Thursday, May 17, 2012

Parents’ Right to a Timely and Up to Date 504 Plan At the Start of School


Parents’ Right to a Timely and Up to Date
504 Plan At the Start of School
by Matt Cohen
Publication of a variation of this article is upcoming in the
Next issue of
Additude Magazine

For better and worse, the Section 504 regulations have no provisions addressing when during the year the 504 meeting should take place.   Schools typically hold 504 meetings in the spring in the same time frame as IEP meetings are typically held.  However, there is some what more variability in the timing of 504 review meetings, particularly because they are often initiated throughout the school year.   Some districts adhere to strict policies that the plan must be reviewed a year from the initiation or most recent review date.    This can be problematic, as it is often important to review and revise the 504 plan at the end of the year in preparation for the new year or, at least, at the very start of the new school year. There is nothing in the regulations that requires that 504 meetings be at any particular time of year.    There are a variety of things that parents can do if the school is unwilling to review the 504 plan in time for an up to date  plan to be in place at the start of school. The easiest is to simply provide all teachers with a copy of the current (though somewhat dated) 504 Plan written the prior November when school starts in August or September.   The school should be doing this, but there is no reason why you can't do it as well, just to make sure that the staff get the information.  In all likelihood, this may trigger some reaction from the school, good or bad, but it does assure that the information gets to the staff.   A second option that you have, even given the school's meeting schedule, is to make a request before or at the start of the school year, for a new 504 meeting to occur immediately.  You should probably have some reason other than just wanting the staff to be aware, that you are asking for the meeting, but the school will be in a weak position if they ignore your request.   
(Note that many of these same concerns may also occur in relation to the review of an IEP.   Similar arguments or strategies can also be used to push for an updated review and reconsideration of an IEP prior to or at the start of the school year, even if the school’s review schedule provides for a later review.)
        As the failure to have staff informed of the existence of the plan and unable to implement it effectively denies the student the benefit of the plan, this may represent a violation of the student's right under Section 504 to a "free appropriate public education."  The 504 regulations provide: 

34 Code of Fed. Reg. § 104.33 Free appropriate public education.
(a) General. A recipient that operates a public elementary or secondary education program shall provide a free appropriate public education to each qualified handicapped person who is inthe recipient’s jurisdiction, regardless of the nature or severity of the person’s handicap.
(b)  Appropriate education. (1) For the purpose of this subpart, the provision
of an appropriate education is the provision of regular or special education
and related aids and services that (i) are designed to meet individual educational needs of handicapped persons as adequately as the needs of nonhandicapped persons are met and (ii) are
based upon adherence to procedures that satisfy the requirements of
§§ 104.34, 104.35, and 104.36.

Given this right, if all else fails, another strategy is to verify that the staff do not have the information and are not implementing the plan.  Once you have done this, you have the right to file a complaint with the US Department of Education, Office for Civil Rights, charging the school with non-compliance, or to request a 504 hearing from the District.   The first option is less work for you, as OCR does most of the work.  In addition, if the school has to conduct a 504 hearing, they get to appoint the "impartial" hearing officer.   However, my hope would be that either step would lead the school to either change their policy or at least make sure that staff have the plan and are implementing it, without actually having to go all the way through the process.   You might also consider letting the school know of your concern and your intent to take one of these steps and try to work out an agreement for them to solve the problem without actually initiating the complaint or hearing request.  For information about the OCR complaint process, go to:   http://www2.ed.gov/about/offices/list/ocr/complaints-how.html.  To file a complaint with OCR, go to:   http://www2.ed.gov/about/offices/list/ocr/complaintintro.html.   
A Guide to Special Education Advocacy- What Parents, Advocates and Clinicians Need to Know, Jessica Kingsley Press, 2009, available through our website.
Matt Cohen can be reached at Matt Cohen and Associates, Chicago, Ill., 866-787-9270 or mdcspedlaw@gmail.com.
-- 
Matt Cohen, J.D.

Saturday, May 12, 2012

An Hour (More) In the early morning of an AD/HD Mind

 It is Saturday morning. I awaken an hour before the alarm. It is 5:30 AM...I try to find the clock to see what time it is. Shit, I want to sleep. I need sleep. 

 My eyes hurt from lack of sleep, my throat feels like sand paper from fighting a cold and over use. I have given two speeches, led three IEP meetings, and participated in a long and painful meeting about my mom in the last 72 hours, but my throat has been sore for days. I hope it is just overuse, but maybe I should call a doctor? 

 I fight for lucidity….cursing my inability to sleep. I make coffee and go the the bathroom. I sit on the toilet, counting out my pills for the week (I need my stimulant med refilled), while shaving. Still sitting on my roost.... 

 Dan awakens briefly to pee, (in the other bathroom) disrupted by my activity, despite my effort to be quiet.“Go to sleep, buddy….you don’t have to get up for another two hours"….he pees and returns happily to deep sleep, though I can hear him talking out loud to himself in his sleep. I am jealous. 

 As I count my meds, sitting on the john, my mind shifts rapidly in to high gear. I quickly review what I need to do in the day. First, I need to review and revise my list for the weekend. Already, there are over twenty items, but I am remembering more, including trying to reach the doctor –I need to deal with my throat….and Dan may have broken his nose a few days ago and he may need an x-ray. 

 My mind races. I curse my inability to sleep. My eyes hurt from lack of sleep, but perhaps also from tears from several frustrating events last night, trying to help people I love, but thwarted by things beyond my control. 

 I need to refine my list, but I need to shower, to get Dan ready for bowling and to have my Spanish lesson before I work on my list. Then I will meet Nate for breakfast, perhaps our only chance for private time before he leaves town again….I look forward to the time, but think about his desire to take the 17 year old car with him and how I will respond….and, more importantly, my sadness that he is departing so soon. Oh, and I need to see my folks… 

 As I sit, still planted to the toilet, my mind races to things that have been been percolating in my mind, some for many months, and some just recently.

 An article to set forth a new conceptual model for the Duty to Warn, waiting for me to write it for over a year, but now I have a new idea for the concept, and a new plan for how to get it done….

 An article, new talks, or perhaps a book, based on my presentation Wednesday night, on the parallels and differences between Kubla-Ross’stages of grieving a loved one that is dying or dead and parenting a child with disabilities… 

 The need to review a legal brief that is due soon, to blend my different ToDo lists…..I don’t want to lose those thoughts for the articles…. I need to write them down, but I need to make my list. And I need to visit my folks….I dread it… 

 My mom needs to move from her apartment to the nursing floor. She is upset, confused, scared, lonely, sad, angry, blaming….and still smoking….but I need to see both of them. When to fit it in. 

 Shit. Figuratively at this point. I need to shower quick. Dan’s first alarm is sounding (he has three and often sleeps thru all of them). But I need to write down my ideas for the articles….and I want to write this poem that has suddenly come to me. The clock keeps ticking.

   I race thru my shower, my mind still racing….then I race to write reminder notes for the two articles….

Now I start writing this…is it a poem….an essay…. A diary…..? Why am I writing it….what will I do with it…?   I think I will share it, with whom? It wasn't even on my list. It just popped in to my head. 

 My skype chat beep alerts me that mi maestre escribe sobre mi clase y yo tengo mi clase in trente minutos. Yo necessitar prepararse. It is 8:10. My spanish class starts in 20 minutes. An hour has turned in to more then two....

I need to get Dan up and ready for his bus, but I am not done….and what about my lists….and my eyes still hurt. I need Tylenol….and more coffee, but I need to get dressed and get Dan up and prepared for his bus….

I am not done, but I need to go….but I want to squeeze in just one or two more thoughts, and maybe do something else on the ever multiplying list....a list that grows like rabbits...

My mind races….filled with many things….My mind, by Itself, exhausts me. But at least now I am awake. 

Matt

Thursday, April 19, 2012

The Second Semester Senior Year Surprise- Is Your Kid Ready to Graduate?

The Second Semester
Senior Year Surprise:
Is Your Kid with a Disability
Really Ready to Graduate?
Some Top Tips for Assessing Whether
The Student Is Ready to Graduate!
by Matt Cohen
April 17, 2912

Many parents with children with disabilities have high expectations for the ability of their children to function as normally as possible after graduation. Some students with disabilities have sufficiently severe disabilities that both parents and school assume that the child may require special education services beyond their senior year. On the other hand, many students with disabilities have the capability of functioning with greater independence and may have met the graduation requirements by the end of senior year. Many parents are unaware that even children with less severe disabilities may be eligible for services from the public school system beyond their senior year. A student could be doing great academically, but have great difficulty with social skills, organizational skills or other life skills. A student may be functioning academically but have significant emotional or behavioral issues that impede their ability to function independently. A student could have good grades, but the grades are based on a modified grading system or just the efforts of teachers to pass them along and don’t really reflect mastery of needed skills. A student may even be able to do well in the high school, but have great difficulty generalizing those skills at home and in the community.
Does your student even understand his or her disability and recognize both their abilities and the kind of help they may need in the future? If not, is it realistic for them to graduate, even if they have met graduation requirements? The whole point of special education is to promote the ability of students with disabilities to function as independently as possible as adults. Grades, achievement test scores and even mastery of IEP goals do not automatically mean that the student’s special education needs have been met.


All this is supposed to be discussed during the transition planning process. Transition planning is supposed to start no later than 16 under federal law and earlier under some state laws. Transition planning should begin with evaluation of the student’s academic needs, vocational needs, and other needs that may relate to their ability to function in the world as adults. It should also address their aptitudes and interests. All this information must lead to the develop of a transition plan that includes post secondary goals, that is – goals for what the student will do after they graduate or age out of high school. The transition plan is an integral part of the IEP for students who are in high school and is supposed to be reviewed regularly as part of the annual IEP review process and more often if needed.

The transition planning process is supposed to identify the student’s interests, needs, capabilities, and areas of difficulty. Postsecondary goals are significant, as they provide a separate basis for evaluating whether the child is ready to graduate at the end of senior year. Many parents assume that if the child has met the standard graduation requirements at the end of 12th grade, they must graduate. Many schools are eager for the students to graduate and do not volunteer that the students may be eligible for continuing services even if they have met the formal graduation requirements in regular education.

Ten Key Indicators for Graduation Readiness

10) I still can’t remember my assignments or turn them in! The student continues to have difficulties with organizational skills relating to basic academic activities, despite having average intelligence and the cognitive ability to perform academic activities appropriately. They still lose instructions, don’t turn in homework on time, 8zcan’t keep track of their books, and are always late with work.

9) On the Honor Roll, but has no friends! The student is doing well academically, but has significant difficulty socially and is unable to interact well with peers, seek help, self advocate, or participate in group activities. Friends are important, but these are also skills necessary to function in college, the workplace and the community.

8) Academic & Life Skills are Great, but the Student is so depressed they can’t get up in the morning. Some students have serious emotional problems, despite act adequate daily living skills and academic skills,that prevent them from functioning effectively without significant therapeutic support and management of their emotional issues. They may need further therapeutic support in order for the student to continue in progressing towards their post secondary goals.

7) Great Progress on the IEP, but it Missed Half the Kid’s Needs! Sometimes a student may have made good progress on the needs and goals in the IEP, but the IEP did not address key areas of functioning. This can occur due to inadequate evaluation, reluctance to do too much, or denial that the problem is serious. These might include things like access to and ability to use assistive technology, lack a awareness of key community resources, transportation options and how to utilize them, or inability to seek help in an emergency. ! Despite the requirement for evaluation and periodic reevaluation, it is not uncommon to discover late in high school that the student has disabilities that were not identified, were misdiagnosed, or did not manifest themselves until the student was in adolescence. Whatever the reason that a disability has been missed, if it is likely to significantly interfere with the student’s ability to meet their post-secondary goals and function as independently as possible, it is never too late to start working on responding to newly identified problems.


6) I should be able to, but I still can’t read or do math! Many schools reduce or eliminate remediation of academic deficits for students by the time they are in sophomore or junior year. For students with LD, some schools assume that if you haven’t overcome the learning disability by then, the focus should be on accommodations only. For students with cognitive delays, the assumption may be to focus exclusively on life skills, with out realizing that reading, math and writing are life skills too. If the student has the capability of making academic progress, but needs more remediation, this can be a reason for continuing services.

5) I am great with math in the resource room, but not at McDonald’s. Many students develop skills that they can use n the school setting with considerable supports and structure, but have not had the opportunity to practice or use the skills independently. Although the student has made considerable progress with a high-level support, the student lacks the ability to function perform the skills without those supports. THE WHOLE POINT OF SPECIAL EDUCATION IS TO PROMOTE THE STUDENT’S ABILITY TO LEARN AND GENERALIZE THE SKILLS SO THEY CAN FUNCTION MORE INDEPENDENTLY IN THE COMMUNITY!!!!

4) I met graduation requirements, but not my IEP goals.
If significant IEP goals have not been mastered and the student continues to require additional time and assistance with respect to those goals and objectives, graduation may be inappropriate.

3) My transition plan listed great services from other agencies,
but none of them have been provided. Schools are allowed, even encouraged, to utilize other agencies and resources to address various transition needs for students with disabilities. For example, they may refer a student to a state operated vocational program. However, the IDEA provides that even if the transition plan provides for referral to outside agencies, if those agencies don’t provide the needed services, the IEP team must reconvene and find other ways to meet the student’s needs.

2) I met my goals, but still need more. The student may have mastered alter goals and objectives for senior year but have continuing needs in order to be able to function as independently as possible in relation to their postsecondary goals.

1) OMG. My baby will never make it. Schools are not required to cure disabilities or ensure that every student with a disability achieves full independence. But they are required to have appropriate evaluations, to have an appropriate, individualized transition plan geared to the student’s needs, aptitudes and interests, and to provide the services necessary to allow the child to have the ability to achieve the appropriate post-secondary goals developed by the team. If the student is not ready to enter the world because the school has failed to meet its obligations, the student should not graduate.
These are just some of the indicators of when students may have significant needs to justify ongoing special-education services. Many students are reluctant to continue to attend high school, as this may be perceived as a failure or retention. Many schools also have off-site transition programs or services in the community, which may help the students develop skills without having to feel that they're still in high school. In addition, high schools should have some vocational programming that allows the students have paid or unpaid work experiences to develop work-related skills. Under some circumstances, schools may not have adequate or appropriate transition services and it may be necessary to develop a program from scratch or to seek services through a private transitional program at school district expense. In any event, graduation terminates the school districts responsibility for services. If the parents object to the student's graduation at the end of 12th grade and the school is insisting on graduation, the parents may need to request a special-education due process hearing prior to graduation in order to block the graduation. Doing so requires a school to provide continuing services while the dispute is resolved. Ultimately, it may be possible to resolve the graduation issue without having to go to a due process hearing, but in any event, the school must continue to provide services while the due process hearing is pending.

The parent should also be aware that when their child turns 18, or the age of majority in the particular state, the student becomes the decision-maker, unless they have delegated authority for decisions to the parents. It's important for the parents be aware of this in advance, so that they are not caught by surprise when they are facing the student’s 18th birthday and are told that they no longer have a right to participate in the process. Schools are actually required to give parents notice of this change of responsibility when the student turned 17, but many people are unaware of this rule.
There are many creative options for students in relation to the development of meaningful transition supports, in relation to academics, vocational activities, and life skills. These do not have to be limited to services within the walls of the public high school. Be creative and remember that the transition plan is part of the INDIVIDUALIZED EDUCATIONAL PROGRAM.

Saturday, April 7, 2012

Passover, Easter and Thoughts on Freedom

Passover and Thoughts on Freedom
By Matt Cohen

Tonight, my family gathered to celebrate the Passover Sedar. The sedar commemorates the liberation of the Jews from enslavement by the Pharoh, the parting of the Red Sea and the passage from bondage to freedom, from poverty to the land of milk and honey, from oppression to self-determination. It celebrates the transformation from slavery to freedom, from sorry to joy, from darkness to great light, from bondage to redemption. By leaving the front door open for the Prophet Elijah to join the celebration, it also conveys a message of inclusion, that any one is welcome. That the family, the community, embrace everyone.

We promote inclusion and equality, but most of our wealth is concentrated in the top few percent of the population. Many worry about the national debt and complain about taxes and government programs to assist the poor, those with disabilities, or immigrants from foreign countries. These same critics ignore the underlying values embodied in our Constitution of liberty, justice and equality for all, unless it is their own liberty, freedom or economic position that is threatened.

At a personal level, It happens that this is a time of many transitions for me, for my family, for our society, for the world. We celebrate freedom, but we must not take it for granted. We have many things that are difficult, many changes that are challenging, painful, or worse. Pain and opportunity, instability and possiblity, suffering and adaptation, and the potential to preserve much that is good, learn from mistakes and cope with the pain, while growing and building....many things that hold the potential for more freedom, at the same time that many things constrain our desires and abilities to do what we wish or to have some of what we have cherished in the past.

Whether at a societal level or a personal level, freedom defines the nature of our existence. But many take freedom for granted. Freedom is not permission to be selfish, or a pass to focus on one’s own needs to the detriment of the community. Freedom is not having permission to just do what is best for oneself without regard to the needs of others or the impact of our actions. Freedom carries with it responsibility – to oneself, to one’s family and loved ones, to one’s immediate community, and to the society and world at large. Freedom gives us the right to make choices, but the obligation to make choices responsibly, with awareness of the consequences for others as well as our selves.

Freedom is not free…..it is the most expensive thing there is. We must defend it fiercely, not only for ourselves but for those less powerful, those without a voice, without a house, without a vote, without a choice. Freedom does not mean ignoring others’ needs, rights, desires, but rather acting in a way that balances our own rights and needs with those of those around us.

We have the freedom to disagree, but we must do so in a way that is respectful of the right of the other person to their own opinion. We must respect majority rule, but we must be mindful of the tyranny of the majority, the corruption of power that is too concentrated, the danger that demonizing those who disagree risks stifling an open society, community, or even open communication in a family.
We are free to have children, but we have the responsibility to care for them. We are free to have relationships and marry, but we must be conscious of the needs, rights and autonomy of our partners. Freedom is not a blank check that entitles us to what we want, without regard to others. Freedom is a fine balance between oppression and anarchy, between selfishness and selflessness, between isolation and sacrificing oneself to the community. Freedom is an individual right that is protected by collective commitment. Collective freedom is protected by individual commitment.
The path to the promised land carries with it hard work, compromise, sacrifice and commitment not only to one’s own needs but to the needs of others, not only to one’s own family, but to the family of humanity. The land of milk and honey is not a utopia filled with luxury, but a place where seeds must be planted, flowers watered, weeds pulled, and the fruits of our labor harvested together. The possibility of freedom, real freedom that is not transitory or at the expense of others, necessitates an awareness that freedom is also a form of obligation. We open the door for Elijah as a message that we prepare the meal not only for ourselves but for all that are hungry. We may have to work harder and give up some of own desires at the moment to have enough food to keep the door open for those with less. This seeming sacrifice of our freedom actually helps to preserve opportunity, equality and freedom for all of us. At this moment, freedom may be a burden, even a sacrifice,, but it is also a form of insurance, an investment in the family, community, society and good of humanity, that gives us many things that would not be possible if we only acted for ourselves.

Let us walk together from oppression to freedom, arm and arm, tasting the fruits of our labor and sharing the sweat of our effort. Let us embrace the noble responsibility of freedom, not just the transient pleasure of actions we take in the name of our own freedom and self-fulfillment without regard for others or for the consequences of our actions. Let us walk to the promised land, the land that was promised for all of us, not just some of us. Happy Pesach, Happy Easter. Let these holidays be a celebration of our collective freedom and our commitment to protecting this freedom for all.

Sunday, February 5, 2012

School uses text message to suspend students for alleged drug use

A recent Chicago Tribune article focussed on a massive school district drug crackdown based on confiscating the cell phone of a student suspected of dealing drugs and then tracing all his text messages to other students. See my position on this in the article. I think this this is a gross invasion of student privacy and has the potential for many students to be implicated that may not be guilty of anything worse than trash talk, but it is also a lesson in why kids (and adults) need to be much more careful about what they put in text messages and emails.
http://www.chicagotribune.com/news/local/ct-met-stevenson-drug-probe-20120202,0,1472927.story

Wednesday, October 26, 2011

Beware the IQ Score: New Research Challenges Our Ed Policy and Practice

Beware the IQ Score: New Research on Intellectual Development Challenges Traditional Educational Policy Based on Reliance on IQ Scores and the Assumption that a Person’s Intelligence is a Constant

By Matt Cohen

For over a hundred years, researchers, educators and others have debated about the factors that contribute to human intelligence. It has been generally believed that a person’s intelligence was primarily innate, that is that it was based on their genetic makeup and under most circumstances would remain constant. Intelligence might decline due to severe illness or neurological trauma affecting the brain. It might be subject to some positive influence through early interventions such as Headstart. However, for most people, one’s intellectual ability would remain relatively the same throughout their healthy life. This belief has had an enormous impact on educational policy. Formal and informal tracking systems in regular education and programming and placement strategies for many children with disabilities have been heavily influenced by the belief that one intellectual potential was essentially constant and not significantly related to one’ s education, upbringing, enrichment experiences and other external factors. The possibility that one’s intellectual ability or potential could be positively or negatively influenced by the quality and intensity of education and other positive or negative environmental experiences should dramatically change our commitment to providing more intensive and sustained educational experiences for all children, rather than assuming that the intellectual cake is baked by adolescence, if not earlier In addition, the belief that intellectual ability was constant gave measuring a person’s intelligence n special importance, as it appeared that it was not only possible to assess a person’s intellectual functioning at a particular point in time, but that, barring neurological damage, that assessment was likely to be predictive of the person’s intellectual performance from childhood onward. In other words, your intellectual ability, whether high or low, was essentially thought to be pre-determined. .

Remember that one’s native intelligence or intellectual ability does not equal one’s performance. As well, IQ tests purportedly measure intellectual ability or potential, where academic achievement tests are intended to measure what a person has learned. A person can have high intellectual ability and perform poorly academically. This can occur due to the presence of a learning disability, poor teaching, lack of motivation or many other factors. The converse was generally believed to not occur- one could not generally function academically higher than one’s intellectual potential. The growing recognition that a person’s intellectual ability can be influenced by their academic experience, positively or negatively, undermines some of the key assumptions about how we educate people and how we structure curriculum and resources for education. If a person’s intellectual ability can be substantially improved with higher quality teaching and can be negatively impacted by poor teaching (and other environmental factors), it raises the stakes enormously in relation to the need to provide “the best” or at least “much better” education, as opposed to the minimally adequate education that we often currently provide.

Complicating matters, even assuming that the beliefs about intellectual development are accurate, modern societies and particularly the United States, have attached tremendous importance to the assessment of intelligence and have used IQ scores for everything from kindergarten classroom placement to qualifications for employment. There are even organizations for the intellectually gifted. IQ scores follow us from an early age—either a gold badge of ostensible superiority and promise or a scarlet brand on the forehead—a numerical message that the individual has limited ability for intellectual growth or performance.
Adding insult to injury, there are many problems with the accuracy of IQ testing. The tests are often based on norms (comparison groups) that may not adequately represent all of the people being tested (you can’t predict the IQ of an apple when you are comparing it to the IQ of an orange). They often are dependent on means of testing that do not adequately control for the limitations of the tests. For example, few evaluators would give an IQ test requiring vision to someone that is blind, but many IQ tests requiring language are given to people with language problems and most if not all IQ tests require attention and concentration, though some people that are very bright have problems in these areas.

Our educational, vocational and even social policies are in many ways based on the belief that one’s intelligence is static. Consider the degree to which schools shift from a regular curriculum to a “functional” curriculum for children labeled as mentally retarded. Or that the law allows schools and parents to waive the requirement for three-year reevaluation based on the assumption that the child’s functioning may not have changed much. Or that a high or low IQ scores can entitle one or exclude one from special benefits, from disability benefits for those with developmental disorders to extra accelerated educational programming for students considered to be “gifted.”
Although still a source of controversy, there is a variety of research that also suggests that teacher expectations for students, based to some degree on the perception of the student’s intellectual potential, create a self-fulfilling prophecy that impacts the student’s academic and overall performance. (See for example http://www.education.com/reference/article/teacher-expectations/
and http://american-education.org/1999-self-fulfilling-prophecy.html )
Indeed, it is my suspicion that this phenomenon is present not only among educators, but with parents, families, employers and the society at large. If someone is told that a person is cognitively delayed or intellectually gifted, most people adjust their expectations accordingly. In turn, this often has a significant impact on the person’s self-perception, self-confidence, motivation, and performance. But at the most fundamental level, the assessment of intellectual potential for many people significantly influences the level of information and experience that they are exposed to. The assumptions about the person’s intellectual ability drive the type of academic instruction they receive, the content, rate and intensity of material, the expectations for progress, and even the types of cultural experiences they may have. Does the IQ brand impact performance? It is hard to imagine otherwise. There are many reasons that this is problematic, but especially if the brand is not accurate or reliable.

But new research about intellectual development raises even stronger concerns about the assumption that IQ is static—the assumption that we can take snapshots that allow us to accurately assess it and respond to the individual or groups of individuals based on these assumptions in ways that presume to link the level of instruction, cultural experience and vocational potential to performance predictions based on the IQ scores. This past week, Nature magazine (a UK-based science magazine) published a study indicating that the intellectual ability of students continues to change through their teen years. Cathy Price, at the University College of London, conducted this study on teens between the ages of 12 and 16. Her team found that a teenager’s IQ can rise or fall as much as 20 points over the short span of four years. In the statistical analysis of IQ scores, that 20 point difference in IQ score could represent the difference between a label of average and gifted or average and cognitively impaired. In her study, 20% of participants moved either way on the intelligence scale—showing the ability of experience to alter intelligence. Such changes were found to actually correlate with changes in brain structure. While the study is still new, and its findings require more research for any broad conclusions, it provides hope that intellectual potential may not have the plateau we once thought. Early assessment may not be a telling indicator in all circumstances, which should alter the way we think about education, academic performance, and our children’s potential. This is especially true in relation to children with disabilities, as there are a number of very important educational, programmatic and even procedural decisions that have historically been heavily influenced by our assumptions about the static nature of intelligence.
In light of this research, consider these principles in relation to testing, intelligence and expectations:

1. SHATTER THE INTELLECTUAL GLASS CEILING!
First, if as the research suggests, a child’s cognitive ability (not performance, but actual intellectual ability) can be dramatically influenced by non-physiological factors, we need to rethink our entire approach to educational theory, programming and tracking systems. Rather than assuming that a student with a low IQ scores in elementary school is developmentally consigned to function at a low cognitive level for life, justifying an educational plan that lowers expectations, content, and intensity, there may be renewed basis for raising standards, expectations, and intensity to promote the potential intellectual growth of the student, as well as their academic achievement. If we teach low, this research suggests that we may miss the opportunity to shatter our self-imposed cognitive glass ceiling.

2. DON’T BASE EDUCATIONAL PROGRAMMING DECISIONS ON OUT OF DATE OR INACCURATE SNAPSHOT IQ SCORES OR JUDGEMENTS BASED ON ASSUMPTIONS ABOUT THE PERSON’S INTELLECTUAL POTENTIAL!
Second, the research highlights the tremendous danger in utilizing IQ snapshots, particularly from testing performed when children are in elementary and junior high schools, to track students. The misuse of IQ scores may occur in relation to the determination of whether someone has a cognitive disability or simply based on gradations of ability within the regular education population. By making tracking decisions based on the early IQ scores, or even based on perception of intellectual ability driven by teacher or parent judgment, even without IQ testing, we assure that the students perceived to be less intellectually capable will be provided a lower level of instruction, potentially guaranteeing a lower level of performance by an individual capable of developing further. The new research showing that a child can experience gains or losses in intellectual ability through adolescence, based on environmental and educational (that is, non-medical) factors, calls into question whether the use of IQ tests as a significant, if not controlling, factor in relation to placement and programming decisions violates the IDEA’s protections against misuse of testing. The IDEA provides:

(b) Evaluation Procedures.--….
(2) Conduct of evaluation.--In conducting the evaluation, the local educational agency shall--
(A) use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information, including information provided by the parent, that may assist in determining--
(i) whether the child is a child with a disability; and
(ii) the content of the child's individualized education program, including information related to enabling the child to be involved in and progress in the general education curriculum, or, for preschool children, to participate in appropriate activities;
(B) not use any single measure or assessment as the sole criterion for determining whether a child is a child with a disability or determining an appropriate educational program for the child; and
(C) use technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors.
(3) Additional requirements.--Each local educational agency shall ensure that--
(A) assessments and other evaluation materials used to assess a child under this section--
(i) are selected and administered so as not to be discriminatory on a racial or cultural basis;
(B) the child is assessed in all areas of suspected disability;
(C) assessment tools and strategies that provide relevant information that directly assists persons in determining the educational needs of the child are provided;
20 U.S.C. Sec. 1414 (b)

If a student is capable of experiencing considerable cognitive growth based on their educational experience, it is inconsistent with these provisions to base their programming on a single IQ test or even a set of scores that assume a static level of intellectual functioning. Instead, those scores may offer a baseline for the student’s potential functioning, rather than a ceiling. Educational decisions based on lowering expectations or programming based on these scores become questionable, both educationally and legally.


3. DON’T TRUST IQ TESTS OR SCORES OR LET THEM DEFINE PERCEPTIONS OF A PERSON’S POTENTIAL
In a 1997in an effort to streamline the evaluation/reevaluation process for students receiving special education services, Congress modified the IDEA to eliminate the previously absolute requirement that all students receiving special education services be given a full reevaluation, including new psychological (including intelligence) testing, at least every three years. 20 U.S.C. Sec. 1414 (c)(4). Perceiving the testing to be costly, time consuming and sometimes unnecessary for students whose intellectual or other development appeared static, Congress gave schools the option to recommend either reduced or no retesting if they felt that the student’s functioning was generally constant.
34 CFR Sec. 300.303 Reevaluations.
(a) General. A public agency must ensure that a reevaluation of each child with a disability….
(2) Must occur at least once every 3 years, unless the parent and the public agency agree that a reevaluation is unnecessary.

Parents retain the right to insist on full testing, but frequently acquiesce to limited or no testing based on school recommendations, particularly for students with labels of cognitive impairment, due to the belief that their cognitive ability could not vary significantly. But it is important for parents to remember they have the option of insisting on full and up-to-date reevaluations at least every three years. Given the inherent limitations in IQ testing, these reevaluations would often be advisable even in the absence of the new research on brain development. However, in light of the new research, it seems even more important for schools and parents to recognize and implement more frequent, comprehensive periodic reevaluation in order to ensure that the student’s programming is adequately challenging them and giving them the greatest degree of opportunity for intellectual growth and enrichment.

4. WHEN TESTING, PICK TESTS THAT FIT THE STUDENT AND RECOGNIZE THEIR LIMITATIONS
No IQ test can take into account the many variations in individual functioning that affect the accuracy of the testing. For example, many IQ tests rely heavily on language skills. A person may have considerable intellectual ability, but language impairments. A language based IQ test would likely yield a score suggesting low intelligence. However, there are non-verbal IQ tests that would help to control for this. Similarly, there are IQ tests that require less motor skills. It is very important to be sure that IQ tests are actually testing the person’s IQ, and not something else that limits their ability to test.

In “The 7 Habits of Highly Effective People,” Stephen Covey writes that “Principles are like lighthouses. They are natural laws that cannot be broken….The ‘objective reality,’…is composed of ‘lighthouse’ principles that govern human growth and happiness-natural laws that are woven into the fabric of every civilized society throughout history and comprise the roots of every family and institution that has endured and prospered….[there is] the principle of fairness….of integrity and honesty….of human dignity….of service….of quality or excellence. There is the principle of potential, the idea that we are embryonic and can grow and develop and release more and more potential, develop more and more talents. Highly related to potential is the principle of growth-the process of releasing potential and developing talents, with the accompanying need for principles such as patience, nurturance and encouragement.” (emphasis added)

Covey did not write this in reference to the development of the brain, nor in reference to IQ testing, scores, and the ways that our society sets artificial limits based on lowered expectations. He did not write in reference to our educational system and whether it should be structured based on achieving minimal outcomes or to promoting and nurturing and enhancing each individual’s chance to grow as much as possible. But as I read the passage above, by pure coincidence, as I was in the midst of writing this essay, the connection was unavoidable. OUR BASIC PRINCIPLES, OUR BASIC HUMANITY, DEMAND THAT WE PROMOTE THE FULL POTENTIAL OF EVERY INDIVIDUAL. AN ENHANCED RECOGNITION OF THE EXISTENCE OF EVEN MORE POTENTIAL FOR GROWTH IN EACH OF US ONLY STRENGTHENS THE PRACTICAL AND COMMON SENSE BASIS FOR WHAT IS A MORAL IMPERATIVE – EVERY INDIVIDUAL HAS A RIGHT TO GROW TO THEIR FULL POTENTIAL. OUR SCHOOLS, OUR SOCIETY, OUR OWN EXPECTATIONS SHOULD ENCOURAGE THAT, SHOULD INSIST ON THAT AND SHOULD SUPPORT EACH PERSON IN THEIR UNIQUE EFFORTS TO ACHIEVE IT!

Sunday, October 2, 2011

What, No Recess???!!! - Blowing Off Steam and the “Right” to Exercise for Kids with AD/HD – Countering a Knee Jerk School Punishment”


(Appearing in Fall, 2011 issue of ADDitude Magazine,
www.ADDitudemag.com).

by Matt Cohen, J.D.

“What, no recess!!!!” Johnny screams after being told that he will not be able to participate in recess because he talked in class without raising his hand.

“What, no recess!!!” Rachel stammered, after being told that she couldn’t have recess because she hadn’t earned enough points on her behavior chart for completing her classwork on time because she was too distracted.

“What, no recess,” Matt cried, because he kept getting up to go to the bathroom and the class behavior plan said that all students lost recess if they got out of their seat more than once during class.

There is lots of research showing that exercise and physical activity help students improve academic performance and behavior.
A recent report by the Centers for Disease Control supports this:

“School boards, superintendents, principals, and teachers can feel confident that providing recess to students on a regular basis may benefit academic behaviors, while also facilitating social development and contributing to overall physical activity and its associated health benefits. There was no evidence that time spent in recess had a negative association with cognitive skills, attitudes, or academic behavior.” http://www.cdc.gov/healthyyouth/health_and_academics/
pdf/pa-pe_paper.pdf (July, 2010)

Recess is good for kids. Does it make sense to use it as punishment or require that it be earned?
NO!!!!!! Research confirms the importance of recess and extra physical activity for kids WITH AD/HD! A study in a school psychology journal concluded:

“Results showed that levels of inappropriate behavior were consistently higher on days when participants (with AD/HD) did not have recess, compared with days when they did have recess. Results also showed that the level of inappropriate behavior for all participants progressively increased over time on days when they did not have recess. However, this progressive increase did not occur on days when the participants had recess.”

Effects of Recess on the Classroom Behavior of Children With and Without AD/HD.
Ridgway, School Psychology Quarterly, Vol 18(3), Fall, 2003, 253-268.

KIDS WITH AD/HD ARE LIKELY TO BEHAVE BETTER AND BE MORE ENGAGED ACADEMICALLY WITH RECESS AND OTHER PHYSICAL EXERCISE. LINKING RECESS TO REWARDS OR PUNISHMENTS DOESN’T MAKE EDUCATIONAL SENSE!

Unfortunately, the federal special education or disability laws do not explicitly address a right to recess. However, apart from the research and common sense arguments for kids with AD/HD need recess, the federal laws support the right to recess for kids with AD/HD and related disabilities.

First, every child with an IEP or Section 504 plan is entitled to an individual program, designed to meet their needs, including accommodations and special supports. For many kids with AD/HD, there is a need for at least equal, if not even more opportunities for exercise, then for typical students. If the activity is needed for the child to benefit from education, it should be provided, not withheld.

Second, the IEP should include “positive behavior interventions and supports.” If a student needs recess in order to help them stay on task or discharge excess energy, it should be written in to the IEP as a part of the student’s accommodations and/or behavior plan.

Third, when schools are developing behavior plans or administering discipline, they should do a functional analysis of the relationship of the student’s disability to the behavior, including whether they may need recess or if removing it makes things worse. Research shows that depriving a student of recess is unlikely to promote positive behavior and may result in increased inappropriate behavior.

Finally, Section 504 prohibits discrimination on the basis of the nature or severity of a student’s disability and requires that students with disabilities be given equal access to school programs and activities. Excluding a student from recess for behavior relating to their AD/HD may be discriminatory because they are being punished based on their disability.

Parents and educators should promote recess and additional breaks as a positive support for children with AD/HD, rather than something that must be earned or can be removed as a punishment. That not only conforms to the provisions of federal law, it makes good sense!

Matt Cohen provides legal representation to children, adults and families with AD/HD and other disabilities in Chicago. He writes and speaks frequently on AD/HD, special education and disability issues throughout the US.
mdcspedlaw@gmail.com disablethelabels.blogspot.com
Phone: 312-961-4179
This article is not intended as legal advice. If you have a problem with your child’s school, you should seek informed leg