Tag: education

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Students with Intellectual Disabilities Can Use Federal Funds for College Opportunities

With more than 260 College Programs available for students with Intellectual Disabilities (ID), it’s no longer a question of whether the new generation of students with ID can go to college but how to pay for it.

Vineet Narayan recently graduated from high school, and wanted to do dual enrollment at a community college as part of his transition to a 4-year university. Vineet’s transition program staff refused to support this path.

Vineet Narayan graduation from high school

Vineet’s mother, Nithya Narayan explains “The district’s transition program is supposed to support Vineet until age 21, but none of their programs work on academics. He could learned so much navigating a community college, but instead they have him working on functional goals. I fought hard, but the staff won’t change their mindset.”

College programs are expensive. Tuition is often as much or more than tuition for typical college students. This coupled with the fact that most families of children with ID have no savings for their adult child really creates a real barrier to these new college opportunities.

Now the Department of Education issues guidance that these students can use Vocational Rehabilitation (VR) and Individuals with Disabilities Education Act (IDEA) funds to pay for expenses related to dual enrollment, comprehensive transition programs, and other college programs.

Vineet should have been able to use IDEA funds to attend community college as a dually enrolled student, but Stephanie Lee Smith of the National Down Syndrome Congress (NDSC) says the guidance on IDEA funds is less clear. “This is a real step forward and the guidance on VR funds is clear, but we need further clarity on IDEA. The new guidance appears to say it’s allowable to use funds from IDEA, but there would need to be state guidance. The Department of Education states a Free and Appropriate Education (FAPE) is only guaranteed in primary and secondary schools, but I would argue that IDEA’s 2004 regulations leave this type of decision up to the IEP team. Advocating for guidance in all 50 states could be daunting.”

Vocational Rehabilitation (VR) programs are state run, federally funded programs who’s main goal is to give people with disabilities the support they need to get to work. With this goal in mind it seems fitting that VR funds should be used for postsecondary education. Think College reports that “Individuals receiving postsecondary education services from VR do show higher rates of competitive employment and improved employment outcomes including higher earnings and greater number of hours worked per week.” In fact, the employment rate upon completion of college programs for students with Intellectual Disabilities is 90%. That’s compared to an employment rate of less than 20% for people with ID at large.

Stephanie Lee Smith, who’s been busy advocating for this type of guidance since 2005, says the real challenge now is getting the word out. “One of the challenges is going to be how it will be adopted and used at the local level. How will this information get out to the regional offices. Some regional VR offices do a good job, others do not. Attitudinal barriers will need to be brought down so that VR counselors understand students with Intellectual Disabilities could benefit from post-secondary education.”

Vineet is still busy applying for entry into a 4-year university for the fall of 2020. Nithya says after hearing about this new guidance she contacted her local Vocational Rehabilitation program. “Our VR says they will give money towards educational supports with a goal of employment, but the programs funds have been frozen recently. We’ll see!”

Does your loved one with ID use their local Vocational Rehabilitation services? Do they have plans to go to college? What barriers do you face? Share you story below.

 

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Ninth Circuit Court Rules Student with Down Syndrome Can Be Moved to Life Skills Class at New School

The Ninth Circuit Court of Appeals ruled an Arizona school district can move an elementary student with Down syndrome to a public school outside his neighborhood. The student would receive an additional 20 minutes of Specially Designed Instruction (SDI) in an “academic SCILLS classroom” at this new school.

The Appeals Court decided that the district’s decision to move the student was a change of location, not a change of placement. The court quoted the recent Supreme Court Case, Endrew F., to argue that the student would make more meaningful progress in the special class at the new school.

Read Related Post: How School Districts Are Using a Supreme Court Case Against Students with Down Syndrome

The student’s parents argued against the additional 20 service minutes, stating that it would mean less time in the general education classroom. But the Ninth Circuit judges quoted Endrew F.: “even when the other factors weigh in favor of mainstreaming, the student’s academic needs ‘weigh most heavily against a mainstream environment.'”

You can read the decision for R.M. v. Gilbert Unified School District in it’s entirety here.

There is one piece of good news out of this decision: It’s NOT PRECEDENT! The 9th District did cite that their decision in R.M. v. Gilbert Unified School District is not precedent, except when relevant under the doctrine of law of the case itself. This is good news: other districts can’t use this case to argue for a similar move. The student’s family has yet to make a decision about appealing the case to the U.S. Supreme Court.

Still, the decision is detrimental to our community. After 40 years of research touting the benefits of inclusion on all children, society still believes children with intellectual disabilities should be educated separately. Not one evidence-based research study, since studies began on the topic, have shown more benefit for students in a special class. Still we fight the perception that “special” and “separate” will lead to more “meaningful benefit” for our children.

Read Related Post: 7 Research Studies You Can Use at Your Next IEP Meeting to Win the Fight for Inclusion

School districts should be focused on changing the general education environment to benefit all students through Universal Design for Learning (UDL) and diverse learner training for all teachers. Instead, districts are using the same old model of segregation that’s leads to a 50% graduation rate for all students on IEPs (much higher for students with significant disabilities), and an 80% unemployment rate for people with disabilities.

Read Related Post: Promoting Inclusion Through Universal Design for Learning

Check back for updates on this case and more.

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Location v. Placement

A recent U.S. Ninth District Court of Appeals court case surrounding the Individual Education Plan (IEP) of a student with Down syndrome is creating a larger conversation surrounding placement versus location change. In kindergarten, the IEP team wanted to add 20 minutes more pull-out time. The parents disagreed with where the team wanted to do these extra minutes. Instead of the resource room at his neighborhood school, the team wanted to move him to another school with a self-contained class.

This complex case brings up some very important questions: What defines a placement change? Is placement only about percentage of time in general education? Or is it also about setting?


The student’s lawyers in the R.M. v. Gilbert Unified School District case argue that placement is more than just a math computation. “If a district can call a change to a different school a location change, then any child who receives any amount of specialized instruction on a pull-out basis can be moved to a different school at any time as long as the general education minutes remain the same. This will greatly interfere with students attending their neighborhood school, developing friendships in a school that they stay at throughout their education. LRE should mean more than how much time you are in a general education classroom,” Susan Marks, attorney who represented R.M. at the administrative hearing level.

Read Related Post: Details about the R.M. v. Gilbert Unifed School District

The school district, on the other hand, wants to broaden their power of location change. If the judges rule that this was a location issue, then moving a student to any school in the district would be left up to the professional judgement of the school district. “The district gets more bang for their buck if they can pull student into a self-contained class at a centralized location. It’s the medical model. And many people don’t understand why a parent wouldn’t want a specialized program for their child,” explains Marks.

In fact, 9th District Judge Susan Graber reinforced this societal stereotype of parents and students with disabilities when she said “I’ve never heard of a parent who wanted less services.” The implications of this statement sent shock waves through the Down syndrome community. Of course the parents in this case don’t want less. They’re more concerned with what they’ll lose if their son is moved to a school outside his neighborhood and put in a self-contained class instead of a resource room. Disability advocates know what happens next: More minutes spent in a self-contained class. Then they’ll propose a different curriculum, no hope to graduate, and 80% unemployment upon transition to the real world.

It’s obvious these parents care. The Individuals with Disabilities Education Act (IDEA) gives parents the right to decline services. The district can’t say all or nothing. We all have known a parent who refused Physical Therapy or some other service, because it would mean more pull-out time for their student with an intellectual disability. More turns to less.

Read Related Post: What To Do When a School District Doesn’t Understand or Believe in Least Restrictive Environment

Many advocates in the special education advocacy community are very anxious about this case, because the impact could be far reaching. There are legal limitations to LRE and inclusion. The law does give deference to school districts to consolidate services at limited locations. IDEA says students with disabilities must be educated with their typical peers, unless their IEP requires otherwise. The district has argued that R.M.’s current school does not have a self-contained program, so he needs to go to a school that does. Still, Marks argues this is not just a location change, because the self-contained class is a different program than the resource room at his neighborhood school.

This case won’t be as clear cut as L.H. v. Hamilton School District, because in that case Luka went from being fully included in general education all day to a proposal to move him to a fully self-contained class at a different school. The boy in this case has more pull-out time already, and the school district argues his general education time will remain the same albeit at a different school.

The issue in this case comes down to resource room at his neighborhood school or the same amount of time in a self-contained class at another school. Does he need the self-contained class? “We argue he doesn’t because he’s making progress on 100% of his IEP goals in his current placement,” Marks explains. While the school district uses Endrew F. v. Douglas School District to argue they’re trying to be more ambitious, the truth is they’re trying to segregate him into a homogenous group with other kids like him. This is the very anti-thesis to LRE, and not what the research is finding as best practice for inclusive education. 

Read Related Post: How School Districts are Using Endrew F. Against Students with Down Syndrome

9th Circuit judges have yet to make a decision in R.M. v. Gilbert Unified School District. I will be sure to keep you updated. The family or school district can appeal the decision to the U.S. Supreme Court.

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Ninth Circuit to Decide Least Restrictive Environment for Student with Down Syndrome

Disclaimer: I am not a lawyer, and cannot give legal advice. The following is my interpretation, as a lay advocate, of the 9th Circuit’s hearing of R.M. v. Gilbert Unified School District on April 11th. My blog supports inclusion for people with intellectual disabilities, and my opinions are my own.

The Ninth Circuit Court of Appeals heard arguments today in a case centered on placement and the Least Restrictive Environment (LRE) for a elementary student with Down syndrome.

During his kindergarten year, the IEP team for an Arizona boy requested 20 additional minutes of pull-out time in a life skills class at another public elementary school five miles away from his neighborhood school. At the time, teachers reported that he had made some progress on 100% of his IEP goals. The parents refused, arguing that the decision amounted to a change in placement and invoked their “stay put” rights. He’s still currently at his neighborhood school, where his sister also attends. He spends the majority of his day in general education with a 1:1 aide.


Read Related Post: Endrew F. Supreme Court Case in Action

During the 15 minute hearing in front of the 9th Circuit of Appeals, the family’s lawyer, Amy Langerman, stated that there were three givens in the boy’s case:

  1. The Supreme Court of the United States explained in Endrew F. that a Free and Appropriate Education (FAPE) for a student with an intellectual disability does NOT require them to keep up with their typical peers. Langerman argued that the boy in this case had made progress in light of his disability on 100% of his IEP goals in the general education classroom.
  2. Congress, in creating the Individuals with Disabilities Education Act (IDEA), strongly prefers that children with special needs be educated to the “maximum extent appropriate” with typically developing peers and removal should only occur “when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.” Langerman argues that the 9th District the court must follow the “Rachel H. Standard” of LRE, which contemplates the (1) educational benefit of placement full-time in a regular classroom (2) the non-academic benefits of that placement (3) the effect the child would have on the teacher and other students (4) the cost of mainstreaming the child.
  3. Lastly, Langerman argued the code of standard for LRE states a child should attend the same school they would attend if they were not disabled. In this case, Langerman argued the neighborhood school is the boy’s LRE.

As soon as Langerman finished her opening statement the female judge on the 9th Circuit surprised me by stating that this was the “first time a parent was arguing that there giving too many services to their child.” The judge seemed confused as to why the parent wouldn’t want her child to be given 20 more minutes of Specially Designed Instruction (SDI) in a life skills class at a different elementary school. Langerman responded to this to say that the parent agreed with teachers’ initial comments in the IEP meeting that he was making progress towards all of his IEP goals. She also stated that parents of children with disabilities everywhere would be celebrating in the streets if Congress would create a higher standard of education for students with disabilities, but that’s not the law. The law requires they be educated with their typical peers in LRE, and make meaningful progress towards their IEP goals. And the boy in this case was making progress, and not minimal progress.

The female judge also stated that there’s “evidence to support what the district calls for,” in that the law does NOT “require” a student be educated at their neighborhood school if that school doesn’t have the appropriate services to ensure the student makes meaningful progress. Langerman argued that the Administrative Law Judge (ALJ) in the due process case did not have all the needed information to make a correct decision in the case, because Endrew F. came after the ALJ’s ruling in the lower court.

Read Related Post: How School Boards are Using the Endrew F. Supreme Court Case Against Students with Down Syndrome

The lawyer for Gilbert Unified School District opened her arguments with two statements:

  1. The school district wanted to provide more meaningful benefit to the student by offering 20 additional service minutes in math and writing. The boy currently has 105 minutes of Specially Designed Instruction (SDI).
  2. The school district wanted to implement these minutes in a life skills class at a public school 5 miles away.

The district’s lawyer argued that the student “has no peers at the current school.” In a very sad and dramatic tone the lawyer declared the boy “an island in the general education classroom.” She went on to say “the IEP calls for small group instruction, but there’s no peers that he receive SDI alongside at his current school. We are are aiming for higher than some or good enough progress. The district doesn’t think he’s receiving any benefit in general education. His teachers say he would benefit from a life skills class.”

The judges asked if the district had taken into consideration transportation and the impact on the family. The lawyer said the district would pay for transportation to the new school, and had taken into account the family’s situation as much as is needed under the law.

The district’s argued that “some progress would be a denial of FAPE. None of his educators thought he was getting what he needed at the current school.” She went on to argue that the case is not about inclusion or segregation, and that the law does not require him to be educated at his home school if it’s not feasible to do so and make meaningful progress. She also stated that the IEP can be written the same way in a life skills class, so it’s not a change of placement but instead a change of location. “Placement and location are separate arguments,” the district’s lawyer argued.

So the question remains: Is removing a student from his neighborhood school considered a change of placement? Does the child have a right to receive the additional 20 minutes of SDI in his neighborhood school? Or does the district have the right to move him to a school that provides a life skills class to ensure he makes more “meaningful” benefit? No decision in the case was made today. I will report back as soon as a decision is made.

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Federal Appeals Court to Decide if Student with Down Syndrome Can Stay in General Education Classroom

If you are a parent or teacher of a child with Down syndrome, you’ll want to follow the proceedings of a Ninth Circuit case that may change how and where school districts place students with intellectual disabilities. You can watch the proceedings LIVE, Thursday April 11th here.

The case revolves around a 2nd grade Arizona boy with Down syndrome whose parents refused to send him to a self-contained classroom at a different school, because they argue he was making progress at his homeschool in general education. Starting in kindergarten, the student attended his neighborhood school in a regular classroom with a paraprofessional, and was pulled out 110 minutes for “intensive instruction” in reading, math and writing.

Related: 5 Tips for Including Students with Down Syndrome in the General Education Classroom

“Student was demonstrating progress on his IEP goals, including the majority of the goals that were implemented by the resource teacher (academic/social- behavior goals). Additionally, the student’s resource teacher admitted that his communication skills greatly improved from two-word phrases, which were limited to things he knew about, such as about his mom, dad, or sister, or naming things that he knew, to three to four-word phrases. The impact on his typical peers and teachers was described by his kindergarten teacher as ‘amazing’,” according to the plaintiff’s open brief (parent’s attorney filed).

The Gilbert Unified School District has 30 days after the plaintiff’s brief to file their own, but the following link gives you a more detail description of the district’s possible argument. Click here.

Ninth Circuit Court of Appeals

Despite his progress, the Gilbert Unified School District in Arizona decided just a few months into his kindergarten year that the boy should have 20 more minutes of “intensive instruction.” This time in a self-contained classroom at another school. The school district said the new school would be better for the student, and provide him with “more services at his level with peers in a small environment that could have been better for him.” This subjective opinion was the only evidence they used to propose a change in the boy’s IEP.

The parents argued that it amounted to a change of placement without the proper evaluation of his progress under his current IEP, but the district argued it was just a change in location. Although the Special Education Director testified the model of teaching was different at the new school, where the students would be in a self-contained class 100% of the day using a replacement curriculum.

Sound familiar? It’s likely, if you have a school-aged child with Down syndrome, your child or someone you know has fought a similar battle. After 30 years of research and federal law to back up inclusion with proper supports, parents are still fighting for their child to be included in kindergarten of all places. And the battle often gets more difficult as students progress through school.

But Endrew vs. Douglas County has give parents an opportunity to demand more for our children. The U.S. Supreme Court ruled that schools must provide special education that enable students with even the most significant cognitive disabilities to meet “challenging” and “appropriately ambitious” goals. For these students, progress may be measured against “alternate academic achievement standards” designed to promote further education, work, and independence.

Related: Realizing the Promise of the Endrew Supreme Court Case

The Ninth Circuit Court of Appeals must now decide if the school district made a change in placement and threatened the student’s access to a Free and Appropriate Education in the Least Restrictive Environment as the parents argue, or if it was simply a change in location as the school district contends.

The National Down Syndrome Congress and National Down Syndrome Society have written amicus briefs in support of the Arizona boy, stating the Supreme Court’s Decision in Endrew announced a “Markedly More Demanding” standard for educating students with disabilities, reflecting the IDEA’s high expectation for students. The organizations’ amicus brief also describes the research that proves “students with disabilities benefit from being included in regular classrooms with non-disabled peers.” You can read both briefs here and here.

Fortunately, the Individuals with Disabilities Education Act (IDEA) allows the Arizona boy to stay in his current placement while the court proceedings continue. He’s now in a regular 2nd grade classroom at his homeschool, and his parents say he continues to make progress.

The map below shows the states that will be impacted by the Ninth Circuit of Appeals decision. If you live in a different district the court decision doesn’t have to be followed, but could be used as a possible argument by parents or a school district in similar due process hearings.

The parents and school district can still appeal to the U.S. Supreme Court if they are unhappy with the Ninth Circuit’s decision. I’ll keep you posted on the court case as it unfolds.

You can read about the family in a local Gilbert, Arizona news story here.
You can also read a more recent blog post about the Arizona boy’s mom who has fought for the last 2-years to ensure he remains at his neighborhood school. Click here.

Have you or someone you know had to fight a similar battle for inclusion? Are you frustrated that we’re still fighting this fight more than 30 years after the Individuals with Disabilities Education Act (IDEA) was passed? Tell me about it below.