Author: Justin S. Gilbert

A lot of us remember when school went from being fun to being “boring.” For some, homework suddenly meant more than coloring, and the teachers stopped setting aside nap time. For some, it happened when hanging out with friends became more exciting than studying for tests. For others, school never lost its appeal at all. We all had different experiences.

Hopefully, we all have a few things in common, too: not one of us ever had our heads slammed into a desk by a therapist. Not one of us ever came home with bite marks. Not one of us ever had our teachers use martial arts techniques to restrain our movements. But some of our clients have.

The Associated Press recently cited three separate cases of ours in a piece which looks at the extreme lengths some teachers have gone to keep their disabled students quiet and under control. “The U.S. Government Accountability Office found hundreds of allegations of abuse and even deaths associated with the use of restraints and seclusion in the nation’s public and private schools over two decades before 2009. Seven years later, Congress has yet to approve comprehensive legislation to limit these practices, which are disproportionately used on disabled children” (emphasis ours).

Sadly, some educators continue to practice restraint, seclusion and isolation not as a last resort, but as a first means of approach when it comes to “working” with students with disabilities. Sometimes this occurs where the school system has lumped “their children into classrooms where the students’ only common bond was their disability, not their age, grade or academic ability.”

The problem is national in scope

These problems are receiving more attention nationally. The U.S. Education Department’s Office of Special Education Program is investigating Texas for putting limits on how many students with disabilities they are willing to help. The U.S. Justice Department is suing the state of Georgia for its discriminatory practices when it comes to segregating special needs students. Here at home, we receive calls of abuse ranging from children being struck, children being confined against their will, and children being subjected to police presence unnecessarily. These stories occur more frequently than we would like to acknowledge, and they only deal with publicly funded school systems – yet we know that such discrimination abounds in charter schools around the country, too.

Lack of funding, poor training, bureaucratic red tape: there is never an acceptable reason why a 5-year-old boy with autism and limited verbal capacity should say to his mother, “No school. I’ll die.” Parents should not have to resort to sending their children to school with secret tape recorders to find out the true extent of abuse against their children. There is no reason to abuse a child at all.

School may not always be fun, but it should never be dangerous.

That is why the Gilbert Firm takes these cases of discrimination and abuse against students with disabilities throughout Tennessee. That is why we fight on behalf of those who do not have voices, or who cannot hold up under the strain of finding out their children have been abused by the education system. That is why we will continue to push for safer schools – for all students – in Tennessee, and to uphold federally mandated laws designed to serve and protect special needs children.

If your child has sustained injuries, been subject to abusive techniques, or has been denied a fair and appropriate education in Tennessee, the Gilbert Firm stands with you. Justin Gilbert and Jessica Salonus are known throughout the state for the skilled and aggressive defense of the rights of special needs students. To learn more about our services, or to schedule a consultation with an experienced Tennessee special education law attorney, please call 888.996.9731, or fill out our contact form. The firm maintains multiple offices to better serve clients in Nashville, Knoxville, Chattanooga, Memphis, Jackson and the surrounding areas.

 

Response to Intervention, or RTI, is designed to intervene on behalf of students with learning disabilities who may be struggling, so those students can get the help they need early on in their education. On paper, and to parents, it sounds sensible: all the students are assessed (Tier 1), and if their children are assessed at below-level for reading or math, then the kids will receive targeted, supplemental instruction in those areas (Tier 2). If the students continue to struggle, they will be given “individualized, intensive interventions that target the students’ skill deficits” (Tier 3).

The program is well intended. However, issues with RTI are cropping up. Among them:

1. Many State Boards of Education adopted RTI, but without providing proper funding to do so.
2. RTI is sometimes used in lieu of spending money on supplemental and assistive tools for students with disabilities under IDEA or Section 504, which is against federal law.
3. Because RTI tiered interventions are based on a specific core set of numbers and assessments, they may not take into account the individual needs or struggles, and therefore may actually hold a student back from learning altogether.

We could go on, but we want to focus on these three areas in particular.

A quick look at results

We want to look at each of these reasons separately, and really break down some challenges with the RTI system, but we know that sometimes people need to see the numbers for themselves. Some recent findings by the National Center for Education Evaluation and Reginal Assistance are not positive:

“This study examines the implementation of RtI in Grade 1–3 reading in 13 states during the 2011–12 school year, focusing on 146 schools that were experienced with RtI. Full implementation of the RtI framework in Grade 1–3 reading was reported by 86 percent of the experienced schools. Fifty-five percent of these schools focused reading intervention services on Grade 1 students reading below grade level, while 45 percent of the schools also provided reading intervention services for Grade 1 students reading at or above grade level. Students who scored just below school-determined benchmarks on fall screening tests, and who were assigned to interventions for struggling readers, had lower spring reading scores in Grade 1 than students just above the threshold for intervention. In Grades 2 and 3, there were no statistically significant impacts of interventions for struggling readers on the spring reading scores of students just below the threshold for intervention” (emphasis ours).

If you are interested in the research that has gone into assessing outcomes, you can download a PDF from the NCEE.

Lack of Funding for RTI

The first reason we listed – lack of funding – is self-explanatory. As Grace Tatter at Chalkbeat explains, “Districts have had to spend hundreds of thousands of dollars on assessments, and don’t have the money to hire educators with the expertise required to work with the highest needs students. Some schools are using their general education teachers, already stretched thin, and others are using computer programs.” Still others have diverted Title 1 funds, but not every school has that option. This lack of funding affects everything.

Trouble for students with disabilities

Second, under the IDEA and Section 504, students with disabilities are guaranteed a free appropriate education in the least restrictive environment possible. This means that, if a student needs adaptive technologies or supplemental tools, the school must provide them under the law. The process of identifying eligible students and providing them tools and supports is known as “Child Find.” To “find” these students, schools must “recruit, hire, train, and retain highly qualified personnel to provide special education and related services” to the students. (20 U.S.C.§1412(a)(14)(D).)

Special education services, tools and assessments are not the same as RTI. They just aren’t. In 2011, the United States Department of Ed advised schools that RTI is not a substitute for an IEP under IDEA or a 504 plan. Memorandum to State Directors of Special Education, 56 IDELR 50 (OSEP 2011). Unfortunately, we have seen children get “lost in the tiers of RTI,” moving up and down, as if on an elevator, never proceeding to an IEP evaluation or 504 assessment.

From Texas to Hawaii, cases are cropping up across the country of “RTI overload” or misuse of “alternative strategies”—where special education services should have been considered and delivered. A smattering: Harrison (Colorado), 57 IDELR 295 (OCR 2011); Indian River County (Florida), 58 IDELR 52 (2011); Scott v. District of Columbia, 2006 U.S. Dist. Lexis 14900 (D.D.C. 2006); El Paso Indep. Sch. Dist. v. Richard R. (Texas), 567 F.Supp.2d 918 (W.D. Tex. 2008); Cari Rae S., 158 F.Supp.2d 1190 (D. Hawaii).

On the other side of the coin is this: not every student who fails an assessment has a learning disability, and asking educators who do not have the training to make such an assessment to do so puts every student at risk. The lack of individual assessment also means that some schools may use the RTI system as a way to segregate students completely.

If your child is a student with learning disabilities, as a parent, you have the right to request testing for your child. Neither of you should be forced to jump through the hoops of RTI assessment by non-qualified educators, especially if that so-called targeted instruction will be wasted on your child, who – under federal law – is guaranteed the right to an appropriate education.

Lack of Individuation

Third, there is a distinct lack of individualization with Tiers 1 and 2. For example; let us say a student does not pass the reading assessment, because he does not read the words in a list quickly enough. It could be that he doesn’t know them, or it could be that he’s bored (this level of assessment starts early, remember, when students are around the age of 5 or 6). That student is then given targeted instruction for phonics, to help him learn the words. But if that student simply reads a little more slowly, or was not giving his all that day, he A) doesn’t need targeted instruction in phonics, which wastes resources, and B) does not get the necessary instruction he needs in reading comprehension… which contributes to a lower overall score in the next assessment period.

If you believe your child has been denied educational services, been segregated, or that his or her school is ignoring federal laws in regards to IDEA, Justin Gilbert and Jessica Salonus can help. At the Gilbert Firm, we fight on behalf of students whose rights have been violated. To learn more about our services, tor to request a consultation with an experienced Tennessee special education attorney, please call 888.996.9731 or fill out our contact form. We maintain offices in Nashville, Chattanooga, Memphis, Jackson and Knoxville for your convenience.

Tennessee has passed legislation creating the “Individualized Education Account Program.” On the surface, it promises a “choice” to parents of students with special needs for different schooling options. With an annual payment to parents of approximately $6,300, parents can put the money toward educational expenses – like private school tuition, private tutoring and educational therapies.

That sounds good. However, beneath the surface lies deep ramifications with accepting this “choice.”

First, the law targets individuals with more involved disabilities (read—allegedly more expensive). Only students with the following disabilities qualify:

• • Autism
  • Deaf-blindness
  • Hearing impairments
  • Intellectual disability
  • Orthopedic impairments
  • Traumatic brain injury, and/or visual impairments.”

(You can access the portal here for more information.) In other words, the state will pay for these children to leave public school, but not children without disabilities or children with less involved disabilities such as “learning disabilities,” ADHD, etc. The state wants to keep those children, or at least not incentivize their exit.

Second, the $6,300 will not cover the typical cost of education these students with special needs. Therapies and some private tutoring, alone, frequently will exceed that amount for such students. And that does not cover the cost of basic education. Therefore, low or middle-income parents may regret the decision as their child receives less services, not the same services.

Third, by accepting the money, parents must sign away all legal rights guaranteed to their children under the IDEA – the law protecting the rights of students with disabilities. This powerful law guarantees a plan, services, important transitions from high school to career, and lasts from ages 3-21. By taking the money, all these federal rights vanish.

Fourth, giving parents money without oversight assumes that all parents of children with disabilities are indeed capable of managing their child’s education. For the population of students targeted with this law, the educational challenges can be steep and costly. Most parents are not the equivalent of professional educators, special educators, and service providers. Some may opt for the money without regard for the child’s overall needs. Others may be well intentioned but become victim to vendors who take that money, but deliver little in comparison to our public schools.

Fifth, the Tennessee Education Association and numerous Disability advocacy groups opposed the law even being passed. These are groups who have devoted their professional lives to caring for children with special needs.

Sixth, watching kids with significant special needs exit the public schools carries a societal message: “These children are different, not the same.” Thus, critical federal efforts at integration of students with disabilities in their “least restrictive environment to the maximum extent appropriate” are diminished. And, having signed away their legal rights, Tennessee ensures these children will have no legal recourse.

So, our message is this: “Choose” the IEA money with eyes wide open. Better yet: “Choose” to decline. Because the consequences are severe.

The Gilbert Firm offers aggressive and comprehensive representation on behalf of Tennessee students. If your child’s rights have been violated, we will not stop until the responsible party has been held accountable. To speak with an experienced Tennessee special education law attorney like Justin Gilbert or Jessica Salonus, please call 888.996.9731, or fill out our contact form. We maintain offices in Nashville, Chattanooga, Memphis, Jackson and Knoxville for your convenience.

We spend a lot of time advocating for children with special needs, whose rights have been ignored or violated when it comes to access to a fair and free education. That is why we want to talk about some good being done here in Chattanooga for children with spectrum disorders, as highlighted in a recent article by Kendi Rainwater for the Chattanooga Times Free Press.

The Chattanooga Autism Center offers the REACH summer learning program “to provide elementary-age children with Autism Spectrum Disorders with a safe and structured learning environment throughout the summer. [fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][The] low-ratio classrooms are staffed with certified special-education teachers who work with [each] child on specific IEP goals to maintain skills and reduce the possibility of regression during the summer months.” What the summer program does is create scenarios for these children to work and play alongside other children who do not have disabilities. This set-up, the parents say, is helping their children move forward by leaps and bounds. As one father told the Chattanooga Times Free Press, “Secluding these kids [throughout the school year] doesn’t have any social or academic benefits. There are huge benefits having kids with disabilities in classrooms with their typical peers.”

Research Supports Integration

Research strongly supports the integration of students with disabilities into regular education classrooms, with appropriate supports, services, and modifications to curriculum. Unfortunately, Hamilton County has for too long used Comprehensive Development Classrooms, which are separate settings, to place too many students. For example, per the Free Press article, according to the 2015 data, “in each tested subject, students with disabilities trailed their nondisabled peers by about 30 percentage points.” Many people feel that segregated classrooms contribute to that problem.

The notion of removing children with like disabilities to common classrooms is an old, outdated model. In the 1970s and 1980s, this was known as the “remove and remediate” strategy, or a medical model of intervention. Some scholars argue that words like “special needs” or “special classrooms” have become little more than a euphemism for today’s segregation. While every child is different, the research overwhelmingly supports that integration with non-disabled peers will assist children with special needs more than educating them through sub-groups of children with like special needs. You can access an incredible TED^x Talk video here about this very subject. Created and delivered by educator Torrie Dunlap, the talk discusses her own experienced working with students, and argues for a more inclusive setting for all students.

Many parents simply do not know the benefits of integration, so they accept the separation without critical questioning. Unfortunately, these separated classes are often lesser in quality and curriculum. The result, often, is an inferior education, not unlike the inferior education from segregating African Americans in Brown v. Board of Education. According to the Free Press article, Metro Nashville Public Schools has begun pushing for inclusive classrooms, but the Hamilton County DoE has made no such formal moves. However, Margaret Abernathy, who is the exceptional education director for the HCDoE, admits that she is willing to look at new options and hear new suggestions, even if she is unwilling to admit that the current system is not working.

Programs like REACH provide powerful support for inclusion in classrooms. Awareness is growing, and momentum for inclusion of children with disabilities, seems to be building. And that is a good thing for East Tennessee.

The Gilbert Firm provides comprehensive representation on behalf of clients throughout Tennessee. We are your child’s advocate when his or her rights have been violated, and we fight to uphold the laws so that Tennessee students with disabilities will gain access to the Free Appropriate Public Education they are guaranteed under the law. To work with an experienced Tennessee special education law attorney like Justin Gilbert or Jessica Salonus, we invite you to call us at 888.996.9731, or to fill out our contact form. The Gilbert Firm maintains offices in Nashville, Chattanooga, Memphis, Jackson and Knoxville for your convenience.

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In June of 2016, we wrote about the Special Education Behavior and Supports Act (SEBSA), and how under the Act, restraints and isolations are to be tools of last resort only. In our experience, sometimes highly improper techniques have been labeled “restraint” or “isolation” when, in fact, “abuse” would be more accurate. Other times restraints or isolations are unnecessarily used or, due to poor training, performed improperly under SEBSA requirements. These can cause long-term, even irreparable damage.

Recently, we obtained a groundbreaking decision from the U.S. District Court, Middle District of Tennessee (Nashville Division). In N.S. v. TDOE and Knox County, the Court found that Tennessee’s state department of education may be held liable under the Individuals with Disabilities Education Act (IDEA) as well as the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act for failing to reduce or eliminate restraints and isolations in a public school district. (You can read more about these Acts here, to better understand how the laws work to protect students with disabilities in Tennessee and across the country.)

Another step towards justice

In January of this year, we fought for – and won – the right to pursue a lawsuit involving funding mechanisms at the state level which deter mainstreaming (or inclusion) of children with disabilities. Now, in N.S., we have won the right to litigate an epidemic of restraints and isolations so that positive change can come for this population of students. This is a giant step forward for us and our clients. Never before have there been challenges to restraints and isolations at the state level, where policy and systemic change can be made. We can finally shine a light on just how deep this issue goes. The federal court also permitted additional claims against the State Board of Education and the State Advisory Council on Students with Disabilities — key players in reducing restraints and isolations across the entire state of Tennessee.

At the Gilbert Firm, we are your advocates when your rights have been violated. Tennessee special education attorneys Justin Gilbert and Jessica Salonus are there to help students obtain the education they are guaranteed under the law. To find out more about our services, or to meet with a member of our team, please call 888.996.9731 or fill out our contact form. We maintain offices in Nashville, Chattanooga, Memphis, Jackson and Knoxville for the convenience of our clients.

 

If you have a child with disabilities who attends public school here in Tennessee, then your child is entitled to certain types of assistance under the Individuals with Disabilities Education Act (IDEA). The law requires that schools create transition plans for these students, to help them prepare for and deal with the realities of life outside of the classroom.

You can read the full law here on the U.S. Department of Education’s website, but the Learning Disabilities Association of America has a much more succinct summary of what the transition plan must do:

• “Start before the student turns 16” (which is actually lowered to age 14 under TN law);
• “Be individualized;
• Be based on the student’s strengths, preferences, and interests; and
• Include opportunities to develop functional skills for work and community life.”

As you can see, the last two bullets in this list are a bit vague, which creates a double-edged sword; of course you want your child’s plan to play to his or her strengths, but the lack of specificity means that schools may choose to interpret and implement these plans in differing or non-meaningful ways.

According to a new piece in The Atlantic, lack of effective and meaningful transitions planning for students with disabilities is where so many schools are getting it wrong. Their research has found that “after graduation, a majority of adults with intellectual or developmental disabilities are unemployed or underemployed. According to a 2012 Bureau of Labor Statistics survey of disabled adults, that’s largely because of a lack of training and education, which respondents listed as the most common barrier to employment aside from the disabilities themselves.”

The problem only deepens when a child has been diagnosed with more than one disability, and is much worse for children classified with intellectual disabilities. As Lynnae Ruttledge of the National Council on Disability told the Washington Post, “A lot of the problem has to do with low expectations. Schoolteachers don’t have high expectations, and parents tend to be very protective of their children.” This lack of training and the low expectations, combined with ever-tightening school budgets, means your child might not receive the assistance he or she needs to help him or her prepare for life and employment possibilities that lie ahead after transitioning out of high school.

Helping your child prepare for the future

The Learning Disabilities Association of America believes that the best transition plans are ones which:

• “Identify the student’s vision for his/her life beyond high school;
• Discuss what the student is currently capable of doing in both academic and functional areas;
• Identify age-appropriate, measurable goals;
• Establish services designed to build on strengths and identify needed accommodations;
• Define each transition activity on the IEP regarding who is responsible for the activity and when each activity will begin and end.”

As a parent, you should work with your child’s school and transition team to ensure that they follow these guidelines. and you can request regular updates from the school to determine whether the transition planning is working appropriately with your child. In appropriate circumstances, transition planning during the middle and high school years can also include access to, and placement in, modified general education courses.

A highly effective transition plan ideally also includes parental knowledge of resources outside the classroom to supplement the support provided by your child’s school. For example, the Workforce Innovation and Opportunity Act allowed for the creation of “specialized workforce academies,” which offer skills training to people with and without disabilities. There are also government programs and youth transition programs out there designed to do the very same thing.

We understand that many schools lack the funding, knowledge, and resources needed to adequately prepare your child with an appropriate transition plan. But none of those factors is an excuse for failing to provide your child the assistance they need.

If you feel your child’s school has failed to provide your child with resources necessary to meet their needs, you can rely on the Gilbert Firm to protect your child’s best interests. To learn more about what our Tennessee special education attorneys Justin Gilbert and Jessica Salonus can do to help, please call 888.996.9731 or fill out our contact form to reserve a consultation time at one of our offices in Nashville, Chattanooga, Memphis, Jackson or Knoxville.

The use of restraints and isolations (or “seclusions”) has resulted in increased concerns not only by parents, but also by the United States Department of Education.

In Tennessee, to provide guidance, the legislature passed the Special Education Behavior and Supports Act (SEBSA). Tenn. Code Ann. §49-10-1301 et. seq. Under SEBSA, restraints and isolations are to be an approach of last resort, not first resort. This is consistent with the federal Individuals with Disabilities Education Act (IDEA), which encourages IEP teams to use positive behavioral interventions and supports. 34 C.F.R. §300.324(a)(2).

Tennessee had a noble purpose in passing SEBSA:

1. To ensure that every student receiving special education services is free from the unreasonable, unsafe and unwarranted uses of isolation and restraint practices;
2. To encourage the use of positive behavioral interventions and support methods in schools;
3. To develop properly trained staff in order to promote positive behavioral supports that reduce dependence on isolation and restraint practices; and
4. To ensure that teachers of students receiving special education services are properly trained to protect the student, teacher and others from physical harm, if isolation or restraint is necessary.

(Full text at Tenn. Code Ann. § 49-10-1302.)

SEBSA has a number of prohibitions. Isolations and restraints may only be used in “emergency situations,” never for convenience. Tenn. Code Ann. §49-10-1304(a). Only trained personnel may use them. Additionally, chemical restraints are illegal per se. So are noxious substances and mechanical restraints. Further, any space used for “isolation” must be unlocked, non-dangerous, well ventilated and temperature controlled, well lighted, forty square feet at least, and in compliance with fire, health, and safety codes. Tenn. Code Ann. §49-10-1305(g).

But is SEBSA working to reduce isolations and restraints? And how would we know?

To determine whether SEBSA is working requires an understanding of the reporting requirements of schools. The Tennessee Department of Education (TDOE) requires every school district to report each isolation and restraint on a standard reporting form. This data is compiled and submitted to an Advisory Council, (§49-10-1306(e)). The Advisory Council is to examine the information, and then meet with the Governor, Commissioner of Education, State Board of Education, and the Assistant Commissioner of the Division of Special Population. Then, the Advisory Council is to make reports to the State Board of Education concerning how to reduce or eliminate isolations and restraints. (1306(e)). The State Board, in consultation with the TDOE, is then charged with creating additional rules to ensure isolations or restraints are not unsafe, unreasonable, or unwarranted (1306(f)). Ultimately, the Commissioner of TDOE must enforce these rules. Tenn. Code. Ann. §49-1-201.

So back to the question: Is SEBSA working?

Examining larger counties, in the 2014-2015 school year, Knox County publicly reported that it had engaged in 301 isolations of children with special needs. By comparison, Hamilton County reported only 29 isolations. Shelby County, which includes Memphis and is the largest county, reported only 13. And Davidson County, which includes Metro Nashville, isolated 25. On the other end of the spectrum, however, Davidson County reported that it had engaged in 1,068 restraints of children with special needs, while Shelby County reported that it had engaged in restraints 266 times.

Why do these reporting statistics vary so wildly when SEBSA applies equally? Part of the reason may be lack of consistent training and state-enforcement. Some schools may be applying restraints or isolations for convenience, or a first resort, not a last resort. In Tennessee, an “emergency situation” is required —that means that a “child’s behavior poses a threat to the physical safety of the student or others nearby.” Tenn. Code Ann. §49-10-1303.

Within these statistics, sadly, are many cases of child abuse. While behavioral impairments are a constant challenge for school personnel, restraining or isolating a child can cause short and long-term damage. Tennessee must insist upon uniform training, monitoring, and enforcement in order to realize the purpose behind SEBSA — to protect kids from unsafe and unreasonable restraints and isolations.

Your child has a right to an education. At the Gilbert Firm, we fight on behalf of those children who have been subject to abuse, and we don’t back down until justice is served. To make an appointment with Tennessee special education attorney Justin Gilbert, or schedule a consultation at one of our offices, please call 888.996.9731 or fill out our contact form. With offices in Nashville, Chattanooga, Memphis, Jackson and Knoxville, we are there when you and your child need us most.