We are entrenched in preparation for a due process hearing this week, so I thought a quick overview of one of the "rules" for a hearing would be appropriate as a Fast Fact Friday.
The IDEA's "5 day rule" for disclosure of evaluations states that:
"(A) Not less than 5 business days prior to a hearing conducted pursuant to paragraph (1), each party shall disclose to all other parties all evaluations completed by that date, and recommendations based on the offering party's evaluations, that the party intends to use at the hearing.
(B) A hearing officer may bar any party that fails to comply with subparagraph (A) from introducing the relevant evaluation or recommendation at the hearing without the consent of the other party."
The requirement to disclose evaluations and recommendations is mandatory for both parties. For parents and their representatives, this means that any independent educational evaluations, private assessments, expert observations / reports, etc that you have obtained and will be relying upon in the hearing must be provided to the school district and/or their legal representatives 5 business days prior to the start of the hearing. This will most likely require advanced planning and communication with any experts / evaluators to make sure that any pending evaluation reports will be available to you in enough time to meet this requirement.
The remedy / punishment for failing to meet this requirement is discretionary for the hearing officer. The hearing officer is permitted by statute to bar introduction of the "relevant evaluation or recommendation." This does not mean that the hearing officer must bar the evidence. Note that the statute allows for barring not only the evaluation (i.e. the report) but also the recommendation, which could be interpreted to mean that the hearing officer can bar testimony from that expert about their recommendations for the student's program (i.e. their expert opinion).
Showing posts with label expert witness. Show all posts
Showing posts with label expert witness. Show all posts
Friday, September 4, 2009
Thursday, July 16, 2009
Private Placements Part 3: Locate an Appropriate Unilateral Placement
In a unilateral placement case, when parents are seeking reimbursement for a private school placement, parents must demonstrate that the private placement the child is attending is "appropriate" for that child. This presents what the courts have deemed a "stringent but not impossible" task. Parents meet this burden by demonstrating that the private placement meets the child's needs and provides the child with educational benefit. Courts will look at whether the placement reasonably serves the child's individual needs.
This analysis is obviously fact-sensitive and varies in every single case. The "appropriateness" of the private placement is something parents need to keep in mind at every stage of this process, from deciding to disagree with the district's proposed placement, to searching for an appropriate alternative, to deciding if/when to seek reimbursement.
Things to Consider:
There are many things parents can consider when deciding on a placement. Its helpful to start out with a list of your child's unique needs as a starting place so that you can keep in mind how the different components of various options may (or may not) meet those needs. Then make a list of the things that would be required to be in a program for it to be appropriate for the child. Utilize your experts and evaluators during this stage if possible.
Examples of factors to think about include:
* Class size: does your child need a small class size with fewer peers? higher teacher:student ratio?
* Campus size / setting: does your child get overwhelmed in a large campus setting? are there safety concerns that may arise in larger settings?
* Specialized Instructional Methods: what specialized instructional programs does your child need? for example, does your child need specialized instruction for reading and is it available at this placement?
* Behavioral Components: what type of behavioral program does your child require? will class-wide behavior modification work? does your child require staff with certain training or experience to address his/her behavior?
* Social Skills Components: does your child need social skills instruction as part of a classroom curriculum component? in-the-moment training and facilitation throughout the day? does your child need access to appropriate social-models in terms of peers?
* Training of Staff: does your child require access to staff with specific training or experience working with kids with particular needs / disabilities?
Thinking about topics like these will help parents to ensure that if they are in the situation of having to choose a private alternative for placement, that placement is one that meets the child's needs so as to be considered "appropriate" when they are later seeking reimbursement.
Remember that the appropriateness of the private placement is only one factor, and only applies if the District's proposed placement is found to be inappropriate. While making a list of your child's unique needs and considering these factors when analyzing placement offers and options naturally will lead to some comparison between the District's placement and the private one, remember that comparing them is not the analysis the court will use. It is not enough simply to show that the private placement is "better," because ultimately you must show that the District's placement was not appropriate.
This analysis is obviously fact-sensitive and varies in every single case. The "appropriateness" of the private placement is something parents need to keep in mind at every stage of this process, from deciding to disagree with the district's proposed placement, to searching for an appropriate alternative, to deciding if/when to seek reimbursement.
Things to Consider:
There are many things parents can consider when deciding on a placement. Its helpful to start out with a list of your child's unique needs as a starting place so that you can keep in mind how the different components of various options may (or may not) meet those needs. Then make a list of the things that would be required to be in a program for it to be appropriate for the child. Utilize your experts and evaluators during this stage if possible.
Examples of factors to think about include:
* Class size: does your child need a small class size with fewer peers? higher teacher:student ratio?
* Campus size / setting: does your child get overwhelmed in a large campus setting? are there safety concerns that may arise in larger settings?
* Specialized Instructional Methods: what specialized instructional programs does your child need? for example, does your child need specialized instruction for reading and is it available at this placement?
* Behavioral Components: what type of behavioral program does your child require? will class-wide behavior modification work? does your child require staff with certain training or experience to address his/her behavior?
* Social Skills Components: does your child need social skills instruction as part of a classroom curriculum component? in-the-moment training and facilitation throughout the day? does your child need access to appropriate social-models in terms of peers?
* Training of Staff: does your child require access to staff with specific training or experience working with kids with particular needs / disabilities?
Thinking about topics like these will help parents to ensure that if they are in the situation of having to choose a private alternative for placement, that placement is one that meets the child's needs so as to be considered "appropriate" when they are later seeking reimbursement.
Remember that the appropriateness of the private placement is only one factor, and only applies if the District's proposed placement is found to be inappropriate. While making a list of your child's unique needs and considering these factors when analyzing placement offers and options naturally will lead to some comparison between the District's placement and the private one, remember that comparing them is not the analysis the court will use. It is not enough simply to show that the private placement is "better," because ultimately you must show that the District's placement was not appropriate.
Wednesday, July 15, 2009
Private Placements Part 2: When an alternative may be necessary
Unilateral placement cases are highly fact-specific and each case is unique. It is advisable that a parent seeking to place their child unilaterally and obtain reimbursement for the costs of that placement obtain assistance from a special education attorney or highly experienced advocate from the initial stages of this process. An attorney or advocate can assist the parent with following all of the necessary steps in the process along the way.
The previous post in this series talks about when and how a parent gives notice to the school district of their decision to place their child unilaterally at a private school. Prior to reaching the point of providing notice, parents must go through the process of determining that a private placement is necessary for their child. The case law recognizes that such a determination is made at the parents' financial risk; that is, there is no guarantee that the parent would ultimately be reimbursed. Therefore, the determination to take such a step should only be made when it is necessary, and must be done cautiously. This second part of the "private placement" blog series discusses factors and situations that may give rise to such a determination.
Parents have attempted to work with the District to find another suitable alternative
Generally, parents should not rush into a unilateral, private placement without first trying to work within the District's system to locate an appropriate alternative. This doesn't mean that every child has to necessarily "try" the District's proposed classroom before the private placement occurs. But it does mean that parents should work cooperatively with the District, attend and participate in IEP meetings, voice their concerns about placements proposed by the District, go and observe District programs when possible, and provide the District with input from private experts or independent evaluators. If the District has not been given the "opportunity" to provide the student with an appropriate program, ultimately it is likely that a judge will find that reimbursement is not appropriate.
Private placement should be considered, therefore, in situations where the parent has actively and cooperatively participated in IEPs and placement discussions and has made efforts to work with the District to secure an approrpiate publicly funded placement. Many parents only turn to a unilateral placement after visiting / observing all of the recommended placements by the District, having multiple meetings with the District about placement, voicing their concerns, etc, and then determining that there is no appropriate option within the District's alternatives and private placement is therefore necessary. To read an example of such a case, see Board of Education of the City School District of the City of New York, 39 IDELR 56 (SEA NY 2002).
The District delayed completion of or implementation of an appropriate IEP, thereby denying educational benefit
In some circumstances, the district's unjustifiable delay in completing or implementing an IEP may cause such a loss of educational benefit to the student as to support the need for a private placement and reimbursment to parents. Consider whether the district has failed to complete an IEP at all, leaving it "in limbo" such that the student has no program in place. If this has happened, parents may be faced with a choice between leaving their child with no specialized program, or unilaterally placing the child in an appropriate program and seeking reimbursement. If the issue is not development of the IEP, but implementation, it is important to look at whether the component that has not been implemented was essential to the IEP, and the lack of that component meant that the program itself was no longer appropriate. Again, parents are then faced with a difficult choice between allowing their child to continue in the inappropriate program or unilaterally placing him/her. The cases on this issue are very fact specific, so it should not be simply assumed that any time the district fails to implement the IEP, unilateral placement will be justified. Again, it would be a good idea to have an expert opinion regarding the impact of the delay or non-implementation. For examples of such cases, read Board of Educ. of Chatham Cent. Sch. Dist., 39 IDELR 144 (SEA NY 2003 and Ms. M ex rel K.M. v. Portland Sch. Comm., 39 IDELR 33 (D. Me. 2003).
Student has made no progress in the District's program
When a student has already been in a specific program offered and provided by the school district, and that program has proved to be inappropriate or ineffective, it may be time for parents to consider an alternative. This scenario necessitates looking objectively at the data and information about the child to adequately determine if there has been progress or not, and therefore usually requires an expert's opinion. If the student has been in the program / methodology, ask yourself if he/she has made little to no progress in the specific area being addressed. Also, it is important to look at what the District knew or should have been aware of with regards to the lack of progress. Is this a situation where ongoing progress reports, IEP documents and other data were demonstrating for a significant amount of time that no progress was being made, yet the district ignored such data and continued to offer the same kind of program? Or is it a situation where there was no clear data on an ongoing basis, so maybe no one was aware of the lack of progress until the child was reevaluated much later? An alternative placement may be more appropriate in a situation where not only was the district's program ineffective and inappropriate, but the district also continued to offer said program despite indication that it wasn't working. For an example of such a case, read Draper v. Atlanta Indep. Sch. System, 108 LRP 13764 (11th Circuit 2008).
In some cases, there may be data and evidence that not only establishes lack of progress, but actual regression in some areas. If the child is regressing, rather than progressing, under the district's program, then parents may need to look for an alternative. In these situations, expert opinion would be critical to establish regression. Also, you should consider factors such as whether the district knew the child was regressing, how they responded, and whether they are now offering something different. Fo an example, read J.P. v. County Sch. Bd. of Hanover County, Va 46 IDELR 133 (E.D. Va. 2006).
District has offered a prospective placement that is not appropriate
Commonly, parents consider unilateral placements because of a dispute about what the district has offered prospectively. When the district's IEP and placement offer will not meet the child's needs or enable him/her to obtain educational benefit, the parents may need to consider rejecting that offer and unilaterally placing the child. Again, this is a very fact sensitive scenario, and the parents must consider the IEP offer carefully. An expert who can not only evaluate the child's unique needs, but also observe the proposed placement will most likely be necessary. It is important to look at what the child's identified unique needs are and evaluate the proposed IEP on whether or not it will meet those needs. Consider if there is a specific type of setting, for instance, that the child requires, or whether the child needs a therapuetic component to address his/her social / emotional needs. The totality of the factors will be considered in these situations to determine if the district offered FAPE, and ultimately if the parent is entitled to reimbursement for the unilateral placement. For examples of such cases, read Lamoine Sch. Comm. v. Ms. Z. ex rel N.S. 42 IDELR 172 (D. Me. 2005) and Board of Educ. of the City Sch. Dist. for the City of N.Y. 35 IDELR 28 (SEA NY 2001).
Remember that whatever situation arises that causes parents to consider a unilateral placement, parents need to be careful and consider all of the district's options before making such a decision. Consult with experts, providers and persons who know your child. It may also be necessary to consult with a special education advocate or attorney.
The next blog in this series will discuss another issue in private placement cases, which is consideration of whether the unilateral, private placement is appropriate.
The previous post in this series talks about when and how a parent gives notice to the school district of their decision to place their child unilaterally at a private school. Prior to reaching the point of providing notice, parents must go through the process of determining that a private placement is necessary for their child. The case law recognizes that such a determination is made at the parents' financial risk; that is, there is no guarantee that the parent would ultimately be reimbursed. Therefore, the determination to take such a step should only be made when it is necessary, and must be done cautiously. This second part of the "private placement" blog series discusses factors and situations that may give rise to such a determination.
Parents have attempted to work with the District to find another suitable alternative
Generally, parents should not rush into a unilateral, private placement without first trying to work within the District's system to locate an appropriate alternative. This doesn't mean that every child has to necessarily "try" the District's proposed classroom before the private placement occurs. But it does mean that parents should work cooperatively with the District, attend and participate in IEP meetings, voice their concerns about placements proposed by the District, go and observe District programs when possible, and provide the District with input from private experts or independent evaluators. If the District has not been given the "opportunity" to provide the student with an appropriate program, ultimately it is likely that a judge will find that reimbursement is not appropriate.
Private placement should be considered, therefore, in situations where the parent has actively and cooperatively participated in IEPs and placement discussions and has made efforts to work with the District to secure an approrpiate publicly funded placement. Many parents only turn to a unilateral placement after visiting / observing all of the recommended placements by the District, having multiple meetings with the District about placement, voicing their concerns, etc, and then determining that there is no appropriate option within the District's alternatives and private placement is therefore necessary. To read an example of such a case, see Board of Education of the City School District of the City of New York, 39 IDELR 56 (SEA NY 2002).
The District delayed completion of or implementation of an appropriate IEP, thereby denying educational benefit
In some circumstances, the district's unjustifiable delay in completing or implementing an IEP may cause such a loss of educational benefit to the student as to support the need for a private placement and reimbursment to parents. Consider whether the district has failed to complete an IEP at all, leaving it "in limbo" such that the student has no program in place. If this has happened, parents may be faced with a choice between leaving their child with no specialized program, or unilaterally placing the child in an appropriate program and seeking reimbursement. If the issue is not development of the IEP, but implementation, it is important to look at whether the component that has not been implemented was essential to the IEP, and the lack of that component meant that the program itself was no longer appropriate. Again, parents are then faced with a difficult choice between allowing their child to continue in the inappropriate program or unilaterally placing him/her. The cases on this issue are very fact specific, so it should not be simply assumed that any time the district fails to implement the IEP, unilateral placement will be justified. Again, it would be a good idea to have an expert opinion regarding the impact of the delay or non-implementation. For examples of such cases, read Board of Educ. of Chatham Cent. Sch. Dist., 39 IDELR 144 (SEA NY 2003 and Ms. M ex rel K.M. v. Portland Sch. Comm., 39 IDELR 33 (D. Me. 2003).
Student has made no progress in the District's program
When a student has already been in a specific program offered and provided by the school district, and that program has proved to be inappropriate or ineffective, it may be time for parents to consider an alternative. This scenario necessitates looking objectively at the data and information about the child to adequately determine if there has been progress or not, and therefore usually requires an expert's opinion. If the student has been in the program / methodology, ask yourself if he/she has made little to no progress in the specific area being addressed. Also, it is important to look at what the District knew or should have been aware of with regards to the lack of progress. Is this a situation where ongoing progress reports, IEP documents and other data were demonstrating for a significant amount of time that no progress was being made, yet the district ignored such data and continued to offer the same kind of program? Or is it a situation where there was no clear data on an ongoing basis, so maybe no one was aware of the lack of progress until the child was reevaluated much later? An alternative placement may be more appropriate in a situation where not only was the district's program ineffective and inappropriate, but the district also continued to offer said program despite indication that it wasn't working. For an example of such a case, read Draper v. Atlanta Indep. Sch. System, 108 LRP 13764 (11th Circuit 2008).
In some cases, there may be data and evidence that not only establishes lack of progress, but actual regression in some areas. If the child is regressing, rather than progressing, under the district's program, then parents may need to look for an alternative. In these situations, expert opinion would be critical to establish regression. Also, you should consider factors such as whether the district knew the child was regressing, how they responded, and whether they are now offering something different. Fo an example, read J.P. v. County Sch. Bd. of Hanover County, Va 46 IDELR 133 (E.D. Va. 2006).
District has offered a prospective placement that is not appropriate
Commonly, parents consider unilateral placements because of a dispute about what the district has offered prospectively. When the district's IEP and placement offer will not meet the child's needs or enable him/her to obtain educational benefit, the parents may need to consider rejecting that offer and unilaterally placing the child. Again, this is a very fact sensitive scenario, and the parents must consider the IEP offer carefully. An expert who can not only evaluate the child's unique needs, but also observe the proposed placement will most likely be necessary. It is important to look at what the child's identified unique needs are and evaluate the proposed IEP on whether or not it will meet those needs. Consider if there is a specific type of setting, for instance, that the child requires, or whether the child needs a therapuetic component to address his/her social / emotional needs. The totality of the factors will be considered in these situations to determine if the district offered FAPE, and ultimately if the parent is entitled to reimbursement for the unilateral placement. For examples of such cases, read Lamoine Sch. Comm. v. Ms. Z. ex rel N.S. 42 IDELR 172 (D. Me. 2005) and Board of Educ. of the City Sch. Dist. for the City of N.Y. 35 IDELR 28 (SEA NY 2001).
Remember that whatever situation arises that causes parents to consider a unilateral placement, parents need to be careful and consider all of the district's options before making such a decision. Consult with experts, providers and persons who know your child. It may also be necessary to consult with a special education advocate or attorney.
The next blog in this series will discuss another issue in private placement cases, which is consideration of whether the unilateral, private placement is appropriate.
Thursday, July 9, 2009
Reminder: IDEA Fairness Restoration Act
A reminder that today is a national call-in day for the IDEA Fairness Restoration Act, H.R., 2740.
Call your Congressional Representative to ask him or her to co-sponsor the Act and help level the playing field.Dial 202-224-3121 (TTY 202-225-1904) and ask for your Representative. You can also find direct dial numbers for your Representative, including local numbers (if long-distance is too costly), on your Representative’s web page at http://www.house.gov/.
How to Find Out Who Your Congressional Representative is: If you do not know who your Congressional Representative is, go to http://www.house.gov/ and put your zip code into the box in the upper left corner.The IDEA Fairness Restoration Act will override the Supreme Court's decision in Arlington Central School District v. Murphy (2006) and allow parents who prevail in due process or litigation to be reimbursed for their expert witness fees.
When prevailing parents cannot recover expert costs, the playing field is neither level nor fair, and children are denied a free appropriate public education and other fundamental IDEA rights.For more detailed information about the Act click here and to read the Act in its entirety click here.
Call your Congressional Representative to ask him or her to co-sponsor the Act and help level the playing field.Dial 202-224-3121 (TTY 202-225-1904) and ask for your Representative. You can also find direct dial numbers for your Representative, including local numbers (if long-distance is too costly), on your Representative’s web page at http://www.house.gov/.
How to Find Out Who Your Congressional Representative is: If you do not know who your Congressional Representative is, go to http://www.house.gov/ and put your zip code into the box in the upper left corner.The IDEA Fairness Restoration Act will override the Supreme Court's decision in Arlington Central School District v. Murphy (2006) and allow parents who prevail in due process or litigation to be reimbursed for their expert witness fees.
When prevailing parents cannot recover expert costs, the playing field is neither level nor fair, and children are denied a free appropriate public education and other fundamental IDEA rights.For more detailed information about the Act click here and to read the Act in its entirety click here.
Thursday, July 2, 2009
IDEA Fairness Restoration Act
In 2006, the Supreme Court issued a decision in Arlington Central School District vs Murphy finding that parents who were prevailing parties in a due process hearing or subsequent litigation were barred from recovering expert witness fees. Around the same time period, the Supreme Court issued a decision in another case that clarified the burden of proof in special education disputes; a ruling that has subsequently placed that burden onto parents in almost all cases arising under the IDEA.
The Unfairness Problem
School Districts can spend tax dollars to employ and hire experts to provide testimony in due process hearings and litigation. School Districts use their resources to fund psychologists, specialists, technical experts, etc to provide testimony related to programs, placements, services, assessment findings, and a child's unique needs.
Most parents don't have the resources to access expert witnesses and bear that financial burden. Experts are necessary to be able to have a fair change at prevailing in a due process hearing and litigation! If the School District is putting on testimony by psychologists and specialists, and the parents are unable to, it will be extremely difficult for parents to meet their burden of proof.
This makes due process unfair and often not affordable. Advocates and Attorneys see this problem in real life on a daily basis. We see parents who are watching their child struggle and fail in a program that is not appropriate, with insufficient services, or without proper supports in the classroom. The school district has psychologists and specialists who are "backing" the program. Parents need access to experts who can testify about what services and programs are required to meet those students' unique needs. We see kids who are completely denied eligibility for services. Parents cannot possibly challenge that determination without an expert who can testify about the child's diagnosis and how it impacts their ability to access their education. We see kids who are on their way to expulsion, and school district "experts" who claim that their behavior was not related to their disability. Parents need the ability to utilize experts to testify as to how and why the behavior is a manifestation of the disability.
If the due process proceedings under the IDEA are not affordable, and therefore not accessible, then parents are denied their rights and children are ultimately denied a FAPE. The underlying IEP process and decision-making regarding a child's program becomes more and more unfair and one sided, because the parents' right and ability to challenge the IEP and the school district's decisions becomes meaningless.
The Solution?
The IDEA Fairness Restoration Act seeks to override the Supreme Court's ruling in Murphy, and thereby restore the ability of parents who prevail in due process or litigation to be reimbursed for expert witness fees incurred during the process.
The Act will level the playing field for parents, enabling them to have a fair chance in a meaningful process to seek a remedy when a child is denied FAPE by the school district.
For more information about the act, including the full text and a brochure, check out http://www.copaa.org/news/IFRA_intro_2009.html. Over 185 disability organizations support the IDEA Fairness Restoration Act, which is a bipartisan bill. You can also read more about it at http://www.wrightslaw.com/nltr/09/nl.0630.htm
What you can do
Call your congressperson and ask them to support the IDEA Fairness Restoration Act. July 9th is the national call in day! You can call your representative and tell them why the Act is important, and why it needs to pass to ensure that parents have meaningful access to due process procedures.
Find out who your congressperson is and how to reach them directly at www.house.gov. You can also call the switchboard at 202-224-3121 and ask to speak to your congressperson. Remember to ask for the Education Aide in order to speak to a person who is interested in this issue! Leave a message, and call back, if you need to!
The Unfairness Problem
School Districts can spend tax dollars to employ and hire experts to provide testimony in due process hearings and litigation. School Districts use their resources to fund psychologists, specialists, technical experts, etc to provide testimony related to programs, placements, services, assessment findings, and a child's unique needs.
Most parents don't have the resources to access expert witnesses and bear that financial burden. Experts are necessary to be able to have a fair change at prevailing in a due process hearing and litigation! If the School District is putting on testimony by psychologists and specialists, and the parents are unable to, it will be extremely difficult for parents to meet their burden of proof.
This makes due process unfair and often not affordable. Advocates and Attorneys see this problem in real life on a daily basis. We see parents who are watching their child struggle and fail in a program that is not appropriate, with insufficient services, or without proper supports in the classroom. The school district has psychologists and specialists who are "backing" the program. Parents need access to experts who can testify about what services and programs are required to meet those students' unique needs. We see kids who are completely denied eligibility for services. Parents cannot possibly challenge that determination without an expert who can testify about the child's diagnosis and how it impacts their ability to access their education. We see kids who are on their way to expulsion, and school district "experts" who claim that their behavior was not related to their disability. Parents need the ability to utilize experts to testify as to how and why the behavior is a manifestation of the disability.
If the due process proceedings under the IDEA are not affordable, and therefore not accessible, then parents are denied their rights and children are ultimately denied a FAPE. The underlying IEP process and decision-making regarding a child's program becomes more and more unfair and one sided, because the parents' right and ability to challenge the IEP and the school district's decisions becomes meaningless.
The Solution?
The IDEA Fairness Restoration Act seeks to override the Supreme Court's ruling in Murphy, and thereby restore the ability of parents who prevail in due process or litigation to be reimbursed for expert witness fees incurred during the process.
The Act will level the playing field for parents, enabling them to have a fair chance in a meaningful process to seek a remedy when a child is denied FAPE by the school district.
For more information about the act, including the full text and a brochure, check out http://www.copaa.org/news/IFRA_intro_2009.html. Over 185 disability organizations support the IDEA Fairness Restoration Act, which is a bipartisan bill. You can also read more about it at http://www.wrightslaw.com/nltr/09/nl.0630.htm
What you can do
Call your congressperson and ask them to support the IDEA Fairness Restoration Act. July 9th is the national call in day! You can call your representative and tell them why the Act is important, and why it needs to pass to ensure that parents have meaningful access to due process procedures.
Find out who your congressperson is and how to reach them directly at www.house.gov. You can also call the switchboard at 202-224-3121 and ask to speak to your congressperson. Remember to ask for the Education Aide in order to speak to a person who is interested in this issue! Leave a message, and call back, if you need to!
Friday, April 17, 2009
What About Methodology?
Methodology is a hot topic in cases, IEP meetings and discussions all across the country. With a plethora of programs available, emphasis on research, and an influx of stimulus package money intended to be used for programs and curriculum, the timing is ripe for more and more methodology disputes to emerge. We see these issues come up everyday, in situations ranging from parents who initially come to us because they want a specific methodology to due process cases involving school districts pretermining methodology. Mandy and I have given two presentations specifically on this topic recently.
Parents think of methodology in terms of programs and curriculum choices. Examples of particular "methodologies" are Applied Behavioral Analysis (ABA) or Discrete Trial Training (DTT) for students with autism, Lindamood Bell, Orton-Gillingham or the Wilson method for students with reading deficits. The list could go on and on. With a focus on research based interventions in not only IDEIA but also in No Child Left Behind, there are new programs or "methodologies" emerging all the time.
Here are some thoughts and ideas on these issues:
Methodology disputes arise when the disagreement is in regards to two or more options that could each appropriately meet the child's unique needs. As advocates and attorneys, we can go a long way towards dealing with these disputes simply by learning to anticipate and recognize when a school district is going to claim that the issue is solely related to methodology. School districts are given discretion in these cases, and are generally permitted to choose what methodology to employ, so long as the method chosen provides the student a free appropriate public education (FAPE). Anticipating these disputes and reframing the issue as being focused on FAPE, rather than a choice among programs, from the very beginning, is an excellent advocacy strategy.
Asking questions about the methodology choice can be very useful. The IEP team should be able to discuss what research exists to support the use of a particular program, who is trained to implement the program, and why a program was chosen over other methods. There may be perfectly valid justifications for a school district's choice, but parents need to understand that information in order to meaningfully participate in the IEP process.
Even though school districts have discretion in choices of methodology, that does not mean that procedural requirements under the law don't apply! School districts are not permitted to predetermine methodology for a particular student before an IEP discussion about the student's unique needs. They are also not permitted to have a blanket policy to refuse specific methodologies or programs.
Finally, remember that everyone needs to keep an open mind in these cases. Often both parents and school districts have very strong opinions about what will or won't work for a particular child. School districts could prevent a lot of these cases from being litigated if they would simply listen with an open mind to what parents and their experts are saying about the program and the child's unique needs. Parents should also keep an open mind about possible programs and about how those programs may possibly benefit their child. Not only might this result in preventing the dispute from ever arising, but it will also go a long way to helping the parents present their case down the line if in fact it results in litigation.
Parents think of methodology in terms of programs and curriculum choices. Examples of particular "methodologies" are Applied Behavioral Analysis (ABA) or Discrete Trial Training (DTT) for students with autism, Lindamood Bell, Orton-Gillingham or the Wilson method for students with reading deficits. The list could go on and on. With a focus on research based interventions in not only IDEIA but also in No Child Left Behind, there are new programs or "methodologies" emerging all the time.
Here are some thoughts and ideas on these issues:
Methodology disputes arise when the disagreement is in regards to two or more options that could each appropriately meet the child's unique needs. As advocates and attorneys, we can go a long way towards dealing with these disputes simply by learning to anticipate and recognize when a school district is going to claim that the issue is solely related to methodology. School districts are given discretion in these cases, and are generally permitted to choose what methodology to employ, so long as the method chosen provides the student a free appropriate public education (FAPE). Anticipating these disputes and reframing the issue as being focused on FAPE, rather than a choice among programs, from the very beginning, is an excellent advocacy strategy.
Asking questions about the methodology choice can be very useful. The IEP team should be able to discuss what research exists to support the use of a particular program, who is trained to implement the program, and why a program was chosen over other methods. There may be perfectly valid justifications for a school district's choice, but parents need to understand that information in order to meaningfully participate in the IEP process.
Even though school districts have discretion in choices of methodology, that does not mean that procedural requirements under the law don't apply! School districts are not permitted to predetermine methodology for a particular student before an IEP discussion about the student's unique needs. They are also not permitted to have a blanket policy to refuse specific methodologies or programs.
Finally, remember that everyone needs to keep an open mind in these cases. Often both parents and school districts have very strong opinions about what will or won't work for a particular child. School districts could prevent a lot of these cases from being litigated if they would simply listen with an open mind to what parents and their experts are saying about the program and the child's unique needs. Parents should also keep an open mind about possible programs and about how those programs may possibly benefit their child. Not only might this result in preventing the dispute from ever arising, but it will also go a long way to helping the parents present their case down the line if in fact it results in litigation.
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