Testimony on Proposed Connecticut Special Education Regulations, August 30, 2010

TESTIMONY OF ANDREW A. FEINSTEIN ON
STATE OF CONNECTICUT
PROPOSED SPECIAL EDUCATION REGULATIONS
August 30, 2010

Attorney DeFrancis, I am pleased to be here to testify concerning the proposed special education regulations issued by the State Department of Education in August. The stated purpose of these regulations is stated as, “To adopt the standards of the Individuals with Disabilities Education Act and clarify state-specific provisions for the provision of special education to children with disabilities and the identification and evaluation of gifted and talented children.” Three years ago, when the State Department of Education was considering predecessor regulations, I, on behalf of nearly 100 parents of children with disabilities, attorneys, advocates, and providers, filed detailed comments. To date, I have not solicited signatories, but I have no doubt that a similar or larger cadre of concerned citizens can be marshaled to ask for changes in these regulations. Indeed, the extent of concern about these regulations will be far greater because these draft regulations do far more damage to special education law in Connecticut than did the 2007 proposals.

These proposed regulations go far, far beyond the stated purpose of conformity with federal regulations. The proposed regulations make massive, ill conceived, and discriminatory changes in eligibility based on a specific learning disability. The regulations lessen State regulation of local boards of education. The regulations significantly expand the time frames under which local boards need to evaluate, indentify, and program for children with disabilities. These proposed regulations comprise a radical document. What is the need for such extreme change?

The purported overall thrust of the proposed regulations is to eliminate aspects of special education law and procedure which are unique to Connecticut and, instead, to conform precisely to the minimal federal standards. Reducing Connecticut protections to the federally-mandated minimum is not required. Indeed, the federal courts have made it plain that states can provide a higher level of protection for students with disabilities than is mandated by federal law and regulation. Blackmon ex rel. Blackmon v. Springfield R-XII School Dist., 98 F.3d 648, 658-59 (8th Cir. 1999); Johnson v. Ind. Sch. Dist. No. 4, 921 F.2d 1022, 1029, cert. denied, 500 U. S. 905 (1991); Burke County Bd. Of Ed. v. Denton, 895 F.2d 973, 982-83 (4th Cir. 1990); Board of Ed. of East Windsor Reg. Sch. Dist. V. Diamond, 808 F. 2d 987, 992 (3rd Cir. 1986) David D. v. Dartmouth Sch. Dist, 775 F.2d 411, 418 (1st Cir. 1985), cert. denied, 475 U.S. 1140 (1986). Connecticut can do better. Connecticut can serve as a model for how to educate children with disabilities effectively. The regulations proposed by CSBE are a move in the wrong direction. Historically, Connecticut led the way, enacting comprehensive special education law before the federal government acted. The proposed regulations execute a u-turn; instead of being in the forefront, Connecticut has decided to be back in the pack. We can do better for the children of the State. Connecticut, through these regulations, has joined the race for the bottom.

My testimony will follow the proposed regulations in the order they appear. I do not comment on some sections. On others, I have a few technical comments. But, for many others, I have substantial objections. To preview, the most objectionable elements of these proposed regulations are:

1. The insertion of new eligibility standards for learning disabilities that effectively preclude children from the weakest schools from ever getting special education services and the type of intensive education they need.

2. The failure to address the concerted effort by school districts to block parents from exercising their right to an independent educational evaluation.

3. The substantial extension of deadlines for referral, evaluation, identification and programming that can leave a child with a severe disability without services for half a school year.

The Proposed Regulations

The scope of the proposed regulations is so large that the State Board of Education should proceed with caution and only after fully considering the views of all stakeholders. Unfortunately, the most important stakeholders – children with disabilities – are frequently unable to express directly their needs in this system. Parents, advocates, attorneys for those children, and service providers speak on their behalf. The special education system exists for the benefit of children with disabilities. Drafting regulations is not a matter of balancing the interests of school boards against the interests of parents. Instead, the needs of children with disabilities must be paramount.

In the case of these proposed regulations, the State Department of Education has an obligation to clearly and widely publicize what these regulations do. They have been released with the least amount of publicity the UAPA permits and the stated purpose does not describe what the proposed regulations do. One might suggest that the SDE is attempting to disguise enormous changes in the law. You must not permit that to happen.

Section 1 – RCSA § 10-76a-1 (General Definitions)

Section 1 changes the definitions governing the law. Astonishingly, the very first change is to eliminate the clear definition of “at no cost”. To be sure, the first word of FAPE, free appropriate public education, is free. Just using the term free does not, however, convey the broad expanse of the current regulatory requirement that special education services must be provided at no charge to the parents. And, as we see in RCSA § 10-76d-17, the term “at no cost” to parents remains in the regulations.

The age requirement in the definition of “a child requiring special education” is concerning. The new language limits eligibility to children three, four or five, or children who have attained the age that the town is required to provide services. The language should be amended to read that the law covers both children aged three, four or five, as well as any other children otherwise entitled to services from a town.

The change from school days to calendar days is a step in the right direction because it eliminates the oft used excuse of school boards that they cannot deal with a parent’s request over summer or over vacation. Time limits should be drafted to compel districts to act swiftly to protect the interests of children. They should never be used to deny parents the right to challenge a district’s program.

The change in the definition of the term “evaluation” makes sense. It should be noted that both the existing regulatory definition and the IDEA language mandate that evaluators make specific educational recommendations. Efforts by school districts to limit evaluators from making specific recommendations are improper.

The term “independent evaluation” is inconsistent with federal law. The federal law requires a “qualified examiner”, not someone certified or licensed under standards that often have nothing to do with the expertise needed to conduct a meaningful evaluation. This language is an inappropriate limitation of the right of parents to an independent evaluation.

The change in the definition of least restrictive environment is regrettable. The prior regulation contained a definition of inclusion that is different from the federal standard in 20 U.S.C. 1412(a)(5). As a mandate for a higher level of inclusion than required by federal law, the Connecticut regulation, as it now exists, put the State in the lead and ought not to be abandoned for the sake of national uniformity.

It probably makes sense to avoid confusion for Connecticut to retain the name of a planning and placement team, rather than switching the nomenclature to the federal IEP team. The last sentence, referring to the PPT for gifted or talented students, needs to be amended to include parents.

Section 5 – RCSA § 10-76b-4 (Compliance)

Local school districts need to be made explicitly accountable for compliance with the requirements of the federal regulations, as well as the IDEA, Connecticut law and Connecticut regulations. This is critical to enforcement because the federal requirements on independent educational evaluations, and other matters, are contained in the regulations, not in the statute.

Sections 6-9 – RCSA § 10-76b-8 (Use of seclusion in public schools, requirements)

These sections on seclusion use the term “person at risk” which is defined in CGS §46a-150 to include, inter alia, “a child requiring special education described in subparagraph (A) of subdivision (5) of section 10-76a, who is receiving special education by a local or regional board of education, or a child being evaluated for eligibility for special education pursuant to section 10-76d and awaiting a determination.” This definition is inappropriately narrow. The regulation should be written to apply the section to all students.

Further, the regulation should make clear that seclusion is an appropriate behavioral intervention only if the PPT adopted the technique on the basis of qualified expert opinion and if the PPT explicitly considered and ruled out any alternative interventions. Additionally, any IEP that includes seclusion should be presented to the parent or guardian for knowing, written consent. The parent’s consent should be required anew every semester.

The locking mechanism language is outrageous and criminal. Under the language, a child could be locked in a room for two minutes while a fire blazed around him or her. The entire debate about locking mechanism is unnecessary. The regulation should provide that no locking mechanism may be used and that any child in seclusion shall be in the sight and hearing of a professional staff member at all times.

The regulation needs to make clear that any private placement, funded in whole or in part, directly or indirectly, with district funds needs to comply with the seclusion requirements.

Section 10 – RCSA § 10-76d-1 (Special Education and Related Services)

The language that “the PPT shall determine whether a child who turns three during the summer requires extended school year services” only makes sense if the State Department of Education issues clear guidelines on ESY. The topic brief issued by SDE is not particularly relevant for children just entering into the system.

In this section, the proposed regulations sweep away Connecticut standards for an education at no cost, in conformity with the IEP, least restrictive environment, inclusion in graduation and extra-curricular activities, and bilingual education inserting instead a cross reference to the IDEA and Connecticut law and regulations. Instead, IDEA and state statutory and regulatory standards are incorporated by reference. If that is the route selected, the federal regulations need to be referenced as well. Still, it is sad to see Connecticut forfeiting its leadership role on special education and being content to do the minimum required by federal law. Instead of engaging in a Race to the Top, Connecticut seems to be careening to the bottom.

The move away from SDE-approval of related service and evaluation contracts by local school boards is good, but the deregulation seems to be taken to an extreme. As Section 10-76d-1(c) is rewritten, there are virtually no limitations on school districts. School boards often retain evaluators and service providers who do not assert independent judgment and will blindly obey the district’s direction. The State ought to require that contract personnel be qualified to perform the task, exercise independent, professional judgment, abide by the Code of Ethics of their profession and be available for exchange of information with the parents. Even if no written contact is required, the local board of education should be obliged to disclose the nature of its relationship with each contractor under the Freedom on Information Act.

Further, the proposed regulations would amend the language of RCSA 10-76d-1(b) purportedly to limit services to gifted children only to referral, identification, and evaluation. The way the language is drafted raises ambiguity concerning the obligation of a school district to provide special education and related services to a child who is both gifted and has a disability. Clearly, if a child qualifies as eligible for special education, that child is entitled to the full panoply of services without regard to whether the child also qualifies as gifted and talented. The regulatory language needs to be amended to remove the ambiguity. This is important because some school districts persist in subscribing to the mythology that a student who achieves minimally passing grades is not in need of special education services, without regard to the student’s cognitive ability. The regulations should make clear that the standards for eligibility are far more exacting than merely passing from grade to grade.


Section 11 – RCSA § 10-76d-2 (Personnel)

It appears that subsections (a) through (f) of 10-76d-2 are being deleted (although it is not entirely clear because of the brackets in subsection (f)). I have no objection to the State reducing its micromanagement of local school board’s administrative staff. Local school boards do need to be reminded, however, that insufficient supervision, which becomes possible after this regulatory change, will most likely result in more errors in designation and programming, more due process filings, and, ultimately, higher cost to the district.

The new language on the supervision of aides is good, but not strong enough. Untrained, unqualified aides provide most of the educational services provided to disabled students in Connecticut. Supervision of aides is pathetic in many cases. The only way to make supervision effective is to make the supervisors personally liable for the actions of the aides, in the same way I am personally liable for the actions of my secretary and paralegal. This could be accomplished by having the performance ratings of professions – both teachers and related service providers – based on the performance of the aides under their supervision. If an aide makes a very serious error, the teacher or the certified service provider should be sanctioned. If the service provider is on contract, pay under the contract should depend on the success of the aides. Without real enforceable sanctions, the new language in the regulations is just fluff.

The regulations should define what is meant by the term “direct supervision” and should reference the professional standards applicable. Direct supervision should be defined to mean that a certified or licensed professional drafts the lesson or treatment plan used, trains the aide in the implementation of that plan, observes the aide working with the student on a frequent basis, is responsible for all aspects of the aide’s performance, and verifies all reports of progress. Further, the regulations should make it clear that an aide cannot be assigned any function that the applicable code of ethics or rules of professional conduct of the profession require that the certified or licensed professional perform. In other words, to the extent that the rules of professional conduct for occupational therapists require that a certified professional perform certain hands-on manipulation, the regulations should
preclude that manipulation from being performed on a student by a paraprofessional.

The new language on personnel development, requiring teacher attendance as a means of corrective action where the State finds a violation, is necessary. Training, however, needs accountability. It is not good enough for teachers to be required to attend. They need to be tested on the content. Teachers should only be considered to have attended in-service training, whether mandated or not, if they successfully demonstrate that they have mastered the material presented.

Section 12 – RCSA § 10-76d-3 (Length of school day and year)

The two changes to RCSA § 10-76d-3 are excellent. Unfortunately, the regulations are silent on the criteria for extended school year services. The State Department of Education has provided guidance on the issue through a topic brief. The federal regulation, at 34 CFR § 300.16(b)(2) specifically contemplates state standards on extended school year services. The regulations should, therefore, incorporate, directly or by reference, the language of the Topic Brief on Extended School Year Services of March 15, 2007.

Section 13 – RCSA § 10-76d-4 (Physical facilities and equipment)

The State is proposing a substantial deregulation of the accounting by local school boards for assistive technology equipment. We can only hope that a major scandal does not emerge from this change that undermines special education funding in the future.

Section 15 – RCSA § 10-76d-6 (Identification and eligibility of students)

The issue of responsibility for child find is rather complex under the 2004 reauthorization of the IDEA. RCSA § 10-76d-6 provides no meaningful assistance to school boards and parents in navigating this law. Indeed, the revised regulation does not say that the local board of education is responsible for child find for children attending school in the district. For the sake of clarity, uniformity, and comprehensibility, the State should more clearly regulate in this area. The regulations should explicitly set forth which LEA is responsible for identification, evaluation, and provision of services in each set of possible circumstances so that parents and school boards know where responsibilities lie.

Despite the title of this regulation, the current regulations fail to address the requirements for eligibility for special education services in Connecticut. The current matrix of Guidelines and Reports is unsatisfactory. The Guidelines are vague and ambiguous. In many cases, the Guidelines are outdated and plainly inconsistent with federal law. The Guidelines are frequently not based on sound scientific evidence. The eligibility standards are so subjective that there is no way they can be implemented consistently. Parents have no way to know whether school personnel are implementing the standards fairly. A student who might qualify easily in one district would be found ineligible in another. School districts consistently misuse section 504 of the Rehabilitation Act as a sort of IDEA-lite. No area of special education law in Connecticut is more in need of reform and clarification than the eligibility standards.

Section 16 – RCSA § 10-76d-7 (Referral)

The additions to RCSA §10-76d-7, dealing with referrals to special education, are generally helpful with three important caveats.

First, for many uninformed parents, requiring a referral to be in writing is unacceptable. If a parent expresses a concern about his/her child’s possible disability by phone call, at a parent-teacher conference, or in a call to the teacher, the school official who receives that communication should be obliged to fill out a referral form for the parent and commence the referral process. The exception in the last sentence of paragraph (a)(3) for parents “who cannot put their request in writing” is far too narrow. For most parents, the issue is not an inability to write; the issue is they do not understand the process.

Second, at various places in RCSA §10-76d-7, in the proposed amendments, there is language indicating that a child cannot be designated as eligible for special education and related services until and unless regular education interventions are tried and fail. This is not the law. This is not a requirement. Indeed, it runs contrary to the Supreme Court decision in Forest Grove School Dist. v. T.A., 29 S.Ct. 2484 (2009), holding that receipt of prior services in the public school is not a condition precedent to funding an out-of-district placement.

I will return to this matter in far greater depth when we get to the evaluation section, CGS §10-76d-9. For some inexplicable reason, these proposed regulations use the regulation on evaluation to state that no child can be designated as having a learning disability and receive special education services unless the child received appropriate instruction first. While all children are entitled to appropriate instruction, no child should be deprived of the intensive services the child needs because the school did not do its job. A student with a disability should not be forced to endure years of failure before getting the special education services the student needs and to which the student is entitled. And, by the same token, no student with a disability should be denied the special education services the student needs and to which the student is entitled because the local school failed to do its job.

Third, the language of the regulation should be redrafted to require the convening of an IEP team meeting whenever any of the following occurs: (1) a student has been placed on out-of-school suspension for more than five days in total during a school year; (2) a student has been absent for more than ten days during a school year; (3) a student has failed or is in danger of failing an academic course; and (4) a student repeatedly fails to turn in homework. Absent some compelling non-disability explanation for such conduct, the team should conduct an evaluation in all areas of suspected disability. Too often, school districts only respond when a parent demands an evaluation. Often, when parents do not know their rights or when school districts are particularly recalcitrant, children with ample manifestation of a suspected disability are never evaluated. By changing the regulation mandating a required IEP meeting under certain circumstances, school districts will be obliged to conduct evaluations where evidence exists of a suspected disability without regard to the capabilities of the parent.

Section 17 – RCSA § 10-76d-8 (Notice and consent)

This section substantially re-writes the notice requirements of RCSA §10-76d-8. Three comments are in order:

First, the change from five school days to ten calendar days is fair and makes sense.

Second, the ten days should run from when the parents are provided with written notice, even if that written notice is the Prior Written Notice page from a PPT meeting. Too often, parents cannot follow what is going on at a PPT meeting and need the written document to let them know. Districts should be in the practice of handing parents the completed Prior Written Notice page at the end of each PPT meeting.

Third, construing parent failure to respond to a request for consent for evaluation as refusal after ten days is inappropriate. Parental refusal can only be construed from silence after the school district makes a serious and a documented effort to elicit a response from the parent. Frequently, parents are confused about the process and do not know what a consent form means. To construe that as refusal, with the serious consequences that can attend a refusal of evaluation, is unfair.

Related to this issue is the conspicuous failure of school boards to properly fill out consent forms. Unless the consent form contains the name of the evaluator, the evaluation instruments to be used, and the purpose of the evaluation, the consent form is not valid. No parent should be deemed to have refused to consent to an evaluation if the consent form is not completely filled out by school officials. The regulation should be amended to make this clear.

The prior written notice requirements of 34 CFR § 300.503 do not contain the five-day advance written notice contained in the current Connecticut regulation, nor does it contain the presumption that the parents fail to consent if they do not respond within ten days of the notice. There is nothing in the IDEA that prevents Connecticut from providing greater procedural protections to parents than are required by the federal statute. The time limits in the current Connecticut regulation should be retained. Note that C.G.S. §10-76d (a)(8) requires a local school board to provide the parent or guardian with five school days advance written notice of a proposal or refusal to change the student’s identification, evaluation or educational placement or provision of a free appropriate public education and to provide the parent or guardian with five school days prior written notice of a PPT meeting. The Connecticut statute remains in force. Removing these provisions from the regulations will, therefore, not change the requirement, but will create confusion.

Further, the current Connecticut regulation provides that parents have the right to review and obtain copies of all records. This right is not specifically contained in the federal regulation. It is essential that this right be retained in the regulations.

Section 18 – RCSA § 10-76d-9 (Evaluation)

This section involved two of the most offensive elements of the proposed regulation: perpetuation of the practice of depriving parents of their right to an independent educational evaluation (IEE) and new eligibility standards for a learning disability.

Independent Educational Evaluations

In subsection (a) of proposed RCSA §10-76d-9, language needs to be added to reference the federal IDEA regulations in relationship to an IEE. Further, specific language needs to be added preventing local school boards from promulgating IEE criteria that have the purpose of chilling the right of parents to seek an IEE. The State has a strong obligation under the IDEA to regulate local school boards. The outrageous behavior of local school board relating to IEEs needs to be curbed by the State Department of Education.

The responsibility of the State Department of Education to regulate this area is clear. The IDEA is a funding statute. Under 20 U.S.C. § 1412, a state is eligible for federal funding if, and only if, “the State has in effect policies and procedures” to, among other things, implement evaluation of children in accordance with 10 U.S.C. § 1414, specifically, 20 U.S.C. §1412(a)(7), and to ensure that local education authorities comply with the provisions of the IDEA in general, 20 U.S.C. §1412(a)(11). There can be no doubt that the State of Connecticut is responsible to ensure that local school boards in the State comply with the IDEA and its implementing regulations.

Perhaps the single most important right parents have under the IDEA, other than the right to file for due process, is the right to an independent education evaluation at public expense. In this way, the parents can double check school evaluators, get a second opinion, make certain that the school district is not glossing over the child’s disability in order to save money. The IEE is referenced both at 20 U.S.C. §1415(b)(1) and at 20 U.S.C. §1415(d)(2)(A), but the real detail on the extent and limit on the parent’s right to an IEE is contained at 34 CFR §300.502. The Connecticut State Department of Education is explicitly required to ensure that local school boards are complying with these requirements.

Notwithstanding this federal requirement, local school boards are riding roughshod over this right. Attached to this testimony are two examples: one drafted by the law firm of Berchem, Moses & Devlin for Fairfield and one draft by the law firm of Shipman & Goodwin for Darien. I ask that you take administrative notice of the fact that these are the two firms in the state representing the most school districts in special education matters.

Let us look through these two documents. We need get no further than the title. Both are labeled IEE criteria. Yet the federal regulations provide no authority for unique IEE criteria. The regulation, at 300.502(e)(1), is explicit that “the criteria under which the evaluation is obtained, including the location of the evaluation and the qualifications of the examiner, must be the same as the criteria that the public agency uses when it initiates an evaluation, to the extent those criteria are consistent with the parent’s right to an independent education evaluation.” To eliminate any wiggle room, paragraph (e)(2) states, “Except for the criteria described in paragraph (e)(1) of this section, a public agency may not impose conditions or timelines related to obtaining an independent educational evaluation at public expense.” So, these documents are ipso facto illegal.

And that is before we look at the text of each which do impose conditions and timelines directly in violation of federal law. Let’s focus on the Fairfield criteria, which are blatantly violative of the federal requirements in numerous respects. The first paragraph of the Introduction paragraph is drafted to scare parents off from IEE, stating, “In the event that the evaluation does not meet the following criteria, the parent may still obtain the evaluation, but it will not be publicly funded.” That is not consistent with the federal law, which gives parents the right to an IEE with certain minimal restrictions.

In the section labeled procedure, the document says the request for an IEE must be made at a PPT meeting. The federal regulations contain no such requirement. The document says Fairfield will respond in one of three ways. The first response, i.e. “The district will explain that the parent or guardian is not entitled to an IEE at public expense because either the district has not yet evaluated the student, and is entitled to conduct its own evaluation of the student, or the parent or guardian has already obtained an IEE at public expense as a result of a previous disagreement with the same district evaluation,” may constitute reasons the request is invalid, but it is not authorized by the regulations. The regulations, at 300.502(b)(2) provide the district with only two options: file for due process or pay. There is no third option. Under (b)(2)(i), the school district can show its own evaluation was appropriate. Under (b)(2)(ii) the district can “demonstrate in a hearing ... that the evaluation obtained by the parent did not meet agency criteria.” In either case, the district’s resort is to due process hearing, not a refusal at a PPT meeting.

This language also does not deal with the situation in which the district fails to evaluate the student in all areas of suspected disability, 20 U.S.C. §1414 (b)(3)(B). In that case, the parent has the right to an independent evaluation and can seek reimbursement of the costs from the district under the Burlington standard, i.e. when a district fails to provide a student with a free appropriate public education, including failure to properly evaluate or designate a student as eligible for services, the parent has the right to remedy the failure and compel the school district to pay. This is not an IEE under 34 CRR 300.502. Yet, if school districts are permitted to issue detailed guidance on independent evaluations, notwithstanding the clear federal law to the contrary, they should be required to explain this right to parents as well.

The language of the Fairfield criteria goes on to explain that the district has the right to evaluate first. What these criteria do not include is the language of 34 CFR § 300.502 (b)(4), stating that “the public agency ... may not unreasonably delay either providing the independent educational evaluation at public expense or filing a due process complaint to request a due process hearing to defend the public evaluation.” Again, if school districts are to issue guidance on the subject, and I see no authority for them to do so, they ought to fairly and completely state the law. If the parent asks for an IEE and the district claims its right to go first, unless the district conducts its evaluation promptly, the district’s claim to go first is waived and the district must fund the parent’s IEE.

The Fairfield criteria states that the district will recommend evaluators. That service is not authorized in the federal regulations because of the inherent biased relationships which might ensue. Indeed, it has been my experience that school districts have developed overly cozy relationships with certain evaluators who know how to avoid specific recommendations and know how to read the signals sent by school district personnel. Channeling parents to these evaluators defeats the purpose of an independent evaluation. School districts should be precluded from supplying lists unless requested.

The criteria for evaluators is only valid if it is precisely the same as the one used by the district for its own evaluations and if the education, certification, licensure, cost, independence, evaluation content, consultation, timeliness, and location requirements are reasonable and “are consistent with the parent’s right to an independent educational evaluation.” 34 CFR § 300.502(e)(1). It may well be unnecessary to explain in detail just how profoundly and unreasonably inconsistent the balance of the Fairfield document is to the parent’s right to an IEE. Rather than document all the examples of unreasonableness, I will provide examples:

• It is not reasonable to permit a master’s level school psychologist to conduct a psychological evaluation but require a doctoral degree for a clinical psychologist.

• It is not reasonable to require a clinical psychologist to have three years experience evaluating children of the same age level and not require the same thing for school personnel.

• It is not reasonable to require clinical background, advanced training and recent experience in the area of disability for a clinical psychologist and not require the same thing for school personnel.

• It is not reasonable to require a neuropsychologist to have a two year post-doctoral fellowship in neuropsychology.

• It is not reasonable to require an educational evaluator to have a valid, current educator certification from the State of Connecticut.

• It is not reasonable, and not authorized by the federal regulation, for a district to impose rigid cost requirements on evaluators.

• It is not reasonable, and not authorized by the federal regulation, for a district to preapprove or argue down the cost estimate of an independent evaluator.

• It is not reasonable, and not authorized by the federal regulation, for a district to preclude the use of evaluators who have testified against the school district.

• It is not reasonable, and not authorized by the federal regulation, for a district to preclude the use of an individual who has provided treatment for the student as an evaluator.

• It is not reasonable, and not authorized by the federal regulation, for a district to preclude the use of an individual who has advocated for the student as an evaluator. Indeed, for many of the professions of independent evaluators, the code of ethics require the evaluator to act as an advocate for the client.

• It is not reasonable, and not authorized by the federal regulation, for a district to require an in-school observation for all IEEs.

• It is not reasonable, and not authorized by the federal regulation, for a district to require all evaluators to interview school staff.

• It is not reasonable, and not authorized by the federal regulation, for a district to require the independent evaluator to submit to interrogation by school staff.

• It is not reasonable, and not authorized by the federal regulation, for a district to require that school-based information be addressed and discussed in the evaluator’s written report.

• It is not reasonable for a district to require all evaluators to be from Fairfield or New Haven County.

• It is not reasonable, and not authorized by the federal regulation, for a district to pre-approve the identity of evaluators from other areas.

The Darien IEE criteria are more minimally drafted and present fewer problems. Still, many of the same problems exist.

The Connecticut State Department of Education has embarked upon a set of regulations to bring Connecticut’s regulation in line with the IDEA. The Department has an affirmative obligation to ensure compliance by local school districts with the IDEA requirements. In the case of IEEs, we have school districts publicly thumbing their noses at federal requirements. The State Department of Education is obligated under federal law to step in. The regulations need to be amended to state:

“Any board of education may provide the text of 34 CFR 300.502 to parents providing notice of their intent to pursue an independent education evaluation at public expense. A board of education may append to such text a copy of any published board-approved policies for the retention of independent consultants by the board of education. No board of education shall issue, promulgate, distribute, publish or provide any other rules, regulations, guidelines, criteria or similar document purporting to explain the independent education evaluation process to parents.”

Eligibility Standards for Specific Learning Disability

Subsection (b) of proposed RCSA §10-76d-9 is poorly-conceived, counterproductive, and potentially discriminatory against those from poorer communities. The draft regulation states that, if the child fails to make grade-level progress because the district had an inadequate SRBI program, the child cannot qualify for special education designation and the legal protections, added interventions, and accountability that come with a special education designation. So, the draft regulation sentences children with learning disabilities in the weakest schools to double punishment: no effective SRBI and no special education services. This is a violation of child find, directly contrary to the intent of both Connecticut and federal special education law, and inconsistent with the language of the IDEA. More fundamentally, this policy is immoral.

Further, there is nothing whatsoever in the IDEA to support this exclusion. 20 U.S.C. § 1401(30) and 20 U.S.C. §1414(b)(6) provide substantial legal parameters for determining what is a specific learning disability. In neither of these provisions does the federal statute permit the policy of refusing to designate a student as eligible based on the failure of the school to provide the child with an appropriate education. Section 20 U.S.C. §1414(b)(6)(B) provides that “In determining whether a child has a specific learning disability, a local education agency may use a process that determines if the child responds to scientific, research-based interventions as a part of the evaluation procedures.” The ability to use response to SRBI as one factor in determining eligibility is fundamentally different from saying that a child who has already been victimized by poor implementation of a school district’s SRBI must also be deprived of special education services. By adopting the proposed regulation, the State Department of Education would be setting up school districts for a rash of litigation.

Note that, however sound the SRBI program devised by the State, SRBI is certain to be weakly executed in a significant number of Connecticut schools. There are three reasons for this. The first is that SRBI is an intensively data-driven program requiring weekly and, at times, daily data collection, data maintenance, analysis, and presentation. A teacher with twenty or twenty-five children in the classroom does not have the time to implement the SRBI program with fidelity. Many districts do not routinely provide aides. Where there are aides, they are often poorly trained. More to the point, the State is not providing any additional funding to districts to implement SRBI. Indeed, the State is cutting back on funding for local school districts under the Governor’s Budget.

The second reason is that SRBI imposes a large change in the way education is provided and necessitates a change in the culture of schools. Cultural changes take time and tremendous encouragement.

The third reason is the State is doing very little training of administrators, teachers, and aides to administer the SRBI program. The program is complicated. Determining what data to collect and how to analyze it is difficult. Establishing a serious SRBI program in all the school districts in Connecticut is a time-consuming and very expensive proposition. As the United States Department of Education wisely advised in its letter of July 27, 2007, it is unwise to require the use of an RTI process for purposes of special education designation until the program has been successfully scaled up, in an incremental manner, over time.

With many reforms, partial implementation leads to somewhat better results. With SRBI, partial and imperfect implementation will lead to a calamity for thousands of Connecticut school children who will be deprived of any special education services where SRBI fails. Proposing this regulation assumes a universal, viable SRBI system. Such a system does not now exist. More to the point, the proposed regulation punishes disabled students, not the ineffective school districts, for the failure of the district.

In fact, when I raised this issue with Commissioner McQuillen a few months ago, he wrote, on May 20, 2010, “If there is any question or suspicion that a child may have a learning disability, a comprehensive evaluation must be performed even if the child did not receive appropriate instruction or the district did not provide appropriate interventions through their SRBI process.” The proposed regulation runs directly counter to the clear statement made by the Commissioner. This proposed regulation needs to be withdrawn.

Evaluation, Generally

Connecticut should take the lead in vindicating the parent’s right to an evaluation. As Justice O’Connor noted in Shaffer v. Weast, the evaluation is really the most critical protection that the parent has. The regulation should be amended to include the following provisions, some of which are already mandated by federal law or case law:

• Where the district or a hearing officer utilizes a report, evaluation, observation, or testimony of an expert retained by the parent to make any change in a student’s eligibility, program or placement, the costs associated with the report, evaluation, observation, or testimony must be at public expense.

• An independent educational evaluation can be used to assess the disability and educational needs of the child as well as to review the appropriateness of any education placement or program proposed by the district or the parent.

• Parents have the right to an independent educational evaluation both when they disagree with an evaluation conducted by the district and when the district refuses to support an evaluation requested by the parents.

• A district can challenge its obligation to pay for an independent educational evaluation by filing a request for due process within thirty days of notice from the parents of the independent evaluation request. If the district fails to file due process within the time limit, it shall have waived its right to do so and shall be liable for the reasonable costs of the evaluation.

• Parents can trigger an independent educational evaluation with written notice to the district, as well as by requesting the evaluation at an IEP team meeting. After receiving a written request, the district can schedule an IEP team meeting to discuss the request. The time limit to challenge the independent educational evaluation would run from the date of the IEP team meeting or from the date of the letter if the district does not schedule an IEP team meeting within twenty days of receipt of the request.

• Within thirty days of receiving a copy of an independent educational evaluation, the district could challenge its obligation to pay by filing a request for due process and demonstrating at such hearing that the report lacks validity.

• Parents have the right to observe any program or placement proposed by a district and the right to interview staff of such program or placement. Further, the parent has the right to be accompanied by or send in lieu of the parent an expert to conduct such observation and interviews. Any parent or expert observing would be bound to safeguard the confidentiality of other students seen. To address this confidentiality issue, the state should promulgate a form for parents or their experts to sign. In this way, school districts should be prevented from relying on protecting the confidentiality of other students as an excuse not to permit observation.

Section 20 – RCSA § 10-76d-11 (Individualized education program)

Here, the State proposes to sweep away years of Connecticut requirements for IEPs and comply only with minimal federal standards, with the exception that short-term objectives would continue to be required in Connecticut. Again, Connecticut need not subscribe to the lowest standard permitted by federal law. At least, the proposed regulations retain short-term objectives.

Section 21 – RCSA § 10-76d-12 (Meetings)

The parental participation regulations are inadequate. In paragraph 1, parents need to be provided with 10 calendar days, not 5 calendar days notice of a PPT meeting. It is not fair to shorten the time from 5 school days to 5 calendar days.

In paragraph 3, the first remedy for parental unavailability must be to reschedule the meeting. Conference calls or home visits should only be suggested if rescheduling is not possible.

Paragraph 4 needs to be amended to ensure that no PPT meeting is held in the absence of the parents until three attempts have been made to schedule the meeting with the parents present.

Section 22 – RCSA §10-76d-13 (Timelines)

Here, the proposed regulations substantially and inexplicably extend the time lines for school districts to provide special education services. Under the current regulations, an IEP must be implemented within 45 school days, or nine weeks, of the initial referral. Under the proposed regulation, an IEP could be delayed for 90 calendar days, or thirteen weeks or longer. This is simply inexcusable. So, a parent who notices real problems in the first month of school and makes a referral on October 1, is guaranteed an initial referral PPT meeting by October 15. The board then proposes evaluations, which the parent may consent to on October 20. The evaluation then can take 90 days, until January 18. A new PPT is held and the program has to be implemented by February 3. This time line is unacceptable. Under current law, the IEP would need to be implemented by December 10.

Further, under the proposed regulations, the IEP has to be sent to the parents ten school days after the PPT meeting, doubling the current five days.

What makes matters worse is that these timelines are honored more in the breach than in the observance. With no new enforcement sanctions included in the regulations, the message SDE is sending to school boards is that delay and avoidance are perfectly acceptable policies for designating children eligible for special education services.

Timelines are critical to make the process accessible and understandable by parents. Timelines should be clear and enforceable. Further, the timeline should apply not just to new determinations of eligibility but also to evaluations in newly suspected areas of disability. The regulations need to retain a requirement that districts send IEPs and records of IEP team meetings to parents within one week of the meeting. Most important, some meaningful sanction needs to be imposed on districts that fail to meet the provided timeline. An appropriate sanction would be that the district is liable to provide compensatory education for the period of time that the determination of an appropriate IEP was delayed beyond the time limit set in the regulations.

Section 23 – RCSA §10-76d-14 (Program)

The proposed regulation re-enacts and formalizes the diagnostic placement option, while making clear that a diagnostic placement would not be stay put. The diagnostic placement can be an excellent assessment tool when other assessments are borderline or contradictory. The State needs to be vigilant in ensuring that diagnostic placements are only made for appropriate reasons by local school districts.

The proposed regulation also removes the explicit vocational requirement from the Connecticut regulations. This change is acceptable because IDEA 2004 imposed far more elaborate transitional requirements on local boards of education.

Section 24 – RCSA §10-76d-15 (Homebound and hospitalized instruction)

The proposed regulation completely rewrites the law on homebound instruction. The proposal takes the right approach in requiring homebound when the child’s treating physician determines it necessary, after consulting with school health personnel. The appeal to the school’s medical advisor is, however, not fair and not likely to produce a just result. A medical practitioner who is independent of both the school and the parents should make the final determination where there is a dispute between the treating physician and the school nurse. It is not reasonable to expect a fair and impartial decision from a doctor in the pay of the school system.

The proposed regulation needs to be amended to include serious psychiatric and psychological afflictions that preclude school attendance. In those cases, the treating doctor could be a psychologist, who is not a physician.

Additionally, there is no reason to limit the provision of homebound instruction to students attending public schools.

New subsection (e) is unworkable, especially in the case of students with social skills goals in their IEPs. A student on homebound cannot, by definition, participate in general education. It makes no sense to pretend otherwise in this subsection.

Finally, homebound instruction is frequently used as a way to resolve disciplinary problems without utilizing the counterproductive remedy of suspension or expulsion. This use of homebound instruction is not authorized by regulation but can be highly effective to deal with behavioral issues for children with disabilities. The regulation should be amended to permit use of homebound instruction to remove a child from the school environment for a temporary period to deal with a behavioral issue, with the consent of the parents. The regulation needs to be drafted, however, to prevent school administrators from providing homebound instruction as an inexpensive alternative to in-school behavioral therapy.

The school nurses association has made certain proposals relating to this section that should be rejected outright. Essentially, the association proposed that school nurses ought to be able to overrule the opinions of private medical doctors. The absurdity of this proposition is self-evident. Certainly, school officials ought to be able to challenge what private doctors say. Still, final medical decisions need to be made by independent physicians, not nurses employed the school system.

Section 25 – RCSA §10-76d-16 (Placement)

The proposed regulations wipe out the entire priority list for placements previously in the regulations. This priority list ran afoul of federal law and case decisions in numerous regards. Its elimination is a step forward.

Section 26 – RCSA §10-76d-17 (Private facilities)

This proposed regulation makes numerous changes relating to private placements. First, after eliminating the priority for Regional Educational Service Centers (RESCs) in Section 25, the amendments in paragraph (1) would reestablish that priority. There is no basis in federal law, rule or regulation for such a priority. It needs to be eliminated.

Paragraph (3) says the placement shall be at no cost to the parents, but in Section 1, the proposed regulations eliminate the definition of the phrase “at no cost”. If the term is to be used, as it should be, it needs to be defined.

The rigid new requirement in paragraph (4) for the participation of a representative of the private program in the child’s PPT meeting may not work in numerous cases. Often, the district proposes a number of possible placements at the PPT meeting. The parents then visit each one, select their favorite, and the placement is made. A new PPT meeting is held a few weeks later so that the private program can propose goals and objectives. To require that a new PPT meeting be scheduled with a representative of the facility prior to the placement could end up delaying the delivery of appropriate services to children with disabilities, which in a number of cases, would be detrimental to the child. This section should be reworded to provide flexibility.

The additions to paragraph (5) are excellent.

The redrafted subsection (b) is not an accurate statement of the law. A student can be placed in a private special education program for other than educational reasons by the student’s own district, not just by the State. Further, a child can be placed in a private special education program by order of a hearing officer, without any further action by the PPT. Moreover, the language “PPT of the board of education” reflects a serious misunderstanding of the nature of the planning and placement team. The planning and placement team belongs to the child, not to the board of education. The PPT is a collaborative effort of parents and school officials. The PPT does not belong to and is not a subordinate entity within the local board of education.

The striking of the time limits for attendance at a private special education program makes sense.

The expanded requirements on private special education programs are useful. Particularly laudatory is new paragraph (11) ensuring that parents have the right to observe their students in school. The requirements of new subsection (c) need to be applied to schools operated by RESCs as well.

The requirements of Florence County School District #4 v. Carter, 510 U.S. 7 (1993) should be set forth in the regulations to make it clear that parents have the right to unilaterally place their child where the district has failed to provide an appropriate program and that districts have the authority to reimburse parents or directly fund the placement.

Finally, the proposed regulations also would add a new provision, at RCSA §10-76d-17 (c)(12), relating to the Establishment Clause of the First Amendment of the United States Constitution. While it is the case that a private program cannot intertwine the State of Connecticut in the establishment of a religion, it is also the case that private special education programs have to follow civil rights, labor, and criminal laws. To single out one legal requirement to the exclusion of all others raises an unfortunate implication.

Section 27 – RCSA §10-76d-18 (Educational records and reports)

Here, in relation to student records, it makes sense to incorporate by reference federal law. Still, the elimination of the requirement for written school board policies is unfortunate.

The new language concerning prompt parental access to records needs to be amended to ensure that parents can review, inspect, and copy records prior to any manifestation determination PPT meetings or expulsion hearing.

The proposed regulations make no change in the language in RCSA §10-76d-18 (b)(2) concerning access to copyrighted test materials. The language contained is far too restrictive. Under the fair use doctrine, copyrighted materials may be copied. The language should be amended to permit parents to receive copies of test protocols and interpretive material, but not the test forms themselves. Moreover, properly certified experts retained by the parents should have the right to review all information in the possession of the district concerning any test administered, including any answer sheets filled out by the student.

Section 28 – RCSA §10-76d-19 (Transportation)

The amendments to the regulation on transportation are generally satisfactory. The language at the end of subsection (e) is, however, unnecessary. If the board offers appropriate transportation, it has provided FAPE. If the parents disagree, they can take the matter to hearing. The provision of transportation is no different than the provision of special education services or related services in this regard. The verbiage tagged on at the end of subsection (e) is superfluous. More importantly, adding this language in relation to transportation, raises a negative implication when similar language is not added in relationship to programming or related services.

Reference to the federal rate of reimbursement is not clear. The correct reference is to the “standard mileage reimbursement rate for a privately owned automobile (POA) established by the Internal Revenue Service (IRS)”.

Section 30 - RCSA §10-76h-3 (Hearing request; content of hearing request)

The deletion of the mandate that school boards file due process against parents in certain circumstances in subsection (c) is appropriate.

On the other hand, the deletion of the language at the end of subsection (d) reading, “A parent’s right to a due process hearing may not be delayed or denied for failure to comply with the notice content requirements of this subsection” is inappropriate. Parents operating pro se, as many do, cannot be expected to know all the sundry requirements for filing due process. It is not fair to penalize them for failing to comply with the notice content requirements, particularly where the hearing officer can elicit the information during the prehearing conference.

Section 31 – RCSA §10-76h-4 (Statute of limitations)

The amendments to the statute of limitations are appropriate and consistent with the case law. While the revised regulation generally comports with case law, a provision should be added that, in the case of continuing violations, parents may challenge the district’s action for the preceding two years without regard to when the continuing violation started. As an example, Student should properly have been designated as eligible for special education in the second grade. The Student is now in the tenth grade. The Student should be able to seek relief for the preceding two years despite the fact that the initial failure to identify occurred eight years ago.

Section 32 – RCSA §10-76h-5 (Mediation)

It is amusing to find the State Department of Education, which has failed to provide sufficient mediators to resolve pending cases in a timely manner, proposing to eliminate the thirty-day time limit for mediation. The fact is that it currently takes far too long to arrange mediations. The removal of the time limit may be used by SDE to delay the process further. Delaying the process raises costs for all involved. Instead of tampering with the time limits for mediation in the regulations, the State Department of Education should be devoting more resources to training and utilizing mediators.

The proposed regulations on mediation do not go far enough. Currently, a substantial percentage of disputes are resolved through mediation. The State Department of Education declines to get involved in enforcing mediations agreements, but such agreements are purportedly enforceable in state or federal court. However, there is no provision for expediting such enforcement actions and there is no provision for the award of attorney’s fees to parents if they prevail. Hence, a district can generally ignore the requirements of a mediation agreement without fear of consequence. As more instances arise of districts failing to implement a mediation agreement, the attractiveness of these settlements diminishes. Further, there is no one who has the specific task of ensuring that the interests of the child are protected in the mediation agreement.

To remedy this situation, a hearing officer should be asked to review the mediation agreement and the record and accept brief testimony before accepting or rejecting the mediation agreement. The hearing officer would maintain jurisdiction over the matter so that, if one party claimed that the other party failed to abide by the agreement, the hearing officer could act quickly to determine whether the agreement was complied with and, if not, to issue orders requiring compliance.

Section 33 – RCSA §10-76h-6 (Advisory opinion)

Section 33 of the proposed regulations essentially restates the existing regulations on advisory opinions contained in RCSA § 10-76h-6. The advisory opinion route has been one rarely taken because it is not particularly user-friendly. To make it more attractive, the proposed regulation should read that the hearing officer shall, not may, facilitate settlement discussions after rendering the advisory opinion.

The change to new paragraph (6)(E) permitting the parties and the hearing officer to modify the rigid time and witness limitations in the regulation is an important step forward.

Section 34 – RCSA §10-76h-7 (Appointment of hearing officer. Scheduling of prehearing conference and hearing dates)

Section 34 appears to provide new authority to limit the length of a hearing, the number of witnesses, the length of testimony, and the length of cross-examination. The use of the term “sole discretion” is misleading. Any limitation by the hearing officer must be fair to both parties and must be reasonable. Using the term “sole discretion” may inappropriately convey to hearing officers that they have unbridled discretion; they do not.

Section 37 – RCSA §10-76h-10 (Expedited hearings)

The proposed regulation is correct in incorporating by reference the IDEA for the rules governing expedited hearings. The current Connecticut regulation is inconsistent with federal law.

Section 38 – RCSA §10-76h-13 (Conduct of hearings)

It is hard to understand why the proposed regulations strike out the reference to the specific federal authority for the appointment of an independent evaluator by a hearing officer, at 34 CFR §300.502 and instead broadly and vaguely refer to the requirements of Part B.

Section 39 – RCSA §10-76h-15 (Evidence)

RCSA § 10-76h-15 should be amended to establish procedures for telephonic testimony of necessary witnesses for whom travel to the hearing would be unreasonably difficult. This would include school officials and experts attached to out-of-district placements. The rules should provide that the witness is unable to be present for a very good reason; that the witness is sworn in by a notary public; that any document relied upon is submitted in advance to both parties; that the moving party serve on the opposing party a curriculum vitae of the witness five days prior to hearing; and that the notary submit an affidavit after the hearing attesting that the witness relied on no other documents and consulted with no other individual during the testimony.

Section 40 – RCSA §10-76h-16 (Decision, implementation, right of appeal)

Section 40 of the proposed regulations makes no substantive change in RCSA §10-76h-16 relating to hearing officer decisions. This section should be amended to provide that hearing officers can enter consent degrees or settlements between the parties, under the same requirements as were described in the section relating to mediation. There are at least three advantages to this approach. First, the hearing officer, acting much like a federal judge in considering a stipulated judgment, ensures that the interest of the child is protected in any settlement reached between the parties. Second, the hearing officer would assume jurisdiction over the matter and could quickly determine whether any alleged violation had occurred and how to remedy it. Third, the entry of an agreement by the hearing officer would provide the judicial imprimatur required for the award of attorney’s fees in Buckhannon Bd. and Home Care Inc. v. West Virginia Dept. of Health, 532 U.S. 598 (2001). Note that the effect of this provision would be the prompt resolution of more cases. A number of cases do not settle now because the parents need to recover their attorneys’ fees and cannot do so unless they go through a full due process hearing to decision.

Conclusion

Presumably, the draft regulations proposed by the State Department of Education were initially motivated by a desire to make Connecticut special education law and practice entirely consistent with the federal law and regulations. Nothing in the IDEA requires that a state reduce its protection of children with disabilities to the lowest common denominator. Rather, as the First Circuit noted in Town of Burlington v. Department of Education, 736 F.2d 773 (1st Cir. 1984), aff’d, 471 U.S. 359 (1985), the federal law permits states to impose more stringent standards that better protect children with disabilities. Connecticut would be untrue to its heritage as a leader in providing education to children with disabilities if it now retreated to a position of merely providing the minimum protection permitted under the federal law.

The regulatory change concerning designation as eligible for special education services based on a learning disability will deprive thousands of children from lousy schools the right to receive special education services. The current eligibility requirements for a specific learning disability are indecipherable. This proposed eligibility standard, mischievously tucked away in the regulation on evaluations, is dreadful. Drafting the eligibility requirements for children with learning disabilities should be an open, inclusive process, in which the ramifications are well explored. The proposal contained in these draft regulations needs to be withdrawn.

Finally, the State Department of Education needs to address and rectify the attempt by numerous school districts to cut off the right of parents to independent educational evaluations. These regulations are the appropriate place to do so.

Thank you for the right to present testimony. I would, of course, be delighted to answer your questions or dialogue about this.