providers.  One provider never returned the parent's phone calls and the other declined to do the evaluation for $300.  In this situation, the school wrongfully set a limit that effectively deprived the parents of a right under the IDEA.  When confronted, the school modified it's position. There is nothing in the law that allows the school to set an atificially low “cap” for the obligation to ensure that the IEE is conducted at public expense and without cost to the parent.

IMPORTANT SPECIAL EDUCATION CASE DECIDED IN FAVOR OF PARENT IN THE WESTERN DISTRICT COURT IN VIRGINIA

A recent decision by the US District Court for the Western District of Virginia ruled in favor of a student and parent that challenged the Bedford County School Board under the IDEA for failure to provide the special-education student with FAPE.  In the case of DB v. Bedford County School Board, , Judge Norman Moon determined that the School Board failed to evaluate DB for special education eligibility under the category of Specific Learning Disability (SLD) even though the school had conducted psychological testing and made the determination that the child was eligible under the category of Other Health Impaired (OHI). The parent had repeatedly sought a determination for SLD.  When the student continued to make no progress in the school curriculum, the parent then placed the child in a private school program.

In this opinion, the court goes to great lengths to stress the responsibility of school districts to examine all evidence related to the different categories of eligibility for special education students. The court stressed that each of the categories for eligibility is a distinct and separate identification of need and cannot be ignored when there is evidence available to consider one or more categories of eligibility.

In addition, the Court gives a clear an unequivocal opinion about the inadequacy and detriment of "social promotion" which occurred in this case. Responding to the argument that the Due Process Hearing Officer found that DB had been promoted to the next grade every year, the Court ruled that “the HO failed to comprehend that this token advancement documents, at best, a sad case of social promotion".  Referencing a 2005 4th Circuit case from Henrico County, the Court noted that the Congressional intent under IDEA "did not mean that a school system could discharge its duty under the (Act) by providing a program that produces some minimal academic advancement, no matter how trivial".

This case is a significant decision regarding the requirements of school districts to assess eligibility and to provide meaningful educational programming special needs children.