Saturday, May 30, 2009

Secretary Duncan: 4,720 Words, But No "Special Ed"

If you want to know Education Secretary Arne Duncan's thoughts about education, read the extensive speech he gave yesterday at the National Press Club. (Read transcript from Congressional Quarterly or watch video.) If you want to know his thoughts about special education, you'll have to look somewhere else.

In a speech intended to highlight the administration's education priorities, his 4,720 words did not include "special education," "special needs," "disabilities," or the "Individuals with Disabilities Education Act." That seems odd to me, but it's in line with criticism he received from disability advocates when President Obama nominated him. As I reported on Feb. 10, one Chicago advocate said: "He’s not been a great supporter of special ed. I don’t think he dislikes special-needs kids; it just wasn’t on his radar screen during the time he was here."

And yesterday, the only time he mentioned special ed was in response to a question:

"MODERATOR: Why did the FY 2010 budget request $1.5 billion less than appropriated in fiscal year 2009 for the Title I basic grants? Do you intend to curtail or end the basic grants program? Why or why not?

"DUNCAN: We did two things strategically. One, is in the stimulus package, as you know, there was north of $10 billion in new Title I money that came in, so unprecedented money for Title I, unprecedented money for IDEA, for children with special needs. What we actually are doing is we’re beefing up significantly the Title I school improvement grants. We shifted resources there. And that was a strategic decision."

Kudos to the administration for recognizing special ed as a priority in its budget decisions, but the education secretary also has a responsibility to be a spokesperson and advocate for students with special needs. Being a spokesperson means talking about it -- like when you give a 4,720-word speech about your priorities.

Wednesday, May 27, 2009

Sonia Sotomayor: The Supreme Court Nominee's Record on Disabilities

Yesterday President Obama nominated Sonia Sotomayor to replace Justice David Souter on the U.S. Supreme Court. I'll let others debate her qualifications and her historic relevance as the first Hispanic nominee to the Court. Instead, I'll highlight her experience related to disability policy and special education.

Initial reaction from disability advocates appears to be positive. Andrew J. Imparato, president and CEO of the American Association of People with Disabilities, said: "Based on our preliminary analysis of Judge Sotomayor’s extensive record on the bench, we are encouraged that she may be the champion we have been looking for. Her jurisprudence in the disability area shows that she has a good understanding of the real life implications of her decisions and sees the important connections between disability rights laws and other civil rights laws."

Among her cases as a judge on the U.S. Court of Appeals, Sotomayor ruled on issues related to the Americans with Disabilities Act (ADA), the Individuals with Disabilities Education Act (IDEA), Social Security, and Medicaid. In its analysis of these and other issues, concludes: "Judge Sotomayer seems inclined to favor student rights...and seems to in general be sympathetic to individuals over the system. And disability advocates will also likely have another friend on the high court if she is confirmed."

In Frank G. v. Board of Education of Hyde Park, she was part of a unanimous decision by a three-judge panel stating that parents can get reimbursed for private school tuition for a child with disabilities even if the child has never received services from their home school district.

Sotomayor ruled favorably at least one ADA case, Bartlett v. New York State Board of Law Examiners. In the case, a woman with significant learning disabilities (diagnosed as an adult) sought accommodations to take the New York State Bar examination. Sotomayor ruled in favor of these accommodations. In fact, her decision was mentioned during the debate on the ADA Amendments Act of 2008. Here's an excerpt from the Congressional Record from Sept. 17, 2008:

"Mr. STARK: Specific learning disabilities, such as dyslexia, are neurologically based impairments that substantially limit the way these individuals perform major life activities, like reading or learning, or the time it takes to perform such activities often referred to as the condition, manner, or duration. This legislation will reestablish coverage for these individuals by ensuring that the definition of this ability is broadly construed and the determination does not consider the use of mitigating measures.

"Given this, would the chairman agree that these amendments support the finding in Bartlett v. New York State Board of Law Examiners in which the court held that in determining whether the plaintiff was substantially limited with respect to reading, Bartlett's ability to 'self-accommodate' should not be taken into consideration when determining whether she was protected by the ADA?

"Mr. GEORGE MILLER of California: Yes, I would. As we stated in the committee report on H.R. 3195, the committee supports the finding in Bartlett. Our report explains that 'an individual with an impairment that substantially limits a major life activity should not be penalized when seeking protection under the ADA simply because he or she managed their own adaptive strategies or received informal or undocumented accommodations that have the effect of lessening the deleterious impacts of their disability.'

"Mr. STARK: I want to thank the chairman. It is indeed our full intention to ensure that the civil rights law retains its focus on protecting individuals with disabilities and not the interests of entities that may need to address their practices in accordance with the ADA. I look forward to working with the chairman to continue to protect individuals with specific learning disabilities to ensure that unnecessary barriers are not being erected in their path."

Read excerpt (page 6).

Also, as Time magazine reports, Judge Sotomayor would become the first Supreme Court Justice with Type 1 diabetes, a condition that was diagnosed when she was 8.

What are your thoughts on Sotomayor's qualifications and potential impact on disability law?

Tuesday, May 26, 2009

White House Addresses Alleged Abuses Against Students with Disabilities

Today the White House met with representatives of 40 community groups and education organizations after a GAO report revealed restraint and seclusion practices used with students with disabilities. A senior White House official told Disability Scoop: "The White House is very concerned about the restraint and seclusion issue, especially the deaths and serious injuries that have taken place across the country. We are committed to working with the secretary of education, Congress, and the community to explore solutions to this issue."

Wednesday, May 20, 2009

A License Plate for Erectile Dysfunction Awareness?

In Oklahoma, bitterness over the partisanship defeat of autism insurance coverage continues.

Yesterday the House passed SB 2, a bill that would create an autism awareness licnese plate, among others, but Democratic Floor Leader Mike Brown suggested the priorities of House Republicans might be better reflected by a license plate to raise (sorry) awareness of erectile dysfunction. Going back to last session, a proposal to mandate insurance coverage for autism faced stiff (sorry) opposition from Republicans.

After losing that battle, Rep. Brown in February introduced an amendment saying no Oklahoma insurance carrier could provide coverage for erectile dysfunction unless they also provided coverage for autism spectrum disorders. The amendment was defeated along party lines, 59-37.

"Every Republican in the House chamber that day...voted against my amendment," Rep. Brown said. "They are on the record as saying that sexual pleasure is more important than the health of children with autism and the struggles of their families. Since my Republican colleagues already voted once that they don't believe insurance coverage for autism treatment is at least as important as coverage for erectile dysfunction therapies, I would have expected them to be consistent and promote erectile dysfunction awareness right alongside autism awareness."

Administration Backing Away from Support for Community Choice Act?

After the 2008 presidential campaign, I told you that I would be honest in my critique of the new administration -- giving credit when it's due but also holding the administration accountable. And I'm concerned the White House is backing away from a campaign pledge to support the Community Choice Act. In this post from Sept. 22, 2008, I criticized Sen. McCain for not supporting the Community Choice Act and pointed out that then-Sens. Obama and Biden were co-sponsors.

Medicaid requires states to cover long-term care in insitutions, but does not require states to support people who live in their own homes -- which essentially means government policy favors institutionalization over providing options that allow for more independence.

Disability advocate Michael Volkman, in a May 15 op-ed titled "Give Disabled Choice of Home," explains: "Twenty-seven states provide no community-based assistance, so people like me living in those states are taken from their families and shut away. Many other states restrict services and have long waiting lists to get them. There are people who could live independently with just a few hours of aide service each day for less than $100, and others who need more hours but still could live independently. Instead, they are forced into nursing homes at a cost of hundreds of dollars more for each person for each day."

The bills that make up the Community Choice Act, HR 1670 and S 683, have languished in Congress with little action for 12 years, so disability advocates were encouraged when the Obama-Biden campaign committed to push for its passage. But in a recent meeting with American Disabled For Attended Programs Today (ADAPT), Nancy-Ann DeParle, the administration's health care reform czar, apparently suggested the Community Choice Act might not be part of the health care reform package.

And the White House has changed the disabilities page on its website, removing President Obama's intention to enforce the Community Choice Act. Instead, a new paragraph says, "The President believes that more can be done to encourage states to shift more of their services away from institutions and into the community, which is both cost-effective and humane."

Volkman: "Encouraging states to take the lead doesn't mean they will. If they wanted to, they could have done it years ago."

Here's more from Patricia Bauer's Disability News.

GAO Report Uncovers Abuse of Disabled Students

A new report by the Government Accountability Office (GAO) says thousands of disabled children are secluded or restrained in America’s public and private schools each year, and many of the techniques are allegedly abusive or cause death
After the National Disability Rights Network reported on dozens of cases of injuries or deaths resulting from restraint or seclusion, Rep. George Miller (D-Calif.) requested the GAO report.

Rep. Miller said, "School is a place for students to learn, grow and thrive....Yet some educators are misusing behavioral interventions -- interventions that were intended only to be used in emergencies as a last resort -- for discipline or convenience in non-emergency situations."

Read a summary or the full report.

Monday, May 11, 2009

"The Disability Mess" -- And How to Clean It Up

The New York Times blog presents several perspectives on what's wrong with federal programs intended to support people with disabilities -- and how the Obama Administration should improve them. The administration's proposed 2010 budget assumes that huge savings can be generated by spending more to eliminate fraud, abuse, and waste in Medicare, Medicaid, and the Social Security disability insurance program.

Federal spending on disability insurance rose 65 percent from 2001 to 2007, but the but the number of medical reviews to determine eligibility for continuing disability payments dropped from 840,000 to 190,000 in the same period. The Times asks: "Why have federal disability costs skyrocketed? Is it because of fraud, an increase in the number of the truly disabled, or are there larger problems with the program?" There are no easy answers, as these excerpts show:

Jennifer Erkulwater, political scientist: "As the recession wears on and more people apply and fewer people are re-examined, disability rolls can be expected to grow. However, the villain here is not fraud. Instead, program growth is the result of intentional changes to policy and administrative capacity."

Richard Burkhauser, public policy professor: "President Obama could be the same agent of change toward disability policies as President Clinton was on welfare reform. The key is recognizing that most working age people with disabilities could and would work, if work paid."

Gary Burtless, Brookings Institution: "The federal government can certainly reduce the disability rolls and the cost of the disability program by conducting more frequent and tough-minded reviews of recipients’ disability status. There will be collateral damage, however....It makes sense to conduct the reviews, but it would be sensible to focus reviews on workers with medical conditions that are most likely to improve."

Tim Moore, former state disability examiner: "Fraud...occurs in a very, very small percentage of cases....Though the disability benefits are paid by the federal government, they are processed in a system that involves both federal and state agencies. The salaries of disability examiners are paid by the federal government, but they are state employees. In this recession, some states are furloughing these workers, too."

Morley White, administrative law judge: "I generally believe in the sincerity of what [disability claimaints] say. They are poor and the benefits they receive are now only $674 a month for an eligible individual. What are these people supposed to do in this economy with the limitations they say they have? There is too much emphasis on reputed individual fraud and not enough on how the system itself can be reformed."

Read more.

Questions About Administration Plans to Overhaul "No Child Left Behind"

"I don't know if 'scrap' is the word," Education Secretary Arne Duncan told reporters last week, addressing the administration's plans to overhaul the No Child Left Behind Act. "Where things make sense, we're going to keep them. Where things didn't make sense, we're going to change them."

Some advocates are concerned that administration officials clearly plan to make major changes to the program, but they are vague on details. And you should follow this debate, because disability advocates have questioned Secretary Duncan's credentials ever since President Obama appointed him. As an example of what makes some people nervous, consider this statement by Secretary Duncan:

"What No Child Left Behind did is, they were absolutely loose on the goals. But they were very tight, very prescriptive on how you get there. I think that was fundamentally backwards." He went on to say the government should be "tight" on goals -- with rigorous, uniform standards for all states.

And as I wrote in a previous entry, Secretary Duncan is overly focused on the "PR" and the "brand" of No Child Left Behind. "I do think the name 'No Child Left Behind' is absolutely toxic; I think we have to start over," he has said, adding that he'd like to hold a contest for students to come up with a new name.

After the previous administration, what we need from President Obama and Secretary Duncan is real leadership and substance -- not contests and smoke-and-mirrors branding. Are we really ready for the AmericanIdolization of the Department of Education?

Sunday, May 10, 2009

Should Disabled Students Be Protected from Bullying? Focus on the Family Says No

Minnesota has introduced anti-bullying legislation that would cover students with disabilities. The bill covers "actual or perceived race, color, creed, religion, national origin, sex, marital status, disability, socioeconomic status, sexual orientation, gender identity or expression, age, physical characteristics, and association with a person or group with one or more of these actual or perceived characteristics." It would also cover electronic forms of bullying.

Not surprisingly, a study by the Medical University of South Carolina found that students with disabilities are left out and bullied more than other children.

Writing in the Minneapolis Star-Tribune, a special ed professional George Griffiths has an insightful perspective on students' acceptance (and non-acceptance) of students with disabilities. "I don’t have any illusion that simply passing the Safe Schools for All legislation will magically stop bullying in Minnesota classrooms," Griffiths writes. "But the legislation sets a standard. And by specifically listing disability along with other attributes, such as sex, race, religion, sexual orientation, and physical characteristics, the legislation makes plain that, when it comes to bullying, absolutely no exceptions should ever be tolerated."

Who would oppose anti-bullying legislation, you ask? Try the right-wing Christian organization Focus on the Family. The Minnesota Family Council, an affiliate of Focus on the Family, is openly opposing the legislation, saying, "We believe this will open the door to promoting a certain social agenda." Read the official national position for yourself on Focus on the Family's own website: "We do not support special 'safe school' and anti-bullying legislation because of the way it opens the door to advance an aggressive, pro-homosexual agenda in public school classrooms."

See also "10 Years After Columbine, Focus on the Family Opposes Anti-Bullying Programs."

Rep. Kline: Fund IDEA Now

Sorry for the delay in postings. Last week I was lying on a beach in Florida and largely took a break from the computer. It wasn't easy, but I highly recommend it.

One piece of news that happened while I was away was an amendment proposed in the U.S. House of Representatives to fully fund the Individuals with Disabilities Education Act (IDEA). Back in 1975, Congress committed to provide 40 percent of the cost, with states and school districts making up the difference. But federal funding has typically been less than 20 percent.

"For far too long, our nation’s schools have been waiting patiently for Congress to fulfill its promise to fully fund special education," Rep. John Kline (R-Minn.) said in introducing the amendment. "By fully funding special education, we would free up desperately needed funds schools across America could use to address their specific needs – whether it is state of the art classrooms, additional teachers, or new textbooks."

President Obama and Vice President Biden support fully funding IDEA early in the campaign. Toward the tale end of the campaign, Sen. McCain and Gov. Palin also expressed support for IDEA. So I hope that Congress, the White House, and advocates on both political sides can pass this important legislation. What do you think -- is the economic mess an opportunity to make the case for this investment? Or will opponents use the economy as a reason to reject it?

Read more at Rep. Kline's blog. Or let him know what you think on his Facebook page.

Help Wanted: Special Ed Teachers

The Washington Post reports that the demand for special education teachers is outpacing the supply. Turnover among these teachers -- those who leave the profession or move to other areas of teaching -- is higher than most other areas of education. The result? Students with disabilities are more likely to experience inconsistency and learn from unqualified individuals.

However, the Post article profiles one school in Virginia that has kept class sizes small and has given staff the support they need. That school has been able to retain all seven special education teachers hired three years ago.

Read "High Turnover and Job's Challenges Keep Special Education Teachers in Demand."

Disability Scoop

Special Ed News (Education Week)

Special Education Law