Transcript of “Rights Here, Rights Now – Episode 14: “All About Free & Appropriate Public Education (FAPE)”

Produced by the disAbility Law Center of Virginia.                                                            

INTRO: The information provided on this podcast does not, and is not intended to, constitute legal advice. Instead, all information, content, and materials available are for general informational purposes only.

[REN]: Welcome to Rights Here, Rights Now, the podcast about disability, advocacy, and activism. I’m your advocate host, Ren F.

[VIRGINIA]: And I’m your advocate host, Virginia Pharis.

[REN]: Every two weeks, we dig into relevant issues, current events, and avenues for self-advocacy.

[VIRGINIA]: ‘Cause someone has to!

[REN]: And it might as well be us!

[VIRGINIA]: This podcast is produced by the Disability Law Center of Virginia; the Commonwealth’s protection and advocacy agency for disability rights. Find out more at www.dLCV.org

[REN]: So Virginia- I’m very excited. For today’s guest and topic.

[VIRGINIA]: I’m so excited and so scared in a way, because I don’t know or understand anything about special education.

[REN]: Special education is a very broad, complicated topic, which makes it- makes me- very glad that I’m not the expert in it and that our lovely fellow coworker, Kalena Ek, is the expert.

[VIRGINIA]: Blessedly. Yeah, she’s going to talk to us about the concept of FAPE- Free and Appropriate Public Education in Special Education & give us some tips for educating during this weird, quarantined, COVID time.

[REN]: But before we jump into that, let’s check out disability in the news.

After attending one of dLCV’s Social Security Clinics Susan came away with a whole new understanding of the system. She had been repeatedly denied social security benefits despite a longstanding mental illness. Susan was able to work for 9 month periods before her mental illness manifested itself causing termination. However, in those 9 month periods she would often miss work or take a leave of absence due to her mental illness, reducing her actual working time. Through talking with Elizabeth, our advocate, Susan realized she had been minimizing her symptoms when speaking with healthcare professionals which would skew her documentation. Elizabeth shared how one can prove a case when 40 years old as well as giving Susan a new strategy to a disability claim that would include more accurately documenting her work attempts and more accurately informing her doctors. Understanding the "big picture" gave Susan the ability to better manage a disability claim in the future.

[REN]: All right! It’s time to jump right into our segment. Welcome, Kalena! For the first time!

Enter, Kalena Ek.

[KALENA]: Thank you for having me.

[REN]: We’re going to be talking about stuff that- Virginia and I know nothing about, which is so- so many different topics. Um, so we’re talking about FAPE, or FAPE. What does that even mean?

[KALENA]: And so FAPE is sort of another one of those alphabet soup things that in the special education world..um, and it stands for Free Appropriate Public Education. And that’s the legal standard that school divisions are required to give to students with disabilities-

[REN]: Which, is a great idea.

[KALENA]: Funny you should mention, idea. Because that is the law that it comes from. The Individuals with Disabilities Education Act.

[VIRGINIA]: In terms of the standards that FAPE gives out- what does it say. What does it say we should be giving to our kids? Our kiddos?

[KALENA]: Let’s- so, the whole point behind IDEA is that it’s an individualized approach so what meets FAPE for any particular child is really going to be any one on one, case by case basis determination. So that’s really hard for lawyers to grapple with [laughs]. We like things that are- that fit into categories neatly. But, Special Ed and FAPE are really about what each individual child needs.

[REN]: Where do we kind of get this guidance? You mentioned that again, this idea that lawyers love something that’s clean & applies to everything. So where do courts sort of make this guidance and try to help and determine, you know, how these laws and how these ideas are applied in the community?

[KALENA]: So there are regulations. Virginia has their own regulations. That sort of give a little more clarity…For sort of the mechanics of how FAPE is figured out. There are evaluations, and lots of other things, that help schools figure out what each individual kid needs. But, there are sort of a precious few “bright lines” standards. Legal standards. Mostly…(pause) judges hate making these kids of calls. Because they recognize that they are not the educational experts.

They’re, you know, legal experts. Not, you know, what the current modality is, you know, that’s recognized in the schools, you know, as the newest and most innovative sort of educational theory. Judges will usually refer pretty hard to educational professionals before then. There have been two cases from the supreme court that we looked to that really sort of talk about what is FAPE in two different contexts. The first one is a case from 1982 called Hudson v. Ralley…sort of the short hand of the title. And that was a case that came out of IDEA’s precursor statute.

But it’s largely the same thing. Still talking about FAPE. And that’s been the standard for- since 1982. And sort of still is. So in that case, there was a kindergartener who had a hearing impairment & her parents really thought that she needed a sign language interpreter. And this school, to their credit, tried it. They also gave her an FM system and some other things to sort of give her the supports that they thought that she needed. In Kindergarten.

[VIRGINIA]: What is an FM system?

[KALENA]: It’s sort of like a personal radio that sort of just enhances the sound. And so, she did fine with that. And actually, the school said, you know, “she didn’t really use the interpreter when we had her there, so, we’re just not going to do it for (1^st) First grade. For the education plan. So, obviously, the parents were not happy with this. And they went through the process, & the case wound up in the Supreme Court.

And to get to the Supreme Court, you know, you have to go through, get to, the lower courts and administrative courts and Virginia at least, and even after administrative courts and the lower courts first. And the lower courts in the Ralley case, used language that is just my very favorite, um, and that’s that- “Students should be given the opportunity to reach their full potential.” That’s what FAPE means.

FAPE means we are going to give kids everything they need to reach everything they could possibly be. And then the supreme court said…ehhhhh… that’s, maybe, “going a little too far.” Use language like, you know “kids are entitled to an adequate education. One that is reasonably calculated to allow them to receive educational benefit.” They are trying to give them an equal opportunity kind of thing. So there’s like a baseline.

[VIRGINIA]: You know that’s what I’m striving to be. Adequate!

[KALENA]: [Laughter] Right, right. So, this is where, I don’t know if maybe you’ve heard the language- “Kids are not entitled to a Cadillac-” I guess in that community, too, Cadillac was still a fancy car. Ummm… [pause.]

[VIRGINIA]: They can’t even drive, Kalena! [Laughter]

[KALENA]: Yeah…kids are entitled to- a CHEVY! You know? A car-that-that runs! Essentially, if a student is getting passing grades and advancing from grade to grade- like you would expect a student without a disability to…then, that’s “good enough” for FAPE. So, you know, we’re not talking about, you know, this kid could be getting A’s but their getting C’s. If they’re passing and moving through? That’s good enough. Certainly schools can provide more if they want to, but the legal, baseline standard for FAPE is just sort of the Chevrolet. So that standard sort of over time-1982 was a little bit ago- and over time has been sort of watered down. Courts and schools have sort of held down that the educational benefit has to be just minimus.

Which is fancy lawyer Latin for, “Almost nothing, but not actually nothing.” And that students just have to be making SOME PROGRESS for schools to say, “They provided enough for FAPE.” So, that is still the standard now. If you’ve got a kid who is progressing from grade to grade as you’d expect a student without a disability to, the courts are likely to say, FAPE has been provided.

[REN]: You mentioned a second court case. Did that sort of change the standard at all? Or expand on it?

[KALENA]: It changed it a little bit. For a certain sort of, uhhh, group of students. That case came out more recently. In 2017, Andrew F. v. Douglas County case. And that, um, if you read it, for the Supreme Court’s tone is actually sort of a fun read. Because it gets a little bit…uhhh…sassy…IDK, could you say a supreme court decision is sassy?!? It’s a little sassy.

[Laughter]

(Continued): But we’ll get to that in a minute. So that- this is a case where the student in question had autism & from preschool through 4^th grade had pretty much the same IEP. Which is an Individual Education Plan. Which is basically how the school is going to give them things. The goals are supposed to change and grow as the child changes and grows. But in 5^th grade the school proposed basically the same plan again, and the parents took him out & placed him in a private school. They notified the public school. They did all the steps they were supposed to do that.

And they sued for tuition reimbursement basically saying, “public school division, you need to pay for this private school placement, because you are not providing this kiddo with FAPE.” The lower courts said, in and under that case, under Ralley, all the school has to give is more than merely [LATIN] so that’s sort of the delusion of the Ralley standard a little bit. And the supreme court, in their opinion, just sort of said- “Did you actually do the reading??” Because in the Ralley decision we said that that applied to students moving from grade to grade like you would expect.

With supports that the school provides. But the metric is different than a student who isn’t fully integrated in the regular education classroom, who is not achieving on grade level like you would expect. For those students, the IEP has to be the supreme court says, appropriately ambitious. In light of their individual circumstances. Which just clears everything right up, right? The supreme court still in the Andrew case again rejected that lovely full potential language that I just love. But they did hold that what the public school was doing was not enough for FAPE, and they awarded the tuition reimbursement to the family.

[REN]: Who doesn’t love a happy ending?

[KALENA]: Yes, yes. So those are the two cases that we really look to when we look at what is a judge gonna say? What’s a hearing officer likely to say? What is the bare minimum that schools have to do? To provide.

[REN]: Right now, we’re in difficult times, we’re under quarantine for COVID 19, & that has made everything very challenging, so I am sure that everyone’s aware the schools are having their own challenges. How is FAPE possible right now? How are we even attempting this?

[KALENA]: It is. It’s hard! You know. As a parent trying to be the executive assistant for my child’s online learning, it is, it is not easy. But the United States Department of Education came out with some guidance. Pretty soon after they started saying that schools are shut down in person. For the rest of the year. And then came out with some additional guidance later. But it really just comes down to schools still need to do their best, in providing with the IDEA, including providing services and supports and programming in the IEP. As much as possible.

You know, obviously, in person stuff is-is near impossible. But, you know, we live in this wonderful, modern, technological age. And a lot of things can be provided, you know, online, or we do have a lot of folks here in Virginia that are in rural areas that don’t have internet access, that don’t have that sort of technology available, so you know, we’re saying do your best!

Get creative if you can. You know, we’re seeing some school divisions give parents instructions on how to support continuing learning [for the kids]. But it is not easy. Some school divisions throughout the country just said, “Well, we’ll just stop all of our educational programming for all kids because we can’t provide special ed. So, we just won’t provide any ed.”

[Continued]: And of course, the USDE said, “Don’t do that!” You know, you can’t- you’re all pretty creative individuals & educators and I’m pretty sure you can come up with something.

[Pause.]

The department of ed, stated that family guidance and said Virginia schools still need to provide special education services still need to provide through the shutdown.

[VIRGINIA]: So you know, obviously, things right now look kind of weird but what can some advocates and parents to do to make sure that students are in the best possible place when the schools reopen?

[KALENA]: The first step as with any special education issue is is to work with the school. And if you haven't heard from them by now—and- my god, I certainly hope you have, reach out [to them] and talk about what the plan is prince room solutions: (so) to make sure that the individual kiddo is getting as much as they possibly can, either on the computer or by phone or work send home to parents can help with consultations with teacher. Also, arrange therapy providers, and also make sure that—okay, the second thing that is just something I say it every training and every moment I can [pause] I'm pretty sure I say this in my sleep at this point: It’s just make sure you're writing everything down! Document and the recent diary of everything- record what's going on.

[Continued]: If your student is regressing- (be sure to note) what services & supports are happening, when you make a phone call, when you have an email save it all if you talk to somebody and you can you have access to email send the confirmation email that summarizes your phone call just because this is going to be hard to remember in 2 weeks let alone two months if you agree to temporary changes in services and supports while the school so make sure that it's in writing. That it's a temporary change make sure the changes in writing. If the school refuses to change you suggest or proposes any changes you don't like there should be a document explaining the reason for the documental/denial, and notice. & You have to get that before anything changes….[…..]

And really just make sure it's very clear if there is any change that's going to happen that you agree to and make sure that it's happening on an individual level so you're not just getting some blanket statement…

[Pause]

[KALENA]: Like we're doing we're doing this for all students, and so your student falls under that, & IEP still stands for an individualized decision of determination. And… schools are having to make that individual determination now for a lot of students all at once…they should be doing that and then you know of course the dispute resolution options we talked about through the USDE are, you know, will still be available.

[VIRGINIA]: So you think that the school division is not providing steep options are still there??

[KALENA]: I think that some ….I think that's again why documenting everything is so important. Obviously, it's good to keep a record for your own thoughts and to make sure that your child is on the right track. But like if at any point you need to explore these dispute resolution options having that documentation is really critical. In order to make your case evaluations are mostly done in person, right? So that's going to be really difficult for schools to do. One of the areas that I think is the most challenging, and having that that data. having that sort of like observations from the parent I will be really helpful.

[KALENA]: I think when schools do open back up and when when more things can be put in place is knowing you know where we started and and what happened and where we are now it's really important!

[REN]: So, Kalena, do you have any resources of ours that you want to plug for the listening public?

[KALENA]: You know, years ago our special education page on the www.dLCV.org

…website there's a lot of videos on there. There's a lot of links in fact sheets and hopefully you can find the answer to your question in those.

We also have a parents guide to Special Education that is on our website You can order it through Amazon—two day shipping if you have Prime and everything from the very beginning stages of evaluations and assessments and eligibility for special education and all the way through dispute resolution off and then and the whole thing.

[REN]: Thank you so much for joining us today, Kalena! You have been a star!

[KALENA]: Thank you for having me

[REN]: And, hopefully, we'll have you back in the future and have more love the conversations educating Virginia and I are about special education!!

[VIRGINIA]: ** AND now, for a DLCV HIGHLIGHT:**

Apple is rolling out extra help for people with disabilities during the COVID-19 pandemic. They recently announced they are creating a dedicated support team to address accessibility questions as well as a new support website and how-to-videos for users to get the most out of all the accessibility features. In addition, the company is now offering one-on-one virtual coaching sessions for students with disabilities and their teachers who are using remote learning. Apple is featuring a collection of apps designed to address communication, fitness, gaming, and other hobbies for people with disabilities in its App Store and is highlighting films and tv shows featuring actors with disabilities on Apple TV in honor of Accessibility Awareness Month. All the specialized support for those with disabilities can be found through Apple Care on iPhones, online, and through online chat on the Apple website.

[REN]: Thanks again, to the MARVELOUS Kalena, we really enjoyed having you on the show and explaining all of Special Education to us. Just….it is explained!

[Laughter.]

[VIRGINIA]: Yeah! There’s really just so much to know and so much to listen to, so we really just encourage our listeners to go to our website at www.dLCV.org and check out all the resources that we have there including our SPECIAL EDUCATION MANUAL.

[REN]: Yes, our children’s Unit team has just done excellent work in compiling a lot of different resources…a lot of different fact sheets. So, it’s really good to check all of that out.

[Continued] And thank you all for listening to another episode of Rights Here, Rights Now, brought to you by the disAbility Law Center of Virginia. We’re available on Apple Podcasts, Spotify, or wherever you get your podcasts. You can follow us on Twitter @DisabilityLawVA or on Facebook.

[VIRGINIA]: Until next time, I’m Virginia Pharis.

[REN]: And I’m Ren Faszewski. And this has been,

[Unison.]

“RIGHTS HERE, RIGHTS NOW!”

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