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Apr 10, 2011

Issues Large and Small

by Bob Joondeph — last modified Apr 10, 2011 09:35 PM

A bill about special education hearing procedures provides a forum for legislators to debate the merits of public education and trial lawyers.

So there I was: sitting in the audience at the Oregon House Committee on Education, watching all the action.  The last item on the agenda was a bill that would establish who has the “burden of proof” in special education administrative hearings.

When a family thinks a school district is not properly serving its child and the district does not agree, the family can ask an administrative law judge to decide if the district has met its legal responsibilities under the Individuals with Disabilities Education Act (IDEA).  This bill will decide whether the family must prove that the district is out of compliance or, instead, the district has to prove that it is following the law.  Who, that is, has the “burden” of proving their case?

The bill, House Bill 2296, would place the burden of proof on school districts.  It was given a public hearing a few weeks ago but most of us advocates thought the committee would take no further action.  Two years ago, there was a similar bill that died in committee because of opposition by school districts.  Although some changes were made to address those concerns, the districts opposed the bill this time as well, saying that if schools were required to prove that a child with disabilities is receiving proper services, it would encourage parents to file more complaints and ask for more hearings.

But, to our surprise, the bill was being given further consideration and so I stopped in to see what would happen.  The hearing opened with an explanation of what the bill does.  Rep. Sara Gelser, who sponsored the bill, said that it would not make a big difference in terms of how the hearings are decided but would “send a message” of support for parents who are unhappy with the special education services being offered their child.  Rep. Gelser has a child with disabilities and relates a few instances in which her child did not receive proper services.

Rep. Jason Conger said that he is concerned that parents will “lawyer up” if the burden of proof is changed.  He said that a plaintiff’s attorney can “come in and shake down a defendant.”  He likened this to employment cases where lawyers make frivolous demands on businesses which settle in order to avoid the costs of litigation.  He said opportunistic attorneys do “shakedowns,” and that this bill won’t affect schools that are “bad actors.”  Needless to say, he is opposed.

Rep. Gelser responded, saying that there are bad actors on all sides of education hearings.  But, she continued, money is not at stake here, it is educational placements.  She gave examples of hearings that resulted in no relief or minor relief and says she likes the bill but hasn’t prioritized it.  She then talked about closure of school for the blind and how this bill can send a message to those parents who feel the legislature has ignored their needs.

Rep. Julie Parrish then spoke, saying that kids need better options.  She was troubled that parents have to sue schools to have schools do the right thing.  She thought this demonstrates the need for choice of schools.  She said that a parent has to sue because the local school is the only option.  The parent should be able to shop for someplace better.  She thought this bill will cost schools more and she does not want to put a burden schools to spend more and thereby take away services from others.  But, she said, this bill is not really about disabled children. It’s about school districts having too much power because they have a monopoly.  She concluded, saying that this is why she “may be a yes vote.  Something’s got to change!”

The next speaker was Rep. John Huffman who said he wants to send a message of affirmation to parents but wants to do it like they did it for the School for the Blind.  He said the legislature expects districts to listen to parents and do the best they can.  “Every child is a TAG child.  We pay teachers good money to find how to stimulate children.  Parents shouldn’t be forced into the situation of filing a lawsuit.”

Rep. Betty Komp then spoke, saying that this is a highly charged topic on which she “goes back and forth.”  She said that she believes in public school education and that the best way to support it is to pass a decent budget.   This bill, she said, is contradictory to this message.  She will be a no vote.

Rep. Michael Dembrow was then recognized to speak.  He thought that most districts are trying to do the right thing but problems do arise.  He wished there could be a neutral 3rd party or ombudsman that parents could go to and hoped this is something that will be pursued.  He will support bill because he respects Gelser and his belief that a strong message needs to be sent.  The legislature, he said, wants school boards to protect all children.  Rep. Lew Frederick appeared to agree with Rep. Dembrow, but chose not to speak.

Committee co-chair Matt Wingard had the last word.  He said that the kind of frustration that parents experience drive this type of bill.  He had heard many stories from parents of special needs children.  It “breaks my heart,” he says, “that parents can’t get the sense they are being listened to.”  He is proud to support bill.

Then came the very interesting vote.  Republicans Huffman and Conger vote no.  Democrat Komp voted no.  Republicans Wingard and Parrish voted aye.  Democrats Gelser, Dembrow and Frederick voted aye.  HB 2296 is moved out of the committee with a “do pass” recommendation by a 5-3 vote.

My analysis, for what it’s worth, is that since the bill was viewed as being largely symbolic, many legislators looked at it exactly that way and chose to make their own symbolic points.  Wingard and Parrish promoted their view that parents should have more choice in schools.  Conger used the opportunity to slap trial lawyers.  Komp spoke to the issue of adequate funding for public schools, thereby countering the Wingard and Parrish position that the problem is not lack of funding but lack of choice.  The remaining committee members pretty much addressed the merits of the bill itself.  If only they had counted, HB 2296 would still have passed, but by a 3-1 vote.

Feb 20, 2011

Regulating Seclusion & Restraint of Students

by Bob Joondeph — last modified Feb 20, 2011 02:45 PM

Why Oregon needs to keep its schools healthy, safe and inclusive.

DRO regularly receives call from parents who have just learned that their son or daughter has been involved in a physical incident in school.  Sometimes this involves a teacher or teacher’s aide who has locked a child in a room or closet.  Sometimes the child has been tied or handcuffed to a chair.  Sometimes the police have been called.  Sometimes the child has been tasered. 

When we receive these calls, we first investigate to find out what happened.  We look to see if the child has been deemed eligible for special education services and whether the child as an IEP (individualized education program.)  If so, we see if the program includes a behavioral plan.  For special ed students, we often find that there is no behavioral plan or the plan in place is inadequate.  We also find that school personnel have not been trained to understand and apply behavioral plans.  This is not true in all cases, but in many.

Our view is that no-one benefits from physical conflicts in schools.  School budgets may benefit in the short run from skimping on training or keeping a child locked in a room rather than providing an adequate level of staffing, but this undermines the quality and trust placed in a school.  We also think that a school that fails to inform a parent of such an incident is harming the student, the parents and the community.  If, for example, your child was tazered in school and the school didn’t tell you, how would you and other parents feel about it?

DRO worked with the Oregon Department of Education to create administrative rules that set standards for the use of seclusion and restrain of students.  But four years later, we found that most schools were not complying with the rules.  So we have now suggested legislation to require schools to have written policies, provide training, keep data and inform parents of incidents. 

This past Wednesday, the House Education Committee held a public hearing on House Bill 2939.  This followed the release of a study by DRO which sets out the problem and proposed solutions, and a press conference on Tuesday featuring the parents of a child who has been secluded and restrained. 

At the hearing, DRO attorney Chris Shank testified about the need for the bill and how the McMinnville School District achieved a dramatic reduction in use of seclusion and restraint by implementing best practices.  Committee Co-Chair Sara Gelser asked why the bill forbids use of “prone restraint.”  Chris said that this practice restricts breathing and has resulted in deaths.   This concern as confirmed by another witness whose company trains teachers in appropriate intervention techniques.  This witness also noted that forbidding the use of prone restraint does not penalize a teacher if a student ends up in prone position temporarily.

A union representative testified that staff need training and injuries need to be documented.  She seemed to blame all problems on school administrators and lack of funding and be concerned that staff may be scapegoated. 

Dr. Jeff Sprague from the University of Oregon testified about the success of using positive behavioral interventions and supports to keep students and teachers safe.  The parent of a child who had been strapped to a chair for full school days in order to keep her from wandering (without informing her parents) gave articulate and affecting testimony.

There were very few questions from the committee members.  The politics of this bill are that nobody wants to embarrass school districts and districts do not want to publicly state that restraining and secluding students is alright.  However, the quiet lobbying that occurs out of the public eye will emphasize that districts face tough financial pressures and do not want to be regulated by the state.  There will also be push-back from those who do not want children with disabilities in regular schools.  Yes, there are plenty of those folks still around.

The bottom line for me is that yes, we do ask a lot of our schools and, as we see playing out in Wisconsin, some citizens believe that we should get everything we want without having to pay for it.  But what our schools have been able to do for people with disabilities has been truly revolutionary.  We have been able to put aside expensive institutions, expand employment and social participation and bring down the costs of social dependence by educating and integrating children with disabilities as early as possible. 

Education benefits all students and their families as well as our broader economic and social well-being.  Applying what we have learned through experience and research to keep schools safe is a win-win.  And providing schools with adequate resources to do the job is, um, a no-brainer.


Nov 27, 2010

Support Eliza Schaaf

by Bob Joondeph — last modified Nov 27, 2010 08:40 PM

Send a letter to Southern Oregon University and be part of a movement for peace and justice.

According to news reports, a young man from Corvallis decided it was a good idea to blow up a bunch of adults and children at the Christmas tree lighting event at Pioneer Square in Portland.  The reports say that he planned to leave the country after detonating his bomb.

The stories indicate that this was not some grand conspiracy directed from someplace like Yemen or Pakistan. It appears to be, instead, the idea of a 19 year old graduate of Westview High School and former OSU student.

The news also tells us that a father and son stand accused of deciding it was a good idea to plant a bomb at a bank in Wilsonville to protest either the bank, the federal government or both.  They are now being tried for aggravated murder in the death of a policeman who was trying to disarm the bomb.

And then there is the news story about Eliza Schaaf.  She is a 20 year old woman with intellectual disabilities who enrolled in a ceramics class at Southern Oregon University.  After regularly attending class, Eliza was thrown out of school with just three classes to go.  SOU decided that a person with intellectual disabilities could not be allowed to audit one of its classes even though Eliza was not seeking college credit.

Eliza and her family are very disappointed.  So are her fellow students who have protested the university’s actions.  So are many citizens, newspapers and elected officials who have urged SOU to change its mind.  The university is not moved by these appeals and, just yesterday, turned down Eliza’s appeal of its decision.

Eliza has not planted a bomb, except metaphorically.  For details, visit her web site at http://www.elizaschaaf.com/

You will see that Eliza is a direct victim of disability discrimination.  She has been treated with ignorance by a university and with disregard by a publicly-funded and supposedly accountable institution.  Her grievance is not abstract or theoretical in the slightest.  In response, she has chosen to courageously take on this institution using the tools of communication, developing community support, following appeals procedures and working to educate decision-makers.

We need to support Eliza not just because she has been the victim of an injustice but because of how she has chosen to respond.  She speaks not just for herself, but for the disability community and for all Americans who believe that we can find justice by reaching out to the hearts and minds of fellow citizens.  

I’ve sent my letter to SOU officials decrying their actions.  Please join with me with more letters and protest.

May 14, 2010

Parents: DRO Wants Your Input on Summer Programs for Special Education Students

by mckenna — last modified May 14, 2010 04:15 PM
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Have you had a good or bad experience with a summer program serving your special education child?

A question that comes up at this time of year for many parents of special education students is: are there any good summer programs for my child?

We hear from parents who are able and willing to pay, but can't find a good summer program that meets their child's special needs.  We also hear from parents who are owed compensatory education and are looking for something positive for their child during the summer.  

Please add a comment to this blog post by clicking on the blue add comment button below and share the following information with us and other parents:

  1. The type of program
  2. Your child's age & disability
  3. Whether your child's experience was good or bad
  4. The name, location & cost of the program
  5. Dates & hours that the program runs
    (For example, is it 2 hours/day for 3 weeks in August or 5 days/week from 8a-2p all summer?)

How to add a comment

Please register on our website in order to add a comment to this blog post.  You will be asked to enter the following information in order to complete your registration:

  • Full Name
    Enter your full name.
  • User Name (Required)
    Enter a user name.  No spaces or special characters.  User names and passwords are case sensitive, so make sure the caps lock key isn't on.  This is the name you will use to log in on the DRO website.
  • E-mail (Required)
    Enter an e-mail address.  This is necessary in case your password is lost.  We respect your privacy, and will not give your address away to any third parties or expose it anywhere.
  • Captcha Word (Required)
    Enter the automatically-generated word.

A URL will be generated and e-mailed to you; follow the link to reach a page where you can change your password and complete the registration process. 

Then return to this blog post and click on the blue add comment button.

If you would prefer to submit your comments by e-mail we will add your comments anonymously.  Please click here and enter Summer Programs for Special Education Students in the subject line of the contact form.

If we receive a large response, we will look into developing the information into a resource that contains updated and relevant information about summer programs for special education students.   

We hope to hear from a lot of you!  Thanks for your help!

Nov 06, 2009

A Boy & His (Trained) Dog

by mckenna — last modified Nov 06, 2009 04:15 PM

Disability Rights Oregon Staff Attorney Joel Greenberg explains why an 8-year old student with autism isn't allowed to bring his assistance dog to school, and how persistent advocacy convinced the U.S. Justice Department’s Office of Civil Rights to investigate.

After months of meetings and negotiation, followed by a complaint that eventually required an additional complaint and the intervention of our senior U.S. Senator, the Civil Rights Division of the federal Department of Justice has agreed to investigate a situation involving Jordan, my 8-year old client with autism.

Almost immediately, Madison allowed Jordan to safely and happily participate in many normal community activities that had been difficult or impossible for him on his own.  His mom is now able to bring him with her to stores, restaurants, and other public places that had been impossible before Madison.  Also, Madison’s friendliness fosters positive interactions with other children, something typically difficult for a child with autism.

My involvement began in April 2008, when Jordan’s school district refused to allow him to attend school with his trained autism assistance dog, Madison.  His parents had gone to the effort and expense of acquiring the specially trained dog from a unique program in Ohio that trains assistance dogs for children with autism, 4 Paws for Ability.  

Jordan and his mom traveled to Ohio and spent more than a week at the program to bond with Madison and learn how she could help the boy safely interact with others in public settings.  Madison is also specifically trained to perform tasks designed to quickly de-escalate Jordan’s particular autism-related behaviors, on command or when he becomes agitated.  When he becomes aggressive, Madison maintains a set distance on a tether by pulling him backwards.  To calm him, she lays down on him to apply comforting pressure, and then licks his face. 

Almost immediately, Madison allowed Jordan to safely and happily participate in many normal community activities that had been difficult or impossible for him on his own.  His mom is now able to bring him with her to stores, restaurants, and other public places that had been impossible before Madison.  Also, Madison’s friendliness fosters positive interactions with other children, something typically difficult for a child with autism. 

Although Madison clearly benefits both Jordan and the people around him, the school district refused to allow Jordan to bring Madison to school.  That decision also cut Madison out of Jordan’s life for about 6 hours every weekday, something that Madison’s trainers believe reduces her effectiveness in other settings.

The district refused to consider that Jordan has an independent right to attend school with the support he needs and prefers – the same right that a paraplegic has when choosing between using a walker or a wheelchair to navigate in a public place that is supported with public dollars.

The school justified its decision with a number of objections.  One was that under state law, only students who are blind or severely physically disabled are entitled to have assistance animals at school.  Another was that allowing Jordan to bring Madison to school with him would lead to an unending string of requests for other “therapy animals” from other students, and that the ensuing menagerie would cause allergic reactions and other potential harm that would prove disruptive and potentially lead to lawsuits.

Media reports of other instances in which similarly trained autism assistance dogs had been permitted to accompany students to school with minimal problems and excellent results failed to persuade school district administrators.  They also rejected a number of proposals by Jordan’s parents that included finding out if there were objections by other parents or children, implementing a “test” period to see if concerns were justified, kenneling Madison during some classes, and professionally grooming Madison once a week to minimize allergy problems.

The school district’s lawyer argued that the dispute was about special education and therefore could only be about whether my client was receiving adequate special education services.  

The district refused to consider that Jordan has an independent right to attend school with the support he needs and prefers – the same right that a paraplegic has when choosing between using a walker or a wheelchair to navigate in a public place that is supported with public dollars.  According to the district, Disability Rights Oregon needed to challenge the rather good special education services that Jordan receives and then, after presumably losing at a due process hearing, go to federal court.

The recent acceptance of our case for investigation by the U.S. DOJ Civil Rights Division is a stark rejection of that legal theory.  Perhaps more importantly, DOJ’s involvement in our case is likely to make the district rethink its position that the protections of special education laws automatically strip students of other rights that protect people with disabilities.  I am hopeful that Jordan will attend school with Madison by his side by the beginning of the next school year.

Aug 26, 2009

Senator Edward M. Kennedy

by Bob Joondeph — last modified Aug 26, 2009 02:25 PM

Recalling the work of our greatest champion in the Senate.

We are deeply saddened to hear of the death of Senator Edward M. Kennedy.

The importance of Senator Kennedy to the disability rights movement cannot be overstated.  He has been our champion for decades.  It will take volumes of scholarship to fully document his importance to our community and the nation as a whole, but let me give you a highly abbreviated taste of what he accomplished for us over the past 40 years.

1975:  Cosponsored the Education for All Handicapped Children Act of 1975, which later became the Individuals with Disabilities Education Act (IDEA). The law served to amend the Education of the Handicapped Act and to guarantee a free and appropriate public education to children with disabilities.

1975:  Cosponsored legislation to create a “bill of rights” for people with developmental disabilities, providing funding for services for people with this type of disability, supplementing funding for affiliated university facilities and creating state-based systems of protection and advocacy groups in all 50 states.

1978:  Cosponsored the Civil Rights Commission Act Amendments of 1978, which expanded the jurisdiction of the Civil Rights Commission to protect people from discrimination on the basis of disability.

1978:  Strongly supported the Rehabilitation, Comprehensive Services and Developmental Disabilities Amendments of 1978 establishing a functional definition of developmental disability, creating the National Council on the Handicapped and the National Institute of Handicapped Research, setting a funding minimum for protection and advocacy services and authorizing a grant for independent living services.

1980:  Cosponsored the Civil Rights for Institutionalized Persons Act, which enforced the rights of people in government institutions such as the elderly, the disabled, the mental ill, and the incarcerated under the Constitution.

1982:  Cosponsored the Job Training Partnership Act, designed to break down barriers facing “economically disadvantaged” individuals including people with disabilities and assuring that people could not be excluded from the training program based on a disability.

1982:  Cosponsored legislation allowing states to cover home health care services for particular children with disabilities under their Medicaid plans. This was intended to allow parents “respite” or rest periods with a trained professional helping to care for their child’s needs.

1984:  Cosponsored legislation requiring polling stations to provide physical accessibility and registration and voting aids for people with disabilities.

1986:  Cosponsored the Air Carrier Access Act requiring facilities and services to be accessible to people with disabilities traveling by air.

1986: Cosponsored the Employment Opportunities for Disabled Americans Act, which made work incentives for disabled individuals a permanent fixture of the Social Security Act.

1986: Cosponsored the Handicapped Children's Protection Act of 1986, which overturned a Supreme Court decision and allowed courts to award sensible attorneys fees to parents of children with disabilities winning in due process proceedings and other court actions under part B of the Education Act.

1986:  Cosponsored amendments to the Education of the Handicapped Act, establishing a new grant program aimed at developing an early intervention system benefiting infants and toddlers with disabilities and their families and promoting preschool programs for children ages 3 to 5 with disabilities.

1988:  Introduced the Fair Housing Act Amendments to extend the Fair Housing Act of 1968 to include people with disabilities and families with children.

1990: Cosponsored a bill that changed the name of the Education of the Handicapped Act to IDEA, changed the term from handicapped to disability, and added two categories to the amendment: autism and traumatic brain injury. It also reauthorized the programs under the previous act to provide improved support to students with disabilities particularly in the terms of computer access and assistive technology.

1990:  Introduced (with Senator Harkin) the Americans with Disabilities Act prohibiting discrimination against individuals with disabilities.

1990: Introduced the Ryan White CARE Act which provided emergency relief to thirteen cities hardest hit by the AIDS epidemic, and also provided substantial assistance to all states to develop effective and cost-efficient AIDS care programs, aimed particularly at early diagnosis and home care.

1991:  Sponsored legislation to reorganize the Alcohol, Drug Abuse, and Mental Health Administration.

1997:  Cosponsored amendments to IDEA directing inclusion of special education in state and district-wide assessments, promoting mediation as an option to disputes between teachers and parents of children with disabilities, providing that special education students be disciplined in the same way as other students, continuing services to adult inmates with disabilities who were eligible for IDEA prior to their incarceration, and requiring charter schools to meet the needs of children with disabilities and to receive IDEA funds from district schools.

1998: Cosponsored the Crime Victims and Disabilities Awareness Act of 1998 directing the Attorney General to conduct a study of crimes against people with disabilities.

1999:  Cosponsored the Ticket to Work and Work Incentives Improvement Act. The law and its “ticket to work and self-sufficiency” program expanded employment opportunities for people with disabilities through providing disabled Social Security beneficiaries greater support and more options. It also allowed for working people with disabilities to receive benefits from Medicaid and/or Medicare.

2004:  Cosponsored the Assistive Technology Act which supports states in to sustain and strengthen the capacity to meet the assistive technology needs of individuals.

2004: Sponsored the reauthorization of the IDEA, with a new focus on promoting better alignment of special education with general education and having school districts be accountable for the educational outcome of all students, including students with all ranges of disabilities.

2006:  Won a 5-year-long battle to pass the Family Opportunity Act. The law provides states the option of allowing families of disabled children to purchase health coverage through Medicaid. The bill passed as an amendment to the budget reconciliation bill.

2008:  Championed mental health parity legislation assuring individuals living with mental health and substance abuse issues that their mental health benefit would be treated equally with the medical-surgical benefit regarding treatment limitations and financial requirements.

2009: Succeeded in having the CLASS Act included in the text of the Affordable Health Choices Act that was passed out of the HELP Committee. This bill aims to provide elderly and disabled individuals with a daily cash benefit to purchase services and supports they need to remain in and be a productive member of the community.

 These accomplishments amount to a virtual history of the disability rights movement.  For this and so much more, we salute and thank Senator Kennedy.

Jun 22, 2009

US Supreme Court Rules For Parents

by Bob Joondeph — last modified Jun 22, 2009 02:15 PM
Filed Under:

Quotes from the Special Education case of Forest Grove School District v. T.A.

Congress enacted IDEA in 1970 to ensure that all children with disabilities are provided  a free appropriate public education [FAPE] which emphasizes special education and related services designed to meet their unique needs and to assure that the rights of such children and their parents or guardians are protected.

 A reading of the Act that left parents without an adequate remedy when a school district unreasonably failed to identify a child with disabilities would not comport with Congress’ acknowledgment of the paramount importance of properly identifying each child eligible for services.

 It would be particularly strange for the Act to provide a remedy, as all agree it does, when a school district offers a child inadequate special-education services but to leave parents without relief in the more egregious situation in which the school district unreasonably denies a child access to such services altogether.

 That IDEA affords parents substantial procedural safeguards, including the right to challenge a school district’s eligibility determination and obtain prospective relief is no answer. The review process is ponderous and therefore inadequate to ensure that a school’s failure to provide a FAPE is remedied with the speed necessary to avoid detriment to the child’s education.

 [T]his case vividly demonstrates the problem of delay, as respondent’s parents first sought a due process hearing in April 2003, and the District Court issued its decision in May 2005—almost a year after respondent graduated from high school.

 States expressly agree to provide a FAPE to all children with disabilities. An order awarding reimbursement of private-education costs when a school district fails to provide a FAPE merely requires the district “to belatedly pay expenses that it should have paid all along.”

 Parents are entitled to reimbursement only if a federal court concludes both that the public placement violated IDEA and the private school placement was proper under the Act.  And even then courts retain discretion to reduce the amount of a reimbursement award if the equities so warrant—for instance, if the parents failed to give the school district adequate notice of their intent to enroll the child in private school. In considering the equities, courts should generally presume that public-school officials are properly performing their obligations.  As a result … parents who “unilaterally change their child’s placement during the pendency of review proceedings, without the consent of state or local school officials, do so at their own financial risk.

 [W]e conclude that IDEA authorizes reimbursement for the cost of private special education services when a school district fails to provide a FAPE and the private-school placement is appropriate, regardless of whether the child previously received special education or related services through the public school.

 When a court or hearing officer concludes that a school district failed to provide a FAPE and the private placement was suitable, it must consider all relevant factors, including the notice provided by the parents and the school district’s opportunities for evaluating the child, in determining whether reimbursement for some or all of the cost of the child’s private education is warranted.

Jun 12, 2009

Will closing Oregon's school for the blind help students fulfill their potential, or create an archipelago of neglect?

by Bob Joondeph — last modified Jun 12, 2009 08:20 PM

DRO's Executive Director Bob Joondeph reflects on guest blogger Michael Bailey's "Welcome to the Real World of Special Education"

When Fairview Training Center was slated for closure, many parents spoke with me about their feelings of betrayal.  They had placed their child in the institution many years, sometimes decades, ago.  When they made that difficult choice, they had been assured by the state that Fairview would always be there for them.  Many parents had become very involved with the institution.  They knew the staff, the management and the residents.  They were part of a community that understood what it is like to be developmentally disabled.  Their child would be permanently protected from the ignorance, disinterest and, sometimes, hostility of the outside world.

Are we, as Michael suggests, hurting children in pursuit of a ideal that cannot be realized?  I can't adopt that viewpoint without conceding the futility of achieving a truly inclusive society. Defending both OSB students and our movement toward integration are not incompatible goals.

The process of closing Fairview was slow and painstaking.  Highly detailed assessment and planning was completed for each resident.  Parents were introduced to community alternatives and were encouraged to visit sites, talk with staff and other parents and to participate in transition planning.  Parents and advocates participated in all stages of the transition including membership on a board that oversaw the process.  Over the years, trust was reconstructed in the step-by-step process of establishing new relationships and experiencing the benefits of community living.

Parents are now having similar experiences in the wake of the legislature's vote to close the Oregon School for the Blind. In his guest blog entry, "Welcome to the Real World of Special Education" Michael Bailey eloquently describes the impact.  Closing this venerable institution that promises to provide highly specialized services to children with vision impairments and co-occurring conditions feels like a betrayal.  Children who became students at OSB because their community failed to serve them adequately are now being told to go back to the scene of their neglect.  And, unlike Fairview, there will be no long, deliberate process for developing new relationships and establishing at least some tentative trust.  The school will close by September 1, 2009.  All transition plans must be completed by August 1.

My view is that people with disabilities are better served in their communities.  Institutions were created in the 19th century with the best intentions of shielding residents from the rigors of society.  But the ideal societies that were envisioned became insular dead-ends for lives that could have experienced and contributed much more.  I have seen, however, community services that fail to achieve their promise due to inadequate funding, lack of access to talented professionals, lack of experienced and well-trained personnel and lax oversight.  Just as no person is immune from failure, the same can be said for service systems.

Are we, as Michael suggests, hurting children in pursuit of a ideal that cannot be realized?  I can't adopt that viewpoint without conceding the futility of achieving a truly inclusive society. Defending both OSB students and our movement toward integration are not incompatible goals.  That is why transitioning OSB students must be provided the resources, expertise and advocacy that is necessary for their success.  Expecting them and their parents to make this abrupt change without a total commitment to success by school districts, the state Departments of Education and Human Services, and disability advocates would indeed be a betrayal.

Jun 11, 2009

"Welcome to the Real World of Special Education"

by Elizabeth Arledge — last modified Jun 11, 2009 07:40 PM

Guest Blogger Michael T. Bailey's thoughts on the closing of Oregon School for the Blind

The plan to close Oregon's School for the Blind illustrates the alternative worlds of Special Education in Oregon. One is an imaginary world populated  by the Oregon Department of Education and those advocating for closure. The other is the real world the rest of us live in.


I have been a volunteer advocate at literally hundreds of Individual Education Program meetings.... The results are stifling and restrictive placements in what my daughter with Down syndrome derisively calls "happy gatherings"

All people with disabilities are better served and have happier lives in their own communities. No one  needs to live with institutional care. That said, it is not progress to move unwilling people from a setting deemed politically incorrect into a community setting unless real supports are in place. These are human beings we are dealing with. Not budgets, not strategic plan goals and not an empty box on a to-do list. And community education supports for hundreds of blind and visually impaired children are most definitely not in place. Nor are they going to be. To think otherwise is just wishful imaginings.

I know a young man who is blind and deaf. For years his able mother struggled with all of her considerable might to find appropriate services in a Washington County school district. That district, like all districts, could not begin to meet his complex needs. Finally he enrolled in the School for the Blind and blossomed into a healthy, happy and vigorous young man.

Tragically, his mother has since died.  Closure of Oregon's School for the Blind means he'll return to the same school district that failed him before, but without his mother to advocate for him.

It is easy to dismiss human tragedy as 'anecdotal' evidence. To me the human cost is the only cost.

I have been a volunteer advocate at literally hundreds of Individual Education Program meetings. These create written plans and placements for special education students. I can attest to the lack of classroom resources, educational assistants, related services personnel, assistive technology and vocational training. The results are stifling and restrictive placements in what my daughter with Down syndrome derisively calls "happy gatherings" -- a chaos of snacks, games and 'field trips' to the park. The only real outcome being the perpetuation of the social isolation suffered by Americans with disabilities of all ages.

In the imaginary world of politics and special education administration, there may be a belief that all of this can be somehow fixed in the short version 2010 legislative session. Or maybe the one after that. But for those families whose lives are uprooted, September looms near and large. And with that comes diminished services, overwhelmed districts with no resources or expertise and a nagging sense of loss.

A  year or two in political time may be short. In the life of a young person it is long.

To the families of the children formerly receiving good services at the School for the Blind all I can do is sadly welcome you to the real world of special education. None of us will ever know what happened to that money this closure was advertised as saving. But I assure you that it will not be available when your child actually needs a real education.

The opinions expressed here are those of the author and not of Disability Rights Oregon.

 

 

May 29, 2009

House Votes to Close Oregon School for Blind

by Bob Joondeph — last modified May 29, 2009 03:10 PM

Sitting in the gallery of the Oregon House chamber, listening to the debate over whether to close the OSB.

Representative Sara Gelser is giving a speech on the House floor in favor of House Bill 2834 which would close the Oregon School for the Blind.  "It's about holding on to the money that goes to the OSB that could be lost when OSB dies a natural death."  "Every student has a right to a free and appropriate public education. This is a very hard bill.  I wish I was not carrying this bill.  This has been discussed for two decades.  This bill contains the best plan developed."  She notes that the school does not provide an academic curriculum and its physical plant is in serious disrepair.  This bill will shift money that presently goes to OSB and put it in an account that will provide money to supplement services in local school districts.

Rep. Sprenger says she will vote yes but does not urge her fellow House members to vote one way or the other.  This is too personal an issue, in her opinion.

Rep. Boone reads a letter from a constituent who has a child at OSB and values it.  She will vote no.

Rep. Maurer speaks against the bill saying that the high cost per student at OSB is not as high as it appears when compared to some costs for students in regular school districts.  He says: "This is not over."

Rep. Clem speaks passionately against closure saying that the school was founded for use by disabled children.  It should remain so.  "I will not be an accomplice in closing this school."  He says that the state is at fault for letting the physical grounds deteriorate.  Equivalent services are not available in the community, he asserts.  He also claims, as did Rep. Boone, that OSB provides the least restrictive alternative for blind students because students in regular schools may receive services in a single school room.  He says that the bill's requirement that services in regular schools be "substantially equivalent" to OSB services is an "unfunded mandate."  Oregon, he notes, would be only one of four states that don't have a school for the blind if this bill passes.  Says that many OSB students may end up in foster care which will limit their ability to go home on weekends.  Rep. Clem agrees with Rep. Maurer that if the bill passes, "This is not over."

Rep. Barton speaks against the bill.  He says he disagrees with Rep. Gelser on this bill but he praises her for her work.  He says that signs were passed out that said "Vote no on Sara Gelser."  Rep. Barton says that this is an inappropriate personal attack.

Rep. Gelser closes, saying that funds will be available to assure that blind students will get the services they need.  She says that she has not received contact from anyone asking to buy the property.  Students, she says, should have the opportunity to learn in a fully accredited environment.  She notes that she is the parent of a child with disabilities and a special education advocate.  She knows the challenges but we must look to the future to provide the best services to blind students for years to come.  She urges a yes vote.

And now for the vote:  Wins 41 yea, 18 nay.

May 19, 2009

Seclusion & Restraint Abuse in Schools

by Bob Joondeph — last modified May 19, 2009 03:45 PM

A U.S. House of Representatives committee hears a report from the GAO and testimony of parents regarding the tragic misuse of seclusion and restrain in schools.

Greetings from Washington, DC!  I’m here to attend a conference and to visit some legislators. 

 It just so happens that today, the House Committee on Education and Labor held a hearing to examine abusive and deadly uses of seclusion and restraint in U.S. schools. Seclusion and restraint are physical interventions used by teachers and other school staff to prevent students from hurting themselves or others.  Here is some background.

 The General Accounting Office (GAO) recently testified before the Committee about allegations of death and abuse at residential programs for troubled teens.  About that same time, Oregon state officials initiated an investigation of such a program: Mount Bachelor Academy.  The results of that investigation are pending.

 DRO’s national organization, the National Disability Rights Network (NDRN) released a major report in January that exposed deaths and serious injuries resulting from the use of seclusion and restrain in schools.  It documented cases where students were pinned to the floor for hours at a time, handcuffed, locked in closets, and subjected to other acts of violence. In some of these cases, this type of abuse resulted in death.

 In response, the Committee asked GAO to (1) provide an overview of seclusions and restraint laws applicable to children in public and private schools, (2) verify whether allegations of student death and abuse from the use of these methods are widespread, and (3) examine the facts and circumstances surrounding cases where a student died or suffered abuse as a result of being secluded or restrained.

 In its testimony today, GAO found no federal laws restricting the use of seclusion and restraints in public and private schools and widely divergent laws at the state level. It found hundreds of cases of alleged abuse and death related to the use of these methods on school children during the past two decades. Examples of these cases include a 7 year old dying after being held face down for hours by school staff, 5 year olds being tied to chairs with bungee cords and duct tape by their teacher and suffering broken arms and bloody noses, and a 13 year old hanging himself in a seclusion room after prolonged confinement.

 Although GAO continues to receive new allegations from parents and advocacy groups, it could not find a single Web site, federal agency, or other entity that collects information on the use of these methods or the extent of their abuse.

 GAO also examined the details of 10 restraint and seclusion cases in which there was a criminal conviction, a finding of civil or administrative liability, or a large financial settlement. The cases share the following common themes: they involved children with disabilities who were restrained and secluded, often in cases where they were not physically aggressive and their parents did not give consent; restraints that block air to the lungs can be deadly; teachers and staff in the cases were often not trained on the use of seclusions and restraints; and teachers and staff from at least 5 of the 10 cases continue to be employed as educators.

 The Committee heard from five witnesses who told tragic stories of death or injury related to restraint in school.  Committee Chair George Miller responded, noting that “approaches such as School Wide Positive Behavior Support can help establish a social culture and positive environment that uses data-driven decision-making to foster appropriate behavior and improve academic achievement.”

He concluded: "Congress must step in and fill the void that has resulted in scars that may never heal for these children and their families who have been victims of this abuse. I hope the next step will be to enact a federal policy to ensure the tragic stories we will hear today will never occur again."

 For more:  http://edlabor.house.gov/hearings/2009/05/examining-the-abusive-and-dead.shtml

Apr 27, 2009

Supreme Court hears Oregon Special Ed Case

by Bob Joondeph — last modified Apr 27, 2009 12:20 AM
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A case that is important to special education students and their families will be decided this year by the U.S. Supreme Court. And, it’s from Oregon.



DRO believes that it is essential that students receive appropriate evaluations early on and the special education and related services to which they are entitled under federal law. When schools fail to comply with the law, parents are forced to take matters into their own hands and seek other placements.  Schools should partner with parents so that the student has the benefit of the school’s experience and expertise and does not have to go elsewhere to seek an adequate education.  This cannot be achieved if schools have a fiscal incentive to cut a student loose.


TA was a high school student in the 6,000-student Forest Grove district.  He had spent most of his educational career in Forest Grove and had never been considered for special education.  When his school work fell off, he was evaluated and found to have attention deficit hyperactivity disorder.   The school district, however, would not provide him with special education services, finding that TA’s disability was not affecting his educational progress. Two years later, TA’s parents enrolled him in a private school and asked Forest Grove to reimburse them for the cost of the tuition.  The school district refused but an administrative hearing ruled that the parents should be reimbursed.  The Oregon District Court reversed this decision but was, itself, reversed by a panel of the 9th Circuit Court of Appeals.  The US Supreme Court will now make the final call.

DRO signed onto a brief that was submitted in support of TA’s position.  The brief, prepared by DRO’s national organization, the National Disability Rights Network, and others, supports the proposition that parents should be reimbursed when a school district utterly fails to meet the needs of a child with a disability.  TA has also received the support of the US Department of Justice.  It filed a brief stating: "When a child with a disability has been denied a free appropriate public education, IDEA authorizes an award of private-school tuition reimbursement regardless of whether the child previously received public special education."   If this were not the case, tuition reimbursement could "never be available to parents if a school district wrongly refuses to identify their child as having a covered disability."

The legal question in the case, Forest Grove School District v. T.A. (Case No. 08-305), is whether parents in a special education dispute with a school district may be reimbursed for “unilaterally” placing their child in a private school when that child has never received special education services from the district.  It is interesting to note that the Supreme Court heard the same issue in 2007 in Bd. of Ed. of NYC v. Tom F.  In that case, the court deadlocked 4-4, with Justice Kennedy not participating.  All nine justices will decide TA.  And so, if the other eight justices hold their ground, Justice Kennedy will be the decider.

DRO believes that it is essential that students receive appropriate evaluations early on and the special education and related services to which they are entitled under federal law. When schools fail to comply with the law, parents are forced to take matters into their own hands and seek other placements.  Schools should partner with parents so that the student has the benefit of the school’s experience and expertise and does not have to go elsewhere to seek an adequate education.  This cannot be achieved if schools have a fiscal incentive to cut a student loose.

. The case will be argued before the Court on April 28th.

Apr 23, 2009

A Day at the Legislature

by Bob Joondeph — last modified Apr 23, 2009 10:00 PM

How a lot of running around in circles can get you somewhere.

I'm back home from a full day at the state Capitol.  We are three legislative days away from a big deadline.  Any bill that has not moved out of its original committee by the close of business on Tuesday is dead.  This deadline sets up a last minute scramble for folks to keep their bill breathing.  A bill can die for many reasons.  It may never have had a hearing or been heard and left its committee unmoved.  It may need amendments that cannot be agreed upon or cannot be produced by Legislative Council on time or in technical shape.  It may lack a Fiscal Impact Statement from the Legislative Fiscal Office because of time restraints or a the bill may just have a crippling cost (in this session, virtually any cost is crippling).

I arrived at 8:00 am in Hearing Room B for a Work Session on the ominously-named Senate Bill 911.  The committee chair promptly banged her gavel and said that SB 911 would not be heard because it lacked a fiscal impact statement.  I was then told that House Bill 2353, scheduled for a hearing that day at 1:00 pm, would not be heard because the amendments had just arrived and they also did not have a "fiscal."

These bills concern standards for secure residential homes serving mental health clients and the reporting of people who have been committed to a psychiatric hospital to the FBI in order to prevent them from having guns.

At noon, I made a half-hour report on pending legislation at the Mental Health Caucus, a bi-weekly meeting of legislators, lobbyists, advocates and bureaucrats convened by state Representative Ron Maurer.  Afterward, I worked with some lobbyists on a bill affecting the procedural rights of families in special education hearings and discussed ideas on how to improve the state hospital and to get kids in community mental health facilities the education services they need.

Then, some great news.  Senate Bill 731 passed out of its committee in its eighth amended form.  This bill will save people who receive public benefits from having those benefits garnished from their bank accounts.  Now, even though these funds are protected by law, banks have to turn them over to collectors and the person has to go to court to get them back.  This is money that people rely upon for subsistence.  Many are not able or brave enough to go to court to assert their rights.  Kudos to Sybil Hebb from the Oregon Law Center for great work!  (I helped a little.)

And so, amid all the frenzy and talking and mulling, something good was accomplished!  On to tomorrow.....

Mar 07, 2009

Hate Crimes and Bullying

by Bob Joondeph — last modified Mar 07, 2009 02:40 PM

DRO is working on bills at both the federal and state level to protect individuals with disabilities from abuse in schools and the community.

The national network of Protection and Advocacy (P&A) organizations (like DRO) is represented in Washington DC by the National Disability Rights Network (NDRN).  Recently, NDRN urged legislators, on our behalf, to support hate crime prevention legislation.  The proposed bill would grant agencies the authority to investigate and prosecute federal crimes based on the victim’s disability, whether real or perceived, and would authorize funding to states to help with the prosecution of hate crimes.

In a letter signed by almost all P&As, we reminded legislators that through much of our country’s history, people with disabilities -- including those with developmental delays, epilepsy, cerebral palsy and other physical and mental impairments -- were seen as useless and dependent, hidden and excluded from society, either in their own homes or in institutions.  Now, this history of isolation is gradually giving way to inclusion in all aspects of society, and people with disabilities everywhere are living and working in communities alongside family and friends.

But this has not been a painless process.  People with disabilities often seem “different” to people without disabilities.  They may look different or talk differently.  They may require the assistance of a wheelchair, a cane, or other assistive technologies.  They may have seizures or have difficulty understanding seemingly simple directions.

Unfortunately, disability bias can manifest itself in the form of violence.  Federal hate crimes legislation would broaden the definition of hate crimes to include disability, sexual orientation, gender and gender identity.  It would make grants available to states and local communities to combat violent crimes committed by juveniles, train law enforcement officers, or assist in state and local investigations and prosecutions of bias-motivated crimes.

 Violence against individuals with disabilities is not limited to adults.  On Monday, March 9, the Oregon House Education Committee will hold a hearing on House Bill 2599.  This bill would strengthen Oregon law that is designed to lessen the bullying of students in our schools.  It would make school districts adopt policies to train staff and students about avoiding and reporting bullying and designate a staff person to accept complaints of bullying.  DRO supports this bill that will provide a reasonable way to address the harassment of all students, including students with disabilities.

Testimony in support of HB 2599

March 9, 2009

TO:      Representative Sara Gelser, Chair, House Education Committee
FR:      Bob Joondeph, Executive Director,  Disability Rights Oregon
RE:      HB 2599

Disability Rights Oregon (DRO) is the Protection and Advocacy organization for Oregon. In this capacity, DRO provides legal-based advocacy services to Oregonians with disabilities.  A large portion of our individual case work has always been on behalf of children and parents who are seeking appropriate special education services.

Sadly, it is not uncommon for students we represent to be the victims of harassment and violence on the part of fellow students.  And needless to say, a hostile school environment may be a major impediment to a child’s ability to make progress in his or her education.

Oregon has made great strides in freeing adults and children with disabilities from isolation and needless institutionalization.  People with disabilities in our communities may still seem “different” to people without disabilities.  They may look different or talk differently.  They may require the assistance of a wheelchair, a cane, or other assistive technologies.  They may have seizures or have difficulty understanding seemingly simple directions.

These perceived differences evoke a range of emotions, from misunderstanding and apprehension to superiority and hatred.  While these feelings may find expression among adults as well as children, our schools offer the opportunity to identify instances of intolerance and educate our youth about disabilities and the effects of bullying.

This is why DRO strongly supports passage of HB 2599.

We have also been authorized to express the support of the Community Mental Health Coalition for HB 2599.  The Coalition, composed of mental health providers, advocates and consumers recognizes the vulnerability to and impact of bullying on children with mental health concerns.