UNITED STATES DEPARTMENT OF EDUCATION

PRESIDENT\'S COMMISSION ON

EXCELLENCE IN SPECIAL EDUCATION

TASK FORCE ON SYSTEM ADMINISTRATION

APRIL 23, 2002

U.S. Grant ‑ a Wyndham Historic Hotel

326 Broadway

San Diego, California

COMMISSIONERS:

JAY CHAMBERS

DOUGLAS GILL

ALAN COULTER

CHERYL TAKEMOTO

DOUGLAS HUNTT

ADELA ACOSTA

STAFF:

C. TODD JONES

INDEX

PAGE

OPENING REMARKS

ADELA ACOSTA 5

TASK FORCE PRESENTATIONS

SPECIAL EDUCATION PAPERWORK

MAGGIE McLAUGHLIN 8

EDWARD LEE VARGAS 21

THE PROCESS COMPLIANCE MODEL

BATYA ELBAUM 67

DONNALEE AMMONS 81

DISPUTE RESOLUTIONS

S. JAMES ROSENFELD 117

WILLIAM L. E. DUSSAULT 131

INTERAGENCY AND INTERSYSTEM INTERACTION

J. RONALD LALLY 170

DONNALEE AMMONS 177

LAURIE POWERS 185

DIXIE JORDAN 196

THE PRACTITIONER PERSPECTIVE

CAROL TOPINKA 223

JUDY ELLIOTT 233

PUBLIC COMMENT

MALAYA CHRISTIAN, Learning Disabilities Association

of America 265

MEGAN CHRISTIAN 268

STEVE BROWN 270

CHRISTINE KIDWELL 273

PAT STEINBURG, Washington Education Association 275

CAROLINE KELNER 277

LAURA TAYLOR 280

LYNN AUNG, California Association of School

Psychologists 283

ALLISON BRENNEISE 285

TERRI S. BAUR 287

ANGELA HAWKINS, California Advisory Commission on

Special Education 289

BOBBIE KOHRT 290

P R O C E E D I N G S

8:41 a.m.

MS. ACOSTA: Good morning.

I am Adela Acosta, Chair of the System

Administration Task Force of the President\'s Commission on

Excellence in Special Education. I welcome you to today\'s

hearing.

The focus of our hearing is administrative

barriers to effective special education services. The

Task Force and its witnesses will explore ways in which we

can overcome many of the barriers that hinder special

education. These barriers include the perception of

excessive paperwork, a focus on regulatory compliance

rather than an academic outcome, and the perception of

excessive litigation.

Before we begin our hearing, I would like to

briefly provide you with background about the Commission.

President Bush established the Commission last October to

collect information and to study issues related to

federal, state, and local special education programs. The

Commission\'s goal is to recommend policies to improve the

educational performance of students with disabilities so

that no child will be left behind.

Our work is not designed to replace the

Congressional Reauthorization of the Individuals with

Disabilities Education Act. Rather, the report we produce

and issue this summer will not only provide vital input

into the reauthorization process but also into the

national debate on how best to educate all children.

Over the past two months, the Commission and

its task forces have held hearings in Houston, Denver, Des

Moines, Los Angeles, Coral Gables, New York City, and

Nashville. The Commission has looked at issues such as

teacher quality, accountability, funding, cost

effectiveness, parental involvement, identification of

children with learning disabilities, and research.

Today, we turn our attention to the

administration of special education. Anyone remotely

connected with education knows that special education

services are burdened with paperwork, regulations, and

litigation. While administrative procedures and

compliance are needed to guarantee all children with

disabilities receive a free and appropriate education,

procedures and regulations must not overwhelm teachers,

children, and families. Instead, they should ensure that

children receive quality services with real academic

outcomes.

Hours spent on excessive paperwork, or its

perception, is a significant barrier to effective delivery

of education services to children with learning

disabilities. Fifty‑three percent of all special

education teachers report that routine duties and

paperwork interfere \"to a great extent\" with teaching.

Policy makers and regulatory authorities must look for new

ways to reduce paperwork so that teachers can focus on the

most important task at hand, teaching children.

Paperwork is not the only factor that

detracts from effectively serving children with

disabilities; excessive litigation does, as well. The

current dispute system sanctioned by IDEA increases the

chances of due process proceedings and actually promotes

the use of attorneys and advocates. Dispute resolution is

an alternative to litigation that we should explore.

We will hear presentations from experts and

educators on these topics. We will also have a public

comment period this afternoon. What we learn from all

these sources will provide us with the valuable input we

need to develop our recommendations for the President.

Thank you for your interest in the

Commission. We will now begin today\'s hearing.

Before we begin, we\'d like to welcome our

sign language interpreters, Tracy Williams and Tom Moran

and we would ask you to please turn off your cell phones

during this hearing.

Our first panel will discuss special

education paperwork; where does it come from, what is its

value, what can be done about it? The panel will review

how paperwork acts as a barrier to the effective education

of students with disabilities and what can be done about

the problem.

The panelists will include: Dr. Maggie

McLaughlin, who is an Associate Director of the Institute

for the Study of Exceptional Children and Youth. She is

involved in several projects, one of which is Special

Education Policy Leadership Development. This program

trains personnel to assume key leadership roles in the

public and private sectors and become policy makers at the

state and national level.

Dr. McLaughlin is also involved in conducting

several policy research efforts, as well as assisting

districts in developing and evaluating new programs.

Dr. Edward Lee Vargas, currently serves as

Superintendent of the Hacienda La Puente Unified School

District in California, serving over 54,000 students pre‑K

through adult. As Superintendent of Santa Fe Public

Schools, Dr. Vargas was instrumental in raising district‑

wide achievements, implementing major reforms, and

increasing accountability.

Thank you and welcome.

DR. McLAUGHLIN: Thank you, Madam Chair,

members of the Commission. I appreciate this opportunity

to be here this morning and to discuss issues related to

paperwork in special education and its barrier to

providing truly effective special education.

I\'m going to organize my remarks this morning

in kind of two ways. First, I\'m going to provide some

background or context and issues for the current paperwork

dilemma and then I\'m going to provide some of my

preliminary recommendations. And I think, when we get

into them, you\'ll see why they\'re certainly thoughts that

need to be developed for how to begin to move special

education from a paper‑driven enterprise to a focus on

measurable benefits to children with disabilities.

I have, arbitrarily, organized the issues

around paperwork into two categories. The first, I\'m

calling kind of the top down administrative requirements,

driven primarily by reporting requirements but other

statutory, regulatory, and administrative procedures from

OCR and OSEP that fall primarily on the state education

agencies and local education agencies.

And the second, and probably the more complex

and difficult arena of paperwork is that it merges from

the bottom up. And those are the papers, the forms, and

procedures associated with the individual education

programs and the implementation of FAPE.

Now, before I begin, I think it\'s important

to note that both categories, and these are arbitrary

categories of paperwork, result from a long‑standing

attempt to establish accountability in special education

for students with disabilities and for a deep and long‑

standing mistrust on the part of parents, families,

advocates, professionals, about the commitment of general

education, both commitment and political will, to educate

children with disabilities.

And one only needs to look at the testimony

that was provided by professionals and advocates back in

1963, prior to the passage of the first Elementary,

Secondary Education Act and the subsequent reauthorization

of that Act and, of course, the legislation leading up to

94‑142, to look at the comments that were provided in

testimony that said that we don\'t feel that local

education agencies, that states, will make a financial

commitment, will make a true educational commitment to the

education of these children unless we hold them

accountable.

Therefore, unless, and until, we collectively

establish a unified accountability system that reliably

accounts for each and every child and, simultaneously,

critically examine some of the foundations of our policy

and practices, we are only going to be able to tinker

around the edges of paperwork improvement.

So, having said that, let me first address

what I see are some of the federal‑level ‑‑ and these are

the easy ones, I believe, for us to begin to address.

There are federal‑level requirements that primarily impact

systems at the state and local levels but do create

unnecessary and enormous paperwork burdens.

The first of these surround the multiple data

reporting requirements that we have at the ‑‑ in statute.

First of all, we have Section 618 of IDEA which specifies

data that must be reported by states. The data must

include ‑‑ and there are several key areas that have been

provided since 1978, actually when the first report was

generated.

But we have increased the data reporting

requirements in subsequent reauthorization. And these are

the data that you may be familiar with that come in the

annual report to Congress each year that include child

count; educational environment; personnel; data on exiting

‑‑ or how students with disabilities exit school;

discipline; and other data as required by the Secretary ‑‑

and this is from the statute itself.

These data have resulted again in, and were

originally put into statute, as an attempt to provide some

national‑level accountability on the part of systems for

making sure that they were actively seeking and finding

children with disabilities and educating them in the least

restrictive environment.

Subsequent data elements that have been added

to this have looked at other very important and very

critical indicators such as how students are exiting and,

as I mentioned, discipline.

However, in the 1997 reauthorization for

IDEA, another section, a new section, was added that

pertained to the performance of students with

disabilities, Section 612. Among the requirements in

Section 612 are those that address participation in state

and district assessments and the reporting of those

assessment results. But Section 612, subsection (a) is

the requirement that states create performance goals and

indicators for students with disabilities. These must be

aligned with established learning standards and desired

educational outcomes; they must be consistent to the

maximum extent appropriate with other goals established by

the state and address the performance of children with

disabilities on these assessments, drop‑out rates, and

graduation rates.

The first biennial reports ‑‑and states must

not only establish these, they must report on these data

biennially. And the first reports which were submitted

around the last of December ‑‑ December 31st of 2000 ‑‑

were kind of all over the map, to be honest. Since that

time, I know that OSEP has undertaken an effort to begin

to really refine those reports.

But these biennial performance reports are,

in some respects, redundant now with both the state‑

reported data and also with the new data, expanded data

requirement, under No Child Left Behind.

And I\'m going to address these in my

recommendations because I believe that this particular

piece of federal statute could offer a very important ‑‑

with the appropriate expansion ‑‑ a very, very important

way to begin to develop system accountability for every

child.

And then we have all of the accountability

reporting requirements that come under the monitoring

process. And I know that this is something that has been

of deep concern to people at state and local agencies

because of the number of data elements that they\'ve been

reported ‑‑ required to report on and/or to provide data

and/or corrective action.

This effort, the monitoring effort which is

now called \"Continuous Improvement Monitoring Process,\" in

may respects is beginning to overlap significantly with

the performance goal and indicator requirement and the

other state data‑reporting requirements.

So we have three distinct reporting

requirements that are emanating from federal statutes that

are beginning to have a lot of redundancy and need to be

streamlined.

The fourth area has to do with the Office of

Civil Rights data pertaining to the counts of children

receiving special education disaggregated by major racial

and ethnic groups, and the similar data that are collected

‑‑ although not at the local district level, only at the

state level ‑‑ by ‑‑ or just aggregated at the state level

‑‑ by the state reporting requirements under Section 618.

So, I\'m addressing those four as major data‑

reporting issues that have a major impact on systems and,

to move quickly through those recommendations: One, I

would like to recommend, as did the National Academy of

Science\'s recent Committee on the Minority Students in

Special and Gifted Education, that the OCR and OSEP data‑

reporting requirements be ‑‑ a new data‑reporting system

be designed and implemented under OSEP that would document

all of the critical indicators at local and state levels,

of character ‑‑ of numbers and characteristics of students

receiving special education. So that would be to reduce

or remove the redundancy in the OCR and OSEP data.

I also believe, as I alluded earlier, that we

need to consolidate the state reporting, monitoring

compliance activities, and other state reporting under

Section 612, creating performance goals and objectives.

Frankly, I believe that we need to then

expand on that to make sure that we align the Section 618

requirements with those of No Child Left Behind, which I

think provides an opportunity to have truly consolidated

state reporting, local reporting, and down to the school‑

level reporting. I strongly believe that, until we have

school‑level data at the same level of detail as we do for

No Child Left Behind, for students with disabilities, and

aggregated to LEA and state, we will not begin to develop

an aligned accountability system.

Let me also add that, at this point in time,

as Dr. Vargas will address, we have a number of data

systems that are in place to report in general education

and we have, in essence, a separate data administrative

silo for special education that comes up from the local

all the way up to the state and to the federal level,

leaving us ‑‑ giving us a great deal of redundancy in

effort, resources, and, more importantly I think, leaving

children with disabilities out of this larger

accountability system.

Now I\'d like to talk about, quickly, the more

difficult one, having to do with IEP, the issues around

the amount of paperwork. I will just briefly say that

data released by the recent special ed personnel needs and

special education research indicates that, while both the

typical general educator and special educator report

working approximately the same number of hours, 55 versus

53 a week, both groups indicate they average five hours a

week in designing or preparing lessons. And special

education teachers report spending an additional five

hours completing forms and paperwork.

These forms and paperwork, as my written

testimony indicates, really come about because of our

longstanding difficulty, both in terms of statute, in

terms of our concepts, and in terms of legal

interpretations of FAPE and the meaning of \"appropriate.\"

The fact that free and appropriate, and

particularly the \"appropriate\" part of public education

has, through various legislative, as well as judicial,

interpretations, come to be interpreted as something that

is designed ‑‑ and this is basically coming from the

Supreme Court decision ‑‑ in order to be appropriate, it

must be provided and designed in conformity with

procedures and time lines and be reasonably calculated to

confer educational benefit.

Obviously, I\'m really quickly going through

this, but the issue for local schools and local

administration is that, as long as they can document the

procedures and the timeline, they have, in fact, met the

statutory requirement around \"appropriate.\" This has

nothing to do, necessarily, with the children\'s actual

progress.

Changing the paperwork demands at the local

level, for teachers and for schools, will mean that we

must fundamentally examine, I believe, what constitutes an

appropriate education. And I also believe that this is

going to be rather a bold recommendation but I\'m going to

offer it first. And that is, that we need to begin to

define what constitutes FAPE, and I\'m talking about the

appropriate part of FAPE, in terms of a student\'s progress

toward measurable standards

I\'m not going to, in this forum, talk about

whether they\'re the same standards as students with

disabilities ‑‑ I mean, of the students without

disabilities, but I do believe that we need to critically

examine the standards and we need an unambiguous, reliable

measure of individual progress which should replace the

paperwork compliance as our accountability tool.

The legal concerns should not be about

satisfying a checklist of services or procedures, but what

has the child learned and has the child made adequate

yearly progress toward those measurable outcomes.

Now, again, I want to reiterate, I don\'t

necessarily say that all of the outcomes, all of the

performance indicators that are established for the

\"typical\" child may, in fact, be sufficient for every

child with a disability, particularly as we move toward

those children with more complex educational needs.

But that does not mean that they cannot be

standards‑, and should not be, standards‑driven, because

they should.

I think the other piece that we need to

recognize is that, at each reauthorization, Congress has

added elements to the IEP in order to guarantee more

effective education but the results of those have been to

substantially increase the paperwork and the time involved

in developing the IEP for every child. And the current

focus on the procedures by which we implement the IEP

forces the school systems to go through the same

bureaucratation (phonetic) ‑‑ bureaucratized manner for

every single child.

I believe we need to begin to allow and look

at individual variation for IEPs based on the complexity

of the child\'s needs. For example, we have a lot of

children who are identified as needing special education

but whose special education is the accommodations that are

necessary to truly access the complete general education

curriculum. The goals that we hold for those children,

the assessments that we use to measure their performance

are the same.

IEPs for those children need not be as

complex or detailed or should be allowed to vary from

those for children who really do have a highly modified

and adapted educational program.

I think, again, that this kind of variation

can only exit once we have evidence of adequate yearly

progress toward system performance goals. I think that

age and intensity of educational needs should determine

the IEP process and not cookie‑cutter bureaucratic

requirements.

And finally, I think that ‑‑ and this is, of

course, connected to this ‑‑ we must provide opportunities

for local school districts, or local schools within school

districts, to begin to highlight different approaches to

designing and documenting FAPE. This is certainly an

opportunity for us, a unique opportunity, in this era of

increased individual student accountability, to begin to

think outside the box and explore new ways to design IEPs,

and/or maybe something that isn\'t even an IEP, that looks

much more like the kinds of reports that we get for the

typical child. And if, indeed, those report cards did

have valid and reliable measures of children\'s progress on

those indicators, then do we need the same level of

scrutiny, the same type of procedures that we have through

the IEP.

And I would hope that we could begin to

support some very small‑scale, carefully‑controlled and

monitored pilot projects that could take us further in

developing these recommendations.

So, in closing, I want to say again that I

think we now have a knowledge base and enough experience

in the implementation of special education that we need to

begin to move beyond the model that we designed over 25

years ago for ensuring accountability as well as

commitment on the part of school systems.

I think we now can think about practices and

strategies that were not even achievable a decade ago and

I think that most of our time ‑‑ most of our efforts to

this time have been changes simply to tinker with the

federal special education legislation and have been made

in isolation of how special education functions as part of

an overall educational enterprise.

I know the changes that will be crafted must

be acceptable to multiple constituencies and interests but

I believe that it is now time for us to move beyond simply

tinkering with reform, as I\'ve said before, and of

addressing for the fundamental issues of accountability;

otherwise, this reauthorization, like all the previous

ones, will just be so many acts of random improvement.

Thank you.

MS. ACOSTA: Thank you.

And now Dr. Edward Lee Vargas.

DR. VARGAS: Thank you Madam Chairman and

members of the Commission. I\'d like to say good morning

and thank you for the opportunity to address you today.

I want to underscore all of the comments of

my colleague, Dr. McLaughlin, and share with you that, as

I walk through my comments, I\'m filtering them through a

number of experiences, having been raised in a family with

a child with a disability and a couple of very strong

parent/advocates, and also having worked as a special

education teacher, as a school psychologist and

diagnostician, special ed director, as well as assistant

superintendent, for looking at district‑wide types of

systemic improvements under Title I and other programs ‑‑

in addition to being a building administrator. Since as I

look at these issues, and I\'m currently a superintendent,

filter these comments through there, especially most

recently as Superintendent for the Ysleta Independent

Schools District in El Paso, Texas, which was the highest‑

achieving large urban district in the state, using some of

the ideas that I\'ll be talking about with you today.

You should have in your packets, copies of

the slides that we\'ll be walking through.

\[Overhead projector presentation\]

The central recommendation basically is

business over bullets here. The current paperwork burdens

in special education, which act as a barrier to effective

education of students, are a function of the culture.

And, when I say \"culture,\" it\'s the way we do business in

education, special ed and general ed.

And, in order to remove these barriers, both

special education and general education must be recultured

or changed, and in some cases significantly, with regard

to how we think about, design, and implement the referral,

the identification, and the placement processes in special

education.

Look for the thing that causes it, this

overwhelming paperwork. First of all, the referral stage,

there is no reliance on special education by general

education for differentiated instruction, which results in

more high incidence referrals for mild learning

differences, increased paperwork, burgeoning caseloads,

and a significant amount of time in meetings, which also

increases costs.

There\'s often an assumption in that referral

process that the students have had a high‑quality of

instruction prior to referral and, by doing that, there is

this perpetuation of unexamined instructional quality in

the referral sources. As we look at the identifications

part of the process, the student eligibility reports focus

on classification criteria versus instructional quality.

These are compliance‑driven, lengthy reports that are not

matched to relevant instructionally‑focused teaching

intervention.

When you think about it, as a former school

psychologist writing 15 pages to defend an LD

classification, which ‑‑ you know, I\'ve been working four

states and it\'s inconsistent across states; you can be

eligible in one state and cross the border and you\'re not

disabled any more and virtually, very little or no

relevance to how do you improve instruction once the

student gets to special education.

And it\'s a deficit‑driven classification

model where all the blame for failure is placed on the

child; there\'s little or no assessment of the quality of

the student\'s instructional settings and interventions

that are conducted prior to the referral.

And, as a result, we end up with caseloads of

38 to one in a resource room because of the lack of

options and attention to the general ed referring source

system.

Primarily, the identification process looks

at the norm‑referenced classification criteria versus

criterion‑referenced based on state curriculum standards,

as we see this emerging ‑‑ state standards across states

and more criterion‑reference where assessments are aligned

to states. The identification process seems to be

disconnected from these merging terms and measurement

systems that have no relevance to what\'s being taught in

the classroom.

If we look at the placement process, it takes

a significant amount of time away from student instruction

and the teacher\'s ability to really examine the effect and

the effectiveness of the current teaching practices. The

paperwork is firmly focused on compliance versus the

quality of instruction; did we get all the forms right;

did we get all the notices out? And very little time to

really talk about relevant instructional interventions

relative to that student\'s needs.

The majority of special educators spend a day

or more of the instructional week on paperwork, and this

has come in from, in part, the (inaudible) Teachers

Report from the Council for Exceptional Children. Eighty‑

three percent spend a half to a day and a half days per

week on IEP‑related meetings. It\'s reported that 68

percent of teachers spend less thab two hours per week on

individualized instruction.

Before I came here today, I pulled together a

large group of special educators and principals in my

district to ask them what they thought about all this.

And they shared with me that they ‑‑ in our district,

teachers spend two days on instruction and three days out

of the week on procedures and paperwork and in IEP

meetings. This is less time, again, to examine the

treatment effect of specific instructional methods and

strategies, within placement, on the actual student

achievement relative to these standards.

So, while we have teachers in regular ed

working in grade‑level meetings, looking at student work,

looking at the content clusters relative to the state

standards, and the skill sets and the research‑based

strategies to address those, our special education

teachers are working on paperwork and missing out on some

very powerful experiences that will benefit children. And

so significant amounts of required forms, notices, and

reports consume these blocks of teacher and administrative

time.

The end result is, I believe in my experience

in administrative culture, that focuses on procedural

compliance versus performance and a results‑orientation.

And, in my opinion, this leads to the illusion of

accountability. If we\'ve got all the forms filled out and

all the compliance requirements completed, we\'re doing a

good job for our kids; and I don\'t find that to

necessarily be true all the time.

And so the focus on compliance versus student

performance is a part of driving, I believe, the burdening

paperwork. This also creates incentives for litigation

and the associated paperwork that\'s involved in that, and

an adversarial climate. As I talked to staff a few days

ago, some reported they spend four to five hours sometimes

in IEPs ‑‑ and they believe that many of the IEPs are

written more for the legal profession than for the

student\'s benefit. And they pleaded with me to please

share these comments with you today.

And the focus on forms versus teaching and

learning, that I found as a teacher or psychologist, or

director, or administrator; and the absence of focus on

the quality and the specific affect of the instructional

treatment on maximizing student achievement gains in both

general and regular education.

Recommendation: 1

I think you have to get up to 30,000 feet

here to understand that overwhelming paperwork in special

education is one symptom of the broader systemic issue as

to how public education addresses the growing diversity of

student learners in an era of high‑academic standards for

all, ‑‑ not some or most, but all ‑‑ high‑stakes testing,

and increased accountability across states.

Meaningful change will require attending to

how we can do things differently in both general and

special education. This is what I refer to ‑‑ and it is

referred to in the literature ‑‑ as reculturing. Changes

in law must be designed to facilitate new ideas and

practices that reduce paperwork but also raises

achievement. Special ed and general ed are inextricably

linked and any meaningful reduction in paperwork cannot

occur without looking at both systems and how one breeds

the other.

Recommendation 2:

Reduce the paperwork in special education by

reducing the over‑reliance on special education for

differentiated instruction;

Increasing the presence of high‑quality

differentiated instruction in general education for high‑

incidence of mild disability referral; you want to

underscore reading and math because most of the students

that are referred for special education are referred for

reading problems. This will help to eliminate the

disproportionate referrals of certain groups, as my

colleague referenced earlier in the report from the

National Academy of Sciences on the over‑representation of

minorities in special education and their representational

gifted education.

There is an over‑representation in the broad

sense and in pockets for African‑Americans, for Native

Americans, for Hispanics, and others. And providing high

quality instruction early on will help to eliminate that

disproportionate ‑‑ or inappropriate placement.

It also reduces the high cost associated with

special ed for differentiated instruction. When I think

about some of the schools I\'ve worked with that had moved

in this direction and looked at addressing the learning

environment before labeling the child, they\'ve made

tremendous gains with students and have been recognized

state‑wide and nationally for their efforts.

The second bullet, provide for universal

early screening of all students; and this is also

consistent with the right report for early identification.

I know, in the State of Texas, they are doing that, which

helped us to identify, early‑on, where to intervene and

helped us reduce the reliance on special ed when students

really needed high‑quality instruction.

And, of course, the last one there on that

page, expand the availability of, and access to, quality

preschool, full‑day Kindergarten, early literacy, health

care, and parent support systems. We know that, when

young people and parents have access to these services,

they come to school ready to learn reading and are not in

need of remediation.

Capitalize on the emerging standards‑based

instructional attainment strategies, achievement

disaggregation, and research based instruction. There are

multiple systems now emerging around the country that

allow teachers to look very closely at the learning

standards for that state to disaggregate student

performance based on criterion‑referenced assessments, to

look at the content clusters, to look at the skill sets,

and to look at matching researched‑based strategies with

that. And they don\'t need to unnecessarily label many

students in order to do that.

Integrating special education and the general

education systems. As Dr. McLaughlin mentioned, it\'s no

secret that two silos out there actually prevent a lot of

these new ideas and growth from actually occurring.

Integrated administrative structures and

facilitate sharing and access to new and emerging learning

technologies. As schools are moving quickly to meet the

standards and requirements of federal legislation, as well

as state, there\'s a lot of change happening in schools and

special education needs to have access to that. By the

same token, a lot of those efforts need to have access to

the benefits and the knowledge in special education and

there needs to be a sharing of that.

Allowing for the redirection of funds

associated with the unnecessary manufacturing of mild

disability labels towards providing high quality

instructional interventions that produce results in

general education based on the standard, and this can

assist on reducing the unnecessary paperwork and the

burgeoning caseload in special education.

I remember, when I was a special ed director

in Seattle and John Morefield, (phonetic) who was the

principal of Hawthorne Elementary School, decided with the

staff that, in order to address some of the reading

problems and math problems that they were having in their

classrooms was resulting in students not learning, they

decided that, rather, to refer to all of these students to

special ed, that they would create powerful reading

programs in every classroom. And it took some maneuvering

to be able to do that; we actually ended up writing IEPs

to say that the most appropriate placement was not in that

particular ‑‑ every classroom but in a reading program

that was developed.

And their results proved very favorable and

it was very positive. But that could not have occurred

had the administration not been flexible in allowing some

of the funds to be used for powerful instruction outside

of special education.

Recommendation 3. Shift the focus of

identification from labeling the children to matching each

student\'s teaching and learning to specific high‑quality

instructional intervention, eliminating the classification

labels that presume instructional relevance and the

interventions that may accompany the placement. There

really is no relationship, one‑to‑one relationship,

between the label we provide and instructional

intervention upon placement.

I know many, many young people that are

labeled as LD and placed in a resource room with five or

six other classifications; and there\'s really no

discussion about what are we going to do with them when

they get there that\'s going to make a difference and help

them achieve. That\'s all focused on they\'re LD, they need

a resource room, and let\'s sign off on it.

Replace the non‑categorical conceptions and

criteria based on relevant quality instructional

interventions. Looking at ‑‑ you may have heard of or

know ‑‑ as a school psychologist, if I gave enough of you

tests, I could probably make a third of you LD, probably

one or two of you gifted, and the others would be average

‑‑ the Chair would be gifted.

And, you know, I remember, working as a

school psychologist, just finding you must test, and the

right test and the right discrepancy to make that student

eligible so that they could get some help. And I\'m not

convinced that that was the way to maximize their

achievement. Not that, when they got into special ed,

they didn\'t get good quality, but I\'m not sure it was

necessary for the cost and based on what was happening

there that couldn\'t happen in a regular classroom with

good training and support.

Refocus the initial eligibility and re‑

evaluation reports on specific instructional treatment

effect versus these voluminous boilerplate classification

reports. Looking at what\'s really working, what\'s making

a difference, there\'s a tremendous opportunity here, I

believe, with the narrowing, if you would, of curriculum

and focusing on curriculum and focusing on standards, and

what could ‑‑ what should you be able to do at every

level. It\'s much easier now for schools to focus on how

to address those and schools are being very successful

around the country in doing so. And I believe we need to

capitalize on that.

Recommendation 4.

Streamline the IEP process away from one‑

size‑fits‑all without impeding students\' and parent

rights. For some students, you don\'t need the 19 pages,

if you\'re looking at some quality reading instruction.

These are (incating) from, by the way, from L.A. Unified;

and ours are very similar.

Allowing flexibility in the scope, nature,

and timing of requirements in IEP reviews relative to the

need and based on results. I noticed, in discussion with

‑‑ you know, with the two‑ to three‑year ranges in IEPs

reviews ‑‑ I\'m not sure that ‑‑ you know, a one‑size‑fits‑

all is really helpful. Some students do need five, six,

seven, eight, people that are in IEP and regular reviews.

In fact, I would argue I know some kids who need to be

reviewed at least every six weeks. But there are others

that maybe don\'t need that and so, allowing for that

flexibility would help to address part of this paperwork

burden that people are feeling.

Allowing for the substitute of norm‑

referenced assessments with quality criterion‑referenced

standards‑based performance assessments emerging in

regular education reforms.

There are more and more systems, I think,

about the IDMS (phonetic) in California that we\'re looking

‑‑ the Star Report (phonetic) in Texas, and now the TAS

(phonetic), the Texas Essential Knowledge Skills, and the

sophisticated disaggregation tools that are automated that

are provided to teachers that break down very discretely

the learning and patterns of students and look at how to

address those are much more relevant, in some cases, than

the current data that we look at in terms of student

learning. And I would encourage more and more of that as

we\'ve seen teachers take hold of that and embrace it in

helping them to address the standards.

Leverage existing, new, and emerging

technology towards increased web‑based automation of

routine processes, procedures, and clerical tasks. And we

looked in four states and seen how we\'ve reinvented forms

and this forced states to meet the requirements and,

special ed generally being at the bottom of the technology

food chain when it comes to automating a lot of this.

Understanding the cost associated with a lot

of this routine clerical task and the time and energy that

could be redirected towards looking at instruction by

using technology for a lot of this and moving it up the

food chain.

And then standardizing forms and data

collection procedures nationally. My colleague alluded to

that and referred to that in terms of looking at data

collection processes. So many times, we spend a lot of

time trying to develop and design forms and making sure

they are compliant when a lot of that time could be spent

working with students.

Recommendation 5 would be to align special

education placements with standards‑based reform

initiatives, thinking and referring to the No Child Left

Behind legislation;

Including special education in general

education school‑wide improvement initiatives and required

plans. Where I\'ve seen that happen, you see kids doing a

lot better in a school‑wide approach and responsibility

for every child that comes through that door;

Including special ed staffing in regular

education self‑improvement and professional growth

initiatives. There\'s some tremendous things going on now

in education as we look at meeting these standards and

people are working very hard to ensure that no child is

left behind, and with everyone being held accountable.

Special ed needs to be part of that; they have a lot to

offer in that equation and, by the same token, a lot of ‑‑

should adult learning can occur;

Allowing for local district and school level

flexibility and creativity in special education exchange

for improved student results, allowing for pilot program

options to expand that and try some of these things that

I\'m talking about. There are school districts around the

country that are doing it and they\'re doing it and the

other paperwork, as well. And I think we could learn a

lot by allowing for that local flexibility in exchange for

results with our students;

And replace and select special ed compliance

requirements, where appropriate, with district and school

improvement plans when those plans are centered on

individual students and accountability for results. And I

alluded to some of those emerging systems that are taking

hold in school districts and ‑‑ would help to facilitate

that and reduce some of that burden. And I believe, in

many cases, when you\'re looking at the more mild

classifications, it would be more helpful to teachers in

addressing the standards, especially when those students

are being included in school and district reporting for

accountability.

Recommendation number 6.

The goal of reducing paperwork in special

education must be coupled with improving student

performance and achievement for all students, particularly

those with disabilities. If we do a better job on the

front end, students won\'t need so much help afterwards.

And so, to get a different result, one must first do

things differently. I think it was Einstein who said that

the definition of insanity is doing the same thing over

and over and expecting a different result. And I would

underscore Dr. McLaughlin\'s comments about this

reauthorization; it\'s critically important that there be

more ideas and different practices that come out of this

or it will be more of the same. And that\'s going to

require the cooperation of everyone;

Federal, state, and local education agencies;

Teacher and administrative training programs;

State educator certification agencies. As

long as a teacher, coming out of college, can only be

certified in one area or two, and only those, and only

teaching in this type of a classroom which can only take

this type of a student with this type of a label, that

design, which is very well‑designed to deflect change,

will resist that change;

Local school boards, districts, schools, and

classrooms;

Administrators, teachers and support staff;

Parents and advocates. There has to be that

trust there to allow for different ideas and

experimentation in doing things that, hopefully, will make

better ‑‑ resulting in improved outcomes;

And the community service providers and other

stakeholder groups. For example, if young mothers don\'t

have access to adequate pre ‑‑ postnatal, health care and

get the support systems they need and have access to high‑

quality pre‑school and ‑‑ it will be very difficult to

provide for the interventions that are necessary.

And so, looking at whether it\'s providing ‑‑

teaching the parents to speak English, developmental ‑‑

while the kids are in school, the parent education, all of

these pieces are part of this formula because they\'re all

inextricably linked. It\'s a systemic issue.

And most of the people that I\'ve worked with

over the years are as terribly committed as anyone else;

But the most talented caring and dedicated people that

I\'ve had the opportunity to work with are the people in

special education. But the current system, my fear is, is

driving them out and something has to be done about that.

Thank you very much.

MS. ACOSTA: Thank you Dr. McLaughlin and Dr.

Vargas for that very thoughtful testimony.

And now we will begin the questions from the

Commission panel. We will begin on my right with Cherie

Takemoto.

MS. TAKEMOTO: Thank you for excellent,

excellent testimony and thinking‑outside‑the‑box ideas.

And the Commission isn\'t necessarily specifically dealing

with this, but I\'m curious, as an administrator and as

someone who works with administrators, one of the things

that we\'ve heard is that the procedures for manifestation

reviews, getting rid of those bad kids, it\'s just too

excessive. And I\'m concerned ‑‑ I\'m personally concerned

about protections of not leaving children behind by

putting them in the in‑school suspension, out‑of‑school

suspension, expulsion, or get rid of them however you can.

And I\'m wondering, there\'s ‑‑ there were

paperwork protections that were added in the last

reauthorization and that is paperwork. How do you we

ensure the safeguards of those children not being left

behind and address the calls that the last idea went too

far with that?

DR. McLAUGHLIN: Well, I\'ll take this first.

In those instances, in the recommendations

that I was putting forth, I think that there are instances

with individual students whose, either educational needs

and behavioral needs, whatever, do require this extensive

review, multiple people involved in that, not just in the

IEP, but in the whole process around protecting those

children\'s rights, as well as examining ‑‑ and this is the

important part ‑‑ examining the services that are provided

to those students.

So I think the difficult part is that, what

we\'ve put into place is an enormous bureaucratic

inefficiency that is applied just to any child regardless

of the specific educational needs of that child.

And so, what I think we need to do is not to

simply throw away ‑‑ and in those particular areas where

we are really protecting the child\'s rights to education

‑‑ without, you know, carefully thinking about applying it

to those students. But I think, in the other areas of the

IEP that were added ‑‑ provisions that were added ‑‑

around access to the curriculum and some of the other more

educationally ‑‑ I think they are all educational, but

certainly the ones that are most directly related to

classroom instruction and education, those are the ones

that I think we can be much more bold about changing.

MS. TAKEMOTO: So you consider some of the

behavioral procedures that were put in place last time

around as weighing in favor of the civil right of a child

to have access to education?

DR. McLAUGHLIN: I think that they need to be

reviewed at the very specific level of what exactly is

being required under ‑‑ you know, in any given district.

But I do believe that those pieces of paper are important

civil rights ‑‑ you know, protections for given children.

And so I would be, in this whole idea of

flexibility ‑‑ again, I think that, you know, we could

risk throwing everything out instead of saying, \"These are

instances where we may want to keep the concept of

manifestation determination.\" not the way, necessarily,

that individuals states and school districts have chosen

to interpret this because there is a great deal of

ownership for this paperwork that rests at the local

district.

So I think that we can ‑‑ but the basic civil

rights protections that are associated with some of those

provisions in law are not something that we should just

automatically say that, because it\'s burdensome, we\'re

going to throw away.

DR. VARGAS: Absolutely. I mean, the

procedural safeguards are very important, critical, and I

don\'t think anyone is suggesting that they not be there;

they need to be there. I think the question is how they

are implemented at the local level.

As I reflect on how they\'re implemented in

different places, some are more burdensome than others and

it\'s because of the way we\'ve manufactured the

implementation at a local level. And so my thoughts on

the matter would be that a close examination of how

they\'re implemented in order to ensure that the concept

and the protections are there but that they\'re not over‑

killed for too many kids when that may not be necessary.

MS. TAKEMOTO: Okay.

DR. McLAUGHLIN: If I could just follow up

real quickly.

I think part of what Dr. Vargas and I both

said separately was, if ‑‑ to allow some flexibility in

that, there are school districts ‑‑ and I look probably at

parents in the audience and say, \"Believe it or not\" ‑‑

that are now throwing out children with behavioral

problems, who are actually designing very effective

approaches. And it would seem that, in recognition of

places that can demonstrate ‑‑ and I mean that in terms

of, you know, really reliably and validly demonstrate that

they are not doing these egregious things ‑‑ do we have to

implement every single piece of paper in the same way in

those school districts as we might in a school district

where we do have evidence that there are some problems in

that area.

And it\'s that notion of being able to provide

with evidence but some flexibility that I think is also

important to think about.

MS. TAKEMOTO: Okay. And the other children

that sometimes get left behind, we\'re talking about the

majority of the students are in what would be considered

to be mild disabilities. I think we\'ve heard lots of

testimony about that.

Tell me about accountability for results for

those students for whom teachers find it challenging to

show any demonstratable progress.

DR. McLAUGHLIN: I\'m just going to jump in

here because I\'m involved in one such effort like that.

In Montgomery County, Maryland, which is

across the river, I think, from you, Cherie, and Madeline

Will and Ricky Sabier (phonetic), who are two parents, are

chairing something we call the Continuous Improvement

Team, and we have ‑‑ and I\'m providing kind of just the

support to it ‑‑ and we have developed a set of indicators

that can be measured at the school level, that can be

measured and reported at the school level, that do account

for every single child.

Now we are struggling right now with finding

some ‑‑ we do have an alternate assessment and we are

using some of the alternate assessment data but we\'re also

looking at other critical ‑‑ we\'re in the process of

designing, let\'s put it that way, some other very critical

performance indicators for the kinds of children who are

not participating in our state ‑‑ in the state or district

assessments.

And, even for those children, the parents of

those children are saying, \"There are some other things

that are important that we want to know about those

children that may not currently be things that are

developed from the\...\" ‑‑ I mean, that we are measuring

and reporting at the school level.

We have just ‑‑ I shouldn\'t say \"we\" ‑‑ they

have ‑‑ the parents and the CIT have just obtained from

the superintendent two things; one, the school improvement

planning process, that Dr. Vargas referred to, must now

indicate, in the CI ‑‑ the SIP, the status of children

with disabilities, every child, regardless of the nature

of disability, on these indicators. There\'s going to be

principal training in how to interpret those data. And

they will begin to be used and reported.

Now, they\'re not going to be reported in any

state‑level reports at this time because this is specific

to this county. But, just to put this in perspective,

there are 134,000 students ‑‑ Madam Chair, you know that

‑‑ 134,000 students and 16,000, 17,000 students with

disabilities. So this is a huge district; we\'re not doing

this just on a small, couple of buildings. And our

definite intent here is not one single child can be left

behind at the school level.

The problem right now is that those data are

used for school improvement planning, they\'re going to be

used for accountability at the school level. There is, at

the present time, a whole separate set of data that the

state requires that that district report so we still have

a parallel effort going on.

MS. ACOSTA: Thank you, Dr. McLaughlin.

In the interest of time, Commissioners, we

are going to limit you to five minutes. And then, if

there is any time left over, we certainly will welcome

your questions at that time.

Commissioner Huntt?

DR. HUNTT: Thank you, Madam Chair, and

thank you panelists for your excellent presentation.

Dr. McLaughlin, I think you\'re the first

person that has mentioned the fact that we\'re talking

about a civil rights issue. I don\'t think that that issue

has come up previously. And it piqued my interest because

we\'re talking about paperwork and compliance and

performance models.

I was wondering, from a monitoring

perspective, are we potentially asking those set to be

both friend and foe in monitoring this? For instance, we

talk about developing trust ‑‑ Dr. Vargas, you have

mentioned that; ‑‑ being flexible; trying new things,

thinking outside the box. That type of thing would

require technical assistance, I would think, from the

federal level.

How do we establish that trust at the federal

level ‑‑ the state and federal level, and thinking outside

the box and being flexible, if that monitoring group is

also the foe, in that, \"If you don\'t do \'X\', this is going

to happen to you.\"?

So I\'m wondering, is OSEP ‑‑ is it still

appropriate for OSEP to be both friend and foe in this

process? If we move to a performance model, do you think

that\'s going to be an effective way to do it?

DR. VARGAS: Well, Chair, and members of the

Commission, Mr. Huntt, I wouldn\'t think about it as

necessarily friend or foe and I\'m thinking of it as

principle. You know, thinking about student‑centered

decision making in a student‑centered focus.

If the bottom line is we\'re trying to improve

the educational outcomes and the performance of students,

that should be at the center of everything that we do.

And it\'s not about, you know, who\'s a good guy or a bad

guy or ‑‑ monitoring or technical assistance, as much as

it is, is each one of us has a responsibility and a role

in this hierarchy of systems and can play a powerful role

in helping to improve those outcomes.

And that does mean that whoever the players

are, I think, have to understand that this is about kids,

it\'s not about the adults. And that\'s where our attention

needs to be and we need to check our egos at the door,

because that\'s where they belong in this business, and put

our attention and energy into how do we help improve the

performance of students and what can each one of us do,

not necessarily what can you do and what can you do, but

asking ourselves what part of the solution do I have.

And, if it\'s OCRs asking what can we do to

help these schools and these teachers and these parents

and all of them working together to raise the performance

and the outcomes for students so that they have, you know,

the same kind of ‑‑ or at least the maximum number of

choices that they can in their lives? What role does each

one of us play, whether it\'s on the general or the special

ed side of the house, and how can we make what we do more

powerful for these young people?

DR. McLAUGHLIN: Just to follow up on that.

I mean, I don\'t know that it\'s friend or foe, although

it\'s foe in the sense that, if you\'re found to be out of

compliance and you have a corrective action plan, it

usually results in several more pages on your IEP forms

and nothing, necessarily, happens for children in that

whole process. But the parents and the advocates and, you

know, other people who advocate it may feel that that\'s

good because at least there is some attention to it.

But I think that, if we could think about

this as ‑‑ first of all, when I talked about having a

performance‑based, obviously, this is a very, very

critical issue, that we have to make sure that we have not

just the same standards as other kids in the system, but

that we have all of the right indicators, some of which

might be still be process indicators, they might be

program‑specific as opposed to student performance, as we

move toward this full accountability and rebuilding trust.

Secondly, I agree with Dr. Vargas that I\'m

not so sure now that anything does happen really

substantively to change the lives of kids or their

performances in some of the monitoring that goes on and

that, if we had much clearer targets for that monitoring

and then said, \"Yes, and now these are the things that we

have to do.\" some of which can be directives to the state.

For example, \"These are the things that you

must use your state improvement grant funds for; you have

no choice now because you have these issues that you need

to deal with.\"

I mean, I\'m sure there are other ways that we

have levers that are constructive levers as opposed to a

punishment kind of model.

DR. HUNTT: I think that\'s a sad commentary,

that there\'s nothing substantive that happens through the

compliance model that we currently have.

But I want to, at least, indicate that I

appreciate your comment on civil rights; it\'s a sad

reality that we in American society have decided that kids

with disabilities aren\'t going to graduate from high

school and they\'re not going to get jobs afterward. And

this is a civil rights issue; and I appreciated that.

One of the recommendations I\'d like to make

to the Honorable Alan Coulter, at the end of the table

there, who is going to be chairing a Task Force next week

on OSEP, is that you consider whether they are the most

viable monitoring body, Alan, because, as a civil rights

issue, it may be that the Office of Civil Rights may be

the more appropriate monitoring entity.

Thank you, Madam Chair.

MS. ACOSTA: Thank you, Commissioner

And now, Commissioner Gill, please?

DR. GILL: Thanks. I appreciate your

presentation, too. I appreciate the fact that you at

least gave us some examples and some recommendations, et

cetera. So my question is going to be real simple.

If you only had one recommendation that you

could pony up to this committee, and I\'m going to ask each

of you the same question, which one would it be?

DR. VARGAS: Madam Chairman, the Commission,

Dr. Gill, my first recommendation would be to integrate

general and special education. And I say that because,

when we\'ve done that in school districts, it\'s created the

capacity to leverage more energy, more ideas, and

resources towards addressing some very difficult systemic

problems and issues. And it puts everybody at the same

table to deal with all kids; it doesn\'t leave people in

isolation and it doesn\'t leave them alone.

And so, as I think about it from an

organizational perspective in terms of how to leverage

capacity, would be to put all those resources together in

terms of talented people, ideas, parents and others

working together because the problems that we face are so

insurmountable that no single agency or provider can meet

all of the needs that our young people have, that we\'re

talking about. Only by working together, as a school

system with the community, both special and general

education, can we harness those resources in more powerful

ways. And that would be my first recommendation, if I

were making the decision.

DR. GILL: Okay.

DR. McLAUGHLIN: Dr. Gill, I\'m going to take

that a little further, a little more specifically, and say

that, if I had one wish for this reauthorization, it would

be that I would take Section 612, performance goals and

indicator, I would clearly look at the language under that

and align it with the building, LEA and SEA reporting

requirements under No Child Left Behind, but ‑‑ and I want

to make this a very careful \"but\" ‑‑ that we just don\'t

say that whatever is reported under Title 1 ESEA is okay

for kids and that kids with disabilities should be

included, but that we look at the critical standards and

indicators to make sure that we have the sufficient number

for all students.

But I feel that we have got to move toward

the level of that kind of unified accountability at the

building level, at the LEA level and at the SEA level to

be able to realize the same ‑‑ I share Dr. Vargas\' goal

but I believe that it\'s going to come through a kind of

system that\'s based on, \"we\'re all working toward\...\" and

we\'re all very clear on the targets we\'re working toward

for children with disabilities and without.

DR. GILL: Okay. I have lots of follow‑up

questions but I\'m going to ‑‑ I know, in the interest of

time, other people have lots of questions they want to

ask, too. So thanks.

MS. ACOSTA: Thank you, Commissioner Gill.

I have one ‑‑ two quick questions.

And, to agree with Commissioner Huntt,

President Bush has called denying any child in this

country a right to an equal education, the underbelly of

bigotry. And I thought that was very well stated. I hope

he doesn\'t mind me speaking out of context for him.

However, we talk a lot about accountability

and the paperwork issue being linked to that

accountability. How would you monitor school‑based

performance accountability?

DR. VARGAS: Madam Chairman, members of the

Commission, obviously, as we look at more individualized

systemically approaches to accountability, there, as I

alluded to and referred to, there are emerging systems in

school districts now that look at the performance of each

individual student relative to every learning standard in

that grade level, and their performance relative to that

learning standard.

And so, there are mechanisms that I believe

are in place that, if you look at ‑‑ I\'ll use as one

example, there\'s a school called Ascarte School,

A‑s‑c‑a‑r‑t‑e; it\'s an elementary school in El Paso,

Texas. It\'s a national blue‑ribbon school, the principal,

Ramon Morales (phonetic) was the principal ‑‑ national

principal of the year. It\'s probably about 650 students,

a hundred percent poverty, 95 percent minority. And, if

you look at the performance of those students, on the

state‑wide exams, almost every one of them is achieving

above a 90 percent pass rate.

And you talk about accountability for every

individual student and you walk into that school, you can

see the teams of teachers, working together, are holding

themselves accountable for each and every individual

student.

And it\'s ‑‑ I want to come back to the point

of the civil rights issue because the fact that some kids

can do well in this country and some can\'t is a civil

rights issue. And all students need to perform at higher

levels, including those in special education.

And so I would submit that there are emerging

systems that are continually being developed that I think

we need to really take advantage of and further refine and

develop so that, indeed, no child is left behind under

these state‑wide systems.

MS. ACOSTA: Thank you. And just one more

thing. Sir, would you just let us look at that IEP that

you brought with you?

DR. VARGAS: Certainly, I\'ll leave it with

you.

MS. ACOSTA: Thank you so much; we appreciate

it. It will become part of the record.

One of the issues that we have people saying

is a lot of paperwork and we need to get a handle as to

what paperwork really looks like. Thank you.

Commissioner Coulter?

DR. COULTER: I want to tell you once again,

I think as each Commissioner has, how much we appreciate,

you know, the time that you\'ve taken to look at what is, I

think, a very, very difficult issue and that is, defining

what people are complaining about. Because I think a lot

of people have concerns that are more born out of

frustration; we\'re trying to understand the process that

‑‑ any tangible experience they might have. So this issue

of paperwork is, I think, sometimes very difficult for us

to define exactly what the problem is.

Let me see if I can get some confirmation on

a couple of things. First of all, as I heard you speak, I

think both of you spoke to the feasibility of an

accountability system for providing education to students

with disabilities that focuses on results, that that seems

to be possible and doable for all kids with disabilities.

Is that yes or no?

DR. VARGAS: Yes.

DR. McLAUGHLIN: Yes.

DR. COULTER: Okay; thank you. I appreciate

that. And we love yes/no questions, by the way ‑‑ or

yes/no answers, I mean.

Secondly, as I understood it, some ‑‑ and I

think, Maggie, that you spoke to this most directly ‑‑

that, in some instances, results for kids with

disabilities can be much shorter‑term kinds of results.

We\'re not talking about annual achievement, we\'re not

talking about diplomas, avoiding drop‑out; we\'re talking

about, in some instances, kids simply being in settings

that would facilitate them learning typical social skills

or social skills on learning how to get along with kids,

et cetera, that that actually could be a result in this

more flexible conception of what we want for kids.

DR. McLAUGHLIN: I think what I said is that

I believe that, for students with disabilities, we need

some of those indicators because they are very important,

but they would not substitute for results. I would still

want to have results on, for example, social adjustment.

DR. COULTER: Okay.

DR. McLAUGHLIN: In addition to those or in

addition to other key program indicators.

DR. COULTER: Okay. Now here\'s the longer

question; you can spend the rest of my five minutes, the

two of you, answering it.

What frames the discussion about

\"appropriate\"? In other words, you know, I\'d like for you

to give us some indicators of what you see as definitions.

Maggie, you used the term \"appropriate\" obviously, from

\"free and appropriate public education.\" Superintendent

Vargas, you talked about quality‑differentiated

instruction.

What frames that discussion for us about, you

know, what are the indicators of \"appropriate,\" what are

the indicators of \"quality\" that we can practically

address for folks?

DR. McLAUGHLIN: May I ask a clarification

here? You want to talk about what they could be and not

the current legal and statutory interpretation of

\"appropriate\"?

DR. COULTER: Well, I think we encouraged you

to dream big and you did that. So, keep dreaming.

DR. McLAUGHLIN: Okay.

DR. COULTER: Just dream specifically for us.

DR. VARGAS: Madam Chair, members of the

Commission, Mr. Coulter, first of all, I think, if we are

in an era of standards‑based reform, we have to start with

the standards, start with what are the expectations that

we have for all students so they won\'t be left behind.

And for students with more intense and severe

needs, I think we have to ask the question, what kind of a

life do we want them to have when all of us go away at 21

and all those supports are gone for parents. What\'s going

to happen to them?

And I think we have to, then, start that fact

with planning in terms of what\'s it going to take to get

there. So, in terms of specific quality indicators,

certainly started with standards, certainly looking at, as

I refer to, the instructional environment and the quality

of the instructions being provided, the methods, the

strategies, the pacing, the many research‑based practices

out there that would meet standards of quality in terms of

helping young people to learn to read, like reading

recovery, accelerated reading, reading results that are

making a difference for kids, have these proven to make a

difference for kids and, if they haven\'t, then what other

strategies are available that would meet the students\'

needs, but not throwing the towel in and saying it\'s the

child\'s problem and it\'s their fault they\'re not learning.

So, looking at the qualitative issues in that

regard in terms of the features, if you will, of that

instructional setting and the support systems available.

And then relative to progress being made, using the most

powerful practices we know of, determining gradually as we

move along what adjustments should be made in light of

students\' progress or performance based on their own

individual situations.

But certainly they\'re there, certainly

schools around the country in different places are

actually doing that. It hasn\'t been crystallized or

formalized or framed in any particular way for many of us

but it is happening and it\'s focused on, what is it that

we want as an end result and is what we\'re doing moving us

in that direction or is it just making us feel good right

now but it\'s really not going to result in an improved

quality of life for that student when we all go away at

21\.

MS. ACOSTA: Thank you.

Commissioner Chambers?

DR. CHAMBERS: Thank you very much, Madam

Chair.

It\'s very nice to see both of you again after

a long hiatus and I want to join the chorus here in

expressing my appreciation for the clarity of your

presentations.

I also serve on the Finance Task Force so my

question may sound like it\'s coming a bit out of left

field but, as I listened to you talk, particularly Dr.

Vargas, thinking about the inextricable links between

general education and special education, my mind began to

move away from my very specific questions about paperwork

and processes and think about some broader ‑‑ a broader

question. I have one question for you; it\'s not a yes/no,

true/false, it\'s an essay question.

But I guess what ‑‑ I would like to ask you

what you see the implications of your remarks are for

increases in the federal support, financial support, for

special education and then, more directly, for the use of

federal funds, how they might be used, because I heard you

talking about identification and maybe not spending so

much time in identification. So I guess I\'d like you to

elaborate a little bit on those issues for me.

Thank you.

DR. McLAUGHLIN: Dr. Vargas?

DR. VARGAS: Either way.

DR. McLAUGHLIN: Well, thank you.

Dr. Chambers, I, as you are probably are

aware, talked previously, a long time written about, the

need to begin to have a great deal of flexibility in the

use of resources. Now, when I say resources, I can be

talking about the FTEs that are assigned to a school, as

well as dollars that might come in a school\'s budget

because I believe that the ultimate goal is to provide, to

the individual school at the school level, the kinds of

resources and the configuration of resources that that

school needs to get every single child to where he or she

needs to be.

And I mean that when I say, \"every single

child.\" So that, in fact, if a school decides that what

they need are more reading teachers or they need some

behavioral specialist or, for the next year, they need

these kinds of things, they should be able to use those

resources flexibly to do that without being encumbered

with this ‑‑ you know, regulations around how money flows

or, you know ‑‑ I hate to say this because I\'m sure this

may send some, you know, shivers up people\'s spines ‑‑ but

even staffing guidelines and things that otherwise

restrain the use of those resources.

I also believe that, in this current ‑‑ and I

‑‑ it\'s not ‑‑ you know, it\'s not settled yet, it\'s still

the cases on fiscal adequacy or still somewhat, you know,

in balance of whether that\'s going to be the predominant

or dominant, you know, model among state funding formulae;

but special education really cannot participate in or be

part of that because of the way in which we consider

\"appropriate\" ‑‑ to go back to Dr. Coulter\'s question ‑‑

as well as the way in which we have funded and supported

special education.

So I think it\'s even more critical now that

we begin to say, \"This is what constitutes an adequate

education, e.g., these are the standards, these are the

outcomes that we expect.\" They should be expanded and

extended for children with disabilities, and other

children who may be specially‑situated children, and this

is the amount of money that it\'s going to take at the

state level, or at the district level.

Now you may be aware that we\'ve just come out

of the Thornton (phonetic) Commission in Maryland and I\'m

quite proud of what our legislature has done; but it\'s

quite interesting that they\'ve basically chunked out a

piece of it and said, \"Okay, all the rest of this is going

to support, you know, the growth of children in the

schools and this you can use for special education.\" and

implicit in that is, whatever you all do in special

education, here\'s some extra money to do it.

And the rest of it is, of course, clearly

based on student performance and getting children to

higher levels of that performance. And I know Madam Chair

is very familiar, probably, with that more than I am.

So I think it has implications for how we ‑‑

maybe not at the federal level, but certainly at the state

levels, how we allocate and look at our special ed

resource needs and how they get allocated to local

districts and schools.

MS. ACOSTA: Thank you.

DR. CHAMBERS: Is there any way ‑‑ I want to

hear what Dr. Vargas has to say.

MS. ACOSTA: We\'ve gone over our five‑minute

limit, Dr. Chambers, but we can ‑‑ and we have to take a

break because of technical difficulty.

I am going to ask ‑‑ Todd Jones is our

Executive Director for the Commission and he has something

to ask, as well, And, again, Mr. Jones, we have a

technical difficulty and we\'ve been asked to break at this

‑‑ right after Mr. Jones\' question.

MR. JONES: Mine is very short; it\'s for

Maggie.

The question goes to reporting of data at the

school level. Under No Child Left Behind, one of the

things you can do is break down the data at the

schoolhouse level, you can break down below that to third

grade, that\'s convenient to do when you have one, two,

three, third‑grade classes. But, if you have one child

with autism or two children with autism in the third

grade, or even three in the school, you\'re getting down to

levels of statistics that allow information to be extract‑

based on the knowledge of one.

From my work doing the OCR Survey, I\'m now

becoming intimately familiar with these concepts. And

then, if you add race cross‑matched against disability

status, you make it almost impossible to do, even at some

schoolhouse levels for a lot of the low‑incidence

disabilities.

How would you ‑‑ how do you see this being

addressed by integrating in the concepts of No Child Left

Behind accountability systems to special education system

data collection?

DR. McLAUGHLIN: Basically, there are two ‑‑

I\'m very familiar with ‑‑ and increasingly familiar with

‑‑ the issues around reporting at the school level for

students with disabilities, whether we have a large \'N\' or

whether we just have a small number. And we have the

confidentiality issue, which is a legal issue. And I

think that does need to be addressed.

And, if I can step aside from that for just a

minute and say that there is, however, two things that

we\'re kind of talking about. One is the computation

and/or the determination of AYP and the setting of

performance goals which, in small \'N\' is not going to be

possible and it may be that those concepts, those pieces

of No Child Left Behind, must be done at the LEA level or

in an aggregate form because of the small \'N\'.

However, it would be of extreme use to the

public to know that, if you had 10 children in fifth‑grade

level at ‑‑ in your school who had an IEP, how many of

those children even participated in an assessment.

Whether you could ‑‑ how many participated with

accommodations, without accommodations.

And, the other thing that I think is

incredibly important under the ‑‑ and hopefully will be

addressed during the regulations or in the regulations ‑‑

is, when you compute your school performance index for the

computation of AYP, exactly which students with

disabilities are included in that and which are not. For

example, students with accommodated scores are non‑

standard accommodations; where are they?

So a lot of the issues on accountability, at

least in our beginning stages, are simply in a very

descriptive, clear format so that parents, when they pick

up that school report, see who is in and who is out and

who was computed and who wasn\'t. And then the issues

around computation of AYP and, you know, whether you\'ve

met your performance goals are certainly something that is

more a measurement construct.

The only issue that I can\'t address, at this

point in time, is the confidentiality issue. However, I

would say that those numbers of non‑report do differ, as

you probably are aware, from five in our state to 10, I

believe, throughout California, to six in Kentucky and

Delaware ‑‑no, maybe Delaware is 10.

So, if we could perhaps seek some

standardization there, that might be helpful. But ‑‑

MS. ACOSTA: Thank you so much.

Once again, Dr. McLaughlin and Dr. Vargas, we

thank you for coming this morning and sharing your

insights and your expertise with us.

At this time, we will take a break, a 15‑

minute break. We have some technical difficulties and we

will back.

Thank you.

(Whereupon, a brief recess was taken.)

MS. ACOSTA: We are now back in session

The next panel will discuss the process

compliance model, what are the alternatives. The panel

will explore the real world of the process compliance

model on local schools and what alternatives might exist

to the current system.

The prior focus on compliance does not

necessarily translate to an effective educational outcome

for children who need special education services, shifting

the focus from an exclusive emphasis on compliance to a

data‑driven model focused on academic outcomes such as

school graduation rates of children with disabilities will

be discussed.

The panelists will include: Dr. Batya

Elbaum, an Associate Professor in the Department of

Teaching and Learning and the Department of Psychology at

the University of Miami; and she is the Director of the

University of Miami School of Education Center for

Research.

We also have with us Ms. Donnalee Ammons,

formerly a local special education director, who is

currently the CEO of Success Institute, a community‑based

mental health agency that operates under the psychiatric

rehabilitation option within the Louisiana Medicaid

program.

Thank you, ladies.

DR. ELBAUM: First of all, Madam Chair and

members of the Commission, thank you very much for giving

me the opportunity to testify before you today. As you

know, I\'m an Associate Professor of Education and

Psychology. I have a doctoral degree in developmental

psychology and I do research on the academic ‑‑

MS. ACOSTA: Excuse me, doctor, you need to

speak more directly into the microphone. Thank you.

DR. ELBAUM: Thank you.

I do research on the academic achievement and

social development of students with disabilities,

primarily students with learning disabilities. Since

receiving my doctoral degree in 1994, I\'ve been recipient

of an OSEP Initial Career Award and I have been principal

or co‑principal investigator on a number of directed

research projects.

Since we were asked to present our

recommendations first, I\'m going to do that, with

Donnalee\'s assistance. And I\'m going to read through them

briefly; they are relatively short. And then I will

provide you with some of the background and argument that

led me to make these recommendations.

\[Overhead projector presentation\]

The first presentation and, to answer the

question which Dr. Huntt has not yet asked ‑‑ this is the

most important one ‑‑ is that monitoring should focus on

the extent to which students with disabilities are

achieving important outcomes. All the rest flows from

that statement.

The second recommendation is that monitoring

activities should be designed to investigate those areas

of performance and compliance that bear the strongest

relation to important outcomes so as to inform the design

of interventions aimed at improving these outcomes. State

educational agencies should work collaboratively with

stakeholders to develop a common understanding of how data

can and should be used to inform the monitoring process.

My next recommendation is that SEAs should

use multiple sources of data and multiple data‑collection

methods so as to make the findings of monitoring visits as

robust as possible. SEAs should make all data and data‑

gathering procedures public and explicit; they should also

streamline data collection and compilation procedures so

that high‑quality reports can be produced within several

weeks of a monitoring visit.

SEAs should ensure that key stakeholders,

especially parents, are involved in each aspect of the

monitoring process, including planning, implementation,

and evaluation of monitoring activities.

And last, SEAs should have their monitoring

activities reviewed and evaluated by an external evaluator

to assess the extent of stakeholder involvement, the

consistency of implementation of established monitoring

procedures, the reliability of the data collected, the

extent to which the findings are supported by the data,

and finally, the usefulness of the monitoring report in

terms of providing guidance for future action.

Now let me tell you what leads me to make

these recommendations.

Based on my training and research experience,

I\'m convinced that the application of research principles

to the monitoring enterprise will result in improved

outcomes for students with disabilities and their

families. Though many people think of research as

abstruse and theoretical, I would like to suggest to the

Commission and to the families of students with special

needs, that there is nothing more practical or more likely

to result in improved outcomes than a monitoring system

that uses many of the same principles that we use in our

University‑based research studies.

Before I speak about the application of

research principles to state monitoring systems, let me

explain how I, primarily a researcher, became involved in

Florida\'s monitoring efforts. When the State of Florida

came up for OSEP monitoring in the 1999‑2000 academic

year, I was asked to help develop and implement a more

systematic and focused method of gathering public input

than had hitherto been used in our state\'s self‑assessment

efforts.

Working in conjunction with what we call the

Bureau of Instructional Support and Community Services,

which is our Division of Special Education at the state

level, my research team developed a set of focus group

interview protocols, we trained a cadre of focus group

facilitators, organized the electronic data‑compilation

system, and assisted in implementation of the process

across multiple sites in Florida in a three‑day time

window during OSEP\'s validation planning visit. On the

fourth day, we produced a preliminary report.

The Florida monitoring report that OSEP

provided acknowledged the contribution of this system to

providing broad and timely input to the monitoring process

and noted that it was responsible for obtaining input from

a large number of parents, including under‑represented

groups.

This process enabled the OSEP team to have a

clear picture of what stakeholders in Florida thought

about special education services before they even returned

to Washington, D.C.

Following OSEP\'s monitoring visit, the State

of Florida began a major revision of its own monitoring

system. I\'ve had the privilege of participating in this

revision process over the last three years; it has been a

collaborative effort involving not only the Department of

Education and University researchers but also parents,

teachers, district administrators, consultants, and even

students. The process has resulted in a new way of

thinking about what monitoring can and should achieve and

how go get it done.

If the process of revising the system has

been as successful has it has been, that is in no small

part due to the serious commitment of resources that the

State has allocated to bring about this system change.

Now, what I\'m about to present offers my own

distillation of the principles underlying the new

monitoring system in Florida. I speak not as an official

representative of the Florida Department of Education but

as a researcher who has participated in stakeholder

meetings, monitoring workgroup meetings, trainings of peer

monitors, state‑wide meetings of district staff, pre‑

monitoring briefings, site visits to districts, post‑

monitoring debriefings, data analysis, and review of

reports.

So I\'m going to briefly describe what I have

distilled as the principles of what I feel is an improved

monitoring system in the State of Florida.

The first principle is that the process

should be public and explicit. District‑level data on key

indicators must be made available to the public. The

formulas used to select districts for monitoring must also

be made public. All data collection procedures must be

communicated in advance to the districts; all monitoring

reports must be made public and disseminated not only to

school personnel but also to parents and other

stakeholders.

Second, the process should utilize rigorous

research methods. Multiple data sources and data‑

gathering methods should be used. It should be possible

to trace all data back to their sources so that the

accuracy of the data can be verified. The data‑gathering

process must be described in great enough detail so that

it can be replicated. This means that it would be

possible, in principle, to have a different team of

monitors apply the same procedures to a comparable sample

of individuals, schools, and classrooms in the district.

This replication makes it possible to assess

the reliability of the process as indexed by the extent to

which the findings of the two teams agree with one

another. Replication is one way in which the quality of

the monitoring system can be evaluated by an external

evaluator.

Next, the process should be feasible. Ah,

there\'s the rub, you say; that research studies take a

long time. And that can certainly be the case. However,

I would like to disabuse you, if need be, of the notion

that researchers do not have an eye to issues of

practicality. Let me illustrate this with an example from

my own work.

If, for example, a graduate student about to

embark on her dissertation ‑‑ I should look at Michelle ‑‑

were to come to me and say, \"Dr. B, what I want to do for

my dissertation is to find out everything there is to know

about why students with disabilities experience

difficulties in school and what we can do to help them.\"

I would say, \"My gosh, that\'s admirable, that\'s ambitious,

but what decade was it your were targeting for your

graduation because I\'m going to be gone by the time that

either you or anyone else knows everything there is to

know. And, what\'s more, given the pace of change, by the

time you know everything, everything you know is probably

wrong.\"

So, in order to ensure the feasibility of a

research project, you have to have a focus. The same is

true of monitoring. No state can investigate every valued

outcome of a free appropriate public education and, even

if the focus is on a single outcome, no monitoring system

can apply every conceivable data‑gathering method to the

investigation of that outcome.

So, limiting the scope of an investigation

may mean ‑‑ and, by investigation, I mean research

investigation ‑‑ may mean that the findings cannot be

generalized to domains that were not studied. However,

what is gained is a high level of confidence in the

findings within a particular domain with the likelihood of

developing effective strategies for addressing at least

one major area of need. One hopes, of course, that the

strategies implemented to address one critical area of

need will lead to improvements in other domains, as well.

This is why a monitoring system needs to

focus its investigations on those districts where outcomes

are poorest and, within districts, the state\'s

investigations need to focus on areas of performance and

compliance that are high‑prophesized to have the strongest

relation to the outcome under study.

The next principle is that the process should

involve parents and other stakeholders in all phases of

monitoring, planning, implementation, and evaluation. It

is especially important for parents to be members of these

teams. In Florida, parent representatives on the

monitoring steering committee played a key role in

developing the new monitoring system. Parents are also a

key data source.

When a district is selected for a focus

monitoring visit, the parents of all students with

disabilities receiving special education services in the

district are mailed a questionnaire concerning their

perceptions of the quality of special education services

and their satisfaction with their involvement in the

educational process. Parents are also invited to indicate

their interest in participating in a focus group interview

whose purpose is to examine the focus outcome in greater

depth. Additionally, parents can also call a toll‑free

number at the University of Miami to provide additional

input.

A similar multi‑method design, that is survey

plus focus‑group interviews, is used to obtain input from

teachers and service providers and from high school

students receiving special education services.

Florida has yet to include parents as members

of the monitoring team, as is done in several other

states, and to include parents in the evaluation process,

but these are steps that I think will soon come under

consideration.

Next, the process should be designed so as to

inform interventions ‑‑ or call them corrective action

plans or improvement plans ‑‑ that lead to improved

outcomes for students with disabilities. In my view, the

research‑based approach to monitoring offers the greatest

likelihood of learning what aspects of special education

services ‑‑ for example, instructional strategies,

curriculum, assessment, relations between schools and

families, and so forth ‑‑ have the strongest relation to

the outcome variable of interest in a particular district.

Knowing what these factors are is of crucial

importance because this knowledge can guide development of

an improvement plan designed to improve the outcome. I\'ve

included a couple of examples in my written statement to

the Commission; I\'d be glad to discuss these if there is

time.

Now, though, I would like to turn from the

\"what\" and the \"why\" of monitoring to the \"how.\"

How, in fact, can a rigorous data‑based

monitoring system be implemented in real time? And let me

give you the example of Florida. In Florida, the

monitoring steering committee identified four important

outcome variables which, in Florida, are called triggers,

which will be the focus of the first wave of the new

monitoring process. The one I\'ll be using for

illustrative purposes is the drop‑out rate for students

with disabilities.

Once the triggers have been selected and the

various data‑gathering activities decided on, the Florida

monitoring team, in collaboration with my research group,

developed a data‑coding matrix for each selected outcome

variable. This is the data‑coding matrix for the drop‑out

trigger (indicating) ‑‑ ah, it\'s already up there.

Going down the left column are the state\'s

data‑gathering activities. These are the same for all the

monitoring visits regardless of the trigger. Across the

top are the areas of investigation relevant to the

trigger. These differ somewhat, depending on the trigger.

In the case of drop‑out rates for students

with special education, the areas deemed most relevant,

that is, most likely to be informative for the purposes of

designing a plan to improve results, were staff training

and knowledge, student attendance, quality of drop‑out

prevention programs, compliance with the least restrictive

environment, school actions and systems around student

behavior, curriculum, assessment, and transition.

Each matrix also includes an opinion column

to capture stakeholders\' personal views of the factors

that related most strongly to the focus outcome.

Collective, the areas of investigation represent our best

thinking about the factors that are likely to be

associated with drop‑out rates for students with

disabilities.

What goes into the cells of the matrix are

numbers corresponding to the components or items of each

data source that relate to a particular area of

investigation. This matrix serves the critical function

of guiding design of an automated data‑compilation program

that I\'ll describe in a minute. Each area of

investigation will have a section devoted to it in the

final report. Use of this matrix ensures that every

relevant topic is addressed by data and that data gathered

address a relevant topic ‑‑ or, as I say, \"A place for

each datum and each datum in its place.\"

Members of the Commission will also see a few

sample pages of output from the data‑compilation program

in your appendix.

The use of computer technology has had an

enormous impact both on how data are gathered and how they

are processed prior to data interpretation. In the past,

that is, up until this century, the Department of

Education monitors would record all of their information

from their document reviews, interviews, classroom

observations, and so forth, by hand, on hard‑copy forms,

cart all the boxes back to Tallahassee, unload them, do

all those things that you\'re familiar with, and it would

take a very long time to even get to the stage of data

interpretation.

Now we have the monitors record their data in

Word forms and send the data to us electronically. We

submit the electronic files to a fully‑automated data‑

compilation system that produces a report corresponding to

each cell of the matrix. Following this year\'s visits,

we\'ll probably revise that system somewhat. All the data

from the monitoring visit, with the exception of the raw

survey data, can now be stored on a single CD.

The greatest challenge, though, comes in

thinking about the patterns in the data. What do the data

tell us? In this regard, the challenge facing state

monitoring teams is strikingly similar to the challenge

that you, the members of the President\'s Commission, are

facing right now. How do you organize large amounts of

data from diverse sources, interpret areas of difference

and consensus, synthesize the findings, and come up with

recommendations that will lead to system improvements?

How, indeed, do you accomplish this in a very short period

of time and yet have confidence in the outcome?

A tool that we are using to accomplish this

goal is the data‑compilation system that began with the

data‑coding matrix. An example of the power of well‑

organized data to facilitate interpretation and to guide

intervention is in the table that I\'m about to show you.

This table presents a very, very small sample

of the data collected in the area of curriculum during a

recent monitoring visit. For illustrative purposes, I\'ve

focused especially on adaptations and modifications.

As you see ‑‑ and if you could track this,

Donnalee, leave that there and track it with your finger

visually ‑‑ from the parent focus group interview, one of

the things we learned is that parents felt teachers were

not providing modifications to the curriculum set out in

the IEPs.

One parent said, \"Regular education teachers

do not make modifications. If it\'s listed on the IEP,

someone should make sure that regular education teachers

understand that modifications need to be made.\" There are

several other comments there; in the interest of time,

I\'ll skip down.

From the teacher focus group, participants

stated that some, but not all, teachers cooperated in

terms of providing modifications for students with

disabilities ‑‑ there are examples that follow.

From the student focus group interview, some

students felt that teachers were not amenable to providing

ESE ‑‑that\'s our term in Florida ‑‑ students adaptations

in the classroom. \"Actually, we\'re supposed to get extra

time any time we want but some teachers won\'t let you.

They make it hard for you to get extra time.\"

We have an item from our parent survey that

reads, \"My child\'s teachers give students with special

education extra time or different assignments as needed.\"

In this particular district, 68 percent of the parents who

responded to the questionnaire agreed with that statement.

And you see there\'s a pattern in the data such that

parents of younger children agree more with that statement

than parents of kids as they go through the system. So we

have only 60 percent of parents of high school students

reporting that their child\'s teacher give students with

disabilities extra time.

From the teacher survey, when we asked

teachers to respond to the statement, \"My school modifies

and adapts curriculum for students with disabilities as

needed,\" 52 percent of teachers reported that, at their

schools, that occurred consistently; 32 percent report

that it occurred to some extent; and 16 percent, in this

particular district, reported that it occurred minimally

or not at all.

From the student survey, the item \"ESE

teachers give students extra time or different assignments

if needed\" only 57 percent of students ‑‑ these are high

school students ‑‑ affirmed that statement; 43 percent

disagreed.

In the interest of time, I\'ll skip the next

page; it has very interesting information but I think you

see the pattern in the data.

This way of organizing the data from diverse

sources allows us to see the convergence of data and

paints a picture of an area practice that, in this

district, is certainly greatly in need of improvement and

would represent an excellent target for concerted system

change.

MS. ACOSTA: Thank you so very much for the

excellent presentation.

And now we will hear from Ms. Donnalee

Ammons.

MS. AMMONS: I appreciated the opportunity to

show my technical skills (referring to her operation of

the overhead projector during Dr. Elbaum\'s presentation.)

And thank you very much for inviting me to be

here but I wanted to add to the information you know about

me, it is that I have been a Team Leader of focus

monitoring in the State of Louisiana for the last three

years. And I\'ve been working, for the last year, with the

State of New Mexico on the focus monitoring process.

I didn\'t start out with a recommendation in

my testimony because I got the information a little bit

late about that. But, if I have one recommendation, that

is that focused monitoring will work and it will make

change.

When I was a Special Education Administrator,

I kind of thought of traditional monitoring, that it

probably should be a four‑letter word so that it could fit

that four‑letter‑word \"expletive deleted\" category. I

normally considered that a bunch of desk jockeys from the

state department or maybe the federal government would

show up to find fault. They were usually top‑notch paper‑

pushers because those seem to be the kind of people who

worked at that level. If they\'ve ever faced the day‑to‑

day struggle of working with kids with disabilities, I

believe that it had been so long ago, they\'d forgotten the

challenging opportunities of the real world.

Monitoring was supposed to make sure that

children with disabilities were getting a program that was

compliant and afforded them an opportunity to make

progress. It was not a fact‑finding mission, it was a

fault‑finding mission.

Whenever I think about the benefits of

traditional monitoring, I think about Ms. Roberta. She

was a special education teacher in a small, rural school

in my system during the \'70s. Her paperwork was pitiful

and IEPs became her Mt. Everest. She really tried but she

couldn\'t seem to get all the i\'s dotted or the t\'s crossed

or the spaces filled in right.

In about 1981 or \'82, that school year, it

was our system\'s turn to be monitored. And we all kind of

wondered, \"Well, what witch‑hunt will the monitors be on

this year?\" When the team arrived with their piles of

papers and their sharpened pencils, we were ready, as

ready as we could be. As luck would have it, they chose

some of Ms. Roberta\'s students to review. They ate Ms.

Roberta for lunch. By the time they got done dissecting

her poor paperwork, there was nothing left but cat box

filler.

She came to me after the monitoring team

left.

\"This is my last year. I love my children

and they love me. The ones that are through

school, bring their children back to visit

me. They all work; they all take care of

their families; they go to church; they save

money; and they buy homes. They contribute

to society, they don\'t take from it. They

all read and write, some a little better than

others, they want their children to get an

education. They\'re proud of who and what

they are; and I\'m proud for them.\"

She was kind of quiet for a minute and then she looked at

me and she said,

\"You know, those monitors, they didn\'t even

visit my classroom. They didn\'t see all the

things those children were doing. They

didn\'t look at how far some of those children

have come. They didn\'t ask what becomes of

your children when they finish in your

classroom. They just care about paper; paper

is what is important to them, not what

becomes of the children. If teaching is only

paper and filling out forms, then I can\'t be

a teacher. I can teach children to read and

do math and be good citizens, I can even

teach them how to fill out those forms. But,

if the kind of job I do as a teacher is based

on how well I write an IEP, then I just

better go to the house.\"

And she did.

Now, I spend a lot of time talking to horses

and cows and chickens and I tend to rely on simple

sentences and a very functional vocabulary. And I wasn\'t

sure how many of the illustrious Commission members spoke

\"farm.\" So I decided to reaffirm a higher level of

communication by looking at some of the internet

information on monitoring. I went to Dr. Coulter\'s

website.

You know, Dr. Coulter and Ms. Roberta,

they\'ve been talking over a 20‑year time warp. The very

things that her students did in 1981 were listed as

measures of good outcomes for students in 2001. What a

shame that the wrong emphasis sent a really good teacher

out of the classroom.

You see, we did focus monitoring even back in

1981 but the focus was on paperwork.

I think about Ms. Roberta a lot as I work

through the monitor ‑‑ focus monitoring process in the

last three years and I want to tell her, \"Hey, Ms.

Roberta, things are changing. We\'re looking at outcomes

now, we care about what happens to children, we measure

success by the success of the students. If they\'re

scoring well in high‑stakes testing, if they\'re in regular

classes and meeting with success, then the fact that a

regular teacher didn\'t sign the IEP or that the LRE

justification isn\'t written very well or maybe a box

wasn\'t checked quite right, well, that isn\'t so important

when what you see is that the outcomes for students are

happening and those outcomes are right.\"

For years, the emphasis in monitoring at the

state and federal level has been on the three P\'s of poor

performing pupils, Policy, Procedure, and Paper. These

need to be replaced with some new P‑words, Progress,

Performance, and Product. And the product that we\'re

looking for is successful outcomes for students.

In the last three years, I\'ve served as Team

Leader on 30 initial or follow‑up focus visits. I\'ve

shadowed several teams or filled in as a team member when

a team was short. I know focus monitoring at the grass‑

root level, the level where it makes a difference. And I

can assure you, it does make a difference.

In the Northeast corner of Louisiana, there

is a small, impoverished parish that continues to have one

of the highest unemployment rates in the nation. A few

years ago, they were featured by the national media and

described as being similar to a third‑world country. The

federal monitors visited this system and, in addition,

they were a focused‑monitoring system in Louisiana\'s first

focus monitoring year.

Now they\'re still a focus system because, so

far, no student has exited with a standard diploma. They

have a long way to go but all aspects of programming for

students with disabilities have improved except that one,

the number of students exiting with a standard high school

diploma. The special education supervisor knows that some

time, he will have a graduate and that graduate will, in

all probability, be the first one in the family to finish

high school, possibly the first family member to complete

the eighth grade. But, in the meantime, this special

education administrator continues to make improvements in

service delivery to get better results for all children at

all levels.

His comment after the first focus visit was,

\"This is the first monitoring I ever had where I felt the

team really was looking for ways to help me help my

program instead of just pointing a finger and me and

saying, \'I gotcha; naughty, naughty.\'\" He truly views

focus monitoring as a tool that will help him determine

why things are not happening for students; offer follow‑up

support and assistance in areas in which he has few, if

any, resources; and maybe give a little extra clout to

what he\'s been trying to get the system to do.

In the traditional cyclical monitoring,

everyone gets looked at in the same way; just as much time

is spent in a good system as in a poor system. The paper

product becomes the easiest thing to measure and so IEPs

get scrutinized with a microscope. Data is looked at but

not used in a definitive manner for systemic change.

Monitoring teams look at lots of records, lots of paper;

the law of averages says that, if you handle enough pieces

of paper, there will be mistakes.

The emphasis becomes the IEP as a written

document, not the IEP as a map to a destination. The

emphasis is paper, not children.

In traditional monitoring, the premise is

that the monitoring team is looking for things that are

wrong. The system will be written up and will be required

to fix the problems. As I stated earlier, the traditional

monitoring process has been viewed as a fault‑finding

mission by most local school systems. We know you have to

find something.

In focus monitoring, it\'s different, everyone

knows what the problem is; that\'s why the system is in

focus. The role of the focus monitoring team is to try to

find the systemic issues that are causing the focus

results. It\'s then up to the state Department of

Education to assist the ‑‑ help the system develop a

corrective action plan that is measurable, doable, and

designed to bring about change.

With focus monitoring, the team knows that,

instead of a surface look at all areas, one area has been

targeted for in‑depth, on‑site, analysis. This analysis

will include interviews, observations, current document

review, and review of historical information. The purpose

is to pinpoint causative issues that will lend themselves

to developing solutions.

This doesn\'t mean that the focus monitoring

team is on‑site to give technical assistance. It does

mean that team members have time to follow the clues that

result in findings of non‑compliance that precipitated

focus status.

In Louisiana, the focus indicators are:

Percent of students exiting with a standard

or regular high school diploma;

Percent of students served in regular

setting;

Percent of students passing the Language Arts

portion of the fourth grade state‑wise assessment.

In New Mexico, there are some different

areas, but some similarities:

Percent of students served in a regular

setting;

Percent of students passing the state

assessment;

And percent of students identified as

Learning Disabled.

In the focus monitoring visit, the visit is

based on hypotheses as to why the focus issue is

occurring. The hypotheses are developed by reviewing a

variety of data, including statistical comparisons of data

on disabled and non‑disabled students in the system,

within the region of the state, and against state averages

and national averages.

If the system was the lowest‑ranked system in

the number of students exiting with a standard high school

diploma, the hypotheses might include:

Students are not provided opportunities to

access the general curriculum resulting in their failure

to acquire, and sufficiently develop, skills so as to exit

with a high school diploma;

A second one might be accommodations and

modifications in the regular program are not developed and

implemented so as to afford students a reasonable

opportunity for success.

The team then sets out to prove or disprove

the hypotheses. Sometimes other issues become evident as

problematic. There is a staffing held at the end of each

day where all of the things that the team viewed are

discussed and the decision is made, do we continue with

our original hypotheses; do we add some new ones; do we

discard any?

Louisiana has chosen to give sufficient

laterality to the teams options that they may ultimately

have findings of non‑compliance in a variety of unrelated

areas. The New Mexico stakeholders elected to keep very

close to the focus indicators.

Louisiana has also asked its teams to serve

as a check system for issues that were concerns because of

the recent federal monitoring, including extended school‑

year programming and Part C.

My feelings are that Louisiana needs to get a

little more focused and New Mexico needs to get a little

less focused; that\'s just based on my experience. I tell

my teams, when we go into a system, \"You\'re detectives.

What are the things that result in the focus issue? Look

at what is happening with students; forget about whether

anyone or everyone can regurgitate the rules and

regulations in an interview.\" Most of the time, they\'ve

been really well‑schooled in what to say.

What we want to look at is, are those

regulations being implemented on a day‑to‑day basis. One

of my favorite sayings is, I hear what you say but I see

what I see. Most of all, the teams determine if the

programming for students is carried out so as to

reasonably confer educational benefit.

When I interview, although we do have set

interview questions, my first question is always, \"Why do

you think no students in special education are exiting

with a high school diploma?\" The responses are usually

very on target. I like to interview the superintendent

and it usually surprises the superintendent. But let\'s

face it, he sets the tone for the system. If he sets off

a lot of warning bells during the interview, then you can

be pretty sure nothing will change in the system unless he

is afraid his money will be touched or his name in the

paper.

A lot of times, school systems tell me,

\"Well, our official records are at the central office.\" I

tell my team, \"Don\'t worry about the official records;

what we want to see are the records that teachers are

using to teach the children.\" Those are the important

ones.

If the IEP is seen as a map to a destination,

then it should be well‑used. If I\'m driving to a new

place ‑‑ and the IEP, okay, should be covering new ground,

then I look at my map frequently. I want to know what the

spots are, I want to know what the places are that I\'m

going to stop along way, and I want to know that I will

get to my destination on time.

I think that too often teachers are seeing

the IEP as only a paper compliance issue. Let me quote a

supervisor that I talked to just before I left. Her

comment, when I said I was going to compare the two is,

\"Donnalee, there is no comparison between the two.

\"I remember when I was a coordinator and the

monitors came. When they left, I felt as though

everything I was doing was wrong. I was trying to do what

I thought was right for kids, my whole mindset was

defensive.

\"This year, when I was monitored, I felt like

focus monitoring gave me a jump start towards better

programming. I am so excited about what we are doing; I

haven\'t been this excited in a long time. My focus

monitoring has energized me to push ahead and get better

outcomes for students.\"

We do use parents as an active part of our

focus monitoring process in Louisiana and in New Mexico.

In Louisiana, the parents are also a part of the ‑‑ or,

some of the team members that go into the school and make

school‑site visits, but it\'s taken us three years to get

there.

Over the last three years, 95 percent of the

school systems visited in Louisiana with the focus

monitoring model have expressed positive feelings about

the visit. Post‑monitoring surveys have been positive

about the non‑threatening, non‑intrusive nature of the

visits. In every instance, the system has used the

results of the visit to improve services towards better

outcomes as opposed to improving completion of documents.

In the rest of the written testimony that you

have, I\'ve included the side‑by‑side comparison of focus

and traditional monitoring, as well as a few suggestions

about things that should be considered if, at the federal

level, a focus monitoring process is adopted.

MS. ACOSTA: Thank you so much.

We will begin the Task Force question and

answer session with Commissioner Chambers.

DR. CHAMBERS: Thank you very much for your

presentation. I have a couple of questions for either of

you who chose to answer.

I guess I\'d like to understand more about the

monitoring process or, at least, as you would see it under

the new IDEA that we\'re talking about making

recommendations for.

First, who should get monitored and how

often? And then I guess I\'d like ‑‑ the second part of

the question is, to get some sense, more specifically,

about what kinds of outcomes should ‑‑ you talked a little

bit about this but I guess I would like to hear some more

specifics about what kinds of outcomes should we care

about, both on an annual basis and an ongoing basis during

the school year. If you could elaborate on those for me.

Thank you.

MS. AMMONS: You go ahead and start.

DR. ELBAUM: Okay, I\'ll start.

I think there are two main questions there;

perhaps there are more imbedded in that but ‑‑ the

question of which districts and how often is a question

that, at the state level, which districts ‑‑I\'m sorry ‑‑

which states and how often, which districts and how often,

we debated quite a bit.

And the focus has been on the lowest‑

performing districts but within certain categories. In

Florida, the size groupings are very important; so that

was an important variable for that state.

But there\'s also another component to the

overall monitoring system, which is what we call the

\"random component\" so that, in addition to the focus

monitoring efforts, which focused on the lower‑performing

districts, there are a certain number of districts that

are selected every year for a monitoring visit, which is a

lighter monitoring visit than the others, it doesn\'t

include all the components. And that is truly random in

order to spread around the monitoring resources.

Because I really do think it\'s a resource to

the district, to help them understand what\'s going on in

the district and what kinds of improvements are most

likely to lead to improved outcomes overall. So I\'ll stop

there on that question.

With regard to what should be measured ‑‑ I

don\'t remember how you phrased it ‑‑ but what counts, what

should be measured, what should we be concerned about. Up

to this point, the stakeholders in Florida, and in many of

the other states I\'m familiar with, have selected the

really big outcome variables, high school graduation,

completion, exit with a standard diploma, participation

with regular education students, and those are relevant

and exceedingly important to post‑school outcomes for a

large percentage of students in the system.

However, I would like to acknowledge that

there are students who ‑‑ for whom the most important

outcomes are not captured in the ones that I\'ve just

mentioned. So, for our more severely involved students,

there may be other outcomes that need to be looked at that

are not captured in those very large outcome indicators.

And those need to be looked at, as well.

Some of my researches on social outcomes for

students with disabilities, I look at the issues of self‑

concept and friendship and social adjustment. And, thus

far, we have not developed state‑level or national‑level

indicators of progress in those areas; and I think that\'s

something we should be looking at, as well.

MS. AMMONS: I agree with what Dr. Elbaum

said and I think that the stakeholders in both states that

I\'m working with have selected what they had thought the

most significant factors.

I don\'t have the broad view that many of you

have, and many other people have, but what I have seen in

the two states is that, the students who are learning

disabled, who are emotionally disturbed, those are the

types of students that are not accomplishing what one

would reasonably expect they would accomplish. And, so

that I would think that many states would continue to look

at exiting with a standard diploma in performance on the

high‑stakes testing is a factor in assessing systems.

So far as how frequently a system should be

monitored, if you used a rating system with an indicator

and you go top to bottom, your bottom systems will

regularly get monitored until they have improvement. Your

higher systems ‑‑ or higher‑performing systems will be in

that random pool that, hopefully, will come up for

selection on a three‑ to maybe five‑year basis, as I\'m

seeing it work in the state of Louisiana.

MS. ACOSTA: Commissioner Takemoto.

MS. TAKEMOTO: I just have a comment.

As you were giving your testimony, I was

thinking about functional behavioral assessments and

behavioral intervention plans. If one applies those

correctly, one is talking about the system, and that

system of support, as opposed to the problem students. So

that kind of occurred to me as you were speaking about how

one makes a hypothesis as to why it is that the school is

not performing.

I still have great concern for ‑‑ when you\'re

looking at percentages that the kids with severe

disabilities don\'t even affect those ‑‑ I mean, you could

ignore those students and still do well with percentages.

In fact, in a resource‑based system, you would put the

money where you get the most bang and, regretfully, not

necessarily have to show any meaningful progress for those

students.

Is there a way that you could marry some of

the ideas about the previous panel, of accountability for

individual students with this more targeted monitoring

system?

MS. AMMONS: I think that it\'s very easy to

do that because, once again, if there is some type of

standard assessment measure in comparing the progress that

students make ‑‑ not everything has to be tied to an

indicator that says exiting with a high school diploma or

something like that.

When we go in on a focus monitoring visit, we

are still looking at compliance issues, but compliance

from the standpoint of how that focus indicator keyed us

into it. If we see that services are not being provided in

a setting ‑‑ or in a system for certain students, then we

begin to look at, are they not providing services that are

meaningful for all students.

And so that\'s where ‑‑ for example, in the

State of Louisiana, our reason for going in might have

been one thing; as we did our investigation, we might have

seen other things that were triggered. So, in a sense,

you look at all of the areas of compliance but on a

performance basis, not on just how was the form filled

out.

One of the others, and I\'m sorry ‑‑ I see

teachers who are uncertified teachers, whose only training

is how to fill out the form because that has become the

most important thing. And they\'re not getting trained in

what to do with the students they\'re working with.

DR. ELBAUM: I actually want to add two

points to that, very briefly.

Based on my experience in Florida, the State

is adopting ‑‑ or debating whether to adopt at least one

of two, perhaps more, strategies for addressing that.

One is to have a component of the random

monitoring be specifically targeted to certain groups.

For example, gifted is also administered by our

Exceptional Student Education Division so there is a

component there that doesn\'t have to do with federal

requirements for students with special education, but

they\'re monitoring activities around that. And they\'re ‑‑

are in the plans to have monitoring activities, I believe,

for low‑incidence disability groups.

Another thing that\'s happening is development

of a standardized alternate assessment reporting system.

In the State of Florida, there are many, many different

alternate assessments that are used for students who

cannot participate in the standardized assessments. We are

now trying to develop a report ‑‑ a form is being used

right now for the first time ‑‑ that will conform reports

of progress towards standards for students who participate

in alternate assessments; and that will be an excellent

tracking method that will allow us to look at results for

those students.

MS. ACOSTA: Thank you. I just have one

quick question.

I\'m interested in ‑‑ we\'ve met some parents

who have told us about how arduous it is for them to get

into any kind of monitoring process. And you said you had

parents ‑‑ you trained parents to be part of your focus

monitoring group? And how many of them were ethnically or

linguistically different?

MS. AMMONS: In Louisiana, we don\'t have so

many that are linguistically different but we do have

parents who are ethnically different. I don\'t know in the

top of my head what the percentage is; it seems like an

okay mix to me because no one stands out.

In New Mexico, there are parents who are

ethnically and linguistically mixed. And, in the systems

that the data supports has a very heavy Spanish‑speaking

population in that system; we ensure that the parents on

that focus monitoring team are bilingual.

MS. ACOSTA: Thank you.

Todd Jones?

MR. JONES: I want to ask one quick question.

I guess this is a \"when push comes to shove\" question. We

talk about ‑‑ the concept you talked about focus

monitoring are dealing with districts ‑‑ or the states

that are willing to go along with the principles involved.

Let\'s say, hypothetically, we are on to the

next administration, the Assistant Secretary is not as

enlightened as Bob Pasternak (phonetic) is and so the new

Assistant Secretary puts into place a new set of measures

against which a state\'s going to be judged. And, under

indicator \'X\' a certain state starts failing, and we\'ll

say it\'s in the area of transition. If the state likes

the indicator it\'s used for a number of years, indicator

\'Y\', and they are still continuing to demonstrate success.

Ultimately, you\'re at an impasse unless you

can resolve which one you\'re going to use.

The state will say, \"Look, we\'re doing great

on transition. We have this trend out for five years;

we\'ve been doing great.\" On the other hand, you have the

new indicator and it says they\'re not doing well; what

happens then on the focus monitor?

MS. AMMONS: It\'s been my experience, at this

point, because the focus monitoring team acknowledges

when, in the process of being on site, they see things

that are very non‑compliant, that are very much not having

outcomes, that they would be making findings in that area,

as well.

MR. JONES: Okay, but ‑‑ fine, they\'re making

findings in the area \'X\' which says, \"Your kids aren\'t

performing and the district says, \"No, you\'re using the

wrong standard; we\'ve been using indicator \'Y\' for six

years, this demonstrates our kids are doing well; you\'re

data is flawed. I reject your analysis.\"

MS. AMMONS: It still ties back to the

regulations that are in place, even though it\'s not

specifically investigating each of those.

MR. JONES: Okay, let me use a better

example, low incidence disabilities, we\'re dealing with

transition.

Today, the indicator ‑‑ let\'s say the

indicator exists on job outcome based on preference. A

new Assistant Secretary comes in and says it\'s job based

on preference and whether that person is working primarily

with other persons with disabilities. Under the old

standard, kids are going into contracts where they\'re

working with other disabled students, they have jobs,

they\'re earning pay, they\'re happy, the indicator

indicates they\'re doing well.

Under the new indicator, let\'s say the

employment rate goes down but more students are employed

‑‑ fewer and fewer students are in a mixed environment,

which indicator is right? It\'s a value judgment.

And my question is, how does the enforcement

mechanism come into play at that point? Because the state

is satisfied with what it has, draw conclusions from those

indicators, let\'s say, for purposes of argument, these are

equally valid philosophical outcomes. Who wins and how

under a focus monitoring situation? I can tell you right

now, under OSEP, the answer is, nothing happens because we

have disagreement, money isn\'t taken away. Under OCR,

there\'s an agreement to disagree and maybe there is a

movement to take away money; maybe not. But, ultimately,

it\'s kind of the same in those situations.

What happens under focus monitoring? Is it

still an agree to disagree? Or what happens at the end of

the day?

DR. ELBAUM: Well, I would hope that there is

more dialog that your scenario suggested around what are

the important indicators of outcomes. And I think it can

work both ways. As policy folks decide what are the

important outcomes, then folks like me and others and the

research end develop measures to measure those things.

And, as stakeholders, like parents, decide

that, for example, some aspect of social adjustment is

really important and pushes that issue up to the top, then

we need to put in place measures that will provide data

indicators for that.

MR. JONES: Maybe I\'m not being pointed

enough and I don\'t want to go over my five minutes. Let

me use another more pointed example.

School safety model, number of kids expelled

who have been dangerous in school is our indicator. If

that number os 100 percent under the current regime, let\'s

say hypothetically I\'m in the State of Virginia and we\'re

using the old Virginia standard that they used to expel

without services. And the standard for our achievement is

number of students who were formerly receiving services

who now do not because they are a danger to other

students.

Now we have another standard and we use what

‑‑ we can come up with any other standard. If it involves

students getting services, they\'re doing worse under the

old standard. When push comes to shove, what happens?

DR. ELBAUM: There can still be a finding and

what would be the result of that ‑‑ would be that there

would be a corrective action plan that would need to be

designed to rectify that and a follow‑up of that

corrective plan would say whether, in fact, they were

making progress towards making that indicator better

because it wasn\'t the targeted ‑‑ and I understand ‑‑ I

think I\'ve got ‑‑

MR. JONES: I\'ve only got 30 seconds; that\'s

why ‑‑ I don\'t want to cut you off but, \"If I reject your

action plan; I don\'t comply.\" what do you do? I say, \"I

refuse to comply.\" How do you make me?

MS. AMMONS: In the State of Louisiana, they

have begun to initiate financial sanctions and publication

of those things has been discussed on the internet on the

Louisiana Department of Education web, and those kinds of

issues, as sanctions when a system doesn\'t.

MR. JONES: Okay, I\'m out of time so I

concede.

MS. ACOSTA: Thank you.

Commissioner Gill?

DR. GILL: Thank you, Chairman.

With all due respect to Ms. Roberta, I\'ve got

about four questions that I want to ask you. So, please

understand that we only have about five minutes so if you

could kind of ‑‑ your responses, I would appreciate.

The first one is, and this is kind of for

both of you, I want to know what the cycle is, what the

Florida monitoring cycle is, three years, four years, five

years, whatever it is, as well as I want to know what it

is for Louisiana and New Mexico. So, what are the cycles?

DR. ELBAUM: I can just say briefly, when I

started collaborating with the Florida DOE, their cycle

for the 67 districts in Florida was approximately one

visit every six years.

DR. GILL: Okay.

DR. ELBAUM: But that\'s not ‑‑ they\'re no

longer on a cycle.

DR. GILL: Well, that\'s okay.

DR. ELBAUM: Okay.

DR. GILL: And then Louisiana?

MS. AMMONS: Louisiana is not a cyclical

monitoring process and has not been for the last three

years. I ‑‑ New Mexico is in the process of changing from

a cyclical process; they were on a three‑year model.

Louisiana was on a three‑year model, as well, before they

went to the focus monitoring.

DR. GILL: Okay. So, without some sort of

cyclical model, or in the case of a cyclical model, as the

case may be, when you have changes in reauthorization that

occur within those cycles and you have regulation changes,

et cetera, how do you generalize the results from one

monitoring of one of the districts to a monitoring of

another district who happened to be monitored after the

reauthorization or regulation changes occurred?

DR. ELBAUM: I can respond with regard to the

outcome indicators that I\'m most familiar with. One of

the reasons that we are defining the variables very

carefully and gathering data in a similar fashion in all

of the districts that are participating in monitoring now,

is that so that we can compare outcomes across districts

and longitudinally on the outcome variables of interest

over time irrespective of the reauthorization cycles. So

that speaks to the issue of outcomes such as graduation

with a standard diploma and those sorts of things.

DR. GILL: Okay. Let me ask you another

question, then. What would define you as monitoring?

Does monitoring just mean the on‑site visitation ‑‑

MS. AMMONS: No.

DR. GILL: ‑‑ of local districts on some sort

of cyclical basis or what all is involved in monitoring?

I know our folks in the State of Washington would say

that\'s at least a review of some other compliance

indicators, as well. We have systemic issues that we

think come up via mediation, via citizens\' complaints, via

on‑site verification, via auditing, via due process, all

of those things. What I think I\'m hearing ‑‑ and you

correct me if I\'m wrong ‑‑ is what I\'m hearing you refer

to monitoring as an on‑site visitation of a local

district; is that not correct?

MS. AMMONS: No, that\'s not correct.

DR. GILL: Okay, how would you define

monitoring?

MS. AMMONS: Primarily ‑‑ the first thing

that happens is data is reviewed. Like Dr. Elbaum has

talked about, you review the data on the system, the

statistics on the system, and all of that is used. Your

on‑site visit is to validate or not validate ‑‑ it\'s to

prove or disprove what the data is giving you.

But there is lots of data that\'s looked at

beforehand, you look at the self‑review that the school

system does, in Louisiana, and those are the issues.

We also review if there have been complaints

filed; if there have been complaints filed, then those are

looked at as a part of the process.

DR. ELBAUM: Okay. I would conceive of

monitoring as a system designed to gather, track, explain,

and utilize data on student performance. And that whole

system has episodes in it that go across time.

There\'s ongoing data‑gathering at the

district level, there\'s analysis of those data prior to a

monitoring visit. A monitoring visit is one episode in

the process and provides a snapshot; but the important

thing is not the monitoring visit, the important thing, in

my point of view, is what happens after the monitoring

visit. How did the findings of the visit get incorporated

into the improvement plans?

In Florida, they\'re moving to a yearly

district improvement plan which is going to utilize the

data that are gathered as part of the monitoring process.

DR. GILL: I understand; and I appreciate

that. I think that\'s correct.

But now here\'s my last question for you. And

that is, are we not simply replacing one cumbersome system

with another?

DR. ELBAUM: No.

MS. AMMONS: No.

DR. GILL: By moving to a more focused

monitoring system?

Okay, then tell me what the differences would

be, please.

DR. ELBAUM: Okay. Do you want me to go

ahead?

MS. AMMONS: Go ahead.

DR. ELBAUM: Okay. From my perspective ‑‑

and again, my perspective has some limitations because I

haven\'t been involved under the old system for a long

time ‑‑

DR. GILL: I understand.

DR. ELBAUM: Not only has the \"what\" of

monitoring changed, but, in Florida, the \"how\" has changed

drastically. I think the use of technology and the way we

are able to track data has completely eliminated the

accumulation of paper and it allowing us to do analyses at

a data‑base level that just were not possible earlier.

So that addresses a little bit of the

cumbersome from the practical standpoint.

Now, what I think the question you\'re raising

may be, or one aspect of it is, well, you know, when you

have this much data, you need to do something with it or

it\'s not valuable to you ‑‑

DR. GILL: One would hope so.

DR. ELBAUM: Yes. And so the real bang out

of all of this effort is going to come from a careful

analysis and application of the data. And, unless there

are resources available at the state level to help analyze

and interpret the data, and technical assistance available

back to the districts so that they can make sense of their

own data, I think we won\'t get the maximum benefit from

the new system. So that also has to be in place.

DR. GILL: Thanks.

So is Ms. Roberta more or less likely to stay

in the field as a result of your focus monitoring system

as opposed to the compliance monitoring system of the

past?

MS. AMMONS: I think that the Ms. Robertas,

that are the people that are doing a good job, are more

apt to stay in the field because they\'re not going to find

that the paperwork ‑‑ and the earlier panel talked about

the paperwork ‑‑ that the paperwork has become an

overriding, cumbersome thing that appears to be all that

anybody looks at.

The other thing that I find that the focus

monitoring process does is it lets ‑‑ and why I\'m very,

very pro the on‑site visits is because you see what is

happening, not what somebody is reporting. And, very

often, what is reported is different than what actually

occurs.

DR. GILL: I know. I know we\'ve got to move

on and I\'m going to do that.

But the paperwork issue and the

accountability ‑‑ I mean, I think the issue here is

accountability, isn\'t it, and paperwork is simply the

manifestation of the accountability; is that right?

MS. AMMONS: Does it have to be the

manifestation, ‑‑

DR. GILL: That\'s what I\'m asking.

MS. AMMONS: ‑‑ the accountability?

I don\'t believe it does.

DR. GILL: Okay.

MS. AMMONS: I don\'t believe it does. I

believe, if the product, if the performance, if the

accomplishments of what are set out for the students ‑‑

for the disabled students ‑‑ is accomplished, then there

should be less emphasis on the paperwork part.

DR. GILL: But no less emphasis on

accountability.

MS. AMMONS: No less emphasis on

accountability.

DR. GILL: Okay; thank you.

MS. ACOSTA: Thank you.

Commissioner Huntt?

DR. HUNTT: Thank you, Madam Chair.

Just three questions.

One, Dr. Elbaum, with regards to your

research proposition, you\'re not saying that rigorous

research is synonymous with thick description so that

we\'re not adding more paperwork ‑‑

DR. ELBAUM: Is what? I\'m sorry.

DR. HUNTT: ‑‑ so we\'re not making rigorous

research synonymous with thick descriptions so that we\'re

not going to put more burden on teachers to respond to

research questions and have it actually more paperwork at

the end?

DR. ELBAUM: No. As a matter of fact, none

of the monitoring activities that I described and that

I\'ve observed in the State of Florida involve any specific

extra effort on the part of teachers besides participating

in teacher focus group interviews or being interviewed or

having someone visit their classroom.

DR. HUNTT: Thank you.

And then, with regard to the focus groups, do

you reach out to kids that have already been through the

system to participate on the focus groups, as well as

parents who have been through?

DR. ELBAUM: No. That\'s very interesting;

but what we\'ve tried, this year, is to use the data base

from which we have an indicator of kids who have already

dropped out and we have invited those parents to

participate because we really think that the best

information on kids who have dropped out comes from the

kids, themselves, or from their parents.

But, for legal and institutional review board

reasons, and so forth, it\'s very difficult to get to

minors who have dropped out. But we can solicit the

participation of their parents.

DR. HUNTT: Good.

And then, with regard to the monitoring,

we\'re not looking only at academic achievement but, as you

indicated, we\'re looking at life skills with kids that

have significant disabilities, then? Is that ‑‑

DR. ELBAUM: Yes.

MS. AMMONS: Yes.

DR. HUNTT: ‑‑ what I heard you say?

MS. AMMONS: Yes, you look at all of that.

DR. HUNTT: And then, finally, just to pick

up where Todd Jones left off, I\'m still not clear.

When the focus group is at a standstill with

the Department on what their expectations are, what

happens then? I\'m still not clear. You\'re saying that

there\'s financial sanctions against the system; is that

correct? Is that the only recourse?

MS. AMMONS: I\'ve not seen it get that far so

I don\'t have a good answer for that.

What we\'ve seen is that, because of the data

that\'s used in making the report, most systems have not

disagreed with the findings. There has not been a great

deal of animosity or adversity and the State Department

works with the system to develop a corrective action plan

which the State and the district agree upon and they work

through that.

In only one case has there been disagreement;

it was not with the finding, it was with the follow‑up

activity that was taken.

DR. HUNTT: It seems to me what I\'m hearing

from parents is that the Department of Education holds all

the cards that, essentially, they are responsible for the

monitoring, they\'re responsible for the enforcement, and

that parents, as we all know and what we\'ve heard from

parents over the past few months, is that there is very

little recourse other than litigation, then, that it\'s the

system that holds all of the cards.

So what would be the problem with ‑‑ as we

talked earlier, civil rights is the core issue here ‑‑

involving the Office of Civil Rights to help with the

enforcement issue and then asking the Department of

Education to do the monitoring in more of a helpful way,

in being technical assistance rather than the enforcement?

DR. ELBAUM: I\'ll just say I have not been

involved in the enforcement end; I\'m a researcher. I

think it\'s very important that monitoring teams enjoy the

luxury of certain objectivity, that their mission is

primarily to gather data. And I would hope, dearly, that

other incentives besides financial sanctions could be

devised to assist districts.

DR. HUNTT: Thank you.

And then, lastly, since Alan Coulter has

left, I\'m glad to know there was Ms. Roberta that came up

with all the ideas that he has on his website.

MS. AMMONS: Right.

DR. HUNTT: Thanks.

MS. ACOSTA: Thank you. We will go on now

for the next panel.

Thank you so much for your expert testimony,

Dr. Elbaum and Ms. Ammons ‑‑ I\'ve now pronounced it in two

different ways and you\'re so gracious you haven\'t

corrected either one. I appreciate that.

Our next panelists will be discussion of

dispute resolution beyond litigation. The panel will

consider how elements of a current dispute system\'s

complexity increases the chances of due process

proceedings and promotes the utilization of attorneys and

advocates.

The panel will also review the role of

mediation, the relationship between due process and

increased paperwork. The panelists will include ‑‑ Jim

Rosenfeld is an attorney who specializes in special

education law and a Visiting Professor of Clinical Law at

the Seattle University of Law.

Mr. Rosenfeld co‑authored Transporting

Students with Disabilities with Dr. Linda Block

(phonetic). He\'s also Executive Director of the EDLAW

Center and the Council of Parent Attorneys and Advocates,

and publishes a monthly newsletter EDLAW Briefing Papers.

William Dussault is an attorney practicing in

Seattle, Washington. Mr. Dussault is Vice President of

the Council of Parent Advocates and Attorneys, and

specializes in the areas of social security and SSI,

discrimination issues, education, and special education,

ADA litigation, assessibility issues, trusts and estates,

and guardianships.

Good morning and welcome.

MR. ROSENFELD: Good morning and thank you.

I\'m Jim Rosenfeld and, as you noted, I am

presently a Visiting Clinical Professor of Law at Seattle

University Law Clinic where I have the privilege of

supervising third‑year law students in their

representation of parents of students with disabilities.

I believe, preliminarily, I need to correct

one thing you said, Madam Chair. I am no longer the

Executive Director of COPAA, I resigned in November

because of the duties that I assumed at the Seattle

University Law Clinic.

I do want to thank you, however, for inviting

me to contribute to your deliberations here today. And I

would also like to thank the President, and I suspect the

First Lady, for putting education at the top of the

nation\'s agenda, particularly for his call that no child

be left behind.

Differences will exist about how our

education system is to be improved but I am confident in

my belief that all parents of children with disabilities

agree with the President, as stated in the Executive Order

establishing this Commission that, \"Unfortunately, among

those at greatest risk of being left behind are children

with disabilities.\"

I also believe that most parents concur with

his recognition that special education must \"\...operate as

an integral part of a system that expects high achievement

of all children, rather than as a means of avoiding

accountability for children who are more challenging to

educate or who have fallen behind.\"

I believe it will help you to place my

observations in context to know something about my

experience, which I suggest is unusual, if not unique. I

refer specifically to the fact that, until quite recently,

my interest in special education law did not arise from

any direct personal stake. And, by that, I mean that I

have no immediate family member with a disability, which

in this field is somewhat unusual.

Especially during the last five years,

however, I have worked diligently to improve the legal

resources available to parents of children with

disabilities. My intention has been to moderate the

egregious imbalance of legal resources available to

parents as compared with school systems, an imbalance that

permeates the entire system of special education.

With your permission, let me now turn to the

subject I was asked to address and, as requested in

recognition of your limited time, I have filed a prepared

statement; so I will limit my oral presentation to

identifying those subjects ‑‑ and here I am ‑‑ briefly

stating my recommendations, and then, as time permits,

discussing the experiences that led to them.

According to the agenda, this portion of your

hearing is addressing how elements of the current dispute

system\'s complexity increases the chances of due process

proceedings and promotes the utilization of attorneys and

advocates. This topic is worthy of serious consideration

but it seems to be stated ‑‑ as it is stated, I think it

has two assumptions that I would like to address briefly.

First, to simplify, is the assumption that,

if existing formal legal remedies were somehow curtailed,

relations between parents and schools would be less

adversarial. I think it should be obvious this is untrue.

Institution of legal proceedings is not the cause of

adversarial or hostile relationships between parents and

schools, it is the result or the consequence of those

relationships.

In this regard, it is important to remember

what the purpose of a law suit is and is not. It is not

to reconcile the parties, rather it is to secure a

determination of whether the law has been violated, for

example, to define the obligations of the respective

parties.

I suggest that law suits accomplish this

objective too often slowly and expensively and through far

too adversarial procedures but usually definitively. The

fact that law suits do not reconcile the parties suggests

that there is a need for alternative, additional dispute

resolution mechanisms, which I will discuss briefly in a

moment.

The second assumption is that current methods

of dispute resolution are failures because too often they

do not end up in securing the programs or services sought

by one of the parties, usually the parents. I concur in

this characterization of the outcome but I suggest that

this shortcoming is substantially a reflection of serious

shortcomings of how IDEA has been implemented rather than

the failure of the legal system.

What I mean by this is that, even the best

legal verdict is useless unless the parties are capable of

complying with it. To state this in a somewhat different

context, as I have heard many parents say, \"Getting a good

IEP is only the first step; it doesn\'t do you any good if

the school can\'t implement it.\"

It has been my experience that this inability

to implement occurs far too often and too frequently to be

just a failure of will. I think it happens for four main

reasons. One of these is the lack of money; and I think

you\'ve been dealing with that in many other contexts so

I\'m not going ‑‑ I\'m just going to mention it.

Three others are:

First, the failure to fully and accurately

identify a student\'s disabilities which precludes the

development of an appropriate educational program for the

student. As I say, \"You can\'t deal with the problem if

you don\'t know what the problem is.\"

The second one is, lack of adequate training

and support for general and special education teachers and

related service personnel, which makes it extremely

difficult, if not impossible, to implement even the best

education program, or, \"You can\'t do it if you don\'t know

how to do it.\"

And then the fourth is, a lack of knowledge

on the part of the program and service providers who,

because the research and practices appear to be lacking,

often seem to be pursuing a trial‑and‑error approach. Or,

\"You can\'t do it if you don\'t know what it is you\'re

doing.\"

All of these are implicated in, and

contribute to, dissatisfaction with existing dispute

resolution procedures. These failures, as much as

elements of the current dispute system\'s complexity,

increase the likelihood of due process proceedings and

promote the utilization of attorneys and advocates. The

resources required for due process and civil litigation,

and their inherently adversarial nature, certainly

contribute to the impression that the legal process is a

cause, not a result, of the problem.

And the picture becomes even more confusing

because these underlying problems of implementation, when

combined with the narrow focus of due process and civil

litigation, have a cascading cumulative effect; when one

occurs, it makes the next level problem more likely, more

serious, and more adversarial.

And finally, while existing methods of

dispute resolution may be complex, one cannot overlook the

fact that the problems are inherently complex on both an

individual and a systemic basis. All of these contribute

to the difficulty of establishing quick, fair,

inexpensive, and effective dispute resolution procedures.

Now, turning to problems with the available

dispute resolution procedures currently available under

IDEA, there are problems with the mediation procedures,

the due process hearing system, and the judicial process.

In my opinion, briefly, they are:

First, mediation varies considerably in

quality from state to state and in the way that mediation

is approached and conducted by both the mediators and the

parties on both sides.

Second, due process suffers from similar

problems, though the failure here is more tragic, in my

opinion, because problems have been known by all of the

interested parties for some time but have been largely

ignored and neglected.

Third, litigation, though it probably works

best, from a strictly mechanistic or theoretical

viewpoint, is simply unavailable to most parents because

of the lack of attorneys and its cost. In this regard,

I\'d like to refer you, when you have time, to the

information I\'ve included in my prepared statement about

this because I think there is absolutely no doubt that the

lack of attorneys in this area seriously affects overall

compliance with IDEA.

What is missing in all of these, however, is

an approach designed to identify, address, and ameliorate

the chief factor, I believe, that contributes to

increasing regulation and causes our existing dispute

resolution procedures to become so adversarial. That

factor is the lack of trust between the parties, which a

number of you have mentioned in your deliberations this

morning.

I have little doubt that this lack of trust

increasingly drives both sides to resort to, and rely

upon, IDEA\'s procedural requirements, the so‑called

paperwork, and ultimately, the existing dispute resolution

procedures. To put a spin on former President Reagan\'s

admonition, \"If you can\'t trust, you must certainly

verify.\"

The emotional and financial demands placed

upon parents of children with disabilities are reasonably

well‑known and often acknowledged. School personnel, for

their part, must learn to deal with other degrees and

types of stress. These pressures on both sides contribute

to, and undermine, the foundation of trust that is

essential to negotiate a resolution of differences that is

satisfactory to both parties.

While I do not have the training or expertise

to make specific suggestions on how this might be

accomplished, I believe there should and must be a wide

variety of dispute resolution procedures available for

both parents and school districts to use. Some of these

should be structured to be non‑adversarial, such as

mediation was intended to be. But there must be more.

One additional dispute resolution procedure

might be voluntary but binding arbitration available only

upon the election of both of the parties. I suspect many

parents and schools would be willing to waive their rights

of appeal from such decisions if they were fair,

impartial, and fast.

And at least one additional dispute

resolution mechanism should be designed to identify and

address the emotional forces that are inherent in these

complex disputes, including the actual and perceived

differences of power between the schools, on the one hand,

and parents on the other.

Unless and until there is a non‑adversarial

dispute resolution alternative available designed to

rebuild parent/school trust, that is inherent in the

complex task of educating a child with disabilities, the

adversarial nature of parent/school relations will never

be reduced for very long.

None of these should be exclusive or

mandatory and none of them will be very effective unless

the quality of the decision‑makers is improved; and that\'s

extremely important. One of the many failures in all of

the dispute resolution procedures is the quality of the

decision‑makers.

The same is true of the existing alternative

methods of dispute resolution, including mediation and due

process proceedings, both of which can and should be

significantly improved if for no other reason than such

improvement, itself, will contribute to greater trust in

the system. Effective mediation will reduce hearings;

sound impartial hearings will reduce litigation.

My experience with mediation, as I said, is

not as extensive as it has been with due process so I will

offer only these brief observations.

First, I believe it was a mistake to mandate

the offer of mediation, or indeed of any dispute

resolution procedure. Mediation should be one of many

alternative dispute resolution procedures, included in

notice of procedural safeguards but requiring that it be

formally rejected seems to me, at least, to something of

an oxymoron.

Second, the quality of mediators and

mediation practices needs significant improvement. I am

sure you are familiar with studies conducted by, among

others, CADRE, which is Consortium for Appropriate Dispute

Resolution in Special Education. There now appears to be

sufficient information available to continue refinement of

the mediation process. Indeed, my guess is that, if

improvements are not made, ultimately mediation will come

to be characterized as due process and judicial

proceedings now are.

Turning finally to the where I believe

reasonable reforms will produce significant improvements

in dispute resolution, the due process hearing system.

Due process hearings held under IDEA are a key component

of the statute\'s procedural safeguards. However, there

has been little consistency, competency, or fairness in

the hearing systems established and administered by State

education agencies. This has resulted in deep and wide‑

spread dissatisfaction among parent and advocacy groups,

unnecessary litigation and frustration of Congress\' intent

in enacting IDEA.

In most states, due process hearings have

become very sophisticated and complex legal administrative

proceedings requiring extensive and expensive preparation.

School systems and parents, alike, including their legal

representatives, have expressed increasing frustration and

dissatisfaction with the existing due process hearing

system.

But despite the criticism that has been made,

surprisingly, little data has been collected. Most studies

have focused on basic information, for example, the

hearing system structure, the number of hearings

requested, and who won. Much less is known about persons

eligible to serve as hearing officers or administrative

law judges, their backgrounds, selection, training,

compensation, or experience. The differences among

hearing systems and hearing officers, from state to state

and, perhaps, most important how those differences affect

implementation of IDEA.

It seems to me that competent and impartial

administrative hearing systems are crucial to efficient,

effective, and fair implementation of IDEA. The

importance of adequate and sufficient initial training and

periodic updates cannot be overstated. Most states have

misread the complexity of special education law and

underestimated the level of training needed.

A task of this depth and breadth would

challenge the most qualified and experienced judiciary. I

think no lower standard be accepted for persons making

decisions that may determine the future of our children.

In addition, hearing objectives should be

refocused. Hearings should be conducted under procedures

designed to place primary emphasis on the appropriate

educational outcome for the child, reduce the adversarial

nature of the hearing, minimize the cost to the parties,

and enhance a timely decision that should include rules of

procedure developed to emphasize the reason for the

hearing, that is, to determine what constitutes a free and

appropriate public education for the child and reduce the

barriers to achieving that objective.

Moreover, all hearing decisions should be

matters of public record, readily accessible by parents

and school districts at no or minimal cost. One of the

purposes of having written hearing decisions is to

establish a body of law, that is, to create precedence.

Despite the individual nature of special

education hearing decisions, they can and would be used,

and are, by other decision‑makers and their advisors, such

as attorneys, advocates, and parents to ascertain whether

other similar proposed courses of action are lawful.

For these reasons, I strongly urge the

Department of Education for an establishment of a national

academy on IDEA administrative hearings to perform some of

the services that I\'ve mentioned.

I have a number of other pages designed to

identify those activities; I will ‑‑ since you are being

pressed for time, I won\'t go through that. And I hope

that you will read the statement.

Before I conclude, I want to make an

observation about a common complaint, that is, the so‑

called legalization of special education and the berating

of attorneys for the complicity in this result.

It\'s illustrated, I think, by an experience I

had in a recent manifestation hearing. A short time after

the hearing began, one of the participants asked, almost

rhetorically, why we were going through the process. And

another participant, who happened to be the school

district\'s compliance director said, \"Well, it\'s just

something the law requires us to do.\"

That was a flip answer to a complex question

but I fear it reflects how easy it is for some to forget

or overlook the fundamental reason we enact laws and

establish legal procedures. So I want to emphasize that I

have never met parents of a child with a disability who

would not trade all of the procedural safeguards,

including all the existing dispute resolution procedures,

for an appropriate education for their child, nor have I

ever encountered a situation in which those safeguards

prevented such an outcome.

I sincerely hope you will keep these things

in mind during your deliberations and I thank you for your

time.

MS. ACOSTA: Thank you, sir. And now we will

hear from Mr. Dussault.

MR. DUSSAULT: Thank you, Madam Chairperson,

members of the Commission.

I\'ve been in private practice of law now for

slightly over 30 years in Seattle. Even before I started

my practice, while I was still in law school, I was

enlisted by four amazing ladies, parents of children with

disabilities, to write the first law in the United States

and the state level, mandating a zero reject program for

children with disabilities that was based upon appropriate

programming for the children.

Interestingly enough, I well‑remember the

night in late 1970 in the University of Washington Law

School\'s Student Bar Association office when the other

drafter and I came up with the use of the word

\"appropriate\" to describe the kind of education that

should be offered. And it was incorporated in our

Washington State law in 1971, well before both PARC and

Mills, and certainly before EHA ‑‑ for those of you who

remember what this law was before it was IDEA.

Interestingly enough, EHA, the name of the

federal act was borrowed from our State law, which was

borrowed from our State Constitution, Article 9, Section 1

of the Constitution.

And I bring that up, not just as a history

lesson but to also reflect that the right to education is,

in fact, constitutionally‑based in many states, if not all

of them, and, in fact, may be constitutionally‑based under

the equal protection and due process clauses of the Fourth

‑‑ the Fourteenth Amendment, rather, as found in both PARC

and Mills.

So, as we debate litigation and procedures

beyond litigation in the law, itself, we must remember

that, even if magically we could make the due process

procedures go away in the statute, they are not going to

go away in practice. These issues will be here. We might

be able to fine tune them, tinker, deal with them, but

there is an independent right, that is, independent of

IDEA, to bring these actions.

What we should be looking at is how can we

make it better, more efficiently, more effectively, to

resolve the disputes without forcing people back into

those main type of class action litigations that we saw in

PARC and Mills because the result of the ‑‑ the difference

here isn\'t between an IDEA due process and nothing; the

dispute is between an IDEA due process and

constitutionally‑based litigation in class actions.

I do not believe we want to go back; I do not

believe either the parent advocates or the district

advocates want to face a return to those types of

litigation.

I litigate special education cases; I would

say I intake 50 to 75 cases a year and have for that 30‑

year period. Of those cases, I find that, oh, maybe 50

percent of them generally arise because of misinformation

on the part of one or the other side to the dispute, the

parents or the district, and oftentimes, through providing

them with good advice and good information, we can resolve

the problem long before it ever gets to even filing a

complaint with the district.

I probably file 10 to 15 due process hearing

requests a year. I never have tried more than one a year,

just to give you a sense of proportion of what the

litigation side is like from the parents\' perspective.

And of the compatriots I work with in COPAA, the attorneys

who principally work plaintiffs\' special education law,

you will find that\'s pretty consistent.

We settle well over 90 percent of our cases.

And, always, that settlement occurs at a table with the

district, working together, not necessarily in which the

parent wins everything and not necessarily in which the

district wins everything, but in which there is a

negotiated compromise to agreed‑upon ends.

We generally try to take parents away from

the litigation process because, quite frankly, the

district does hold all the cards. The district holds all

the records; you are the custodian of the records if you

represent a district. You have all the professional

personnel in your back pocket, all the service providers

are employed by the district.

The second portion of the Rowley decision

clearly provides that district personnel are to be given

the benefit of the doubt in presentation of the case. And

you have a budget that the parent does not have unless the

parent chooses to go into the equity in their home, their

savings accounts, or other services.

This is not a level playing field, folks. I

testified on this issue in 1977, in the Handicapped

Children\'s Protection Act before the Senate and made

exactly the same positions known. It is not easy for

parents to undertake a litigation course.

I come, freshly, from a due process hearing,

four days last week in a small, Southwestern Washington

school district named Washougal in which the parents have

now taken a major mortgage against the equity in their

home to fund their special education litigation. There

were some 25 to 30 violations of the regulations alleged

by the district (sic), not one or two checking a box.

Ladies and gentlemen, there was no IEP for 10 months.

When we are talking about special education

litigation, we are not necessarily talking about a missed

form, one missed form or one missed check mark on an IEP,

we are still talking about no IEP. Understand that those

are the issues we still continue to litigate; we\'re still

looking at first generation access issues in the

litigation around the United States.

Now, some of those issues, we\'re not going to

resolve by negotiation. In this particular case, two

weeks into the litigation, I offered to settle the case

for \$8,000, including all attorneys\' fees and all

resolution of the claim. We\'re now nine months later,

through a full four‑day hearing; win or lose, the district

will have paid between 30 and \$40,000 in their attorneys\'

fees, which we will never know about because there is no

requirement asking the district\'s attorney to disclose

their fees. It might be an interesting and illuminating

discussion.

On the other hand, the parents must petition

for their fees, often through federal district court,

further increasing the fee costs to the case. If the

district loses this case, the out‑of‑pocket cost will be

between 100 and \$150,000 for a case they could have

resolved for \$8,000.

The lawyers did not create that situation;

the lawyers responded to it and I can tell you that the

plaintiff\'s lawyer, the parents\' lawyer, tried at every

step of the way to settle it. It didn\'t work.

Those are the cases we see on a regular

basis, even today, even while we are well into 25 years of

implementation under this law. One would think we would

be beyond the case of arguing about whether there should

or shouldn\'t be an IEP.

This, by the way, was a child with Apert\'s

Syndrome, on a tracheostomy, a gastrostomy tube, blind in

the left eye and ear (sic), visually impaired in the right

eye, almost deaf in the right ear, with a severe learning

disability, gross motor and fine motor disorders, non‑

verbal. This is not a borderline case of not having an

IEP, this is this graphic case of the most severely

disabled student. The doctor testified he was a one in

250,000 incidence, low incidence disability, and he was in

the topmost difficult cortile (phonetic) of that group of

students. And I didn\'t have an IEP. So we are clear in

context of what we\'re looking at.

I\'ve been fascinated by the discussion this

morning and you have written remarks; so I\'m obviously

departing from those because I think it\'s more relevant.

You can read for yourself.

The purpose ‑‑ what we\'re really trying to do

here, and we\'re discussing it from different aspects, is,

how do we implement this law? How is it that 25 years, 27

years after the law, we still don\'t have IEPs? We\'ve had

monitoring for all that period of time and it hasn\'t

stopped the Washougal School District from not having an

IEP for Abe. It didn\'t stop the Seattle School District

for not having an IEP for a whole year for another student

‑‑ that was my last litigated case against Seattle and

that one went three weeks.

Monitoring is a top‑down accountability

system, it goes from either the federal or the state

agency and monitors from the top, down. Procedural

compliance is what we have been monitoring for the past 25

years. Litigation is a bottom‑up accountability system.

It is an accountability system that is oriented

specifically to an individual case; it tests the system

from the bottom of the system up, rather than from the top

of the system down. We need both.

Monitoring has not been effective to create a

cultural change in education completely. I agree with Dr.

Vargas\' remarks this morning about the culture of

education. But monitoring cannot complete the change in

the system in and of itself. There is no way that either

the federal or the state government has sufficient funds

to go to the Washougal School District and determine

whether they are doing the right thing for Abe\'s program

in that school district. No monitoring system is ever

going to be able to do that.

So you need a supplement. In this country,

we have always used the legal system, the litigation

system, as the supplement to a monitoring system. Look at

environmental protection acts, look at road safety acts,

look at any area of public policy established by the

government and we use both a monitoring and regulatory

system and an individual accountability system to make it

work. And we don\'t attempt to do it in two years or three

years; we allow the systems 20, 30, and sometimes 40 or 50

years to work rather than becoming impatient that it isn\'t

working today.

Specifically, on things that I would look at

in the alternative dispute resolution system to make

changes ‑‑ I think it\'s first well to acknowledge that I

wrote the regulations in the State of Washington in 1972

that describe the due process and hearing system that is

virtually identical to the system enclosed in IDEA. I did

the first due process hearing in Washington in 1974 at the

same time as the Pennsylvania litigations were going on

under PARC in \'74 and \'75. I\'ve watched this system

intimately.

In terms of mediation, mediation is an

excellent idea, The current system has three or four

specific problems.

Number one, you chose mediators who are

knowledgeable about special education and not mediation.

If there is anything you should learn, is not to stay

within the educational system for your alternative dispute

resolution procedure. In litigation, trial lawyers,

plaintiffs\' and defense lawyers, in all kinds of cases,

personal injury, contracts, property disputes, we go to

private mediators. They\'re not skilled in property law,

they are not skilled in personal injury, they are skilled

in mediation. Start to look at models outside of

education.

Who are the people that know most about

mediation, arbitration, and litigation? I\'m sorry,

they\'re not educators, they\'re lawyers. We do this for a

living. Look at that system to structure your mediation.

Item number one, get fully independent

mediators, not people that are associated with the

colleges and universities who have to place their students

in the school districts that they are mediating the case

over. Pick people that know the skilled mediation, not

special education.

Keep mediation voluntary but make it

immediate. Indicate that it should occur within five days

of any due process request. Indicate that the process

should be half‑day or less. And I suggest you even do

something radical, in these days, set up a separate fund

that will pay the attorneys\' fees for both the district

and the parents out of a separate budget that does not

come out of the district\'s operating budget, but allow

payment of that fund only for services related to

settlement.

In other words, give a positive incentive to

both sides to mediate and resolve the case. Set that

apart from a prevailing‑party litigation system. Under

Buckhannon, you can\'t get fees right now for settlements.

Create a fund that specifically endows and encourages the

settlement of a case and a rapid resolution.

Allow for alternative dispute resolutions

throughout all of its options, again, commonly seen in

litigation and certainly provide a summary arbitration

resolution dispute (sic), whether its binding or not. I

suggest there be both a binding and a non‑binding

arbitration but, in the event of a ‑‑ if a party elects

non‑binding arbitration and chooses to appeal it, that

party bears all of the costs if the appeal is not

successful.

Now, that\'s a typical litigation model that\'s

in place all around the United States in trial law. Use

the models that are out there instead of trying to

recreate a model that\'s specific to education because, in

juxtaposing the educational and the legal concepts, you\'ve

lost the value of the legal concepts that have worked in

ADR. The majority of our cases in litigation, other than

special education, now resolve through ADR, Alternative

dispute Resolution. So a summary arbitration procedure

that occurs prior to discovery and prior to trial

preparation.

When we actually go to trial in due process,

it\'s not an administrative hearing; it is a trial. We do

discovery, we do depositions, we prepare the case as if it

were a trial because it is. Everything is riding on it

for that child. And we don\'t take cases to litigation

until we know there\'s no other resolution. But, once we

have to go to trial, I don\'t care whether it\'s called due

process or a federal district court litigation, it is the

trial of first impression.

Now another thing I would do is standardize

the due process structure across the United States so you

have a one‑tier hearing in every state, rather than two‑

tier hearings. That means that you have only one hearing

at either the LEA or the SEA level, one hearing only, with

direct review to court from that placement and that it

continues to be de novo, that it continues to be a hearing

in which new evidence can be considered but we define de

novo as being new evidence that is beyond the original

record, so you don\'t retry the same case. Some of the

circuit courts have gone to that result now, but not all

of them.

We know that due process has, in fact, worked

to resolve disputes for individual children, Amber Tatro,

Amy Rowley, all of those children would tell us that,

whether they agree or not with what the court said, they

had a full and independent hearing.

We know that that has resolved their disputes

from the bottom, up. Monitoring ‑‑ I don\'t care, in fact,

whether it is process or focus or functional or outcome,

monitoring is never going to result in a full and complete

implementation of the system unless the federal and state

governments are willing to put the money behind it so that

a federal monitor or a state monitor is in the Washougal

School District to look at Abe\'s program, his IEP,

addressing his Apert\'s Syndrome. Monitoring will not do

that; it\'s a false promise.

We have to change a culture. Looking at

changing the culture through one method only is naive; we

need as many methods as possible to change that underlying

culture.

Thank you very much.

MS. ACOSTA: Thank you.

And now we will proceed with the questioning

from the Commissioners and we will start with Commissioner

Coulter.

DR. COULTER: You\'re right, this is very,

very complicated. And I appreciate your creativity.

Actually, I am delighted with virtually everything you had

to say. It certainly gives us some additional things to

think about.

Let me just ask you two quick questions.

First of all, as I understand it, most of the major

decisions in special education litigation are still open

today so, for instance, the Mattie T. vs Riles (phonetic)

case which as filed in the mid‑\'70s, et cetera, is,

frankly, currently being litigated now. The PARC

decision, as I understand it, is still open.

I accept the fact that litigation is, as you

said, a bottom, up form of accountability but I think, in

the main, for us, given that these things are still open,

it\'s a relatively poor way to try and get the system, as a

whole, to move.

If you accept that premise, I mean, if you

accept the complimentary premise, it needs to be there but

it\'s not going to move the system very quickly, what are

some ways that we can make special education less

complicated but more effective?

MR. DUSSAULT: I\'ll take a first shot, if I

might. First, I would suggest that none of the major

litigations remain open in the sense that none of the

supreme court decisions in this area resulted in the

appointment of a master or resulted in continuing

jurisdiction on any of the cases.

So, if we look at the definitive

determinations, whether we\'re looking at Burlington or the

Florence County Carter case or Honing vs. Doe or Rowley,

all of them established, to one degree or another, black‑

letter law. In fact, Rowley is, perhaps, the most

ambiguous out of all of them and the definition of

\"appropriate\" really focused on procedural issues in

Rowley.

I do accept that, in many instances, the

circuit courts have decided that they need to maintain

jurisdiction because the violations of the local school

districts have been so broad, so systemic in nature, that

management of the district had to be pulled from the

district itself and placed outside. You take Mills, you

can take the PARC case, you can take Mattie T vs. Halliday

and countless others. It\'s really more of a reflection of

the intransigence within the system.

You could respond to that by simply saying,

\"We will monitor compliance with court decrees.\" But, if

there was, in fact, a more effective monitoring process,

then perhaps we wouldn\'t see the court taking jurisdiction

and maintaining control because, quite frankly, the

federal district and circuit courts only want to do that

as a last resort, they don\'t want to intercede in those

areas.

Now some judges are a little more activist

than others, perhaps, but nonetheless, the courts know

they\'re not set up to do that. The discussion here has

been in creating a separate monitoring body, that is, a

body for enforcement, suggesting, perhaps, that we flip

that responsibility to OCR and leave the support

responsibility with OSERs.

That will only be effective if the trust

between the Plaintiff\'s Bar and OCR is repaired because,

quite frankly, from the Plaintiff\'s Bar perspective, there

is a perception ‑‑ I\'m not saying reality ‑‑ but there is

a perception that OCR won\'t do a lot more at enforcement

than anybody else.

So you\'re simply changing partners and

dancing unless you maintain some mandatory guidelines for

what that enforcement procedure is to entail; simply

giving it to the agency without more won\'t create the

appropriate perception you want from the Plaintiff\'s Bar.

DR. COULTER: Would you accept the fact that

‑‑ I think I heard both of you speak to the issue that, if

we focused more on outcomes for kids and less on, as you

said, the check‑boxes piece, that ‑‑ I mean, maybe this is

a way ‑‑ because I\'m not certain that I\'m hearing an

answer to my question ‑‑ as to how to make this less

complicated for people to implement?

MR. DUSSAULT: I think it must be a

combination of both a process and an outcome monitoring.

I had the pleasure of serving on the Accreditation

Council, which is a national body that accredits services

for persons with developmental disabilities in all of the

facilities other than public education. The Accreditation

Council shifted from a process monitor to a combination

process/outcome monitoring structure, approximately 15

years ago, and used technology extraordinarily well with

hand‑held computers, on‑site data collection, et cetera,

many of the things you talked about. I know it is

possible to do an effective combined process/outcome

monitor. I think it\'s simplistic to go from one to the

other. I think that will help.

However, what concerns me is our tendency to

want to immediate gratification. This new system is going

to have to work next year and, if it doesn\'t work next

year, we will try a new system the year after that.

It won\'t work that way; it\'s going to take

years to create an overall structure and it needs to be

done at all levels.

DR. COULTER: Thank you.

MS. ACOSTA: Commissioner Huntt?

DR. HUNTT: Thank you, Madam Chair.

A quick statement and one quick question.

First of all, if I had one recommendation I

would make, if IDEA said, \"No parent would ever have to

expend their own resources to litigate a case based on

their child\'s need for an education.\"

Given that, realistically, I understand that

there needs to be a mediating process outside ‑‑ a third

party outside of the Department of Education. But why

couldn\'t we construct a mediating process that leaves

attorneys completely out of it? In other words, we have

an objective, third‑party mediator that listens to the

parents, listens to the education department, and makes a

decision based on that without having to pay for attorneys

at all.

MR. DUSSAULT: Because the plaintiff\'s

attorneys, who represent parents, won\'t agree with it and

let me tell you why.

We had exactly that experience in the State

of Washington where the initial mediation structure was

set up so that parents could not participate ‑‑ excuse me

‑‑ so that attorneys could not participate in the system.

Knowledgeable attorneys simply told their clients not to

go to the mediation because the clients were then placed

in the disadvantage of dealing with that school district.

Remember my comment about the level playing

field? If I had a level playing field with both parties

to the mediation equally knowledgeable, your suggestion

works perfectly.

DR. COULTER: But what I\'m saying is taking

your recommendation as the third‑party source outside of

the Department of Ed, isn\'t that leveling the playing

field, then?

MR. DUSSAULT: That\'s only the first start;

it then makes the mediation process, itself, more neutral,

but it doesn\'t make the knowledge of the parties neutral

and the inherent intimidation between the parties.

Most of my clients are lower‑income or lower‑

middle‑income clients; I\'d say one in 10 have resources

that would typically go to an attorney. English is a

second language, which is common; minority clients are

common, parents with two or three children with

disabilities are common, families where one of the parents

is up 20 hours a day taking care of the child, common.

The parents simply don\'t have the resources,

whether it is academic or intellectual or emotional or

social resources, to participate in that mediation process

on an equal basis; they need someone.

MR. ROSENFELD: I\'d like to embellish that a

little bit because I think it\'s more than that. I think

what Bill is getting at is that there is a huge

disimbalance of power here and knowledge.

It\'s not just a matter of income or education

and so forth, I\'ve had a number of well‑educated attorneys

in other areas come to me and say, \"I have a problem with

my kid; I haven\'t the faintest idea of how to do this.\"

And, even when they go into mediate, they don\'t know the

right questions to ask; it\'s a completely foreign

territory to them.

So there really is this inherent imbalance in

power that makes it very difficult for mediation to work

without attorneys being present, which is not to say that

I haven\'t some sympathy with that idea, I just don\'t know

how it would work.

MR. DUSSAULT: The other comment I would make

is that, in litigation, in civil litigation, we\'ve been

using mediation for 20 years; it has reduced the number of

trials dramatically. Again, I\'m saying, go to the model

where mediation was developed. And, in that model, my

client with a personal injury accident is not going to go

into the mediation without an attorney.

Attorneys being present in litigation

mediation haven\'t stopped the cases from settling; in

fact, they have made the cases settle. So it is not the

attorney participant in the process that slows the

process. In fact, it makes the process work.

DR. COULTER: Thank you. And, since we are

short on time, Mr. Rosenfeld, given the third‑party

concept for mediation, is there a group that exists now,

without having an academy that could get to the same point

that you had with developing the academy?

MR. ROSENFELD: Actually, I think Mr.Dussault

is probably more familiar with the mediation things than I

am. I\'m not familiar with any specific group; no.

DR. COULTER: But you\'re recommending that

you set up a group, then, but you don\'t ‑‑

MR. ROSENFELD: My recommendation was to set

up an academy to deal with hearings; but there\'s certainly

no reason that it couldn\'t also deal with mediation and

other dispute resolution procedures.

DR. COULTER: Thank you.

Thank you, Madam Chair.

MS. ACOSTA: Commissioner Gill?

DR. GILL: Thanks.

It would have been nice, I think, if we had

had you guys follow the first panel because, to me, there

are a lot of crosswalks between some of the issues that

were raised, in terms of some of the recommendations to

improve the system, et cetera, and, I think, what you

said. So what I want you to do is kind of react to a

couple of them that I thought I heard.

One is, I want you to react to the notion of

non‑categorical labeling as one of the issues; and the

second issue I want you to respond to is, monitoring is

the top, down and litigation is the bottom, up; where do

the two meet? What is the kind of crosswalk or the bridge

between those two that you think we should be focusing on?

MR. DUSSAULT: Let me address the first one

first, if I might, the non‑categorical.

I feel somewhat responsible for the creation

of very functional definitions for eligibility purposes

because you\'ll find it in Section 1 of the 1970

legislation that we wrote. And I believe it was one of

the most egregious mistakes we made. I do not believe

there is any place for functional definitions on a

categorical basis any more in special education and, in

fact, there probably wasn\'t when we first came up with the

idea of an IEP.

If we have a truly individualized educational

program, why do we need categorical definitions? I

suggest that we should be using a model that already

exists, again, go to what\'s successful instead of trying

to recreate the wheel. Go to the Social Security Act.

Under the Social Security Act, we have an underlying

definition of the existence of a disability and we have a

secondary component of defining severity.

We define the disability into existence, we

then determine that the severity requires services,

whether it\'s Title IV, Title XVI, Title XIX, whatever it

is, and then we move on to define the services

individually.

By establishing functional categories,

oftentimes for funding purposes, what has happened is that

we\'ve driven program by label. We put kids in the MR

classroom, we put kids in the LD classroom, not where the

child needs to receive services. You coined the phrase,

we talked about it earlier. There\'s a horrible difficulty

with people perceiving that special education is a place.

Special education is not a place, it\'s a combination of

services. The categorical labels foster that reliance on

placement based upon category. Get rid of the categories

and stop having the money follow the category.

We all know that program follows money; it\'s

realistic. Stop having the money control the placement

through eliminating those categories and use a model like

social security.

The second issue is, where does monitoring

and individual litigation meet? I don\'t have a clue.

DR. GILL: ‑‑ for your honesty.

MR. DUSSAULT: I really don\'t. At some point

the two will mesh and both become effective mechanisms but

I don\'t believe there\'s a magic line.

DR. GILL: I guess I think what I thought I

heard you guys talking about was kind of a continuum of

dispute resolution, one of which may, in fact, be binding

arbitration, non‑binding arbitration, complaints,

mediation, monitoring, all of those sort of as

collectively how you monitor and enforce the system as

opposed to a relying on any one particular approach.

MR. ROSENFELD: I think of them as being not

discreet categories, which sounds to me as what you\'re

talking about, whereas they\'re basically overlapping. And

I\'m not sure there\'s any particular nice, neat meeting

place for any of them. I think we need all of them.

I would like to say something about the

categorization problem, also.

My impression is that, as a result of the \'97

amendments, we were trying to get away from that to some

degree and I think, perhaps for some part of that,

Florida, for example, moved away their funding from a

categorical to a matrix level in which they\'re supposed to

try to identify the level of the severity of the

disability and the level of services that are, then,

detached from the initial categorization identification

for federal funding purposes.

But it\'s an indication of how deeply imbedded

the categorization is that it still carries forward in

this matrix model. It\'s going to take time to get away

from it, I guess, and I think just time\'s going to be the

answer to it. But the initiative can\'t stop, it has to

continue going.

DR. GILL: Okay, thanks.

MS. ACOSTA: Mr. Jones?

MR. JONES: Unlike many of the other members

of the panel, actually, being a lawyer, I\'m always

enthused that there are lawyers that we have come and

testify. So I\'m glad you\'re here.

We talked about ‑‑ Jim\'s closing comment was

about how many parents would trade the right to FAPE for

the right for ‑‑ that their child is receiving services.

And I know I\'m mangling how you described it. But

really ‑‑

MR. ROSENFELD: Real FAPE, not the ‑‑

MR. JONES: That\'s right, real FAPE ‑‑

trading away the procedural pieces for the real education.

I think about ‑‑ our earlier discussion was around

paperwork and so much of paperwork, from asides we\'ve had

in a variety of cities, has been that schools view it as a

safe comfort for how to avoid litigation. They think, \"If

I\'m filing the papers, if I\'m doing the right things, I\'m

going to avoid being sued; I can put down on paper that

I\'ve done \'X\'.\"

And, aside from your most egregious cases

where they\'re simply not providing anything, they may be

able to scare off litigation by doing so. My question for

you all is, let\'s step out of that paradigm for a second

and talk about a system that existed around performance

and, if what constituted in an IEP was around the

achievement that a child is making aside from some very

basic statements about, there will be speech therapy,

there will be a program to move the child forward.

How might that impact on the litigation

dynamic? Certainly it\'s struck some witnesses that it

would move some schools away from the paperwork dynamic

because, at the end of the day, what really counts is what

the performance is; it\'s not how you\'ve gotten there.

How would that affect the parents you\'ve

dealt with and the parents you\'ve counseled around what

they\'re seeking to achieve? And let\'s say there are

instances where you have the disconnect between

achievement going on and what the parent is desiring.

So, in the future you have litigation, you

have a parent that comes to you and says, \"Look, the

school district says this was in the plan, these are the

achievement measures they were going to use. That\'s

happened, the child was achieving, but I\'m not happy

for\...\" X, Y, or Z reasons.

How does that play out in a future context

and, since there\'s really no reality to base it on other

than what\'s in your heads, I\'m just going to listen to

what you have to say and take that in.

MR. DUSSAULT: Interesting reality there.

The first comment I would make is that the ‑‑

I don\'t view the federal paperwork requirement as being

particularly onerous. I work with school districts ‑‑

I\'ve worked against school districts, but with them, too,

because they call me and say, \"How can we avoid seeing you

across the table?\" So we do work in that regard, too.

And what I see from local school districts is

40 and 50 forms and they keep telling me, the teachers

keep saying, \"Well, the federal government requires all

these forms.\" And I keep going back and saying, \"No, it

doesn\'t. Look at what your LEA is doing; look at what

your SEA is doing. In fact, that\'s where your form

requirements are coming from.\"

I don\'t think you really have much ability to

affect that paperwork issue at the federal level unless

you prohibit SEAs and LEAs from a proliferation of paper

at the local level, which is a pretty tough stand to take.

But I really see that as not a function of the federal

law, but a function of state and district responses to it.

In terms of litigation itself, I have to

admit, being an unabashed fan of the current IEP

requirements, I look at an IEP requirement that says I am

supposed to have a baseline of data, current levels of

performance on how Abe\'s functioning. I\'m supposed to

know where he is today.

I am supposed to have a school district and a

parent work together to write measurable goals with

ongoing benchmarks and dates to tell me when I can see is

Abe making progress or not. My suggestion is, you already

have the tool that allows you to measure outcomes. You\'ve

determined the outcome by setting the goal; it\'s a valued

item, \"I want Abe to be able to do \'X\'. I know where he

is on \'X\' now because I\'m required to have a current level

of performance; I know where he\'s supposed to be in three

months, six months, nine months, and 12 months and I can

measure it through objective criterion.\"

Those are all in the process now. And yet,

my cases always involve ‑‑ even those that actually have

IEPs, I have yet to see a measurable objective based upon

a known baseline. If the parent came in to me and said,

\"I can see that Abe\'s been making progress because he now

does a hundred of the first 200 \... words and he only did

12 when we started,\" I\'d have measurable progress towards

a goal that was established between the parent and the

district and I wouldn\'t have a case.

If you simply use what there is now and

implement it without anything further, implement what\'s

there now, I don\'t have a case. And I\'ll tell my parent

that.

MS. ACOSTA: Thank you.

In the interest of time, I will defer my

questions to my fellow Commissioners. Commissioner

Takemoto?

MS. TAKEMOTO: I\'m going to follow‑up on

that. I get distressed when I see the amount of time and

CSPD effort going to training teachers to have IEPs that

are reasonably calculated to not be held accountable for

results. Lots and lots of pages and pages of stuff.

So you\'ve already spoken to that.

What I want to know is, I also listened to

parents who are in school districts where the teachers

have figured out how to do this and who cannot find them

an attorney that can take the case because the school has

not screwed up on that paperwork piece.

Tell me a little bit about how ‑‑ as long as

there is the paperwork piece, without the, say, adequate

yearly progress as a mandate, those families are ‑‑ those

kids are still going to be left behind.

MR. DUSSAULT: I think one issue you

addressed is one that Jim highlighted and that is the lack

of qualified attorneys to do this kind of litigation. And

there is that lack; there aren\'t a lot of well‑trained

plaintiff\'s attorneys. I would say you\'re looking at, in

most states, no more than five to 10 attorneys who I would

want handling these kinds of cases. And yet we can\'t, of

course, control who the parents go to. So there is a

problem in finding competent representation here and it\'s

staggering.

But, again, if a competent attorney looks at

the records, the attorney should be able to distinguish

between the checkmarks on the papers and the number of

consent forms and the number of notice forms ‑‑ we

notified you of a meeting on such and such a day ‑‑ you

know, the 30 or 40 forms where you have paperwork

compliance but nothing is happening with the child. It\'s

the attorney\'s job to go directly to those measurable

goals and objectives on the IEP, because that\'s the tool,

right now, that tells me, is the child making reasonable

progress.

And we know, from the case law, that de

minimis progress isn\'t enough; we also know that it\'s not

maximization of potential. That\'s the Rowley standard and

we\'ve got lots of case law on it. So we know what the

standards are in general.

But the difficulty is that we aren\'t trained

enough, both educators and attorneys, to look specifically

to the objective criterion for measurement of the goals

and objectives; and that\'s the key in terms of program

outcome. And the parents create the valued outcomes when

they set the goals and objectives. The question is, do we

have progress towards those goals and objectives; and,

without data collection, we don\'t have it.

MR. ROSENFELD: I just want to follow‑up

briefly on both points.

I think Bill overstated the number of

attorneys available by a lot, of a factor of two. I

think, if you go into my prepared statement, you\'ll see

some ‑‑ they aren\'t conclusive data, but it\'s pretty good

data.

MS. TAKEMOTO: I saw the map that has nothing

in the middle states.

MR. ROSENFELD: Well, there are a number of

states who have ‑‑ you have to understand what that data

was; those were members of COPAA who were attorneys. And

we didn\'t prepare this to have attorney members in every

state. But it was just interesting to find out that there

were no ‑‑ none of our members were attorneys in those

states.

But I think even, perhaps, New York and

California, which probably have the largest number of

attorneys, there are probably no more than five who are in

Mr. Dussault\'s calibre, who are really ‑‑ know how to do

these cases and have done enough of them to know what

they\'re doing. It\'s a really serious problem.

I forgot what the other point was that you

were talking about.

MS. TAKEMOTO: My question was about results.

MR. ROSENFELD: Oh, yeah.

I think that the ‑‑ to over‑simplify it

greatly, is it\'s not unusual to see cases where, in

reviewing the records, the school has checked all the

boxes, everything seems to be fine; but the kid can\'t

read. No law is going to stop that kind of litigation.

The outcomes are important, they have to be

there. But I think they both have to be there, the

procedures have to be there and the outcomes have to be

there.

MS. ACOSTA: Thank you.

Commissioner Chambers?

DR. CHAMBERS: I\'d like to thank both

presenters for their thoughtful and passionate

presentations. Unlike my colleague, Todd Jones, I\'m an

economist and lawyers scare the hell out of me.

MR. DUSSAULT: You were taking a lot of

notes, though.

DR. CHAMBERS: Yes, trying to figure it all

out. It\'s much more complex than the numbers I deal with.

I have three questions.

One fairly straightforward question is

whether you are aware of any evidence ‑‑ I\'m working on a

study on special education expenditures and it\'s really

tough to get a handle on how much is being spent on due

process litigation. And I\'m just curious of whether you

have ‑‑ are aware of any literature on this topic.

MR. ROSENFELD: That\'s one of the reasons I

want to set this academy; we need to have this kind of

information. There is no information about that, to my

knowledge.

MR. DUSSAULT: I don\'t know that anyone has

collated it but the majority of attorneys\' fees, petitions

for the parents litigation are brought in federal district

court. So the federal district court database would have

some information on what has been awarded to parents\'

attorneys in litigation. It would have no information on

what the district attorneys were charging. And I will

tell you, from a litigation perspective, we have attempted

to ferret that information out of the districts. Often

the district will respond to a petition for attorneys\'

fees saying, \"Oh, those fees are outrageous.\"

We\'re now doing discovery, asking them to

disclose what they paid their attorneys\' fees, and

discovering that it\'s two to three times what they\'re

paying the parents\' fees. That\'s anecdotal. Beyond that,

I don\'t have anything.

DR. CHAMBERS: If you discover anything,

please, I would love to see it.

Second question, I\'m trying to get some sense

of ‑‑ from the standpoint of the characteristics of the

children and the characteristics of the family, two

separate questions, of who are the folks who most often

take advantage or find themselves in a situation needing

due process or litigation. In other words, is there some

particular category of children with respect to severity

and with respect to parents? Is it high, low, SES?

You started to talk about it in one of your

answers.

MR. DUSSAULT: I would say that, in my client

base ‑‑ and I think this is pretty consistent through all

the parents\' attorneys I talk about ‑‑ goes across the

whole perspective. I don\'t think you will find that

upper‑income parents are more likely than not ‑‑ passion

for their children; absolute concern and commitment to

their children is the number one defining characteristic,

for me.

My clients come in to me, they have to

overcome their fear of attorneys ‑‑ that you just

expressed ‑‑ they don\'t like going to an attorney\'s

office; so there has to be this huge passion behind them.

And so, number one, would be passion.

If I was looking at probably the most

frequently litigated cases right now, I would tend to say

the low‑incidence disabilities, most specifically, autism,

is getting a lot of attention right now. Historically, if

you went back 10 to 15 years, you\'d see the deaf community

with a lot of focused litigation; we\'re kind of past that

now.

And I think you\'ll see severe behavior

problems, not necessarily in the context of discipline but

in the context of placement for those kids. And it\'s

somewhat related to autism because, typically, autism

blows up because of the behavior issues and the lack of

communication. So I would focus on low‑incidence autism

and behavior as my primary groups; and the characteristic

of the parents would be passion, commitment.

MR. ROSENFELD: I would pretty much agree

with that, with this qualification. Obviously, as you go

down the income ladder, the ability of the parents to ‑‑

not just fund the litigation because most parents can\'t do

that anyway ‑‑ but to undergo the stresses, the additional

stresses that litigation puts on them, just get to be

overwhelming. Most parents with disabilities (sic) have

their plates pretty darn full; they don\'t want to get into

litigation.

DR. CHAMBERS: Last question; I\'ll get you

into my territory a little bit but I heard you starting to

talk about it so you opened up the subject.

MR. DUSSAULT: ‑‑ my trial.

DR. CHAMBERS: I watch TV, but that ‑‑

Anyway, in thinking about your comments

regarding the categories, I\'d be curious as to your

perspectives on what the implications are for funding of

special education, the type of formulas that we ‑‑ that

are existent within the states and also how we think about

the federal funding. And that\'s my last question.

MR. DUSSAULT: I would ‑‑ I think I should

plead ignorance in terms of the knowledge of the funding

formulas out there. I\'ve reviewed many of them and read

some of the case studies on the funding formulas but I\'m

not competent to answer that question.

In terms of the programmatic implications,

once you take away funding by category, what you then do

is remove the incentive to place by category and to

identify by category, especially in funding systems where

categories are funded differentially. Because, what you

do is, you provide an incentive to place in the highest‑

funded category.

And so I think, once you eliminate that and

look at a funding system ‑‑ and I\'ve always sort of

naively suggested creating a funding system based on the

IEPs. We have the technology now to computerize IEPs and,

if they aren\'t, they ought to be. So why aren\'t we

looking at cost centers based upon the actual program

requirements of the children instead of categorical or

averaged or incidence‑rated formulas? Why don\'t we look

at the real data and fund based on the real data?

MR. ROSENFELD: I agree with that.

I was listening to your question and

wondering ‑‑ it occurred to me that, basically, the

funding process is now set up on sort of a forward‑looking

basis. We probably couldn\'t do a backward‑looking one

but I think Bill\'s suggestion in using the IEPs as a

current thing is probably a good idea. It sounds very

interesting.

MS. ACOSTA: Thank you gentlemen for a fine

presentation and for helping us wade through this very,

very important area in special education.

We will adjourn for lunch and we will

reconvene at 2:00 o\'clock.

Thank you.

(Whereupon, at 12:48 p.m., the hearing in the

above‑entitled matter was recessed, to

reconvene at 2:00 p.m., the same day.)

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AFTERNOON SESSION

2:12 p.m.

MS. ACOSTA: We are now in session. Good

afternoon, everyone.

This afternoon, we will be addressing

Interagency and Intersystem Interaction. The panel will

review problems that exist in the multiple agencies

serving students with disabilities with particular

emphasis on the relationships between LEAs and systems for

health, early childhood services, mental health, and

vocational rehabilitation.

And, before I announce the names ‑‑ I

introduce the witnesses, I need to make an announcement;

please take this in the spirit that is intended. These

proceedings are very important to, not only the

Commissioners, but to our community at large and we ask

you to please turn off your cell phones. We understand

that you may need your cell phones on for a particular

reason and we don\'t dispute that. However, in order to

assure the sanctity of these proceedings, we\'ll ask you to

turn it on to vibration.

However, if you choose to let it ring and you

answer it, to leave to answer it, you will not be allowed

back in the room afterwards. So we\'re asking you again,

in respect for the process, please turn off your cell

phones.

Now, if you have an emergency and, for some

particular reason you have to have it on and you would

like to leave it with Ms. Muoz ‑‑ Ms. Muoz works for the

Commission, she sits outside and she would be happy to

come in and get you in case of an emergency.

Thank you.

And now, for our panelists.

Ron Lally is a national expert on early

childhood development and has served as director of child‑

and family‑related programs at WestEd since 1978. He

currently serves as Co‑Director of the Center for Child

and Family Studies with the Washington, D.C. based ZERO TO

THREE organization. His staff operates the Early Head

Start National Resource Center.

Prior to joining WestEd, Lally was professor

at Syracuse University and Chair of its Department of

Child and Family Studies.

Ms. Donnalee Ammons, formerly a local special

education director is currently CEO of Success Insite, a

community‑based mental health agency that operates under

the psychiatric rehabilitation option within the Louisiana

Medical (sic) program ‑‑ Medicaid program, excuse me.

Dr. Laurie Powers is an Associate Professor

of Pediatrics, Public Health, and Psychiatry at the Oregon

Health and Science University. Prior to joining the

faculty of OHUS in 1995, she was an Assistant Professor of

Pediatrics at Dartmouth Medical School and Co‑Director of

the Hood Center for Family Support.

Dr. Powers is the co‑founder and Chair of the

Alliance for Self‑Determination, a national network of

researchers and consumer leaders focused on self‑

determination.

And finally, Dixie Jordan is the Director of

Families and Advocates for Education in Riverton, Wyoming.

The Families and Advocates Partnership for Education

project is a strong project that links families,

advocates, and self‑advocates with the goal to improve the

educational outcomes for children with disabilities.

Thank you, panelists, and welcome.

We will begin the order of introduction. Mr.

Lally?

\[Overhead projector presentation\]

DR. LALLY: I\'d like to start by explaining

who I am. My experience is with serving children and

families with children under five; I\'m an educational

psychologist and have developed systems and strategies for

the provision of quality child care and have also

developed longitudinal interventions for poor families

exhibiting signs of dysfunction. I\'m not a special

educator and I make my remarks as a collaborator with

special educators.

I\'m going to talk about four problem areas

that I see in relation to interagency collaboration and,

with each of those problem areas, recommend some

solutions.

Before I get to those, I do want to comment

briefly about my age range, which is Zero to five, in

relation to IDEA Public Law 105.

It seems that, for children between the ages

of birth to five, the issues are not in the law but in the

implementation of the law, particularly in Part C. Part C

works. And what we\'re looking for are better ways to

allow the activities and structures ‑‑ I\'m familiar with

the ones in California ‑‑ to ‑‑ that are in place ‑‑ to

continue the path of improvement. So much of what I\'m

going to be commenting on will be of that implementation.

The one issue that we have is with Part B.

And that is because three‑ to five‑year‑olds seem to have

been lost in the emphasis on K to 12 and post‑secondary

issues and there needs to be some ‑‑ more recognition for

the uniqueness of the age group and the special

developmental program needs of children from three to

five. That is not the problem with infancy because infancy

has its own special relationship.

The problems that I\'m going to deal with are

general in nature and ‑‑ let me see, I\'ll start here,

which it seems like everybody is having trouble with

collaboration, these days, even little children.

And, what I\'d like to talk about is, one of

the barriers that we have that is a large system issue and

that is that there are different requirements for service

responsibility for state educational agencies than there

are for the other systems that are part of the

collaboration.

The requirements for service delivery ‑‑ I

believe, the recommendation should be the same for all the

collaborators because one of the things that we see is

that, when people are asking who\'s paying and how do we

get it, they go to the State Education agency first and,

very often, what happens is that they are held to the law

as other agencies are not. But it seems like, in order to

motivate collaboration, it would be appropriate to have

more equity in the requirements for service.

The second area is the style with which

collaborations are approached and the resistance to

collaboration. One of the effective things that we have

found is that there needs to be, among agencies, the style

of using the child, the voice of the child, as the way of

organizing conversations about services.

Often what happens is that there are barriers

caused by the narrow focus of agencies as they are

planning to collaborate. And what happens, then, is that

their prime mission, or their fear of incompetence or

failure in special ed, makes them reluctant to engage in

the collaboration. There are two recommendations that I

have.

One was developed by the people working in

foster care in the City of Oakland and it\'s called \"Using

the Voice of the Child\" as a model for communication.

This was used in foster care systems and the family

courts, who seem to be not seeing eye to eye. What this

model does is it enters each conversation, first with a

discussion of the needs of the child, the wishes of the

child, and the voice of the child. And it\'s been found to

be very useful as a way of entering the conversations, as

opposed to the scope of work of the particular agency.

Second, one of the things that happens in

child care very often is that child care providers and

their managers are reluctant to engage in collaboration

because they believe that they need to be completely

competent in special education skills before they can

bring children in. There\'s a style that we have found

that the special education community has used that has

been very effective with these people and that is, as a

collaboration is initiated, to assure the people that what

has to happen is that they need to gradually develop

confidence based on their understanding of the particular

children they are serving, as opposed to having to be

specialists in all of the special needs before the child

shows up.

This approach has been the most effective in

getting child care administrators to bring children into

programs. That they\'re worried that they will not be

perfect or may damage a child very often inhibits them.

This approach seems to help.

The largest issue that I\'d like to talk about

is the structural instability of the systems that we

interact with. We at WestEd just finished a piece of

research; over a five‑year period, we looked at agencies

serving low‑income communities and child care programs who

were in a survival mode, themselves. And so what was

happening is that the illusion of strong agencies

collaborating by just coming together around the table is,

in many communities, just that, an illusion.

What we have found was that many of the

people that we are calling to work with us in special ed

have:

Unpredictable and insufficient funding;

Inequitable ratios between the depth of

service needed and the services offered;

Racial and class tensions with other agencies

or partners that they\'re supposed to collaborate with;

Limited role in developing and implementing

and evaluating programs intended for their community,

they\'re told how that\'s going to happen;

Lack of organizational capacity for staff

training and support; and

Lack of organizational capacity to meet the

requirements expected of them by funders and

collaborators.

Therefore, one of the things that we are

recommending strongly is that there needs to be adequate

support so that basic services can be implemented. What

we found in child care, for example, is that 40 percent of

the infant‑toddler care in the United States is actually

damaging children. These are the agencies that we\'re

going to collaborate with. One of the things that we need

to do is bolster those agencies.

We\'re finding, in agencies serving inner‑city

communities, that many of the people providing the

services are experiencing stress, burnout, and depression;

and these are people that we\'re being expected to

collaborate with.

My recommendation here is to support

institutional health and collaborating agencies. We just

can\'t assume that they are going to be in any different

shape than many of the families that they\'re serving and,

in addition to that, we need to support the collaboration

process. In California, for example, there are things

called local planning areas that work with programs that

are supposed to collaborate, to hand‑hold along the way.

The final recommendation in this area is that

we believe that, in order to collaborate with the services

that are out there, we have to bolster the services that

are out there. For children under five, the normal care

is bad. One way to make it better is moving towards

universal pre‑school and the expanding of early Head

Start.

Another area that is giving programs trouble

is that, very often, what is happening is that the lead

agencies change so that the Department of Developmental

Services might have the children once they become four

years of age, and the Department of Education, when they

are zero to three. Often, what happens when there is this

lead agency change is that there are all kinds of other

changes that programs, parents, children, and care‑givers

need assistance within the transitions; we need to focus

on the transitions.

Second, very often what happens in the

transition at age five is there is quite a dramatic

philosophical shift, moving towards issues of rigor and

readiness that were not as attended to, instead,

developmental appropriateness, et cetera, was the rule of

the day. What we\'re seeing is, again, at that period at

age five, very often there is a jolt to the system that

needs to be understood as children move from one system to

the other. The issues of accountability, I think, are a

key; and I\'ll stop with this.

One of the things that we found is that, for

children under five, one size doesn\'t fit all. It\'s true

for everyone but, for very young children, it\'s quite

true. There are rapid periods of growth and development

and the accountability efforts then need to be, that

results must be based on individual child and individual

services rather than on a one‑size‑fits‑all outcome.

The younger the child, the more rapid the

growth. For example, an infant goes through three very

quick developmental periods before they even turn three.

There needs to be a sensitivity to this movement as we try

to have a seamless system from birth to 22.

Thank you.

MS. ACOSTA: Thank you, sir.

Donnalee?

MS. AMMONS: When I started working with the

mental health agency, of course, I did so as an educator.

I came from education, I had 35 years in the educational

field, and then I began working in the area of mental

health because that was the greatest need that I was

seeing as a special education administrator, was, what was

happening with our students with severe behavioral and

emotional problems.

We worked very hard in the area that I was in

to be collaborative, to have multi‑agency services, and,

at one point, we probably had ‑‑ as the Regional Director

of Mental Health described it ‑‑ the pinnacle of what

multi‑agency services should be.

As he and I have discussed how multi‑agency

services were generally ebbs and flows with the enthusiasm

of the people that are involved in the process. That\'s

definitely a problem with making things systemic. Things

may work out effectively at the local level, due to the

commitment of people at the local level but, unless that

same enthusiasm exists at the state level, the prognosis

for long‑term success is limited. And Mr. Lally

mentioned, it takes support at the state level in

understanding those things.

The first issue that would be a

recommendation is that there needs to be a very concise

process to develop and implement an outcome‑based

provision of services. The mental health model, at least

in rehab as we\'re experiencing it in Louisiana, has moved

to an outcome‑based service delivery. A major portion of

that service delivery is provided by para‑professionals

under the supervision of licensed mental health

professionals.

A lot of the agencies, not just Education,

have failed to focus on the outcomes. They\'re still

looking at how many half‑hours of therapy does this child

get, or something along those lines, instead of a certain

number of hours of therapy, the process works on the basis

that the para‑professional will work with the client in

the situations and environments that have been assessed as

precipitating the most non‑compliant behaviors.

The immediate outcomes desired by educators

are frequently unrealistic from a treatment standpoint.

And I found this a great deal. If the student qualifies

for multi‑agency services, his needs and his family\'s

needs are extreme. A lot of times, the educator\'s

immediate goal is that the student who has demonstrated

non‑compliant behaviors 100 percent of the time will \"obey

school rules\" 100 percent of the time.

Well, during the honeymoon phase of the

service plan, compliant behavior with close supervision

and intervention by a really good para‑professional may

approach 100 percent. But the behaviors that precipitated

the multi‑agency service are not eliminated in one month.

So it\'s usually only a matter of time until one or more of

the non‑compliant behaviors erupts.

The mental health staff tries to handle the

situation therapeutically. Most of the time, the school

staff tries to handle it punitively. Realistic outcomes

must be developed in small, sequential segments so that

changes in behavior are measurable and the effectiveness

of the program being provided that student can be assessed

by both education and mental health.

I\'ve found that many educators, myself

included, do not seem to feel adequately trained to deal

with the types of services that most students with severe

mental health problems require. We, in education, are

trained really more to deal with discipline but these

students\' needs far exceed discipline. There is a big

difference between managing behavior and changing

behavior.

School administrators kind of find themselves

boxed in by zero‑tolerance rules. And those zero‑

tolerance rules are in areas other than, often, weapons

and drugs. There are some systems we have zero tolerance

for tardies or zero tolerance for not following the dress

code. Well, these kids are just set up to be in a

situation where they\'ll face failure.

The school staff are often so frustrated by

the time multi‑agency services are initiated, that their

desired outcomes for the student are beyond what can

reasonably be accomplished.

Another issue that needs to be looked at is

early intervention programs and social skill programs and

those must be a part of the services provided. Services

provided at an earlier stage have a greater chance of

being effective. In very few school systems is a formal

social skills curriculum in place that is used with

students who are risk for more serious mental health

problems.

Teachers are already stretched with all the

things we ask them to teach to accomplish academic goals

and so social skills are never presented in a structured

manner. The thought of contracting the service with an

outside mental health provider seems to be rarely

considered, at least in Louisiana. The data is out there

to support the benefits of early intervention programs and

school‑wide social skill programs.

Mental health providers can easily provide

different strands of services utilizing specialized staff,

targeted to the identified needs of the system.

There has to be a clear delineation of roles

and responsibilities. There seems to be a reluctance on

the part of educators to turn any component of service

over to another agency. Again, I\'m speaking of Louisiana.

\"We can do that ourselves\" seems to be the prevailing

mindset, or the reverse happens, \"That\'s not what we do.\"

Educators are frequently fearful that they

will be pushed into providing an expensive mental health

service because the outside mental health agency that they

were contracting with has not fulfilled their agreement.

In a lot of cases, the mental health provider does not

provide the type of progress notes to the LEA that will

help them know what progress is being made. I\'ve asked,

sometimes, \"Do you have progress notes?\" \"Well, no,

because that\'s part of the treatment plan and that can\'t

be shared. That\'s protected.\"

But the LEA does not need the treatment

notes, they do need regular reports to document that the

service is being provided and the extent to which the

goals and objectives are being accomplished.

Once again, the need for specific outcomes is

clear. If the provider does not accomplish pre‑determined

outcomes, their future with the LEA should be in jeopardy.

Inner‑agency agreements need to clearly state

roles, responsibilities, expectations, and protocols.

Unless one agency has a case management role with some

authority to hold other members of the group accountable,

lapses in service delivery can occur. Sometimes a lapse

goes undetected for several weeks because no one is

providing consistent oversight.

When problems arise, and they will, a clear

process for handling them without one agency pointing at

the other and saying, \"It\'s your fault\" needs to be in

place, even when a team ‑‑ and Mr. Lally mentioned that ‑‑

sits down and develops a service plan, frequently it is an

illusion of a collaborative plan. The plans, at best,

tend to offer parallel services and, too often, each

agency appears to feel that if they\'re not the primary

provider of a particular component, they have no secondary

responsibility.

I think that there needs to be funding

incentives that make intensive services financially

feasible. Plain and simple, students with mental health

needs are expensive. Easily accessed funding must be

available that encourages inner‑agency collaboration.

Unfortunately, small agencies often lack the resources to

be competitive in the grant‑writing process so that\'s not

a possibility.

In Louisiana, the psychiatric option of

Medicaid is for students who are severely emotionally

disturbed and who receive ‑‑ or are eligible for Medicaid.

The State Office of Mental Health offers some funding for

students who meet the severe emotionally disturbed

criteria but are not eligible for Medicaid and whose

families have no insurance. There are few, if any,

funding options for students from families who do have

insurance. My analogy is, that you don\'t qualify for

shoes until both feet are amputated.

I have an agency that is a not‑for‑profit

agency but my Board of Directors expects me to break even.

We cannot afford to give a school system 30 hours a week

of on‑site staff without additional funding because

Medicaid funds us to give 15 hours a week of on‑site

service.

Many educators feel that putting ‑‑ or seem

to feel that putting education money into treatment is not

a viable option. Very rarely, on an IEP, do I see family

counseling offered, even though the family situation

greatly impacts the student; and counseling, if it\'s there

at all, is usually one time a month for 30 minutes.

Some other issues that need to be looked at:

Mental health providers must develop

sensitivity to how schools operate and then make an effort

to fit into the education model. If services are provided

in the school environment, mental health staff must

conform to the rules and regulations.

Mental health staff need to learn to advocate

for their clients, but in a non‑adversarial manner. Most

of all an atmosphere of trust and respect must be

established and maintained in order to foster long‑term

collaboration. The commitment to work together must not

be dependent on individuals but must be an agency

commitment if systemic change is to occur.

Thank you.

MS. ACOSTA: Thank you.

Dr. Laurie Powers?

DR. POWERS: Thank you very much for inviting

me to speak with you today.

I\'m here to speak specifically about

collaboration as it relates to the transition from high

school to adult life and I think it\'s probably fair to say

that that\'s an area in which collaboration is key.

Before I begin with those specific comments,

though, I\'d like to make a couple of general. The first

is that it\'s fair to say that my perspective is really

three‑fold. First of all, I\'m a researcher and have quite

a bit of research over the last 17 years related to

adolescent transition in particular.

Much of my work has been applied so I\'ve

also, as I know you have, as well, sat in a number of

classrooms through IEP and ITP and instructional sessions

and sat with youth and families and teachers as they

struggled with some of these issues.

And, third, I come before you as a person

with disability, who grew up with disability from

childhood and it\'s likely influenced some of my

perspectives around this area.

Now, not to remind you of things that you

don\'t already know, but I ‑‑ for me, it\'s always important

to get grounded in the reality of where we are with

respect to transition and academic success for youth. So

I just want to remind all of us that, currently, we\'re

looking at somewhere around a 29 percent graduation rate

for youth with disabilities versus about 87 percent for

youth without. We\'re looking at one in three youth

dropping out versus one in four youth, generally without

disabilities. We\'re looking at unemployment rates, three

to five years out of school, somewhere in the 60 percent

range for youth with disabilities.

We\'re looking at only 29 percent of youth who

are employed earning wages above the poverty level. So

most youth of the small percent who are employed are

making subsistence wages, much of them ‑‑ you\'ve probably

heard the term, \"food, filth, and flowers,\" that that\'s

what we focused on a lot in socializing people with

disabilities in terms of their career and job aspirations.

And, still, a lot of that continues.

And most importantly, I think that youth with

disabilities tend to attend post‑secondary education at

about one‑quarter the rate of youth without disabilities,

which, I think, is really of concern and deserves focus.

Youth with disabilities also face more

significant social isolation; those that do not have

severe disabilities tend to drop off the cliff after

school and that there really aren\'t a lot of supports and

services that they can draw upon, they and their families.

And there are poor outcomes for groups like

incarcerated youth, foster care youth, ethnic minority

youth; and, as a matter of fact, getting data on those

youth is also very problematic in terms of being able to

understand what their outcomes are.

Now all of this suggests that, although we

have had some modest gains in outcomes for youth with

disabilities, that still a lot isn\'t working for a high

percentage of those youth in terms of our transition

supports. It also suggests, for me, that dramatic early

action is needed with regard to the high school career in

terms of intervention to try to place students in better

stead for successful transition after high school.

And I think it\'s fair to say that, currently,

supporting youth with transition is considered

supplemental and, in some cases, an afterthought in lots

of school districts and, in part, that\'s not because

anybody means ill will towards youth but they\'re trying to

take care of academics, they\'re trying to handle a lot of

other competing priorities, and this just does not get the

attention that I believe it deserves.

And I believe, actually, the Commission has

an opportunity here to perhaps champion what could be, I

think, a really important issue that has promise.

We all agree, I think, increasingly, that

youth with disability should be as self‑sufficient as they

can be when they leave school. We\'ve never ‑‑ you know,

we used to think that youth would be in more dependent

roles and we\'re now expecting them to have jobs, to go to

college, to be as included in their communities and

participate at the highest level that they can.

In short, when we talk to youth and their

families, what they want to do is they want to get a life

and they want to get a life like everybody else has a

life. And, to accomplish this, first and foremost, youth

need to be able to access the typical education

experiences that are available to other youth without

disabilities. That certainly includes inclusive academic

training but it also includes things in the area of

transition‑like vocational education, apprenticeships,

internships, service learning opportunities. Our national

community service holds great promise and there\'s some

opportunities there for increasing collaboration.

Now, once you can access these opportunities,

the question becomes what other kinds of supports or

accommodations do they need to be successful? And I think

that\'s really where the heart of collaboration comes. And

there are four forms of collaboration I want to touch on:

The first of which is probably something we

don\'t often think about in terms of collaboration but it\'s

actually collaboration with the students, something that

we\'re in short supply of, oftentimes, with regard to the

transition process and the transition planning;

Everything from involvement in the transition

planning discussions and meetings and other activities

that occur, to providing youth with education so that they

can begin to identify what their accommodation issues are,

what kinds of supports they need, what strategies are

successful, what services they might be able to use; most

youth with disabilities receive no information about that

kind of stuff. And so we expect them to go out and be

able to negotiate those supports for themselves. And they

don\'t know where to begin;

Ongoing support for youth throughout, in

particular, middle school and high school, to learn how to

be change agents in their lives, to learn that they are

responsible for what happens and to give them the tools

and the kind of coaching and support that they need to use

those tools to be more successful;

And then opportunities for things like

mentorship, peer support, leadership development that we

all know, for young people without disabilities, have a

substantial relationship to their subsequent success in

adult life, employment rates, and other kinds of

activities.

You know, I would point out that we spend,

now, about \$15 million in parent‑training kinds of

activities nationwide to provide parents with information

and education and we really don\'t spend ‑‑ we really spend

very little directly on youth in providing them with those

kinds of services.

And one of the recommendations I might make

is if the Commission would consider the idea of youth

resource centers or supports for youth, to build their

capacities.

The second area of collaboration is certainly

that with respect to families. I mean, families are the

primary support and, as much as we all don\'t want to admit

it, when it comes right down to it, it\'s families and

youth who make a life. And we really need to increase our

capacities to be able to provide outreach to families; to

plan around what families and youth define as their

priorities for adult life; to train educators so that they

can talk to families because, as many comments were made

earlier this morning, we don\'t socialize our educators to

be supportive with families.

We did a study a couple of years ago in which

we looked at the involvement of ethnic minority parents in

transition support activities with their sons and

daughters and compared that to Anglo parents; and it was

self‑report, but the ethnic minority parents were rating

higher levels of engagement in activities to support their

sons\' and daughters\' transition. We asked educators what

they thought were happening; of course, it was just the

opposite. They rated that the Anglo parents were far more

involved.

And so there\'s a lot of perception and

there\'s a lot of disconnect that needs to be taken care of

there.

The third area of collaboration is

collaboration with other service providers like VR

(phonetic) and like One Stop Career Centers, for instance.

Those collaborations need to be brought in ‑‑ need to be

activated much more earlier, earlier than they are now.

Typically, with vocational rehabilitation, it\'s not until

the last year that a student is in school that a local

rehab counselor might show up at a transition planning

meeting for discussion, and an IEP meeting. And there\'s

just a real need to engage earlier on.

There\'s also a need to be more creative in

terms of commingling resources and working at strengths.

I think this is ‑‑ there\'s a particular opportunity here

between schools and One Stops. And I think the school

culture is not one that\'s particularly conducive to

collaboration and to establishing those kinds of inter‑

agency connections that need to happen. And that needs to

be encouraged.

I will say, as an aside, with respect to the

creativity issue, one of the things that we decided to do

at our center at the university ‑‑ and we\'re not doing it

as a program, we\'re just doing it because we feel like we

should walk the walk as we\'re hiring part‑time some

minority youth with disabilities who want to go to college

and who wouldn\'t be able to do that. And it just so

happens that, if you work half‑time at our university, you

can go to any college ‑‑ state college ‑‑ and you have a

lower tuition.

And we have a young person who\'s done that,

going to a school, Portland State University, and was

denied vocational rehabilitation services because,

although she\'s going to college and needs some support to

help her go to college, she\'s working because we provided

that part‑time opportunity to her. So we\'ve just got to

deal with these kinds of dilemmas and challenges.

And, fourth, with respect to the final kind

of collaboration, it\'s really around activating natural

supports, and that\'s everything from employer networks to

involving neighbors, community agencies, churches,

whatever kind of support system is in that young person\'s

life. We need to be able to organize ourselves and our

systems flexibly enough so that we can identify who those

folks are and we can reach out and establish partnerships

and help youth and family be able to do that.

Now, in order to accomplish that, we\'re going

to need to really transform, I believe, the way we

approach transition to adulthood to one of focusing on

more brokering and capacity‑building ‑‑ that\'s the label I

give it anyways. I\'m really thinking about four major

components there, that every youth needs some kind of an

ally, somebody who cares and somebody who\'s got some

knowledge about connections that would be useful for that

youth in moving forward his or her goals.

That may be an educator, it may be somebody

out in the community. And the trick is to create a system

so that that person can be identified and activated and

supported to work with that youth.

There need to be flexible funds. I mean,

right now, most of our funding are tied into staff and

programs. And albeit we believe that some of these

programs are helpful, we really put ourselves in a very

tight situation here because there aren\'t access to

flexible resources.

Youth and families, as I already said, need

to have more information about their options and their

strategies. And they need, fundamentally, to have the

ability to use all those resources that they have, that

the system provides, that are informally available in the

community, to use those creatively. And, along with that,

obviously, schools need to ‑‑ and LEAs need to be more

active in developing inter‑agency collaborative agreements

with places like Independent Living Centers and One Stops

and community organizations.

Now, in order to make this happen, it\'s going

to take an investment approach. We really have to

understand that, as a society, we\'re looking at a lifetime

and we\'ve got a window of opportunity with transition and,

if we don\'t invest in it, we risk to lose a youth for the

rest of their life.

We also have to push forward inter‑agency

partnerships to provide both flexible supports and to

remove some of the disincentives. Two specific examples

there would be, looking at collaboration across agencies

around establishing transition accounts are flexible,

funding models that youth and families can draw on to

achieve particular transition goals.

Another example of that is, lifetime access

to medical coverage; that might be through home‑ and

community‑based waiver eligibility or a variety of other

strategies. But the idea is, rather than ‑‑ our current

system is constructed to gatekeep around access to these

benefits and, I believe, what we need to do ‑‑ and I think

there\'s research evidence that\'s now showing ‑‑ is we need

to switch to a buy‑in approach. You give it for your

right and, as you make more money and you\'re successful,

which is what we want you to do, then you participate in

paying for it.

And then, finally, a willingness to ‑‑ you

know, fundamentally, we\'ve got to be willing to try new

approaches. And it\'s my personal view that we\'re a bit

stuck in this area and we really do need a shot in the

arm. And I think that that shot in the arm could

successfully take the form of some systematic

demonstrations and evaluations of some of these different

kinds of models of flexible resources and funding and

brokering. We really can\'t afford to wait any longer;

we\'re talking about 15 to 20 percent of our adult

population. And ‑‑

MS. ACOSTA: We really need you to wrap up.

DR. POWERS: ‑‑ we need to make sure that we

don\'t leave them behind.

MS. ACOSTA: Thank you.

Dixie Jordan?

MS. JORDAN: Thank you very much for inviting

me here today.

I guess the first observation I have is that

this is an Anglo gathering in an Anglo hotel with an Anglo

audience and very high percentage of our youth who are

currently receiving special education services are

children of color in this nation.

So, when we use the term \"minority\" if we

were talking Minneapolis public schools, we wouldn\'t be

talking about Anglo children, as more than 85 percent of

the children who attend school in that large Midwestern

city happen to be kids of color.

Having said that, I\'m delighted to be here

and to have a few comments. And it seems as though I\'m

always tieding (sic) onto what someone else has said,

because, for the past 15 years, I\'ve worked within two

domains, mental health and education. And I find that,

when I\'m at largely mental health hearings and meetings,

all the blame is laid at the foot of education. And, when

I\'m at the door and engaged in a groups such as this, all

the blame is left at the feet of mental health.

And I think one of the major problems in

collaboration, if we are to address collaboration in a

meaningful way, way beyond the constraints of a special

education advisory committee, or the President\'s

Commission, we have to recognize that the federal

government is not doing a good job; they are not modeling

inter‑agency collaboration, they are not putting out

combined pools of money, except in an extremely limited

way. And, to expect that you shall do what I say you

shall do instead of you shall do as I\'m showing you how to

do, is an obscenity and is doomed to failure.

The families I work with are almost

exclusively poor. Most have no vehicles, most have no

telephones. I live on a reservation, I work with the

population that has 86 percent unemployment; and I will

tell you that, as I listen to Laurie speak about kids with

disabilities, you could throw those numbers out and then

insert the term \"Native American children\" with their

horrific dropout rate and you\'d just about have it.

So one of the things I wanted to talk about a

little bit today was the Bureau of Indian Affairs, in

particular, because I think that very large federal

agency, which is funded through the Department of the

Interior rather than the Department of Education, charged

with educating children with and without disabilities, has

not done so successfully and historically, and cannot be

permitted to continue as an agency without ensuring that

children have specific rights of access to the same kinds

of services everyone else has.

And I know that\'s not popular because I am an

enrolled member of a sovereign nation and I believe that

sovereignty is ‑‑ one of the big issues we talk about all

the time, how do tribes in our nation achieve self‑

determination? It cannot come at a cost to its citizens.

It cannot be that sovereignty overrides the rights of

individual citizens, who are also residents of states, to

equal protection under the law. And, unfortunately, I

often see that happen. And, to me, that\'s an untenable

outcome.

But, before I spend any more time on that, I

need to talk about ‑‑ we\'ve spent a lot of time talking

about what doesn\'t work; special education has had some

monumental achievements. It is the most successful program

that I\'ve seen to date for mandating that families will

have a voice in their own destiny and the destinies of

their children. That\'s a revolutionary stance to take and

one that I really hope will continue. And I believe that

parent involvement is the essence of special education.

The other part that really works is the IEP

process. People complain about its length and the amount

of trees that have to die in order to write down the

service continuum for children; and, indeed, I agree that

there are probably ways that the IEP document can be

shortened so that the requirements are clear to both state

agencies and local education agencies, that the federal

requirements for educating children through the IEP

process do not demand a 19‑ or 25‑page IEP, they demand

that we write legitimate goals for that child\'s progress,

measurable objectives in order to evaluate whether

progress is being made, a fairly small group of people.

With my son, never did I have an IEP meeting

throughout his school career, from Kindergarten on, where

fewer than 20 people sat at the table. It was

overwhelming, it was daunting; I did not speak the

language of education, nor does anyone else outside the

confines of this august room and body of people. It\'s a

foreign language.

I would sit in the meetings and cried my way

through every single one of them, throughout my son\'s high

school career, because I didn\'t think I was being listened

to.

So, while we\'ve learned many things about the

process of family involvement and developing IEPs at the

table together, the fact is that only at the point in time

when teachers are adequately prepared to understand that

families, even those they like to classify as

dysfunctional or dis‑something, disabled, disinclined,

only when people are able to drop their egos and listen

truly to those voices in pain, are we going to have a

quality of planning at the table and will the process

improve.

And so I see a structural need for educators

to learn greatly more about how to hold back and withhold

judgment and how to participate in a win‑win situation,

which is what an IEP should be. It shouldn\'t be about \"I

got them.\" and I hear it from the provider side and I hear

it from the family side, \"I won.\"

There are no winners, only losers when we

wind up in a due process hearing. Money gets spent,

relationships are broken, and nothing gets resolved. And,

yes, sometimes hearings are necessary but my own take on

that is, in the vast majority of time, if we were to sit

down and genuinely, not just listen, but hear what someone

has to say about what they see as needs and, if that is

done in a way that brings a neutral third party in, I

truly believe that we would be able to offset a lot of the

litigation that currently is the case.

Because, unlike the attorneys who were

represented here, I don\'t believe attorneys should be

allowed at the first line of trying to negotiate a

settlement between families and schools. I believe they

break relationships, intentionally or unintentionally;

once you have an attorney on board ‑‑ and I\'ve had them

for my child‑‑ once they\'re on board, it\'s only about

winning and losing because somebody has to get paid.

And so I truly believe that Minnesota\'s model

system that requires, or allows I should say, a

conciliation conference, a sort of higher‑level

conference, or even mediation, where our State Department

of Education had contracted with the parents to ensure

that families are represented in mediation, that those

kinds of strategies are more likely to result in positive

outcomes for those schools and for families.

Now, I need to move on to the BIA, and this

would take me three days, so I\'ll speak quickly. And I

don\'t mean this as a dissertation against Bureau of Indian

Affairs but I see some really huge issues that need to be

addressed.

First of all, there is no working

relationship that\'s formal between the Bureau of Indian

Affairs and the Department of Education at the federal

level. We used to have a liaison that ran back and forth

and tried explaining what services were provided and tried

to facilitate some discussion; and I believe that that

position of liaison needs to be reinstated and supported.

I, frankly, don\'t care who pays for it; I\'m an advocate,

that\'s not my job.

There is a BIA special education advisory

board that was supposed to have been established in 1976

‑‑ it was eventually configured in the last of the 1990s

‑‑ meets erratically, when they find the time and I

believe that that board needs to be directed that they

have to convene with the regularity as the State education

agency is required to convene a State special education

advisory committee.

I think the BIA has been the beneficiary of

opinion rather than a concerted planning effort that can

be corrected quite easily. I believe that the Bureau of

Indian Affairs should be required to let families that

they work with know about the parent training and

information centers in the states in which each school is

located.

What I found is that Native parents residing

on reservations have no access to information about

special needs, no access to information about how to

participate effectively in developing programs that work

for their children.

When the University of Minnesota, for

instance, conducted a study looking at family involvement,

what they found was that more than 90 percent of the

families said that they knew enough about the law. When

they broke that down according to the status of persons of

color, they found that that was simply not even close to

the truth, that five or six percent were satisfied that

they knew enough about the law.

And so we have to be really careful when we

say that families know enough to make sure that we\'re

talking about all families. They also said ‑‑ found out

that, when a family of color found satisfaction with the

school program planning, 100 percent of them said they

were satisfied when they had another person who able to

attend the meeting with them at school. And I think that

really speaks to the need for emotional support, as well

as to provide some information about how the process

works.

I also have to say ‑‑ I\'d be really remiss

not to talk about disenfranchised families, whether

they\'re Native American or anyone else. It\'s going to

take a lot more work than we\'ve put to engaging these

families. It\'s going to take more time, it\'s going to

take more intensive strategies, it\'s going to take

connecting them, not just with resources but with people

they trust because many of them have been battered by the

systems over the years and feel that all systems are

against them and that education is one more system. This

is certainly something we can overcome.

It is certainly not a special education

issue, per se, but it is an issue of how do we take

singularly disenfranchised people in this nation and

empower them with the same voice and the same magnitude of

voice to be heard about the needs of their children and

the rights to their own self‑determination about what

those families need. I think that gets to be a real

critical piece.

And I don\'t expect that you can do a whole

lot about it but I do think that you\'re embedded with

much larger systems issues than we are able to address

specifically when looking at special education. But it is

part of a global mindset about the value of families in

this country that has to do with what color you are and

how much money you have, that we have to overcome if we

are going to move beyond the boundaries that separate us

today and, in particular, to improve our school system.

It can happen. I will not listen any more

when people say to me, \"Those parents don\'t care about

their children.\" I have not met the parent that does not

love and honor their child and want the best for them.

We have to find a different way of engaging

if we\'re going to make special education all it can be.

I think that legislation should be in place

that will allow the Bureau of Indian Affairs to be

considered an eligible state agency for the purpose of

applying for a Part B funding and state improvement

grants. Right now, they\'re outside that process and

cannot apply for that funding so they don\'t have an

opportunity to access those dollars; and that\'s a pretty

easily correctable thing.

I have one more thing. The Bureau schools,

even those that are on tribal land, must be subjected to

the laws of the United States of America. I filed an OCR

complaint of discrimination in a Bureau of Indian Affairs

school on the White Earth Reservation in Northern

Minnesota and received a letter back from the Office for

Civil Rights at the Chicago office claiming non‑

jurisdiction. If not OCR, then who?

Tribal agencies do not have those continuum

of services in place to look at, nor are they particularly

vocal about, the rights of citizens because they are so

diligently working on fiscal and social infrastructure

development these days. And I believe that something

needs to happen between the Office for Civil Rights and

the Sovereign Nations across this land about who is

responsible for this group of children.

I also think a single process should be in

place where state agencies monitor BIA schools because,

after all, the BIA schools are required to follow state

protocols and state laws regarding the education of

children with special education; that was their agreement.

And what I find is that you will have a due process

hearing and you\'ll call a Bureau of Indian Affairs hearing

officer in who then has to know about the laws of the

state in order to appropriately intervene and make

determinations about a child. And I think, at the very

least, there has to be an inter‑governmental agreement

between the Bureau and each State Department of Education

so that the Bureau schools have the same benefit from

targeted monitoring or whatever you choose to call the

monitoring system of the future, which they do not now

have access to.

And I need to say that I know that it\'s not

an easy thing to say. I also need to say that my

exclusive domain is working with children with severe

emotional disturbance and has been for almost 20 years.

They and their families often are removed from our public

education system because of their ‑‑ the very behaviors

that were used to call them disabled and the very

behaviors that we use to say that these children have

disabilities and are deserving of our additional supports

are the behaviors we use to remove them from school

saying, \"You\'re not deserving of our supports.\" That

makes no sense to me.

I get very passionate about it because these

children sit home with nothing. \"Leave no child behind\"

are great words and we listen to them and they sound

wonderful. It\'s sort of like the thousand points of

light, but what does it mean if not all children?

My son went through school with that

pernicious label of emotional disturbance, quit school,

with my blessing, four credits short of graduation because

we could not make general education accountable for his

education. We can\'t fix special education outside the

context of regular education, nor should we try. We must

hold regular education accountable for instructional

methodologies that are scientifically validated to work

with all children so that all children have the

opportunity to go to school and to be productive, as

productive as they, in particular, can be.

Zero tolerance is inconsistent with \"Leave no

child behind.\" Zero tolerance for behaviors should not

mean zero education, it should mean, simply, that, if we

have no tolerance for a set of behaviors, then we will

educate you regardless of the environment because not to

do so means that we will have to just give more money to

the penal institutions today. And, unfortunately, those

institutions are filled with children of color. And that

is not acceptable.

Thank you.

MS. ACOSTA: Thank you ladies and gentlemen.

I believe that, when you speak with such passion, it rings

through to the message and the mission of this Commission.

And I would, again, take the liberty of speaking on behalf

of my fellow Commissioners, that we feel your passion and

we are happy that you are on our side, on the side of our

children.

We will begin the questioning with

Commissioner Coulter.

DR. COULTER: Several of you mentioned that,

I think, the difficulties that are faced when you have

multiple agencies with overlapping, or in some instances,

separate responsibilities but all answerable to families.

I\'d like for you ‑‑ in terms of the context

of this Commission, could you speak a little bit more, any

of you within my five minutes of time, about how can a

Commission on Special Education speak to ‑‑ constructively

speak to how agencies can work together when

traditionally, and I think you\'ve been eloquent about the

fact that agencies tend to not want to cooperate or

collaborate with each other.

And I\'m not calling names at mental health or

education, I\'m talking about what\'s the interface and how

can we make that better.

DR. POWERS: On an optimistic note, I think,

in the area of adolescent transition to adulthood, that

there is increasing momentum in a variety of agencies,

like the Department of Labor, Social Security

Administration, Maternal and Child Health Bureau, to both

collaborate and to move forward some pretty innovative

approaches. And I think that there is an opportunity for

education to jump on board, actually, in a more definitive

and active way with, I think, some of those collaborations

at a federal level. And there\'s a good deal of that

that\'s also being mirrored at the state level and local

level, as well.

So I think there is some opportunities there

if Education could be encouraged to jump on board.

DR. LALLY: I would think that there needs to

be both a carrot and a stick approach. One of the things

that\'s happened in Head Start, for example, is that 10

percent of the children who are served by Head Start, have

to be children with special needs. And so there\'s no

negotiation. And they are searching for ways to do that;

it\'s very difficult. But they are seeing that they have

to do it.

Some of the comments that I made when I gave

testimony, is that what we are seeing, for example in

California, is that the education agencies who are held

accountable for the services wind up being the one,

whether they are the most capable or not, responsible to

give the services.

So I believe that there does need to be both

a sharing of some of the funding but also required of the

other agencies that there\'s a percentages of their

services that have to go to children with special needs.

DR. COULTER: So the carrot would be some

sort of collaborative use of funds? In other words, funds

from special education that actually would ‑‑ I guess I\'m

trying to put words in your mouth so make certain I put

them in correctly ‑‑ so that you couldn\'t get the funds

unless you evidenced collaboration?

DR. LALLY: I think that\'s more the stick

than the carrot, but ‑‑

DR. COULTER: Well, what\'s the carrot?

DR. LALLY: I mean, the money is the carrot,

the forcing is the stick.

One of the things that\'s happening in England

now, which is an interesting experiment is something

called Sure Start where they are melding the money in

particular communities for all types of services with a

child‑focused impact. And what they\'re finding is that

they\'re able to save, because of non‑categorical funding,

duplications of case managers, all of these types of

things. And they\'ve been experimenting with this now for

the last five years.

But it\'s a restructuring; actually, it was

economists that did it in England, who were saying, \"What

we need to do is look at categorical funding and alter it

in ways where there\'s more of a blending by having people

develop plans for each of the individual children,\" and

then the funding comes to fit the plan as opposed to the

funding comes to ‑‑

DR. COULTER: Okay.

MS. JORDAN: May I also add that, in

Minnesota, when we wrote the children\'s mental health

legislation, it evolved to a point where, in order to

access collaborative funds, each county or grouping of

counties can establish a children\'s mental health

collaborative. In order to access any of that funding,

there must be an inter‑agency agreement between mental

health and education.

And there is no stick, but the carrot\'s large

enough where that\'s something that becomes desirous. And

I guess I need to say one other thing about that.

We sometimes pretend that education is not

the largest social service agency in the world, but it is.

It has never been funded accordingly, although we\'re

responsible for ensuring that children have enough to eat

because that\'s contingent upon their being learners. And

health clinics are now in schools because we know that\'s

where children are, and mental health services will

someday be delivered through the schools.

I truly believe that, if there was a federal

system of granting that required ‑‑ and we do have that in

substance abuse and mental health now, at some level ‑‑ if

we had a federal grant process that let out funds so that

people could begin to evaluate, do and evaluate what

blended funding could look like at the Department of

Education level, at the local school. That would probably

be enormously helpful.

I\'ve looked at substance abuse and mental

health, they are so inextricable from one another that

finally, at the federal level, people are beginning to

realize, you can\'t really treat substance abuse on a

reservation, or mental health on a reservation, you have

to look at the combination there. And I think those kind

of initiatives need to be much more broadly publicized by

the Department.

DR. COULTER: Thank you.

DR. LALLY: There\'s one other thing I wanted

to say about that. In looking at child care, when the

schools are out there\'s no problem because education has a

much softer role. What we see are, many of the practices

that we need for good special ed for infants and toddlers,

small groups of individualization ratios where people can

get to know the children, are the same types of strategies

for quality infant‑toddler care.

And there are things that overlap

considerably with regard to best practice that need to be

thought about as being melded because you would do this

whether you were dealing with infant mental health,

quality child care, or children with other special needs.

MS. ACOSTA: Thank you.

Commissioner Huntt?

DR. HUNTT: Thank you, Madam Chair.

I want to thank all of you for your

commitment and the work you do on behalf of people with

disabilities; we all appreciate it.

Dr. Powers, I noticed, when you were

optimistic with your list of agencies that are working

collaboratively, that you left VR off the list.

Is that by commission or omission?

DR. POWERS: Well, actually, I was speaking

of education broadly and saying the Department of Ed,

including VR.

DR. HUNTT: Okay; thank you.

DR. POWERS: ‑‑ would have an opportunity ‑‑

DR. HUNTT: So next year we get VR in there.

And I wanted to ask you, specifically ‑‑ we are doing a

committee on transition from school to adult life and

we\'re looking for specific recommendations, then, on how

we can change IDEA through this reauthorization process to

ensure that groups like VR are in the school system and,

early on, working collaboratively.

Is there something specific that you would

recommend, as far as a change in the reauthorization of

IDEA, to better ensure transition from school to adult

life? And, if not ‑‑ we\'re going to meet in about a week,

I think, on April 30th so, if you want to get our email ‑‑

I\'d really like to hear your perspective on it.

DR. POWERS: Yeah, we\'d be glad to share

that. I think, off the cuff, there is just so much more

opportunity for there to be joint ventures across

agencies, that would allow funds to be shared, to work on

some common transition goals and would really provide an

opportunity, I think, consistent with some of the

reshaping that\'s already happening in VR around ‑‑ well,

around roles and relationships with other organizations to

move that forward.

DR. COULTER: Do you think that\'s the major

issue, is the funding issue, then? It seems, whenever we

bring it up, people say, \"Well, it\'s about shared costs.\"

and who has to pay for what. Is that the extent of the

issue of transition?

DR. POWERS: Well, the issue of transition is

‑‑ I mean, it\'s multi‑faceted in terms of the issues that

have to be addressed. But, certainly, one cannot ignore

money and funding. But I think that there are other

issues, just in terms of, really, clarification of roles

and clarity in your agency relationships around this.

And, really, clarifying what the core purpose

of organizations and agencies, like VR, are with respect

to supporting transition.

I\'d be pleased to talk more with you about

that.

DR. COULTER: Thank you; and feel free to

send us some specific recommendations. I would appreciate

that. Thank you, again.

MS. ACOSTA: Thank you.

Commissioner Gill?

DR. GILL: Thanks, Madam Chair.

I know we have yet another panel to go and I

also know we have people who have been here since early

this morning to do public comment and I\'d like to

relinquish my time so that we can stay as close to

schedule as possible.

MS. ACOSTA: Thank you so much.

Mr. Jones?

MR. JONES: The same.

MS. ACOSTA: All right; thank you so much.

I\'m just going to make a quick comment.

I had the privilege of working on a couple of

reservations in both Kansas and North and South Dakota and

I\'m very intimately familiar with goings on and we thank

you for having your eye on that.

Just to ask ‑‑ to beg the question one more

time, should funding, then incentives, be tied to student

performance; is that what we\'re talking about?

MS. JORDAN: I need to say that I have a real

problem with that because sometimes the lowest performing

schools, if there\'s financial disincentives for them and

they are already overwhelmed, what we will do is take the

most vulnerable children and they will wind up being the

ones who are punished for that. So I think that\'s real ‑‑

it\'s a difficult area to talk about.

And I don\'t know what the answer is but I

know that\'s a real, real, tough area.

MS. ACOSTA: Thank you.

Commissioner Takemoto?

MS. TAKEMOTO: Thank you very much. And I

would like to thank the Commission staff for arranging for

this panel. I feel like, today, we\'re beginning to fill

in some of the missing pieces in our deliberations.

And one of my missing pieces, thus far ‑‑ and

this is for Laurie and Dixie ‑‑ is the issue of self‑

determination. We\'ve heard from families, that schools

are telling students, \"You don\'t really want to be here;

we\'ll give you this piece of paper. It doesn\'t mean

anything, you\'re the one that has a right to make this

decision. And so wouldn\'t you rather be somewhere else?\"

And can you speak a little bit to ‑‑ self‑

determination also means the ability to make choices that

may or may not be good for your own future.

DR. POWERS: Well, from the perspective of

working with adolescents, who we all know specialize in

making choices that we worry will conflict with their

futures ‑‑ boy, in the work that we\'ve done, I\'ve become

more and more convinced that if, indeed, we provide youth

with supportive alliances and we provide them with

information that they need so that they can really

consider their options, and not just consider, but learn

about it through real life experiences, working on goals,

for instance, that are important to them and learning more

about themselves, that they move towards being good

decision‑makers.

And, oftentimes, they end up focusing on

those very same issues that other folks have wanted them

to focus on. We see this with kids with behavior labels

all the time, that, when they\'re allowed, free from

interference, to choose goals, they will often choose

those very same goals their parents and teachers have been

trying to get them to focus on for years.

MS. TAKEMOTO: So the issue of informed

consent comes into play, not just consent, but informed

consent.

DR. POWERS: That really is the key to self‑

determination, from my perspective.

MS. TAKEMOTO: Dixie, very quickly, because

I need to ‑‑

MS. JORDAN: And I will make it very quick,

which is, by the way, not culturally appropriate.

When you\'re dealing with children with

biologically‑based mental illnesses such as schizophrenia,

schizoaffective disorder, bipolar disorder, or another of

the hallmark characteristics of the DSM diagnoses, their

ability to make remarkably poor choices for themselves,

that should not override the parental involvement in the

decision‑making process. I\'m very concerned that some of

our young people make lifelong decisions, such as dropping

out of school when they\'ve been counseled to do so by

people who don\'t want them there in the first place, that

families, then, feel defeated and disempowered.

So you can\'t ‑‑ you don\'t live your life in a

vacuum; children don\'t live on their own until they hit an

age where they can do that. Fourteen‑year‑olds shouldn\'t

be the ones making decisions, in my estimation, about

whether they should go to school or stay home.

And, unfortunately, despite the fact that we

have state laws to the contrary, I work with a lot of kids

who haven\'t been to school in a lot of years and they

haven\'t hit the age of 16 yet.

MS. TAKEMOTO: Just a yes or no; 18 to 22,

age of majority ‑‑

MS. JORDAN: Yes.

MS. TAKEMOTO: They make their ‑‑ are

families still a member of that IEP team or ‑‑

MS. JORDAN: I think families must always be

a member of the IEP team because the short and the long of

it is that some of the children ‑‑ the children that I

work directly with make terrible decisions that wind up

getting them expelled from school. And then the family\'s

option, because they love that child, their only option is

to keep that kid home and let him watch TV for the rest of

their career until they hit 30 and the family gets tired

of them.

So, yeah, families always have to be part of

that team; I believe it.

MS. TAKEMOTO: Thank you for adapting to our

culture and doing that very succinctly, but also very

clearly.

MS. ACOSTA: Thank you.

Commissioner Chambers?

DR. CHAMBERS: Perhaps we should extend the

IFSPs to a larger age group. I\'ll leave it at that.

Initially, the program, Part H ‑‑ now Part C

‑‑ a lot of the funding was considered or, at least, the

way it was described to me in California when I was doing

work here on this issue, as glue money, to try to help

develop the structures to implement the program. And one

of those structures was the inter‑agency coordinating

council.

I heard you, Mr. Lally, make some comments

about it; I was wondering if similar structures ‑‑ it

doesn\'t sound like you ‑‑ that they were working very well

in California, if I heard you correctly. Maybe you can

correct the record on that, but also tell me whether such

structures might have some place in Part B to help

stimulate some further collaboration.

DR. LALLY: Yes. If I gave that impression,

I didn\'t mean to give that impression. I think the inter‑

agency work, plus the help in planning and collaboration,

actually is beginning to work and it\'s working better as

people get used to it. So I do think that is a useful

vehicle for moving into Part B, also.

One thing that I wanted to say that I did not

say in my presentation, and it had to do with something

Dixie said that triggered something.

This notion of flexibility versus red tape

and paperwork versus no paperwork I think is a serious

issue because I do believe that we need to be clear that

the documentation of rights and responsibilities on both

sides still has to be done so that people can\'t slip and

slide on the illusion that they are providing a service.

I absolutely recommend, as all of our

practitioners wish for, not having so much paperwork but I

do not think we can abandon keeping people accountable for

giving clear messages about whether they are or are not

providing a service that\'s been mandated.

MS. ACOSTA: Thank you ladies and gentlemen

for a very insightful and thoughtful presentation; thank

you.

We\'ll move on to our next panel, The

Practitioner Perspective, Case Studies in Administrating

(sic) Special Ed Services.

Ladies, are you ready?

The practitioner perspectives on this panel,

case studies in administrating special education services.

These presenters are field practitioners that

will discuss the challenges facing school administrators

in terms of the increasing numbers of children over‑

identified as needing special education services, the

growing administrative burden of paperwork, and the

growing expense of litigation distracting from serving

students with disabilities.

Witnesses will include Ms. Carol Topinka; she

is the Director of Special Services for the Milwaukee

Public Schools. Prior to that, she served as an Assistant

Principal in Milwaukee schools as Special Education

Program Supervisor, Director of Pupil Services, a Program

Director and Project Consultant.

Along with her administrative positions, Ms.

Topinka spent 14 years teaching children and adults in

public schools.

Our next witness is Dr. Judy Elliott; she\'s

the Assistant Superintendent for Special Education in the

Long Beach United (sic) School District, the third largest

urban school system in California.

Dr. Elliott has served in public schools for

14 years. As a former special education teacher of

students with learning and behavioral disabilities, she

collaborated with general education teachers and she

planned instructional interventions in both settings.

She has served as a school psychologist and

holds permanent certification in School District

Administration, School Psychology, and Elementary and

Special Education (sic).

Welcome.

DR. TOPINKA: Thank you.

\[Overhead projector presentation\]

My name is Carol Topinka and I want to thank

the Commission for inviting me here; it really is an

honor. I\'m afraid that some of the things I\'m going to

say might be repetitive, but that\'s okay because it will

underscore some of the important messages that we think

we\'re bringing to you.

When I was asked to be on the Commission, the

request was that I talk about paperwork and my response

was, \"But I do not think paperwork is the problem, but a

symptom of a problem.\" so you will excuse me if I don\'t

dwell on what may already be obvious to you.

I also want to say at the outset that I know

I\'m going to sound cynical and I guess I am to a certain

extent; but my criticism here is not ever of individuals.

I think that, over the last 25 years, we\'ve done what

we\'ve done with the very best of intentions; but we have

some significant systemic problems and those are the

problems that I\'m critical of.

Also, I bring an urban perspective which

harkens back to the previous speaker so it might very well

be that some of the things I mention would not be so

typically found in a less urban ‑‑ areas that are less

urbanized than the one that I\'m used to.

As I said, this may sound cynical but what I

really have is a passion for children and what my many

years in the field has shown me that we are doing to harm

them. First of all, we start truly, by violating what I

call the norms of belonging; the very law that was meant

to bring these kids into the mainstream really operates to

segregate and separate them through labels and labels that

stigmatize.

And I also feel like we\'ve failed these

children twice. We failed them first in the general ed

system and then we moved them into special education and,

frankly, even though we wish it were a service rather than

a place, it remains a place for far too many children and

the outcomes aren\'t good. A number of the previous panels

spoke about that and I think you know of national reports

that support that.

In my worst moments, I say, \"Throw IDEA out

and start over.\" But, realistically, I think the best

that can be done here, that you can do, is to try to make

it at least not a barrier. So, as you listen to people,

try to figure out what\'s the very best that can be kept

and used for all children, but how to keep it from being a

barrier for teachers, for children, for parents.

I also believe, very much, that special

education, to a large extent, is a social instruction of

reality. About 10 or 12 years ago, I was explaining to a

friend ‑‑ well he said, \"What do you do?\" And, at that

time, I was a Supervisor of Special Education in Milwaukee

public schools, implementing the previous law. And I

said, \"Well, mainly what I do is decide if kids are

mentally retarded,\" and he was floored. But that is what

I did; hundreds and hundreds and hundreds of times a year,

I unilaterally, looking at data, which was less than

scientific, declared some child retarded or not.

How did we come to think that we had that

kind of knowledge or prescience about what that student

was going to end up being? So I can\'t underscore enough

that I believe that much of special education is something

we have constructed.

Let me go through my recommendations and Judy

has been very nice to help me here. I\'m starting there

because that is the format of the paper.

I think we could use Section 504 or an

addition to ESEA to ensure universal student access to

education. If you don\'t start with a unified system,

you\'re not going to end up with a unified system.

Then I think we should take the best of IDEA,

individual learning plans, the transition procedures and

processes that were discussed, inclusion of parents in

planning their children\'s education, continued education

for all students following suspension and expulsion, and

apply that to everybody. If these are valid concepts,

they are really valid for everyone. Why can\'t we have an

\"Education for All\" act? What else it would do is that it

would allow all students to get services they need when

they need them.

Special education pretty much ensures that

certain services are reserved for certain kids, generally

after they are already in trouble. You cannot give a

five‑year‑old OT, who might need it, unless we go through

the entire process. So we really need to look at an array

of services that all children can access.

I think we have to merge university teacher

certification programs and require all teachers to be able

to teach reading. Only 20 percent of special educators

know how to teach reading and only 30 percent of general

educators. And we also know that most children who are

learning disabled are not able to read. We need to teach

the teachers to teach reading.

Mandate and fund research proven intervention

and prevention programs that are data‑driven, literacy‑

focused, proven effective;

Remove fiscal requirements and incentives for

qualifying and placing students in separate programs by

merging funds. I think ESEA is beginning to talk about

that movement of some amounts of dollars between Titles

but I don\'t believe that\'s adequate. You start out with

separate programs and separate funding streams, that\'s

what you end up with in the schools at the practitioner

level.

This has been said today, we need to be held

accountable for student outcomes, not procedural

compliance. Despite an effort to make a connection

between those two, I\'ve yet to see it.

And then we need to develop fiscal policies

and funding mechanisms that adequately fund those children

with significant cognitive and sensory impairments. And I

think the special education expenditure project that Jay

is working on, has been working on, will shed some light

on what it actually costs to educate students like that.

I have a quote here from Vaclav Havel, who is

the President of the Czech Republic and I use this because

I believe in it. What he says is, \"Optimism is not the

hope that things will turn out right, but the belief that

what you are doing makes sense.\"

And I\'m here to tell you that I think IDEA

made sense in 1975, when students couldn\'t even cross the

threshold of the school to receive any kinds of services;

but I don\'t believe it makes sense now. I think we\'ve

achieved access; I think the kids, the students, are in

the building and I think that we can guarantee that

access, as I mentioned in my recommendations, through a

less cumbersome procedure.

I want to mention, too, that I think that

most students who are considered disabled are victims of a

failing general education system ‑‑ and this is repetitive

‑‑ but, if we do not change general education, we will not

change special education. I\'m not sure what the problem

is, if we lack the commitment or we lack the skills, but

many children labeled as learning disabled and emotionally

disturbed are the result, in my opinion, of instructional

failure.

I think, for our own personal, ethical,

professional, and economic reasons, we have constructed

and perpetuated special education as an immutable reality.

Once you believe it exists, that it has a real life of its

own, lots of other things follow, and not necessarily good

things. My terms for this is \"the special education

industry.\" And, again, this is not to fault any

individual but we\'ve developed a system, generally of paid

service providers, including myself. We exist and thrive

on the social construct of special ed.

I\'m working with attorneys now who are ‑‑ you

know, it\'s almost a second‑generation of attorneys, who

are doing very well because of this piece of legislation.

And, given the outcomes for students, I\'m wondering who

actually benefits; who is it that stands to benefit the

most from IDEA?

It\'s no longer about access, as far as I\'m

concerned, it\'s not about students\' success and

independence; to me, it\'s become a lot about entitlement

and a lot about a growth industry. So whose needs are

being met?

And we also have to look at ‑‑ or I, at

least, have to examine my fear of dropping the safety net

of IDEA. If we don\'t have IDEA ‑‑ and this is a very

slippery slope ‑‑ will these children, whose parents and

advocates fought so hard to get them into the front door

of the school, will we be taking away the only safety net

that they have?

But I have to tell you that we\'re a little

schizophrenic. The higher the stakes in public education,

graduation tests, standards, marketplace competition,

perhaps all good things but, from a day‑to‑day

practitioner\'s level, it\'s those kinds of expectations on

principals, on administrators and superintendents, that

drive up the referrals for special education.

So I\'d like to say again that I believe only

a change of the entire education system will eliminate the

problems that we find within IDEA. We can\'t tinker with

this; it is a reality that exists on its own. So we

reconstruct that reality and we just end up with the same

results.

There are a few assumptions that I believe

underlie IDEA and I think they\'ve led to some of our

challenges. And, again, some of this will be repetitive.

Special Education and the educational

disabilities are seen as an immutable reality and not a

social construct. We have located the pathology in the

student and keep it there. And we use the medical model

which we know as science. Criteria for becoming a

cognitively disabled, or learning disabled child has

changed over the years. It changes from district to

district, from state to state; it changes ‑‑ the label for

a child changes from year to year depending on the

assessment process.

Differential diagnosis is considered, under

the law, to be useful and objective; and it is not. Jim

Ysseldyke of the University of Minnesota has done a study,

and perhaps you\'ve heard this, this was a number of years

ago, saying that 80 percent of all students in a district

would be labeled as learning disabled if we took all those

definitions that are used right now. And I saw this

constantly when I was a Supervisor in the Milwaukee public

schools. If a student coming from the suburbs was

mentally retarded, we would administer the exact same test

and the child would be a learning disabled. This is not a

science.

And, because the differential diagnosis is

not useful and objective, the individualized programming

that followed from that was not always individualized or

coordinated or well‑suited to that child either because

that diagnostic process does not tell you how the child

learns.

The other assumption in IDEA is that children

fail ‑‑ and this goes back to where the pathology is

located ‑‑ and the system is okay. The system is not

okay. Until we assess the interaction between the child

and the instructional environment, we are not ever going

to come up with a better way to teach that child. And

there are a lot of problem‑solving models in place, some

of them mandated in various states, that are actually

data‑based and get to that perspective of viewing the

child\'s interaction with the environment and coming up

with methods ‑‑ proven methods to intervene before

children fail.

Due process protections and individualized

instruction is necessary for only some students. If

they\'re good, they\'re necessary for all students, and this

goes back to taking the best of IDEA and extending it to

all children.

And, finally, that difference is a

disability, not a norm. I don\'t know that difference is a

disability; that\'s convenient, not to ignore the fact that

there are people with enormous struggles, and there are

students with enormous struggles, but why can\'t we seek

differences existing along a continuum, especially in

public education? Because what we\'ve ended up doing is

giving people a reason to fail children, to move them out,

by looking at disability as a difference ‑‑ or a

difference as a disability.

And then I just want to add that the few

beliefs that I think ought to be embedded in a new IDEA,

if you will. And we pay lip service to some of this but I

don\'t believe we do it:

Public education is all about differences.

On a daily basis, I have principals tell me, \"We can\'t

deal with those children,\" ‑‑ the out‑lier children, if

you will, not recognizing that the middle is shrinking.

Public education today looks different than it did 25

years ago; we have to get on with that, we have to face

that and we have to figure out a way to teach and accept

all these kids.

MS. ACOSTA: Ms. Topinka, we are going to ask

you to wrap it up; we\'re running out of time.

DR. TOPINKA: Okay, let me see if there\'s one

or two more things.

I think I\'ve gotten the essence of it across,

the message.

MS. ACOSTA: Thank you so much.

Now our next witness is Dr. Judy Elliott; she

is Assistant Superintendent for Special Education in Long

Beach United School District.

DR. ELLIOTT: Good afternoon; thank you for

inviting me and for the opportunity to be here to speak

with you.

\[Overhead projector presentation\]

I\'m going to focus on four fundamental

assumptions that I believe really are the foundation for

the current system of special education. And, as I speak

with you about my comments today, I\'m speaking to you from

a practitioner\'s perspective as a former special education

teacher, school psychologist, adjunct professor. My most

recent life was as a Senior Research Associate at the

National Center on Education Outcomes at the University of

Minnesota where I worked there for several years, and now

as an Assistant Superintendent of Schools in the third

largest urban.

I\'m going to speak to you as one case study,

one district\'s perspective, but I think I represent a lot

of my colleagues in some of these brief areas I\'m going to

speak with you about.

And I want to be really sure you understand

that there are some wonderful things going on in special

education right now. We\'ve got some great things going on

across the country, we\'re just not up to scale with it.

So, as you can see up ‑‑ the fundamental

assumptions, from which I\'m premising this on, that there

is a need for special education, not as it currently

exists, and that you heard research and data presented

today that has shown that special education in the past

has not done well with our kids with disabilities.

I really believe that, fundamentally, we\'ve

spent a lot of time admiring problems instead of doing

some proactive things about that and I\'m going to share

some things that we\'re doing in our district. And I

really believe, as a curriculum person and a special

educator, that the best place to address diverse learning

needs is, indeed, in the classroom.

So one district\'s perspective ‑‑ I\'m just

going to give you a real brief, as you can see in your

notes ‑‑ I\'m going to give you the demographics of our

district, third largest urban; according to the 2000

census, the most diverse city in the United States.

You can see, our enrollment is approximately

97,000 kids, we have about 84 schools, we have about 20

year‑around schools. In addition to that that\'s up there,

and you can see that we have quite a few employees.

So preliminary district data, as you look to

the next page of your handouts, you\'ll see that 45 percent

of our students are Hispanic, you can see that 20 percent

are African‑American; and those are the largest

proportions of demographics in our district. As you look

at the poverty line of 28 percent, LEP students ‑‑ LEP and

FEP ‑‑ FEP is Fluent English Proficient, students that

have been redesignated. About 50 percent of our school

population fall into LEP and FEP. And then we have the 68

free and reduced lunch in that percentage.

Briefly, the demographics of our district, in

terms of special education, is we have eight percent of

our students with disabilities in the district. The

national average is 12 percent; we have eight percent.

Forty‑eight percent of those students are students with

learning disabilities, 36 percent of those kids are LEP

and special ed students. Seventy percent of our students

truly receive their services in a least restrictive

environment and that is in the resource room setting; 38

percent of our teachers are uncredentialed in the Office

of Special Education.

My target, again, as a special education

teacher has always been on the general education side of

the house so, in the year 2000, a year after I started

this position, I reorganized the Office of Special

Education and I brought in ‑‑ 60 percent of my staff right

now are general educators that have areas of content

knowledge in the area of literacy and effective

instruction. And so, right now what we\'re dealing with is

exactly where I think we should be in special ed, and that

is, working with our general educators to do the best that

we can for all kids, including kids with disabilities.

Why do we have low numbers in our district?

People always say, \"Why are you so below the national

norm?\" I think it\'s true because ‑‑ I know it\'s because

we have some incredible things going on in the district.

We really believe that it really is about intervention and

services first and eligibility issues later. Our goal is

to work with kids, all kids at risk for behavior and

learning difficulties, right out of the chute, not wait

for the process of assessment to go through. In fact, we

do do assessments, of course. But it really is about

putting together a strong problem‑solving approach similar

to the Iowa problem‑solving approach, similar to the one

you\'ve heard about in Minneapolis Public Schools; we have

that same model in our schools.

And we use that and it\'s coordinated by the

general education teachers in every building. Our focus

in our districts is on the curriculum and instruction and

standards for all students, it\'s not about a separate side

for kids with disabilities; we are at the table with all

of the things going on in terms of the curriculum and

instruction and standards.

Our literacy focus has been absolutely

unbelievable in our district; we are focusing on reading,

writing, and mathematics, as we are in general education,

as well. So reading, as you know, is the number one

reason why students get referred; that\'s where we\'re

focusing all of our efforts at this point. And we know

that there\'s a high correlation with students with

behavior disorders who can\'t read.

So we\'re really working on that. We have K‑8

norms for curriculum‑based measures in the district so

that we cannot rely on standardized IQ and different

standardized tests but actually look at how our kids are

doing in the normative population via the curriculum‑based

measures.

We use empirically‑based instruction called

\"direct instruction\"; it\'s been around for a long time,

it\'s absolutely incredible with our kids. We use it on a

daily basis. Teachers have been trained on how to

progress monitor IEP goals and objectives and, better than

that, how they ‑‑ how do they know they\'re making a

difference for kids in their classroom assessments?

We don\'t use IQ testing in my district.

Larry P (phonetic) ‑‑ the district, 10 years ago, decided

if we\'re not going to assess African‑American students

with IQs, we\'re not going to assess anybody with IQs.

And, as you can see, we use the three‑step problem‑solving

model.

I talked recently to a school psychologist

who works in a very high‑poverty, high‑LEP school and I

said, \"Tell me how many\...\" ‑‑ if you\'re familiar with the

Iowa problem‑solving model, there\'s three steps to it;

level one is, is where the parents and the teachers talk

to each other, see if they can do some problem‑solving in

a classroom ‑‑ she said 75 of those consultations this

year; level two is where you have a formal student support

team meeting, student success team meeting, and everyone

gets around the table and you develop a full‑blown

intervention plan. She\'s had 20 of those. And I said,

\"Level three, all the weighted special ed assessment, how

many have you had thus far this year?\" Five.

And it was a hundred percent hit rate, they

were right where they needed to be, these were kids that

absolutely had interventions, data‑based progress

monitoring, they were a hit rate in terms of being

appropriate for special ed.

We really have our psychologist use what we

call the RIOT, and you see what that stands for, where you

are looking at record reviews, interviewing parents and

teachers, looking at observations in the milieu of the

environment, which is the instructional environment.

Our fallout, however, is when we go to due

process and we haven\'t given an IQ test, we lose; tragic.

We\'ve got all the data that says what we\'re doing is good

for kids, we\'ve got progress monitoring, and they will say

to us, \"You\'re doing ‑‑ you have all the data, you show

good stuff, but you\'re not in compliance.\"

Some district initiatives we have in our

district that are really powerful for all kids, including

kids with disabilities, is really looking at instruction

over compliance. When I took this job over ‑‑ you know,

you can have paralysis by analysis. I started with the

instructional side of the house, looking at curriculum and

instruction, And, three years ago, we had 36 state

complaints against the district; this year, we\'ve had six

and we\'ve come clean on four of them with no complaints or

no compliance against the district. It\'s really looking

at instruction for kids, quality instruction in the

classroom.

Integration of general and special ed

teachers in everything that happens in this district ‑‑

any staff development, any adoption of anything, is for

both general education folks. Our mandatory staff

development for all new hires in the district, including

special ed, is a mandatory five‑year content, standards‑

based instructional staff development for all teachers.

On‑site coaches, we have a promotion ‑‑ or a

social promotion and retention policy; we believe it\'s the

first in the country to be put together. Special ed kids

are a part of that, we have a check‑list that looks at

access to curriculum, opportunity to learn. If you\'re

going to retain a student, you better make sure that

you\'ve given that student access to learn what he or she

needs to know in order to make that progress.

Mandatory benchmark assessments for every

student, including students with disability; it hasn\'t

always been this way, but we\'ve made great gains on that.

We believe that at‑risk and kids with disabilities ‑‑

you\'ve heard it before ‑‑ it\'s not a definitive science,

therefore, we do serve at‑risk kids with kids with IEPs

being taught by special education teachers and general

education teachers. And I have to tell you, in one

situation, I had a bilingual teacher, a credentialed

teacher, bilingual and special education ‑‑ in California,

there\'s a mandatory curriculum called ELD, which is

English Language Development. We had a beautiful model

set up with special ed kids and LEP kids needing that

service.

I had a parent call the State Department and

lodge a complaint that we were discriminating against

special ed kids because we had LEP kids in that class.

That same parent called OCR and complained that we were

being discriminatory against minority students and

Hispanic kids because we had special ed kids in there. I

had both OCR and the State in my backyard. I went in with

five people from the State and I said, \"Okay, tell me

which one of the kids are special ed.\" They couldn\'t. It

was a beautiful model.

Those are the things that are the travesties

of what we deal with in special education. You\'re doing

great things for kids but, guess what, you\'re not quite in

compliance.

So, we look at participation in district and

state assessments. It\'s been around ‑‑ an idea in \'97, we

helped craft that language when we were ‑‑ when I worked

at the National Center on Educational Outcomes; we all

know that that\'s not happening a hundred percent across

the district. We\'ve worked three years to get that and

I\'m pleased with the data that is showing up there. I

think that we should, you know, be excited and thrilled

that ESEA has special ed as a subgroup but we all know

that there\'s huge loopholes in there.

In the State of California, on a SAT9, if a

student gets a non‑standard accommodation, their score is

kicked out of the API, or the Accountability Performance

Indicator, just as if they never took the test. We call

that \"nimble numerators and drifting denominators.\" There

are loopholes in the accountabilities ‑‑ \"Yeah, we\'re

happy\" but a non‑standard accommodation means they get

kicked out.

So what we really have focused on, in my

tenure so far in this district, is really looking at

legally‑defensible programs which automatically brings us

into compliance with what we should be doing with kids.

Travesties, however ‑‑ we spend lots of time

and money admiring problems in due process and I won\'t go

into that; you\'ve heard it. We\'ve spent a lot of time and

money instead of working with kids and children. And

these comments on this overhead, I have to tell you, are

from my general education staff that say, \"No\...\" \" You\'re

general educators and you\'ve been in this position, you

know, for two years, what do you think, what do you think

about special ed?\" \"Teachers aren\'t lawyers, teachers

want to teach, we\'re guilty until proven innocent, the

system has set up a very adversarial role between parents,

community, and teachers. We\'re not out to hurt kids; we

wouldn\'t be in this field.\"

But the technologies and the compliance

issues, and the logistics of doing this idea is really

burning teachers out and keeping them out of the field.

Somebody the other day said, \"Oh, I would never encourage

anyone to go into special education, it\'s just too

litigious.\"

So, when we look at some recommendations ‑‑

really quickly ‑‑ we have a 35 percent increase of due

process cases across the State of California and I really

believe what we heard this morning, that there absolutely

has to be ADR, or Alternative Dispute Resolution. In

anything having to do with due process, you should have to

do ADR before.

We had 51 cases of due process last year;

we\'re down to 19 this year. We have implemented full‑

blown ADR in our district. It gives folks another avenue

to talk. We\'ve looked at, you know, attorneys saying,

\"Well, why should I mediate? If I go to hearing and you

lose, I get money out of it.\" It\'s really ‑‑ it gives no

incentive for people to negotiate and mediate with

districts if they know they can go to court and win.

When you look at the recommendations, limit

the initiative to litigate, really look at ADR, limit

attorneys\' fees ‑‑ you know, somebody said to me, \"We

should have a law that says \'Loser pays all.\'\" And I say

that with tongue in cheek but there is no reciprocity in

terms of that. We have taken parents to due process for

the right to do what\'s right for kids; it\'s not always

that way, it\'s usually parents taking districts to court.

We have done the opposite, in good faith for kids.

We\'ve heard about the hearing and mediation;

again, it\'s about compliance, it\'s not about doing what\'s

right for kids. And then, finally, as we look at service

delivery, we\'re really about maintaining access and aiming

for excellence. We don\'t want to take the legal rights of

kids and parents away; absolutely, that needs to be there.

But we\'ve got to aim for access, as well as excellence in

our programs.

You know, I\'ve talked a little bit about our

problem‑solving model; there has to be a data‑based

intervention program going on that has ‑‑ that shows

robust implementation of interventions, not just a one‑

shot, \"Let\'s sit down and do this and then, please, test

my child.\"

Re‑tooling the IEP process, it\'s not a happy

time for folks; people feel like they\'re preparing to go

to court when they should be getting together and

celebrating the learning and the instruction of students.

Discrepancy model of learning disabilities is

inherent and wrought with difficulty. You know, there is

no such thing as aptitude treatment when you\'re looking at

cognitive, you know, types of standardized things for

kids. It just doesn\'t work.

I\'m a professional advisory member of the

Professional Advisory Board for the National Council of

Learning Disabilities, and we met this weekend and we

talked about this. And there is support for repealing the

LD discrepancy model because it doesn\'t help teachers make

those decisions about what to teach and how to teach; and

that\'s what it\'s about for kids when you\'re looking at

that.

It also sets people up for false

expectations. Somebody with an 80 IQ, teachers will say,

\"Well, they\'re below average, we can\'t expect that out of

them.\" I\'ve worked with kids with 75 IQs in New York

State, where I\'m from, that passed the Reagents Exam.

But, if their teachers would have known they had a 75 IQ,

they would have never made it. There is inherent problems

with that.

When we look at the IEP and, again, it\'s a

compliance document, it\'s not an instructional blueprint.

I call it the \"Write and Stuff Document.\" There are many

teachers, not in California, other states, that write an

IEP and stuff it in their desk and they don\'t pull it out.

It\'s tragic. It\'s not an instructional blueprint.

We have a lot of malicious compliance going

‑‑ yeah, they\'ll write their IEPs but are they really

standards‑based instructional blueprints for kids? It\'s

what I call \"malicious compliance.\"

And, you know, a good example of an idea gone

wrong is a quote from somebody I had a conversation with,

\"We were so excited that we reduced our IEP forms down to

12 pages and then came the 55‑page IEP,\" because you keep

adding goals and objectives and benchmarks and you will

get a 55‑page IEP.

And do you know what our number one issue in

the State of California is for due process? Failure to

implement the IEP.

So my recommendations for looking at the IEP

process would be to address four basic questions:

Where is your child now ‑‑ where is the

student now?;

Where should the student be?;

How are we going to plan to get that student

there?; and

How are we going to evaluate and measure

whether, in fact, the student gets there?

Building on an instructional blueprint in a

context of a standards‑based program or system is really

where we need to go.

And then, finally, looking at ‑‑ I call it,

\"attending to the ends\"; I think you\'ve heard from inter‑

agencies and transition programs. In pre‑school, we

really need to look at ‑‑ in my opinion, we\'ve got a silo

approach for zero to five; we\'ve got Head Start; we\'ve got

State‑run programs; and then we\'ve got special ed programs

with the Early Start in the three to five‑year‑olds. In

many districts, they do not have general ed pre‑school

classes so, when a parent comes to due process or

mediation and wants typically developing peers for their

child, it automatically means they go to a private pre‑

school.

In our district, we\'ve started to develop and

have several co‑enrolled programs; we havve typically

developing pre‑school kids with kids with disabilities.

There\'s a waiting list to get in those programs for those

kids. But, in many districts, that\'s not an option and so

we have what I call \"the 100K kids club,\" pre‑schoolers

that cost districts well over \$100,000 apiece for programs

that have to be vendored out to other services because the

districts do not have the resources to provide them in‑

house.

So we\'re looking at really taking another

look at the pre‑school program and the funding; and then,

finally, looking at the transition programs ‑‑ and you

heard a bit about that. You know, the individual

transition plan, is that a really useful document or is

that just another document of compliance? Are we just

doing that for the 14‑year‑olds and up or does it really

mean anything for our kids?

We have community‑based instruction, we\'ve

got lots of great things going on; with the high‑stakes

nature of what\'s going on across the country, we have to

provide vocational programs and opportunities for all

kids, including kids with disabilities ‑‑ learning

disabilities.

And so you can see the recommendation up

there is, to really look at ‑‑ and I think ‑‑ you know, in

my opinion, when you\'re looking at this, you\'re so

concentrated on the pre‑school kids and the K‑12 kids,

when you get to the 18 to 22, you\'re ‑‑ you don\'t really

have enough money to do that program. And, you know, it\'s

not just about money, it\'s about really looking at, is

this really about for all kids? And this is not a special

ed issue; this is an all‑kids issue. I really believe

that.

So, in summary, Long Beach is a pretty

incredible place to work; we\'ve got just incredible people

who really believe in the all‑kids agenda. But I have to

point out that my staff development, and a lot of the

things that happen, come out of the general education side

of the house.

My Assistant Superintendent that I work with

for curriculum and instruction said, \"Hey, you know, we\'re

going to adopt this reading program; what do you think?

You guys want to do it, too? And, by the way, we\'ll buy

the books and we\'ll train all your teachers.\" That\'s

incredible; we\'ve got incredible things going on.

District initiatives automatically include

kids with disabilities and our teachers. Three years ago,

it wasn\'t that way because, you know what, they were just

‑‑ they wanted to know what to do with kids; special ed

has always been kind of scary to the general ed folks.

\"Well, sure we want to be included.\" So now, nothing

happens without it being a part of the decisions or the

implementation. Instruction is absolutely imperative.

Evidence‑based results is district‑wide for

both general ed and special ed. We\'ve disaggregated the

data for the first time for kids with disabilities in the

district where every principal in the district gets a

disaggregated report on special education kids who receive

special day class and resource room services. And, for

the first time, we can sit down with these principals and

say, \"Here are how your special ed kids did on the SAT9

and on the district benchmarks, how do you think we\'re

doing with those kids?\"

So we have disaggregated data and we\'ve

started having those discussions with principals. And

accountability is reciprocal, if we\'re going to hold kids

accountable, we need to hold teachers accountable and we

need to hold administration accountable. And that truly

is happening in Long Beach.

And I have to tell you, at the bottom line,

we\'ve got all these incredible programs going on in the

district, kids are learning, it\'s outcome‑based, it\'s

evidence‑based, it\'s standards‑based, everything that you

would want. And we have a long way to go; this is not a

perfect district.

But I\'d rather take the glass‑is‑half‑full

approach. There are things that work for kids and there

are great programs and research‑based programs that do

work for kids. We\'ve got them. We\'ve got to make sure

that we can sustain that and pull it up the scale.

But I have to tell you, with all this

wonderful stuff going on in the district, I\'m \$19 million

over in my budget.

So I want to thank you for the opportunity to

speak with you this afternoon.

MS. ACOSTA: Thank you, ladies, for very

informative testimony. I\'ll take the privilege of the

chair and ask the first question.

What reading series, Dr. Elliott, do you use

in the district?

DR. ELLIOTT: Open Court.

MS. ACOSTA: Open Court. And the special ed

kids are out of the same curriculum ‑‑

DR. ELLIOTT: Yes.

MS. ACOSTA: ‑‑ is that correct?

And tell me a little bit about class size.

DR. ELLIOTT: In terms of special ed

classrooms?

MS. ACOSTA: Yes.

DR. ELLIOTT: We ‑‑ the maximum a class size

can be is a district average of 18; it can be 16. We try

to keep it 16 or below. For behavioral disorder

classrooms, or kids with emotional disabilities, we try to

keep it as close to 10 as possible.

MS. ACOSTA: Thank you; and just one last

question.

How many of your ‑‑ your teacher training,

you say you train general ed teachers in special ed

intervention practices? Did I understand that correctly?

DR. ELLIOTT: For the problem‑solving

approach, we do train teams of general and special

education teachers together. Our literacy training comes

from the general ed literacy coaches but we train

everybody together. We don\'t have split‑staff development

like other types of ‑‑

MS. ACOSTA: Do you have consistent follow‑up

or monitoring of that staff development?

DR. ELLIOTT: Absolutely. We have check

lists that we ‑‑ when we do staff development, we give the

principals the list of objectives and performance

indicators that they should expect to see out of their

teachers ‑‑ or administrators that we have in our district

that go out, actually look at those check lists, and

follow up with the principals to make sure that they see

those indicators.

MS. ACOSTA: Thank you.

Commissioner Chambers, are you ready?

DR. CHAMBERS: All I\'ve got to say is, Wow.

Both of you, wonderful presentations and very interesting

information.

I guess I would like to begin with a question

regarding blending of funding. You talked about your

problem‑solving model and I was wondering to what extent

‑‑ and I think I know the answer from what you said ‑‑

that any of the work in the problem‑solving model is being

funded by either IDEA Title I or any other federal

program.

DR. ELLIOTT: The problem‑solving model is a

general education model, it\'s run by general ed; it\'s not

out of special education.

DR. CHAMBERS: Should it be?

DR. ELLIOTT: No.

DR. CHAMBERS: So you wouldn\'t see blending

funding from IDEA, not with current levels of funding, but

if there were to be increases in federal funding, would

you see it as something that would involve a combination

of federal, state and local?

DR. ELLIOTT: I still see it as a general

education function. I mean, I look at what Reid says when

he says that there is general ed spillage. I think it

needs to be housed in the general ed side.

DR. CHAMBERS: Thank you.

In what ways ‑‑ we\'ve heard folks talk about

the blending of IDEA and Title I moneys; in what ways

might that occur, or should it occur, and what kind of

language might you recommend to encourage that, if you

think it should.

DR. ELLIOTT: I think, you know, the blending

of ‑‑ we do blending of funds in some of the programs that

we have, you know, in our district. We\'re doing a pilot

program; if we have something that\'s really innovative, we

can do that because we can control it. I think it needs

to be very much linked to outcomes of what the program and

what the blending of funds is after.

I think I\'m probably just a little nervous to

say that we would blend funds, because you don\'t have the

control over it. But I think that, if there\'s any

blending or ‑‑ of funds, it really needs to be based on

outcomes and indicators about what you\'re using it for so

that there is a valuation of the use of funds accordingly.

DR. CHAMBERS: Thank you.

DR. TOPINKA: We also have the problem‑

solving in Milwaukee schools but it is a special education

initiative. And I think one thing that\'s important to

incorporate into the law, whatever the language may be, is

something that takes it out of a person\'s specific

implementation; not every district is staffed the same way

with the same people. So there might be the opportunity,

in Judy\'s district, to have that be of a general ed

initiative; it is not so in my district.

If fund blending is a good idea, it ought not

to be left up to individual discretion so much as found in

the law.

MS. ACOSTA: Commissioner Takemoto?

MS. TAKEMOTO: Thank you for the work that

you do. I wanted to hear a little bit more about

compare/contrast with the attorney panel that we had

earlier today and the issues of the rights of the

individual and the use of the legal process to promote

those rights, along with the monitoring from above.

I hear you say lawyers ‑‑ limit attorney

fees; are you also saying limit your own legal counsel? I

mean ‑‑ how do you have a level playing field if there is

not appropriate funding for the attorneys?

DR. TOPINKA: My impression from my district

is that attorneys don\'t level the playing field for

everyone; they level the playing field for those people

who are knowledgeable enough to access attorneys.

So I don\'t see that that\'s the place to level

the playing field. I think the place to level the playing

field is at the outset. Again, we\'re back to

accountability. We have to avoid these huge numbers of

kids in special education so that attorneys and attorneys\'

fees do not become a major issue.

And we can talk about the reality as it

exists or we can talk about a reality that we could create

if we changed the law. So that is my impression, that it

is not an equal use of seeking out attorneys or using

attorneys. So the playing field is not, in my opinion,

level because we have that opportunity to use attorneys.

DR. ELLIOTT: I would just add ‑‑ I think you

heard at the panel earlier that ‑‑ I mean, it really ‑‑

alternative dispute resolution was talked about. I really

think that a lot of this ‑‑ I know that a lot of this is

communication but it is an opportunity for attorneys to ‑‑

I mean ‑‑ I can\'t ‑‑ let\'s see. So I think the onset is

where we need to start with that, there has to be

something in place for school districts to not go to the

table immediately.

And what you heard this morning is absolutely

true. Parents will be advised by their attorney not to go

to mediation, so they will go right to hearing. And so

there has to be some preliminary stuff in there to at

least give the district an opportunity to ‑‑ and I ‑‑ you

know, there are a lot of people that are doing great stuff

for kids and I think, when you get into the litigious

process, we lose the child and we lose the parents. And

it need not be that way, it really needs to maintain

focus. And we lose that.

So it really is about having communication

and dispute resolution up front, not having somebody

whisper in somebody\'s ear not to try to mediate, to make

it better for kids. So that\'s a long ‑‑ you know, I think

the practitioners perspective is there\'s a lot more up

front before we go to due process.

MS. ACOSTA: Thank you.

Commissioner Huntt?

DR. HUNTT: Thank you, Madam Chair.

Dr. Elliott, I just have a quick question for

you. You talked about 96 percent of your students were

tested in \'01 but you didn\'t give us the results. What

kind of outcomes have you been experiencing?

DR. ELLIOTT: How much time do you have?

DR. HUNTT: Well, the reason I ask is, maybe

what we could do is, there\'s been a precedent set that we

can keep the record open from today ‑‑

DR. ELLIOTT: Great.

DR. HUNTT: ‑‑ if you want to be able to

submit some additional information for us.

DR. ELLIOTT: I\'d be happy to.

DR. HUNTT: Because I think we have half the

story and it\'s a great story. I would just like to hear

what the results are to be able to put it with the actions

that you are taking.

DR. ELLIOTT: We\'ve disaggregated the data

over four years and we have trend lines, both for

participation and accommodation use, but also for the

achievement, the academic achievement.

DR. HUNTT: How about graduation rate?

DR. ELLIOTT: Graduation rates, we\'ve been

able to track just recently because of some data issues.

We have the graduation rates for all ‑‑ you know, kids

that are in resource room, kids that are in special day

class; I\'d be happy to share that with you.

DR. HUNTT: Thank you.

Madam Chair, based on precedent, I\'d like to

ask that the record be kept open for additional comments

from Dr. Elliott.

MS. ACOSTA: Absolutely; thank you,

Commissioner Huntt.

Commissioner Gill?

DR. GILL: I just need some clarification, I

guess. Would you say compliance and accountability are

mutually exclusive? Either one of you.

DR. TOPINKA: I think compliance is an

element of accountability but it\'s hardly the entire

picture.

DR. GILL: So they\'re not mutually exclusive?

DR. TOPINKA: They are not mutually

exclusive, no, in my opinion.

DR. GILL: Would you say that most issues in

due process hearings are without merit, or frivolous?

DR. TOPINKA: I guess I would rather choose a

different adjective. I would not say that they are

frivolous because, obviously, they are of good importance

to the people who are involved ‑‑

DR. GILL: That\'s what I\'m trying to

understand.

DR. TOPINKA: Yeah, but they are of great

importance to the parents and to the children that are

involved. I think, and this has been said earlier, it\'s

generally a breakdown in communication. Generally, it\'s a

relationship issue that\'s gone somewhere awry and perhaps,

if the relationship could be patched through mediation or

alternative dispute resolution earlier, we would not end

up in due process.

But, as long ‑‑ in Wisconsin, mediation is

not mandatory, it\'s optional. Therefore, it does not

really always provide what we thought it would provide, as

mediation as a step to due process.

DR. GILL: I think you mentioned, Dr.

Elliott, you mentioned that failure to implement the IEP

was the number one ‑‑ is that due process consideration in

the state or ‑‑

DR. ELLIOTT: That\'s where those data come

from, is from the due process.

DR. GILL: Do you think that\'s different than

any other state?

DR. ELLIOTT: I don\'t think so.

DR. GILL: I don\'t either.

DR. ELLIOTT: I don\'t think so. But ‑‑ I

mean, it\'s kind of a no‑brainer in terms of, you know, in

terms of having that kind of data.

DR. GILL: That\'s kind of what I thought,

that it was kind of a no‑brainer that the implementation

of the IEP would be the number one concern that people

would have.

Thank you.

DR. ELLIOTT: If I could just add. I mean,

there are times ‑‑ and I know that there are parents that

really do need to take cases to due process. I think you

heard one this morning with that ‑‑ with the attorney

talking about the student, Abe. I just ‑‑ you know, I am

the first person to work with parents that say, \"You know

what; you\'re right. We didn\'t do what we needed to do

here. Let\'s figure it out.\"

Unless we are given that opportunity, we will

just continue the due process scenario.

MS. ACOSTA: Thank you.

May we have Commissioner Coulter, please?

DR. COULTER: Thank you.

Let me shift gears with you a little bit and

see if we can blend what we heard in the previous panel

with what you were talking about. Because I appreciate

Dr. Elliott\'s focus on academic achievement but, you know,

we also ‑‑ I know she recognizes we have behavioral needs

for kids.

And so I listened to the two of you talk

about, you know, in some respects, contrasting. I think

the theme that I heard from both of you was, trying to

make the services much more flexible, much more oriented

towards trying to produce educational progress, much less

towards some sort of burdensome, individual identification

process, et cetera.

But tell me how, in each of your instances,

how you work with other agencies to meet more of the total

needs for kids.

DR. TOPINKA: We actually have a coordinator

at each one of our schools that is supposed to be a

liaison with community agencies; and that\'s for children

who are returning to us from some sort of institution or

day treatment, or even therapeutic after‑school

environment. And then, likewise, they are supposed to be

the link between the school and the service provider.

But the truth is, and this was stated

earlier, there aren\'t very many service providers left.

And so there are fewer and fewer people to coordinate

with, even though we do have some existing inter‑agency

agreements and we\'re particularly strong in that birth to

three area. But, as far as older children go, with mental

health needs, even medical needs, there\'s not a lot of

support in the community.

So, while we have the mechanisms in place, I

would say that maybe the mechanism exceeds, you know, the

people that are actually out there to provide the service.

DR. COULTER: Dr. Elliott?

DR. ELLIOTT: I would echo those same

sentiments. I also, you know, would underscore that some

of our best collaboration is done with agencies without

any inter‑agency agreement or MOU written. It really is

about passion for kids and outcomes and where ‑‑ if we

have a clear idea of where we\'re going and what we want

for kids, and you get the players that need to be around

the table ‑‑ we really do have some wonderful inter‑agency

without, kind of, that bind.

But it will always be a long‑standing issue

that mental health agencies and educational agencies have

turf issues, both from money and for service delivery.

And, you know, I\'ve sat in IEPs and worked

with parents where there is a direct conflict of interest

between what is best for ‑‑ you know, I heard this

morning, or the previous panel saying, it doesn\'t say one

time a month family therapy.

If we put it on the IEP, we\'re responsible

for paying for that, outside of the district. And so,

when you\'re looking at a small ‑‑ it all wraps around to

‑‑ you know, we\'re all fighting for the same pool of

money. So ‑‑ I mean, I think if we get better and more

creative in working toward what kids really need, we can

move in that direction with a lot of less conflict.

DR. COULTER: Okay. Lastly I guess, we\'re

hearing from Wisconsin ‑‑ or one piece of Wisconsin and

one piece of California. We\'ve heard this, I think,

repeatedly; if it\'s the one thing that\'s been consistent

for us it\'s that the IQ test does not seem to lend any

value to differential diagnosis or to identifying

instructional needs of the kids. And I think, Dr.

Elliott, you said you participated in a professional group

this weekend.

What is it that makes people hold on to

something so tightly that does not seem to work?

DR. ELLIOTT: You know, it\'s been around for

a long time and it\'s been ‑‑ we\'ve been sold something

years back. Being a former school psychologist, it\'s not

a definitive science. You know, one of the frustrations

that we have in due process is when we don\'t do an IQ

test, folks go out and have somebody do an IQ test,

they\'re found eligible for learning disabilities, not only

do we pay for the outside evaluation, but compensatory

services for the years that they weren\'t diagnosed.

So it really is looking at just probably an

old group that people hold on to. And I really believe

that folks really think ‑‑ we also have to understand that

there are biological and environmental issues that

surround learning. There are learning disabled kids. I

think we have a lot of curriculum disabled kids in our

schools and I think that, you know, the eligibility and

all the rights that go along with folks when they have

that label is pretty big.

I don\'t know the answer. The research really

shows otherwise and we show that there are good things,

but I think that parents and communities and advocates

really believe that, if we put a label on a kid, or on a

student, we can fix them. And I think that\'s the premise

for it.

DR. COULTER: Thank you, Madam Chair.

MS. ACOSTA: Thank you so very much for the

insightful and thoughtful testimony; you\'ve given us

certainly fertile ground for our deliberations. Thank

you.

And now we will go on with our public

element, our public comment, rather. And we welcome the

public to come before us and we are anxious to hear your

thinking on this very important topic.

Just a bit of housekeeping, Marissa Munoz,

who is just in the front; she\'s the lady with the chair,

dressed in black, and she\'s got some papers in her hand.

You will be limited to three minutes and you will be cued

by Ms. Munoz; and we ask you to please respect the time.

Again, not to diminish, at all, the matter at hand, but

the time is limited and we ask you to respect the

timekeeper.

We will begin with ‑‑ I will call the first

five of you, if you will line up and go in order:

M. Christian, Christine Kidwell, Steve Brown,

Pat Steinburg, and Caroline Kelner.

MS. MALAYA CHRISTIAN: I have some handouts,

how do I ‑‑ since I just got here, I\'m not really sure how

you want to handle it.

The first two handouts are from the Learning

Disabilities Association; I think I ‑‑ you are aware that

I was going to bring those to pass out; ‑‑ Malaya

Christian ‑‑ the second set is things that I brought.

I want to make a really quick statement and

then, when I came this morning, I came with the intention

of signing my daughter up to speak. She is a junior at

Madison High School; she\'s fully included, and she\'s going

to speak to you. I was not allowed to sign her up so I\'m

ceding my time to her because she was in school and I

wasn\'t going to pull her out of school to come and sign

up. But she\'s a minor and she can\'t sign for herself

anyway.

MS. ACOSTA: Ms. Christian, just for the sake

of time, we have been ‑‑ we\'ve all done a good job of

staying on time so, just for the purpose of the Chair,

both of you may speak.

MS. MALAYA CHRISTIAN: Pardon me?

MS. ACOSTA: Both of you may speak.

MS. MALAYA CHRISTIAN: Okay. That\'s

important. It\'s very short.

MS. ACOSTA: Okay.

MS. MALAYA CHRISTIAN: And so my stuff is in

writing and I have a packet for you all and I\'ve included

Megan\'s statement. I do just really need to address the

due process and mediation piece that that gal from Long

Beach was addressing. Obviously, they have some great

things going on in Long Beach and, being from San Diego,

we have close affiliation.

I think it\'s important to understand that, by

the time a parent gets to the point of filing for due

process, a significant amount of time has passed. There\'s

been ample time for the district to extend the olive

branch, to come together and talk. By the time a parent

files for due process, emotions are stretched to the

limit.

I think it\'s important that, when we look at

the numbers ‑‑ she addressed the numbers of filings of due

process in California last year ‑‑ I think it\'s important,

when we look at that, that we look at how many of those

numbers of filings, how many people prevail, how many

parents prevail actually in hearing and in the mediation

process. Also, the only time that I know of that

attorneys and advocates recommend that it\'s taken off

calendar is when the mediation cannot occur prior to the

hearing date.

The other issue she brought up and she shared

was that lack of implementation of IEP was the number one

reason that people filed for due process, but I would like

to state that lack of implementation of an IEP is a

compliance complaint issue. You would not be allowed to

go to due process in California for lack of

implementation, you would be directed to file a compliance

complaint with the State Investigators.

With that, I\'m going to give my daughter her

time to speak.

MS. ACOSTA: Thank you.

MS. MEGAN CHRISTIAN: My name is Megan

Christian. Good afternoon, my name is Megan Christian;

I\'m 17 years old, I\'m a junior at James Madison High

School in San Diego City School District and I\'m coming to

speak to you today because I want you to know how good

IDEA is and why it should be kept in place.

Although I look like, and mostly act like, a

typical teenager, I have a diagnosis of autism and non‑

verbal learning disabilities. I have been fully included

since the third grade. When I was very little, people

used to tell my mom all the time that I would never be

able to learn how to read. The real problem was that

teachers did not know how to teach me in a way that I

could learn and they did not understand the sensory

overload that I would experience and so they became

impatient and said that I had behavior problems.

However, my parents believed I could learn.

My mom taught me how to read; learning to

read opened the world to me. Learning to read has been

the key to my success. We were told I would never be able

to get my high school diploma; little did they know they

wrong.

Kids, all kids, have the right to be

educated. All kids have the right to attend school and

have teachers treat them with respect ‑‑ that they will

learn. For most kids, that should include reading. For

some kids, it might be giving a signal of yes or no but,

for all kids, it means belonging and that they matter.

We need to keep the law, we need to teach

teachers how to teach kids in the way that everybody

learns. That way, everybody wins because everybody

learns.

Next year, I will be a senior at James

Madison High School and I will be able to walk with the

class ‑‑ with the high school class of 2003 and get my

high school diploma. For me, getting my high school

diploma at age 18 will be biggest transition for me from

being a high school student to being an adult. For me,

getting my high school diploma will be a wonderful rite of

passage into the adult world.

MS. ACOSTA: Thank you.

\[Applause.\]

Steve Brown?

MS. MEGAN CHRISTIAN: It\'s okay, you can ask

questions.

MS. ACOSTA: Oh, I\'m so sorry.

MS. MEGAN CHRISTIAN: I don\'t mind, you can

ask questions.

MS. ACOSTA: We don\'t have any questions at

this time; thank you.

I\'m sorry, the next one is ‑‑

MR. BROWN: Thanks for the opportunity to

speak to this Commission.

My son is a special ed student in San Diego

City School System; he\'s autistic, primarily non‑verbal,

has primal seizures and has very aggressive behaviors.

His aggressiveness is related to the seizure cycles; and

meds are of some help but are not completely resolving the

problem.

Since my son represents some serious

challenges for a school district, I\'ll have to say that I

have become somewhat of a fan of compliance. I\'ve also

thought ‑‑ I\'m also following present ‑‑ you know, recent

actions in Congress in regards to the weakening discipline

provisions in IDEA with, you know, some concern.

My son is in a very good educational program

right now that meets his needs for safety and he is

actually making quite good progress on goals that are

centered around life skills so that he can be integrated

into his local community with a minimal amount of support.

He is no longer ostracized out of the classroom due to

health issues, he\'s no longer ‑‑ I no longer get calls to

pick him up because the teacher or the aide cannot handle

him on that particular day.

I no longer deal with suspension and manifest

hearings for expulsion. I feel that I ‑‑ I also feel that

I no longer have to worry about a phone call that my son

is being arrested on criminal assault charges by the

school police.

Getting my son into the right education

programs has been no easy task; my son has been with the

program for as long as seven months at a time. When your

child doesn\'t fit, I can tell you that it quickly becomes

a parent‑driven process. Just getting people to respond

to your phone calls is a huge challenge. Compliance to

the process and timeline really becomes your major hope in

getting the school folks to address a very difficult

situation.

Accommodations and accountability are great,

that we\'ve been talking about here, but ‑‑ and are sorely

needed ‑‑ but why is it often described as an alternate ‑‑

alternative to compliance? It should be hand‑in‑hand with

compliance; compliance and discipline provisions are a

safeguard so that children like mine are not effectively

tossed out of the system.

My son is not ‑‑ will likely not measure up

to a set of standardized outcomes on that kind of a driven

system. You know, he is not going to get a diploma. He

does, then ‑‑ my fear is that he\'ll become, at that point,

a write‑off, really no chance to be successful in an

educational system.

You discussed today the issue of paperwork as

being independent to education. The paperwork that I see

for IEP goals has really been a useful guide and not

really a compliance chore. My unscientific observation,

based on my own experience as a parent, is that complaints

about paperwork and compliance issues are generally

symptoms of the underlying and more difficult problems

that really need to be addressed in special education.

MS. ACOSTA: Mr. Brown, I\'m sorry; you\'re

time is up.

MR. BROWN: Okay.

MS. ACOSTA: Thank you.

MS. TAKEMOTO: Madam Chair, if he has written

comments he can submit the rest of his written comments

for the record; is that correct?

MS. ACOSTA: That\'s right.

MS. TAKEMOTO: Thank you.

MS. ACOSTA: That\'s what\'s great about

working with great colleagues, they always support and

remind you; thank you.

Christine Kidwell?

MS. KIDWELL: My youngest daughter, Wendy, is

13 and has mild autism and mild CP. She\'s been included in

regular school with supports since Kindergarten.

We\'ve seen that, because of the supports and

inclusion she\'s received, the gap between her and the

other children has become more and more narrow each year.

She now performs average and above average in all of her

mainstream, regular education subjects. We have the

expectation, thanks to our district\'s implementation of

supports and inclusion for her, that she will reach her

fullest potential.

I\'d also like to tell you about my oldest of

three daughters, Jessica, who has learning disabilities.

Although she received resource programming supports in

second grade, she was not taught the strategies necessary

for her to become a successful reader. She was

transferred to the next grade year after year. Reading

affects every subject and every subject affects self‑

esteem, as parent Andrew Barling had shared with you in

Los Angeles about his daughter with learning disabilities.

Not to say that her growing lack of success

in school is the only reason but, in her senior year,

Jessica contributed to our nation\'s dropout statistics.

John Lucas, representing our state\'s staff of directors,

shared in Los Angeles that the word \"appropriate\" should

be defined by IDEA.

According to our home dictionary, the first

definition of \"appropriate\" are, \"particularly suitable,

fitting, and compatible.\" I believe that the word

\"appropriate\" was specifically chosen for use by IDEA

because it underscores the importance of considering each

individual\'s need.

John Lucas further recommends that a standard

level of service should be established for special

education students.

I would like to caution you that I believe my

daughter, Jessica, received a kind of standard‑level

service by being placed in resource programs for children

with learning disabilities. Throughout history, America

has been known as the land of opportunity. The

Individuals with Disabilities Education Act is the

cornerstone of that opportunity for our children with

disabilities. We all need to continue to strive toward

fulfilling the purpose and intent of IDEA to ensure that

no child will be left behind in this land of opportunity.

My utmost thanks to you; I\'ve read about your

backgrounds and I appreciate your efforts and commitment

on behalf of children with disabilities.

Thank you.

MS. ACOSTA: Thank you, ma\'am.

Pat Steinburg?

MS. STEINBURG: Good afternoon.

I\'m Pat Steinburg from the Washington

Education Association and, prior to that, a proud special

ed teacher for 17 years.

I have distributed to you some data that we

are currently developing at the Washington Education

Association. We have a major concern about special

educators leaving their chosen profession, some of whom

stay in education but are out of special ed, and others

who leave education entirely.

I\'m not going to go over those data points

with you. What I would like to say is for the audience.

We are showing that, in the next five years, only 27

percent of our special educators intend to stay with us.

We can\'t afford that.

We have a high investment in having highly‑

skilled educators who are able to meet the needs of the

individual students whose parents have spoken so

eloquently before me.

I would appreciate being able to turn in the

analysis of our data at a later time; we\'ve got 4,000

responses and we\'re anticipating more. And, prior to

June, we\'ll have the data analysis done. And, if I could

submit that to you at a later time.

MS. ACOSTA: Absolutely; thank you.

MS. STEINBURG: I would like to focus on the

kinds of things that data collection doesn\'t always

provide and that\'s the information from the heart.

Special education teachers, at this time, the paperwork is

incredible, the caseloads, at least in Washington, are

skyrocketing and I do not want them to hear about Long

Beach because, given the opportunity to have that few

students, we would lose our entire teaching staff.

And, while those are incredible barriers to

what they hope to accomplish with students, it\'s from the

heart that they tell us that the current situation, where

we have a set of standards that have been put in place for

all students and that those students are expected to

learn, all of their students in the same place, is

disheartening for them and disenfranchising for their

students.

In terms of how we might correct that, I

would suggest that we look at the paperwork. Yes, we can

limit the paperwork, but should we not also focus the

paperwork on the very important aspects of the IEP? And,

reaching back to Maggie McLaughlin this morning and her

suggestion of standards, would it not be very appropriate

for us to have standards that we could have special

education teachers focusing on in addition to the basic ed

standards with are appropriate for a large set of

students? Could we not also have standards that would

help us measure our programs and student progress in

another way for those students where the basic education

standards are not appropriate?

I would also like to suggest that, at the

federal level, you take a look at caseload class size. We

cannot, even with the best written IEP, provide the

appropriate education when we have teachers with 50 to 60

students. We\'ll move to Long Beach and do it.

Thank you.

MS. ACOSTA: Thank you.

Caroline and Nick Kelner, and

Laura Taylor.

MS. KELNER: Good afternoon, I\'m Caroline

Kelner and actually, I signed up for my son Nick to speak;

he\'s at school.

We were speaking yesterday, my son and I, and

why I wasn\'t going to be able to pick him up from school

today and had to make other arrangements; and I told him

that I was going to be coming here. And he decided to

write President Bush a letter that I\'m presenting to you

and I hope you will forward on to the President.

\"Dear President Bush: My name is Nick

Kelner. I am 10 years old. I attend my neighborhood

school and the Learning Center for special help. When I

grow up, I am going to be a great scientist. Please don\'t

take money away from the special teachers and programs

that teach me so well. Please help my dream come true.

Thank you, Nick.\"

And then Nick also picked out some pictures

for you that I\'ve included, since he wasn\'t going to be

able to be here. I also wrote a letter that I\'ll just go

through quickly and ‑‑ then over lunch, I zoomed home to

write an addendum to my letter in regards to the topics

that were discussed this morning.

It\'s been a personal and financial struggle

to support my son Nick with his special education needs.

But every ounce of blood, sweat, and tears has been well

worth it. I ask President Bush and you, the members of

the President\'s Commission on Special Education, to

continue to support our special needs children and all

children in the pursuit of a quality education.

If you choose not to invest in our schools

and special education programs, then you choose to invest

in our prisons instead. The choice is yours and I hope

and pray you choose and act to be proactive on behalf of

our nation\'s children, our most valuable resource.

An addendum to the topics discussed this

morning, on monitoring, it was stated that the ultimate

quote/unquote \"punishment\" for a district\'s failure to

correct non‑compliance citations is financial sanctions

against the district, the school district. This is

ludicrous, as financial sanctions are only going to take

much‑needed money away from the students in special

education. Furthermore, school districts know that

financial sanctions are all bark and no bite. What is

needed are sanctions against those who are accountable,

superintendents, school‑site principals, and other

administrators who are directly accountable for quality

and delivery of special education services.

Therefore, job descriptions, performance

evaluations, monetary raises and bonuses not only need to

be based on quality outcomes for students receiving

special education services, but also on a decrease in

compliance complaints filed against the individual schools

and school districts. Maybe the money saved from

increased salaries and bonuses could be allocated for

direct services or compensatory services for special

education students.

Funding of IDEA. On the way to today\'s

hearing, I heard on the radio that the United States is

increasing its financial support to the far ends of the

earth. This is wonderful; however, I believe the United

States needs to financially support our own nation\'s

children first. As one of the speakers stated this

morning, we need to support these children until age 21.

My response is, \"Then what?\"

If we haven\'t taught our children to read,

write, guide them into a career or vocation, and build

their self‑esteem, then statistics have proven that a

great majority of them will end up in jail. Persons with

special needs must not be treated as second‑class

citizens. IDEA needs to be fully funded and expanded to

continually support ‑‑

MS. ACOSTA: Thank you, Ms. Kelner; your time

is up.

MS. KELNER: ‑‑ those with disabilities.

Thank you.

MS. ACOSTA: However, you may please give

that to us so we can get copies of it.

MS. KELNER: I did. I also commented on

eliminating paperwork.

MS. ACOSTA: Thank you so much.

Laura Taylor?

MS. TAYLOR: Thank you.

I\'m the mother of a 13‑year‑old with autism,

a praxium (phonetic) processing disorder. He has a

variety of disabilities. IDEA had worked for my child but

it has been extremely hard work. I had an IEP within the

last 30 days that was child‑centered, it was

collaborative, it was creative, it was everything I think

this law can and should be. But I can guarantee you that,

if I didn\'t have IDEA, he might be in the building ‑‑ I

expect and I think, as a nation, we\'re entitled to expect

a little more for our disabled child than their access to

the same school building.

I\'m also an attorney; I\'m the founder of the

San Diego Volunteer Lawyer Program which provides pro bono

legal services in special education disputes to the

poorest, the neediest children in this community. We also

do a tremendous amount of work with the juvenile court and

with dependents. In five years, we have had to do two due

process hearings. We\'ve collected fees in those two cases

which the individual volunteer law firms largely donated

to charity.

I am offended by the notion that the

attorneys in this field are out there for profit; it\'s a

hard way to practice law and make a profit. I\'ve got to

tell you, I don\'t ‑‑ I\'m a bank lawyer by profession, I

couldn\'t make a living doing this. I also couldn\'t afford

myself.

The dispute resolution panel gave you

excellent ideas for improving the current situation; you

should implement them. You also, however, need to look at

that top, down system and you need to put in place

something that creates real sanctions for failure to

comply with the law. Monitoring is not going to do it.

San Diego Unified School District ‑‑ the panel members are

very familiar with what\'s happened here. It is an

excellent example of continuous compliance complaints,

continuously being told that they are not in compliance

and ordered to comply, and continued failure for anything

to occur that improves this situation. We have the same

problems year after year, notwithstanding continuing

compliance problems.

I would suggest that, among other things,

settlement should result in the ability to obtain a quick

court order so that we get ‑‑ there\'s nothing worse than

settling a dispute and then not having that settlement

implemented; that happens too often.

Also, recognize what you\'re doing if ‑‑ I

think one of the panel members asked about cutting

attorneys out of the process. My son will be fine; my son

will continue to get a quality program. Attorneys have

disabled kids, too. But there are groups of kids who will

not be in that same situation. And, principally, I\'m

talking about poor children and, even more importantly,

foster children.

If you\'re going to cut attorneys out of the

process, then you are going to have to fund a surrogate

system because, otherwise, you have a whole group of

children who don\'t have parents and who have surrogates

who are not paid to provide them with any kind of

effective representation. And those kids are not going to

get the education they\'re entitled to under the law.

Thank you.

MS. ACOSTA: Thank you.

Raydene Wolf, followed by Bobbie Kohrt.

Allison Brenneise, Terri Baur, and Angela

Hawkins, and Lynn Aung ‑‑ is that correct? Am I saying it

correctly?

MS. AUNG: Yes, that\'s correct.

Thank you very much for letting us all here

today to speak with you. My name is Lynn Aung and I\'m a

school psychologist. I am also the President‑elect of the

California Association of School Psychologists.

I represent 3200 school psychologists in the

State of California. I\'m also the grandmother of a young

lady who is orthopedically handicapped, who was born six

months gestation at a pound, 11 ounces. So I\'ve been on

both sides of the table of the IEP process.

Recruitment and retention, as someone else

has said, of special education professionals has become

quite difficult in the State of California. There isn\'t

just one reason for the decrease of university‑trained

programs across the country. One reason is, and I can

assure you, is a \"we‑against‑them\" process that we, as

school psychologists, deal with every day.

School psychologists often feel squeezed in

between school districts and the attorneys hired by

parents. It doesn\'t have to be this way. We should be

working together for what\'s best for the student. Parents

and school officials alike are reporting that special ed

has become focused on compliance and procedure, rather

than on students and accountability.

We need to fix it for the students, for the

parents, and for the special education professionals.

Thank you.

MS. ACOSTA: Thank you.

And I\'m sorry, I skipped over and Raydene

Wolf should be next. Is she still here?

\[ No response. \]

MS. ACOSTA: Okay. The next one is Allison

Brenneise.

UNIDENTIFIED AUDIENCE MEMBER: (inaudible).

MR. JONES: No. Actually, the Commission

adopted a rule that individuals who are with the same

organization, it\'s actually that they go to the end of the

list, to give others a chance to speak first.

UNIDENTIFIED AUDIENCE MEMBER: (inaudible).

MS. BRENNEISE: I\'d like to thank the members

of the Commission for coming to San Diego. When we heard

that you weren\'t going to come to San Diego, many of us

panicked and we thought, \"We\'ll just call them and pray

that they\'ll come back.\" So I want to thank you for

coming and hearing us.

You know, a lot of us can\'t get to L.A. and

we really appreciate your coming to us.

I also would like to say that I\'m ashamed

that I don\'t see District Administrators from the San

Diego Unified School District here. I would think that

they would like us to believe that they\'re going to make

sweeping changes to special education; but how are we to

trust that they\'re going to do something when they won\'t

come and listen to the things our district is notoriously

famous for.

I put a letter together and I\'d like to just

say that I echo Malaya Christian\'s statement that, before

you get to due process, it\'s a long road; it\'s years of

non‑compliance and trying to get your children what they

deserve. And the district, in my experience, has never

come and tried to work with us so that my children can be

educated.

I have two boys receiving services in San

Diego Unified, one is definitely more involved than the

other. This same child has not been educated for three

years. Yes, he\'s gotten some improvements; there have

been many times where he has been out of school because

they can\'t deal with his behaviors, or they\'re not

appropriately trained to work with him.

Last year, my son was given 352 hours of

compensatory education for time that he was not served in

his classroom.

I would like to talk just a moment about

paperwork. Paperwork is not the problem. I understand

that we don\'t want to see 55‑page IEPs, because we have

them, and we have complete problems with getting the IEPs

implemented.

But what I would like just to end with is

that we really need to focus on collecting data. If the

staff people who are working on the goals kept data when

they were working with the child, their reports would

write themselves, they would be able to have baselines

that we don\'t have today. My son doesn\'t have appropriate

baselines; no one knows where he is except for us; and

they don\'t want to hear from us.

And I just really implore you to keep

provisions in place so that parents have some kind of

place to stake their claim.

Thank you.

MS. ACOSTA: Thank you.

Terri Baur.

MS. BAUR: My name is Terri Baur; I\'m the

Executive Director of Area Board 13 for Developmental

Disabilities. We advocate on behalf of people with

developmental disabilities. I\'m also a special education

attorney.

Before I was a special education attorney, I

didn\'t know what in encopresis was. For those of who

don\'t know, encopresis is the inability to control one\'s

bowels, which is often a symptom of sexual abuse.

We represented a young man who was told ‑‑

and whose care‑giver was told by the school district that

he lived in ‑‑ that this was a high‑class area and that

students were not ‑‑ their parents would not tolerate this

kind of child in the school. He was also told that it was

a new school and they didn\'t want it getting all dirty.

These are the kinds of cases that we are

representing as special education attorneys, they were not

over‑identified children.

I would argue that litigation is not the

problem, that litigation is a symptom of the problem and

that problem is failure to implement a very, very good,

very strong, and very important law, the IDEA.

I\'m also a sociologist so I can talk about

the social construction of reality. One of the realities

that I sometimes hear being constructed is a reality where

special education students and their families are seen as

trying to get private school education at public expense

for their children. And attorneys are pretty much

depicted as sharks.

Most of the attorneys that I have worked with

are people who represent other kinds of clients, who have

chosen to be trained in special education law, and who

represent special education students, children with

disabilities, on a pro bono basis.

What I would like you to do is to go back to

the administration and to encourage the administration to

create a different kind of social reality, and that is one

where children with disabilities need services to be the

kind of productive citizens that they can be and that

where that their parents are simply striving to help them

have an appropriate education that enables them to learn

and to be productive citizens.

Thank you so much for coming to San Diego and

hearing our testimony.

MS. ACOSTA: Thank you.

\[ Applause. \]

MS. ACOSTA: Angela Hawkins.

DR. HAWKINS: Good afternoon.

My name is Angela Hawkins. I am the

Chairperson of the California Advisory Commission on

Special Education, Director of Special Ed for the

Sweetwater Union High School District, which has an ADA of

about 40,000, special ed students of 4,000 in grades 7

through 12. I\'m also an Adjunct Professor of National

University and the custodial grandparent of two boys with

IEPs.

Lucky for you that I just found out about

this meeting a couple of hours ago so I haven\'t had time

to be wordy. I\'ll address two topics on foster youth. I

was told that this session was to reduce paperwork or talk

about the paperwork in special education.

Foster youth are placed in licensed care

institutions or homes by the courts. They usually have

been in and out of 12 to 20 placements. Records, both

education and health, are lost. The solution is a health

and education passport, web‑based, no paper, with access

limited to those who need to know.

A current pilot in San Diego County, called

Foster Youth Services, have constructed such a passport.

The children\'s credits are saved, paperwork reduced.

My last item is on litigation. We are a

secondary district. I\'ve been in the district 37 years;

we have never been to due process. You ask why.

We operate from an abundance model ‑‑ there

is enough for everyone. When there is a disagreement, we

operate from premise of win‑win. All administrators have

been trained in this process, they have been trained in

what we call Seven Habits of Highly Effective People by

Steven Covey (phonetic). It\'s win‑win and seek first to

understand.

As a result, we have very little paperwork;

we do not have attorneys\' fees, we spend the money on the

kids.

I leave you with a statement that I heard

from Steven Covey; he was talking about equity. He said,

\"Equity does not mean that everyone gets the same. Equity

means everyone gets what they need.\"

MS. ACOSTA: Thank you.

\[ Applause. \]

MS. KOHRT: Angie, I want to work for you.

My name is Bobbie Kohrt and I\'m a school

psychologist and I\'m also ‑‑ I\'m the California ‑‑ a

member of the California Association of School

Psychologists, and I\'m an autism specialist for San Diego

Unified School District.

Thank you very much for the opportunity to

speak today ‑‑ excuse me while I put my glasses on.

There is a lot of issues that I could address

but I\'d really like to focus on the issue of federal

mandatory funding. There\'s a common notion out there in

education, in special education, that parents supposedly

want a Cadillac education and FAPE supposedly guarantees a

Chevrolet. And I\'m here to tell you that we get funding

for a go‑cart.

As you may have heard, autism is the fastest‑

growing disability in California; it certainly is in our

district. And it is ‑‑ the cost for treating children

with autism and other chronic disabilities is on the rise.

And, as we all know, early, intensive intervention for

autism is absolutely essential.

However, I have very inadequate funding to

train staff, to both professional teachers ‑‑ general ed

teachers need training, paraprofessionals need training,

and we have limited budget for materials and, especially

for helping support children in fully‑included ‑‑

inclusive settings, which I am very supportive of. And

yet, last year, my district spent hundreds of thousands of

dollars on non‑public agencies and non‑public schools and

I just don\'t understand that.

And so I\'m here to just say that I would

really like to see FAPE ‑‑ I would like to see FAPE better

defined and I would like to see federal funding at the

promised level of 40 percent, rather the reality, which is

15 percent.

And I truly believe that that would help us

better serve all the students who need it.

Thank you.

MS. ACOSTA: Thank you.

\[ Applause. \]

MS. ACOSTA: Ladies and gentlemen, that

concludes our Commission hearing but, before we leave, I\'d

like to take the privilege of the Chair and share this

thought with you; today, the word that I hear resounding

in my head, as we end our day, is \"trust.\"

I want to publicly thank President Bush and

Secretary Paige for trusting us with this arduous task. I

want to thank Tracy Spencer and Linda Emery, and Marissa

Munoz who work with us and, last but not least, Todd

Jones, who work to make our efforts here as painless as

possible. And I want to publicly thank them.

And we trust you and we ask that you return

that. Thank you so much.

We want to thank, again, our expert witnesses

for coming, passionately speaking to us about this work.

And we trust that that information will become part of the

greater work.

And last but not least, we want to thank our

families, our children who, on a daily basis, trust this

country to not leave children behind. We are committed to

this work and we, on behalf the Commissioners, we want to

thank San Diego for making us welcome as we continue to

develop this document that we will be sharing with you.

And we trust that your input will be forthcoming.

Thank you.

(Whereupon, at 5:07 p.m., the hearing in the

above‑entitled matter was closed.)

oOo