Parent Consent Part 2: Alternative Assessments and Alternative Education Programs

Parent Consent in the IEP Process
Part 2: Alternative Assessments and Alternative Education Programs

The Maryland Parent Consent Bill passed in April of 2017 provides parents the right to consent or refuse consent for their child to be assessed using an alternative assessment and to being placed in an alternative education program.

Alternative Assessments:

The Maryland alternative assessment, previously called ALT-MSA, is now referred to as the MSAA, Multi-State Alternative Assessment.  Alternative assessments are only for students who have significant cognitive disabilities.  A single score on an IQ assessment is not to be the determining factor as to whether a student has a significant cognitive disability.  Students demonstrating academic deficits or difficulties solely due to specific learning disabilities (SLD), speech-language impairments, other health impairments (OHI), and emotional-behavioral disabilities (ED) do not qualify for the Maryland alternate assessments.  Individualized Education Program (IEP) teams must consider multiple factors in determining whether a student qualifies as a student with a significant cognitive disability such as psychological assessments, adaptive skills, assessment data, and performance in the curriculum.  Students who take the MSAA are taught using alternative academic standards and will not receive the instruction needed to earn a diploma. IEP teams must review the student's determination as to whether they qualify for alternative assessment annually. 

Parents who do not believe their child has a significant cognitive disability and does not qualify for alternative assessments should request an IEP meeting to discuss and document their disagreement by refusing consent. 

Refusing consent:  When a parent refuses consent for an alternative assessment, the IEP team/school district must either accept the parents' refusal and continue the child on a diploma track and continue to provide the student with a free appropriate public education (FAPE) or pursue mediation or due process.  If a school district seeks mediation or due process, they would be asking an administrative law judge to override the parents refusal and allow the school district to teach the student using alternative curriculum, test the child using the alternative assessment, and to ultimately be removing the child from pursuing a diploma.  

Neither consent nor refuse:  When a parent does not want to make a decision as to their child qualifying for alternative assessments, they can choose to neither consent nor refuse to consent.  In other words, they would not indicate consent either way.  In abstaining from consent or refusal, the school-based members of the IEP team's recommendation will go into effect once prior written notice has been provided.

If a parent consents to their child taking an alternative assessment, the child will be taught using alternative curriculum. 

The decision as to whether a student qualifies for an alternative assessment is extremely important. Taking the alternative assessment means the student receives significantly modified curriculum.  The longer the student is taught using the modified curriculum, the less likely the child will be prepared to attain a diploma.  The Maryland State Department of Education (MSDE) provided guidance that, "IEP teams should be especially cautious about students with significant cognitive disabilities participating in an alternate assessment in their early school years."  Maryland Guidance for IEP Teams on Participation Decisions for the Alternate Assessments Until an IEP team is absolutely certain a student meets all of the eligibility criteria, the team should err on the side of caution and continue instructing the student in the general curriculum.  

Alternative Education Program:

An alternative education program is one that does not issue or provide credits towards a Maryland High School Diploma.  Students who qualify to take an alternative assessment are instructed using modified curriculum and therefore are not working towards earning credits and a diploma.  Some school districts call these programs life skills programs, community based instruction, or alternative academic curriculum programs.  The required consent as to whether a student participates in an alternative assessment is a separate consent from the alternative education program.  MSDE has clarified that, "While instruction and assessment generally align, the law separates the two in the event that the IEP team determines that only one is appropriate and necessary to meet the student’s needs at a given time." 

For example, if an IEP team were to determine that a student should take the regular assessments (i.e., PARCC, HSA) but was to also determine the student required an alternative education program, the instruction and assessment decisions would not be aligned.  The parents would then have the opportunity to consent to the alternative education program, refuse to consent, or neither.

If you have questions as to whether your child qualifies for a alternative assessment or whether they need an alternative education program, contact me at ashley@lawforparents.com or 410-206-5997.

Disclaimer:  This blog is made available by the Law For Parents, LLC for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using this blog site, you understand that there is no attorney client relationship between you and the publisher. The blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

Are Your Child’s Suspensions Denying Them a Free Appropriate Public Education?

Are Your Child’s Suspensions Denying Them a

Free Appropriate Public Education?

The United States Department of Education (USDE) released guidance this week through a Dear Colleague Letter indicating that short term suspensions or disciplinary removals may result in a denial of free appropriate public education (FAPE) for students with disabilities.  The guidance serves as a reminder to school staff to consider the child’s needs and the effects that suspension may have on the child and to provide alternatives to excluding the child from school.

The USDE identified many supports Individualized Education Program (IEP) teams could include in a student’s IEP that could assist a child to benefit from special education including the following:

• instruction and reinforcement of school expectations;
• violence prevention programs;
• anger management groups;
• counseling for mental health issues;
• life skills training; or
• social skills instruction.

The guidance also emphasized the importance of providing behavioral supports to students in the least restrictive environment.  IEP teams may not remove the child from the general education environment solely due to the child’s behavior when behavioral supports could be effective in the regular education setting.  The USDE included social skills instruction, meetings with a behavioral coach, and training for school personnel as examples of such behavioral supports for IEP teams to consider.

Determining whether a child has been denied a FAPE is based upon the facts in individual case by case situations.  The Dear Colleague Letter listed the following, “circumstances that may indicate either a procedural or substantive failure in the development, review, or revision of the IEP include, but are not limited to, the following:

• The IEP Team did not consider the inclusion of positive behavioral interventions and supports in response to behavior that impeded the child’s learning or that of others;
• School officials failed to schedule an IEP Team meeting to review the IEP to address behavioral concerns after a reasonable parental request;
• The IEP Team failed to discuss the parent’s concerns about the child’s behavior, and its effects on the child’s learning, during an IEP Team meeting;
• There are no behavioral supports in the child’s IEP, even when the IEP Team determines they are necessary for the child;
• The behavioral supports in the IEP are inappropriate for the child (e.g., the frequency, scope or duration of the behavioral supports is insufficient to prevent behaviors that impede the learning of the child or others; or consistent application of the child’s behavioral supports has not accomplished positive changes in behavior, but instead has resulted in behavior that continues to impede, or further impedes, learning for the child or others);
• The behavioral supports in the child’s IEP are appropriate, but are not being implemented or not being properly implemented (e.g., teachers are not trained in classroom management responses or de-escalation techniques or those techniques are not being consistently implemented); or
• School personnel have implemented behavioral supports not included in the IEP that are not appropriate for the child.”

The Dear Colleague Letter also identified, “circumstances that may indicate that the child’s IEP is not reasonably calculated to provide a meaningful educational benefit include, but are not limited to, the following:

• The child is displaying a pattern of behaviors that impede his or her learning or that of others and is not receiving any behavioral supports;
• The child experiences a series of disciplinary removals from the current placement of 10 days or fewer (which do not constitute a disciplinary change in placement) for separate incidents of misconduct that impede the child’s learning or that of others, and the need for behavioral supports is not considered or addressed by the IEP Team; or 
• The child experiences a lack of expected progress toward the annual goals that is related to his or her disciplinary removals or the lack of behavioral supports, and the child’s IEP is neither reviewed nor revised.”

Not only do removals from school potentially result in a denial of FAPE, the USDE also provided a sampling of the research which demonstrates that the removals rarely result in a change in the behavior.  In addition, they include research that has shown that the adverse results include a decline in academic performance and greater potential for students to drop out of school.  The USDE includes resources and training for school personnel available at www.ed.gov/rethinkdiscipline and http://ccrs.osepideasthatwork.org.

If you have questions about this post, please contact me at ashley@lawforparents.com to schedule a consultation.  

Disclaimer:  This blog is made available by Law for Parents, LLC for educational purposes only as well as to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site, you understand that there is no attorney client relationship between you and the publisher. The blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.