The Last Wave

Like most Civil Libertarians, we were thrilled when the US Supreme Court recently issued its Decision in the Obergefell v. Hodges case, which finally made marriage equality the law of the land.

As professionals who are in the Civil Rights advocacy business, we were especially savoring these words of Justice Kennedy: "(t)he nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning."  Beautiful words, but we couldn’t help but wonder: when will the Civil Rights of individuals with disabilities be fully realized? Read more

COPAA Round-up from Paradise
JJSanDiego

We've just returned from Paradise, as in Paradise Point Island, San Diego, where we attended the 17th annual COPAA (Council of Parent Attorneys & Advocates) conference.  We can't say we missed the snow!

COPAA's conference is an annual source of inspiration to us, as we join our colleagues in protecting the Civil Rights of students who have disabilities. At YourSpecialEducationRights.com, we constantly strive to empower parents, and COPAA is an organization committed to this cause we hold so dear. Read more

Lessons from Darien’s Special Education Audit: Don’t Assume Anything is as it Seems
school

It's a sad fact that many parents have to question if their school districts are actually providing the services laid out in their child's IEP (Individualized Education Program).  We see it often in our special education advocacy.  It's not uncommon for a parent to report to us that their child told them they haven't been receiving their special education and related services.   It usually happens something like this:  "So, Tommy, have you been enjoying working with Mrs. Jones in the speech room?"  "Oh, I haven't seen Mrs. Jones since Halloween.  I think she might have had a baby or something.  I'm not going to the speech room anymore."  Yikes!

Even worse, for many children who, due to the nature and severity of their disability, can't tell their parents what is happening in school, parents suspect services aren't being delivered, but have a hard time knowing for certain.

So we were not surprised to learn that a financial audit, which was part of an on-going probe of Darien, Connecticut's special education department, revealed fraudulent practices that are downright sickening. The Darien special education department received over $200,000 for special education services that never happened! You can read the details here.  Before the audit of their special education books, a deep probe into the school district's overall special education practices and procedures revealed serious violations of the IDEA (Individuals with Disabilities Education Act).  Now we have learned that, not only was Darien removing necessary services from children's IEPs, but they were charging the State for those services anyway!

While your school district may not be puffing their special education books to receive extra funds (and we certainly hope they aren't!), you may believe or suspect your child isn't receiving their prescribed services.

So how do you prove it?

In our experience, questioning the integrity of teachers and school staff can lead to serious ill-feelings.  No parent really ever wants bad blood with the very people who are working with their child.  But let's face it, this is serious.  You're entitled to know if your child is actually receiving what is in their special education plan, and your child is entitled to be receiving those services.

So how do you ask for documentation that doesn't put everyone on the defensive and, from a practical standpoint, get you the information you need to help your child?  And there it is, "the information that you need to help your child."  As parents, we want to know what our child is working on so we can reinforce or generalize the skill at home or in the community, depending on the skill.  We also want to know whether the services the school is recommending in the IEP are working!  Here are a few easy ways to get the information you need:

  1. Ask that a home/school communication log be developed.   This can take many forms:  email, notebook, or a specially-designed form that can capture what was worked on at school.  If your child is missing services, it should be fairly easy to notice if that provider isn't filling out their portion.
  1. Ask for regular "team meetings" that include you as a parent.  These can be monthly, bi monthly, or quarterly.  We suggest that you have those meetings put into the IEP as required to happen.  When you meet with the team, you should be able to have a better sense of whether services are being delivered regularly.
  1. You can ask to observe a particular session in school.  This will require advance scheduling and notice, but this is a good way to get a sense of what is happening.
  1. Ask your child.  We realize there are some children who are non-verbal, but if your child can communicate, and is a fairly reliable reporter, this is often the best way to find out if a service is happening.

As with all things related to special education disagreements, make sure you are documenting any services you feel have been missed.  If it's happening a lot, put an email or letter together to the district asking why your child is missing these services.  If it becomes an issue, your district may have to make up those sessions at a later date through what is called "compensatory education," so it's important to keep records.

Lastly, we want to say that we know that there are wonderfully dedicated teachers and school staff where these suspicions do not apply.  We also know that educators have the same life challenges we all have; they get sick, they have family members who pass away, etc.  But we need to take a page from the Darien, Connecticut probe, and not assume that everything is as it seems.

 

Safety First
avontepic

When I learned the news about Avonte Oquendo's disappearance, I reacted as a mother of a teenage son who has an autism spectrum disorder, intellectual disability and is non-verbal.  I reacted as a mother whose own child had gone missing on the way home from school.  I also reacted as a special education advocate who has worked with hundreds of families who have children who are similar to Avonte and mine.  When you have a child who needs supervision to be safe, Avonte's story is a parent's worst nightmare.

I shudder for Avonte's parents and wonder, "how could this happen?"  The fact is it shouldn't happen.  It is unconscionable and unjustifiable.  I've followed the news about Avonte and I hope changes will come as result of this tragic, tragic course of events.

It took a frightening event with my son for me to realize that I could have his IEP (Individualized Education Program) reflect protocols to address safety issues.   In my son's case, his van was a half hour late coming home from school, which never happened.  I know my situation can't compare to what the Oquendo family has gone through, but it was the event for me that made me realize I must put safety first in my son's IEP.  So on that day, when the van was 10 minutes late I called my son's aide on his cell phone.  His aide was a wonderful grandfather who cared for my son like his own. He informed me that the driver deliberately took off without him and he was furious about it. I immediately called the police to see if there was traffic on the route they traveled. There was not. I alerted the police about the situation. Twenty more painful, panic-filled minutes passed. When my son finally arrived home, I was furious with the driver.  I asked him why he left the bus yard without my son's aide.  He said, "I didn't know he had to come with me."   I knew he was lying as he had driven with my son and his aide for the entire previous week.  He had deliberately left without him, which I imagined was to get my son alone.  Needless to say he was fired.  So many things had gone wrong that should have never been allowed to happen.

All I knew was that my son was alone with this man for a half hour which could not be accounted for.  My son could not tell me what happened.  What an awful feeling it was when I had to check my son's private areas.  To this day, I will never know if anything happened.  But I'll tell you what, I was a mother on fire!

From that day forward, his IEP included detailed instructions for the transportation company and his school.  The driver is to never leave the bus yard without the aide, the driver and aide are assigned to my son's route and follow the protocol, and there is a plan in place for when either one of them is sick and can't drive that day.  My son's school has a protocol which details that he should never be released from school if the driver shows up alone.  This safety plan is a part of my son's IEP.

I do also worry about wandering off and elopement at school.  Thankfully, a safety plan for wandering isn't something I had to incorporate into his IEP as his school follows strict, school-wide procedures.

Wandering and elopement is a common challenge for many children and adults who have autism and other developmental disabilities.  When your child is at risk for elopement at school, I want you to know that you can meet with your IEP team and request a written plan or protocols to address behavior that puts your child at risk.  You can request ongoing staff training on the written protocols.  I've been involved with many IEP teams over the years in developing and incorporating safety plans into the IEP.  Also, ask to see your school’s written, school-wide protocols for elopement.

Whatever puts your child at risk, please, please know that you can address it through your child's IEP.

It’s Happening — Budget Cuts are Affecting Students in Special Education.
November 18, 2013
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budget cuts

According to Disability Scoop, the National Center for Learning Disabilities recently surveyed more than 1,000 parents of students with disabilities across the country.  More than half said they have seen differences in their child’s special education services because of budget cuts in the last year. Class sizes have increased and services have decreased for many students.

“The level of services is changing not based on the nature of the services the child needs but based on budget availability,” said Lindsay Jones, the organization’s director of public policy and advocacy. “That is directly contrary to the law.”

In 2013, Federal special education funding was cut $579 million under sequestration. Further cuts are expected next year unless lawmakers act to avert them.

Learn more about the results of this survey and tell Congress to stop cutting education funding right here.

 

Extended School Year Services – To Serve or Not to Serve?

Summertime is fraught with misunderstanding when it comes to special education services.  The question is to serve or not to serve over the summer months?

Extending the IEP, or parts of the IEP, over the summer is not the rule, rather the exception to the rule.  However, in my experience, the proper procedures are rarely followed when considering Extended School Year (ESY) and, minimally, every team should consider whether ESY is necessary to provide a Free Appropriate Public Education (FAPE).

The principle that each student with a disability is entitled to an individually designed education was established in a series of court cases that led to the adaptation, in 1975, of the federal law now known as IDEA. A subsequent series of court cases and policy clarifications established that providing special education services beyond the usual school year is a part of the guarantee of the free, appropriate public education (FAPE) clause of the IDEA. These decisions have prescribed the basic requirements for ESY program eligibility and defined some related ESY elements, such as the length and type of the ESY program, and funding matters, including transportation.

In addition, the Office for Civil Rights (OCR) of the Department of Education ruled that even students regarded as disabled under Section 504 of the 1973 Rehabilitation Act, and not eligible for services under IDEA, have to be considered for ESY services. A letter of finding, issued by OCR regarding the Baltimore city public schools, states that "Section 504 regulations require that the individual needs of every child be examined, considered, and met. While 180 days of school may be adequate for some handicapped students, it may not be adequate for others...".

Eligibility for ESY services at no cost to parents is determined by the child’s Individual Education Program (IEP) team. This IEP team must consider, as appropriate, whether a child needs extended school year services in order to receive a free appropriate public education (FAPE). Clearly, this determination must be done on an individual basis.

The program of ESY as part of the IEP is not simply an extension of time in school, nor is it required for every student. Nevertheless, it is the function of the school district to evaluate the need for ESY services correctly and fairly. This issue is made more difficult by the fact that there are no comprehensive eligibility criteria in the law, and only general standards have been mentioned by the courts for including ESY in the student’s program.
What follows is a compilation of ESY standards discussed by various federal courts throughout the country (At the time of this writing, no ESY case has been decided by the Court of Appeals for the 7th Circuit which includes Wisconsin). These ESY standards could become part of the school district’s comprehensive staff training on this issue.

STANDARD #1: NO SINGLE CRITERION

The first standard that has been mentioned by many federal courts is that no single criterion can be used as a sole qualifying factor. For example, the Tenth Circuit Court of Appeals (Johnson v. Independent School District No. 4) concluded that a single standard could not be used as the sole criterion for the provision of ESY services.Also, in a recent case, Reusch V. Fountain (1994), cited a Maryland school district for "...the use of a standard for ESY eligibility which was incorrectly limited to a regression / recoupment analysis and did not consider other factors which were relevant in the ESY determination." The decision said that this standard may be used, but only as one part of a multi-faceted inquiry.

STANDARD #2: REGRESSION / RECOUPMENT

Judicial decisions have outlined various areas of considerations for determining eligibility, starting with the concept of regression / recoupment first established in Battle v. Commonwealth of Pennsylvania (1980).Regression refers to a decline in knowledge and skills that can result from an interruption in education; recoupment is the amount of time it takes to regain the prior level of functioning. The issue is whether the benefits derived by the child during the regular school year will be significantly jeopardized if he is not provided an educational program during the summer months.This criterion for eligibility, although it is a primary consideration to be used by IEP teams, is still only one of several criteria to be considered in making ESY decisions. It covers both instructional and related services for the prevention (or reduction) of academic and physical regression.

For some students, the skill regression during the summer months, coupled with their limited recoupment ability, is such that their basic educational needs cannot be met in a traditional 180 day program.

As one example or reference point, the IEP committee could determine that more than 45 school days (9 weeks) will be required to return the student to the former level of achievement because of the interruption of summer vacation.

The determination of ESY eligibility must be based on empirical and qualitative data collected by the IEP committee for individual skills. The IEP committee must take into account not only retrospective data, but also predictive data on recoupment abilities (will the recoupment take 9 weeks or more?). The key question before the IEP committee is whether the child needs services in the summer in order to secure the minimum benefits of a free and appropriate public education in the fall.

STANDARD #3: EMERGING SKILLS

A more recent case, Reusch v. Fountain (1994), noted that "... ‘emerging skills’ and ‘breakthrough opportunities’ (as when a child is on the brink of learning to read) - can and should be incorporated into the eligibility analysis." The child is in a critical stage of developing a skill which has great potential for increasing his/her self-sufficiency. If such a skill is not completely acquired and mastered, it is likely that the current level of acquisition will be lost due to the interruption of summer vacation.

STANDARD #4: NATURE AND SEVERITY OF THE CHILD’S DISABILITY

Another criterion usually included in the eligibility determination is the nature and severity of the child’s disability. Although no disability category may be excluded from consideration for ESY, the nature and severity is a key factor in the ESY eligibility determination. Children with severe disabilities are more likely to be involved in ESY programs, since their regression may be more significant, and their recoupment abilities may extend over longer time.

STANDARD # 5: NOTICE AND TIMING

Another point made by the court in the Reusch v. Fountain case was the importance of making a decision about ESY early enough in the year to allow the parents adequate time to exercise their right to administrative review or appeal in a timely fashion.That decision of the U.S. District Court in Maryland prescribed very specific requirements relative to ESY procedures. The court found that the explanation about ESY contained a brochure distributed to all students was not sufficient and ordered additional explanation to be provided to parents.The court also ordered that the student’s eligibility for ESY be considered at each annual review meeting, and that parents sign a form acknowledging their receipt of this information. The district must document the discussion and the decision reached after consideration of ESY eligibility at each annual review meeting.

STANDARD #6: CONTENT AND DURATION OF ESY SERVICES

Some ESY services may extend over the summer, while others provide only for periodic contact with professionals, or assistance to parents in providing instruction or reinforcement to their children.OSEP issued a policy letter stating that limiting the duration of summer programs for students with disabilities "...would violate the basic requirement that programs be designed to meet the individual needs of each child" (Letter to Baugh, 211 IDELR 481, 1987).Requirements for specifying the content and duration of ESY programs were also strongly stated in the Reusch v. Fountain decision. The court mandated "...individualized determinations of the number of weeks, days per week, and hours per day that each student receiving ESY should be provided".

Also, the content of the child’s ESY program must be determined on an individual basis. In response to an inquiry: "May LEAs refuse to provide related services, including transportation and therapy services, to students who are in need of and receiving such services during the regular school year?" OSEP responded: "No".

STANDARD #7: ABILITY OF PARENTS TO PROVIDE AN EDUCATIONAL STRUCTURE AT HOME

A number of federal courts (Johnson v. Bixby, 10th federal circuit court, 1990; Battle v. Pennsylvania, 3rd federal circuit court, 1980) mentioned that one of the standards that needs to be considered in determining need for ESY is the ability of the parents to provide an educational structure at home. If parents can provide the proper structure at home, the regression and recoupment issue will not be as severe, thus ESY services through the school staff may not be necessary.
Interventions during the summer may be provided by other than school staff. For example, parents may be able to provide structured opportunities for their children to practice specific skills. Perhaps the student’s utilization of a computer software program will be sufficient to maintain a critical skill. Perhaps accessing an existing community resource, such as a summer recreation program, will meet the need. If so, the provision of such parental services will not necessitate an ESY program. The IEP committee may recommend ESY services after concluding that (a) parents are not able or willing to provide home structured opportunities, or (b) the involvement of EEN staff during the summer is necessary to offset the impact of regression and recoupment.

EXTENDED SCHOOL YEAR (ESY) IS:
  • Based only on the individual student’s specific critical skills that are critical to his/her overall educational progress as determined by the IEP committee.
  • Designed to maintain student mastery of critical skills and objectives represented on the IEP and achieved during the regular school year.
    Designed to maintain a reasonable readiness to begin the next year.
  • Based on multi-criteria and not solely on regression.
  • Considered as a strategy for minimizing the regression of skill, thus shortening the time needed to gain back the same level of skill proficiency that existed at the end of the school year.
  • Deliverable in a variety of environments and structures such as:
    (a) Home with the parent teaching, and staff consulting
    (b) School based
    (c) School based with community activities
    (d) Related services alone or in tandem with the above.
EXTENDED SCHOOL YEAR (ESY) IS NOT:
  • It is not a mandated 12-months service for all students with disabilities.
  • It is not required for the convenience of the school or parents and, therefore, cannot serve as a day care or respite care service.
  • It is not required or intended to maximize educational opportunities for any student with disabilities.
  • It is not necessary to continue instruction on all of the previous year’s IEP goals during the ESY period; rather, the focus should be on those specific, critical skills where regression, due to an extended vacation period, may occur.
  • It is not to be considered to help students with disabilities advance in relation to their peers.
  • It is not for those students with disabilities who exhibit regression, which is solely related to medical problems resulting in degeneration, or transitional life situations such as divorce or death of a family member. This type of regression is not due to the interruption of summer vacation.
  • It is not required solely when a child fails to achieve IEP goals and objectives during the school year.
  • It is not to provide a child with education beyond that is prescribed in his/her IEP goals and objectives.

 

Our thanks to Nissan Bar-Lev and the staff of Cooperative Educational Service Agency #7 for permission to use this article. URL: http://www.cesa7.k12.wi.us/sped/issues-esy/esymemo.html

The Tip of the Iceberg

Published on June 16, 2013 by Jennifer Laviano

It’s been a fascinating several months here in Connecticut, as we have watched events unfold in the special education community in Darien. The coverage has been wide locally, but if you don’t want to read it all, here’s the upshot: the Special Education Director in this small, affluent town in lower Fairfield County (itself small and largely affluent), new to the position in the 2012-2013 school year, distributed “training materials” to educators in the community via memos and, yes, a Power Point presentation. So what’s wrong with that? Well, they included numerous misrepresentations on what an educator and a district’s obligations are under the law, and blatantly instructed the educators that they were not to disagree with administration during IEP meetings. Under the guise of asking educators to present a “united front” during IEP meetings, the Director effectively thwarted the legally-required open exchange of ideas which is supposed to be the heart of an IEP meeting.

“We must present a united front in IEP meetings” is code for “don’t disagree with the administration or make recommendations which might cost us money.”

Thanks to the courage of several parents who were rightly outraged by this directive (among the many, MANY other violations of the federal special education law included in these documents and countless examples of individual violations as well as systemic), and the steadfast representation of their rights by Mystic Attorney Andrew Feinstein, families joined forces and filed a Complaint with the Connecticut State Department of Education. The Complaint ultimately led to an investigation, which culminated last week in an open forum for parents to tell the State about their experiences in Darien. This EXCELLENT Editorial by the Darien Times, which has been remarkably committed to getting the truth of this situation despite some fairly strong local opposition (some of which has been truly vile via commentary online) summarizes how that meeting went.

When I read the Darien Times Editorial, I was stunned. I wish I could say it was because I was shocked by the stories the parents shared. That wasn’t it. What had stricken me was that the Editors got it! They GOT that this isn’t about a few disgruntled families. This is the “tip of an iceberg.” I particularly appreciated their reference to the disparity between Darien’s “internal charge” of providing a top notch education for its students, while defending its failures for students with disabilities as reasonable under the IDEA’s “appropriate” standard. For those of you who’ve been following my blog since the beginning, you know I’ve been disgusted by that hypocrisy in public schools throughout the State (and country) for years!

The Editorial suggests that the families who’ve spoken out in Darien represent a “tip of an iceberg” in Darien. But I’ve got news for them.  It’s not just Darien.

The scary thing to most of us who have been following this is that this type of administrative pressure isn’t uncommon; we know it happens all of the time, all over the country.  Teachers approach me after presentations I give, and on a few occasions have even followed me down a hallway after an IEP meeting to whisper “thank you” to me for getting the district to approve the support they needed, but couldn’t get without the pressure of the parents hiring a lawyer. Teachers email me or post comments to this blog all of the time, saying that they are conflicted because a student in their charge needs more than the school district will allow them to recommend, and they feel horrible about it.  Sometimes they’re subtly being told “you know who pays your check.”  Other times, it’s less subtle, and blatantly discriminatory.  I usually remind them that they, too, have rights, and they include not being retaliated against for speaking up about what the IDEA requires for a student and whether they are receiving it.

Even if I didn’t have the direct evidence of how some educators feel the administrative pressure not to refer, evaluate, identify, or properly service students with disabilities under the IDEA, I see it on their faces.  In hundreds and hundreds of meetings where I am expressing the Parents’ concerns about the inappropriate program their child is receiving, and some of the teachers can’t meet my eye, or the parents’.  Or I get the nodded head, or a wink, or something is said by an educator in a way that tells me “please ask me this question right now because the answer to it will get the kid what he needs but I just can’t volunteer it!”

The thing that’s unusual about what happened in Darien is that the practice to violate the IDEA was written down, and parents got their hands on the proof.

So, perhaps what happened in Darien is what needs to happen everywhere.  Parents need to organize, and tell their stories.  It has to be made clear to the good-hearted people of so many communities, the people like the Editors at the Darien Times, that this isn’t the exception; in many towns, it’s often the rule.  It’s time that administrators who look at special education as an expensive nuisance, rather than as an essential Civil Right designed to ensure that students with disabilities become adults with skills, are held accountable.

The Gift of Knowledge

It's been a couple of years now that I've been blogging about special education legal issues.  Unfortunately, the realities of juggling a busy law practice, a family, and other professional commitments don't allow me to do it enough, and I continue to yearn to bring information about parents' rights to a wider audience.

When I started this blog, I had been practicing special education law for well over a decade.  I thought I understood that parents of kids with disabilities were often unaware of their rights under the IDEA.

I didn't have the first clue.

What I failed to account for was that my experiences and impressions as a special education attorney were, by definition, limited to those families who have the ability to contact a lawyer!  I'm not just talking about financial means, although that is a HUGE part of it.  I am talking about parents who are willing and able to question authority.

Suddenly I started getting tons of emails, phone calls, questions and comments from my blog readers across the country about their experiences.  These parents weren't trying to hire a lawyer.

These parents wanted information.

Many were just beginning to understand that their child wasn't getting what they needed from their school districts, and that maybe they had a right to do something about it.  Many more had become informed about their rights, but felt completely powerless to enforce them.

As the scope of the problem became more clear to me, I started working in earnest with a friend and colleague, Julie Swanson, who is a non-attorney advocate here in Connecticut.  Julie and I met 15 years ago when my late father represented her son in one of the first cases involving the appropriateness of autism programming in our State.  Since that case was (successfully) resolved all those years ago, Julie became more and more passionate about advocating for children's rights under the IDEA.

One night, over dinner, Julie planted an idea.  She was convinced that the reason so many children with disabilities receive sub-standard programs is not just that parents are largely uninformed about their rights, but that there is no easy, mainstream opportunity for them to learn about them.  She was pretty much preaching to the choir at that point, but over time we started coming up with various models.

How could we "spread the word" about special education advocacy to parents?

We decided that the answer was to simplify the special education process as much as possible.  As our ideas started to gel, we had the fortune of meeting up with a wonderful group of producers of educational videos who believed in our mission.  It has taken nearly two years to develop, but I am proud to announce the birth of www.YourSpecialEducationRights.com.

Our concept is simple.

Julie and I have filmed dozens and dozens of short, easy to understand video clips on numerous topics relevant to special education rights.  Parents (or grandparents, or students for that matter) subscribe to the website at a reasonable annual rate.  They can watch the video segments whenever they want, as often as they want, at any time of the day.  Watch when the kids are asleep or while getting ready for an IEP meeting.  We like to think of it as a cross between a webinar and a talk show!  New series are added continuously.

As the video library grows, so too grows knowledge, and a feeling of empowerment.

We have several series on IDEA basics and terminology.  We have a series called "Crisis Corner" for urgent matters.  We have a series focusing on the bullying of kids with disabilities.  We have a multi-part series called "My Child Is In a Psychiatric Hospital.  Now What?" with step-by-step suggestions depending on whether or not your child has an IEP, 504 Plan, or is not yet identified for services.  We have "Jen and Julie's Booklist," where we share what's in our advoacy libraries and why.

Perhaps my favorite series is called "They Say, You Say," where we take comments that parents often hear from school districts, and provide suggested responses.

Already filmed and in the editing room is a series on Transition to adulthood; another series is on issues related to infants and toddlers; and yet another on home-schooling of kids with special education needs.  We are working on a series for gifted and talented students with disabilities, as we know these "twice exceptional" students' needs are often overlooked by our public schools.  Future series on independent evaluations, and how to understand testing in general, are in the works.

The list of possibilities is really endless!

It is Julie and my greatest wish that, by making the laws surrounding special education more understandable --by simplifying them--parents will learn how to EFFECTIVELY advocate for their children.

Check out the site, watch the previews, and hopefully, join our community.  Just imagine what a difference can be made.  What if MOST parents knew what to do and say in meetings with their child's special education team?  What if MOST parents understood how to get their children appropriate services and accommodations?  What if, instead of a few parents understanding the special education system, MOST did?

What if?

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