Article: "Questions Surround Attorneys' Actions in Special Ed Case" - From Voice of OC

The article linked below is part three in a series that discusses several special education cases in Orange County California.  In particular, the articles expose the reality of what many families have to deal with - school district saying "no" and spending money (and resources) to fight against families rather than providing the services to a student that a family has requested.

"Events [in this case] are symbolic of the intensity of the acrimony in the Garden Grove Unified and similar cases in Orange County, where school districts have been particularly resistant to providing special education services sought by families. Such battles have produced huge legal bills for both sides, frequently far exceeding the cost of services in the disputes."

Questions Surround Attorneys' Actions in Special Ed Case - Voice of OC | Orange County's Nonprofit Investigative News Agency: County Government: special education, garden grove unified school district, amicus curiae, ninth circuit court of appeal, gregory c. sisk: Third in a three-part series.

Back to School Resources

 “Don’t you love New York in the fall? It makes me wanna buy school supplies. I would send you a bouquet of newly sharpened pencils if I knew your name and address.”  Quote from the movie You've Got Mail.

Here are some great online resources for information and tips for Back to School

1.  10 Ways to Save on Back to School Shopping, by familyeducation.com

2.  Back to School Tips from USA.gov

3.  Article:  How to Have a Good Relationship with Your Child's Teacher, from LDonline.org

4.  Article:  Back to School Transitions: Tips for Parents, from the National Association of School Psychologists

5.  Starting Healthy:  A Back to School Checklist from the California School Health Centers Association

6.  Back to School Tips for Parents of Students with Special Needs, by readingrockets.com

7.  25 Back to School Discounts from Family Circle magazine

And here are links to two of our popular previous blog posts about getting ready for Back to School:

Back To School:  Help I need a placement!  and other concerns

Back to School:  Get Ready with Organized School Records

Fast Fact Friday: Baseline Data

Developing an IEP requires an understanding of a child's current strengths and weaknesses, and a description of "present levels of performance" is part of the required content for an IEP document. However, defining what that means in a practical sense can be difficult.

"Baseline data" is a way of referring to the where the child is performing on a specific skill at that time. It is a "starting place" based (hopefully) on concrete, understandable information derived from measurements of the child's performance in that area. Understanding, and including, the baseline can give the IEP team the ability to write clear, measureable goals that will allow the child to make real progress.

Baseline data can be taken from a variety of places. For example, if a child's prior IEP included a goal in a specific area, the data collected from the measurement of that goal can give you a baseline for that same skill going forward. Baseline data could also come from standardized tests, classroom based assessments, or statewide / schoolwide testing results.

Here are some examples:

If the IEP team wants to write a goal for reading fluency, you would need to know what the child's current achievement is in this area in order to write a goal that will allow for progress going forward. Reading fluency could be measured in accurate words per minute (wpm) or by the score from a standardized fluency test. That becomes the baseline by which progress towards the goal can be set.

If the child needs a goal in the area of behavior, specifically to address on task behavior or work completion, data can be taken in the classroom setting to establish baseline data.

How to make record requests

Mental Health Services in State of Chaos in California - Part 2: What Happens Next?

On October 8, 2010, Governor Schwarzanegger used his line item veto to cut billions from the state budget for fiscal year 2010-2011, including $133 allocated to County Mental Health agencies for AB 3632 services. Please read Part 1 in this Series on this blog for more information about the suspension of the AB 3632 mandate.

The Governor has made it clear that he intended to suspend the mandate for AB 3632 (mental health services) in California. AB 3632 allocated responsibility for the provision of mental health services pursuant to a child's IEP, as well as residential placements for emotionally disturbed students, to county mental health agencies.

Mental health services under AB 3632 included

• individual or group psychotherapy
• collateral services
• medication monitoring
• intensive day treatment
• day rehabilitation
• case management services

Title 2, California Code of Regulations, Section 60020(i).

Outpatient services are provided at a clinic or public DMH agency, or may be located on a school campus in some circumstances. "Intensive day treatment" and "day rehabilitation" services are intensive mental health services provided in community based or residential treatment program settings.

Additionally, residential placements were funded under the AB 3632 mandate for students who were eligible under the category of "emotional disturbance" and who required a residential educational placement in order to receive an appropriate special education program. (*note: residential placements for students under other categories of eligibility were already the responsibility of the school districts / local education agencies).

Residential placement is an out-of-home placement in a residential treatment facility with a school program certified as a Non Public School (NPS) and appropriate mental health and day rehabilitation services as part of the program. *Residential placements are on the "continuum of placement options" under the California Education Code.

The Governor's suspension of the mandate has caused chaos, confusion, and controversy throughout the state. Because mental health services are mandated by federal law (the IDEA) to be provided as part of a student's IEP if they are required for that student to access an educational benefit, the suspension of the California-specific AB 3632 mandate does NOT eliminate mental health services for students who require them. Nor does the Governor's action mean that residential placements will, as a matter of course, no longer be available for students in California.

The State of Chaos for County Departments of Mental Health

On October 12, 2010, the Executive Director of the state Mental Health Directors Association sent a memo to all County Mental Health agencies regarding the current state of AB 3632 services. The memo addresses questions arising from the suspension of the mandate, such as whether the Governor actually had the legal authority to suspend a mandate. Additionally, it indicated that there was uncertainty about factors such as the date on which the suspension was effective (October 8th or retroactive to the start of the fiscal year), whether / how counties will ever be reimbursed for the costs incurred from 2004 forward for providing services, and how funding will be accessed / provided for transition of services to school districts.

The Memo set forth "Issues/Actions" for counties to consider, discussing the pros and cons of each action. Subsequently, County Mental Health agencies across the state have each interpreted / implemented these "actions" individually, giving rise to a true state of confusion across California.

It appears to be fairly consistent that most County Mental Health agencies in Southern California are no longer accepting any new IEP referrals from school districts, stating that they do not have the legal right or responsibility to be involved in the IEP process. Los Angeles County Department of Mental Health (LACDMH) and San Diego County Department of Mental Health have reportedly taken this position. Additionally, counties that have taken this action are in most cases refusing to attend IEP meetings or participate any further in cases in which the DMH assessment had already occurred but the IEP meeting had yet to be held.

Reportedly, County Mental Health agencies have also been communicating with school districts, SELPAs, and contracted-residential placement staff, with inconsistent statements made. In some reports, Counties have indicated that students already in residential placements will continue to be funded through the end of this year, but in other reports, Counties have indicated that students will no longer be funded in residential placements effective immediately.

What is truly the "unknown" is what action County Mental Health agencies have taken / are taking to work with SELPAs and school districts to determine how to effectively transition students' services to the school districts.

The State of Chaos for School Districts / Local Education Agencies

Related services and appropriate placements (even residential placements) must be provided to a student as part of a Free Appropriate Public Education in order to meet the child's unique needs and provide them with educational benefit. If mental health services are required as a part of FAPE, they must be provided. It has always been the case that even though California allocated funding-responsibility to county mental health agencies under the AB 3632 mandate, the state education agency (CDE) through the school districts / local education agencies remained ultimately responsible for ensuring that the child was provided with a FAPE. See 20 U.S.C. sections 1400(8), 1401(22); 1412(a)(11)&(12); 34 C.F.R. sections 300.341, 300.360; California Education Code section 5600 & 56031; California Government Code sections 7570 et seq.

As courts have stated;

When disputes between agencies over funding arise, the school district must "ensure that the placement is at no cost to Parent, as provided for in 20 U.S.C. section 1412(a)(10)(B)(i). In other words, if there is to be a fight over payment, it is to be between the [school district] and [the other public agency], not between the parent and the [agency]."

School Board of Lee County Florida v. E.S., 561 F. Supp. 2d 1282 (M.D. Fl. 2008).

"Compliance with duties under the IDEA is a serious matter... Thus, it is not surprising that Congress would impose a duty on local education agencies to continue services to students if local a mental health agency refused to do so."

County of Tuolumne v. Special Education Hearing Office, James G, et al, 45 IDELR 15 (C. Ct. App. 2006) (citing 20 U.S.C. section 1412(a)(12)(B)(ii)).

All related services necessary for a child to benefit from special education / required for the child to make progress towards IEP goals, are the responsibility of the child's school district. Provision of an appropriate placement, including, when required, a residential placement, is also the responsibility of the child's school district. These responsibilities fall within the general duty of the school district to make a FAPE available to each child within its jurisdiction.

Thus, school districts in California are now left with the obligation and responsibility to continue to provide mental health services and residential placements, even though just a few weeks ago the funding responsibility fell on another agency. School districts are not permitted to refuse to provide services pursuant to an IEP, or to refuse to include services that are necessary in the IEP when it is developed, simply because a funding source is not identified. If the county mental health agency refuses to fund services, or ceases funding previously funded services, for any reason (such as the current suspension of the mandate), the school district must assume responsibility.

On October 18, 2010, the California Department of Education, Special Education Division, issued a memorandum to all SELPAs, County Offices of Education, the Advisory Committee on Special Education, Nonpublic School Administrators, and "Interested Individuals, Agencies and Organizations" addressing the present issues. In that memo, CDE called the Governor's actions "unconsionable" and indicated that the suspension of the mandate had created a "state of chaos" in California.

The intention of the memo was to "remind all special education local planning areas (SELPAs), county offices of education (COEs), and local education agencies (LEAs) [school districts] of their responsibility to provide mental health services to students with disabilities." The CDE cited to California Government Code sections and the IDEA. It stated "If a public agency other than an educational agency fails to provide or pay for the special education and related services... the LEA (or State agency responsible for developing the child's IEP) must provide or pay for these services to the child in a timely manner." (quoting 34 C.F.R. section 300.154(b)(2).

Despite this reminder, and the clear legal mandate from the federal law, a state of confusion has definitely ensued, and many school districts are reportedly telling parents that residential placements will no longer be offered, IEP meetings will not be held to discuss needed mental health services, etc.

The State of Chaos for Parents, Students and the Community

Many strange things have happened since the Governor's actions on October 8th. Some parents have been told by school districts (or by residential school staff, who were told by school districts or mental health agencies) that all residential placements would cease to be funded immediately. Other parents have reported that they have heard that the school districts won't continue to fund the residential placements if the child can "survive" outside of that setting. IEP meetings that were scheduled to review assessments by County Department of Mental Health professionals, and thus to determine necessary mental health services, are reportedly being canceled across the state.

School districts and IEP teams in California are so used to having the AB 3632 mandate, that they have forgotten the fact that residential placements and mental health services are not something "special" or "unique" to California. Thus, some school districts are understandably confused about how to make the determination of necessary services and placement under the genre of "mental health."

The community as a whole is certainly affected by the chaos, and litigation on these issues will likely be plentiful. It will take the collaborative efforts of non-profit legal services offices and the community of special education attorneys, advocates and parents, likely working with school districts, mental health agencies, etc, to address this issue in the long term. On October 21, 2010, in Los Angeles, a class action lawsuit was filed in federal court by Public Counsel, Disability Rights California, Mental Health Advocacy Services, and Gibson, Dunn & Crutcher, in order to "preserve lifeline services for more than 20,000 students." (You can find read the press release on Disability Rights California's website, as well as the complaint filed).

Here are some final points to keep in mind if you are being told that services are going to stop, that placement is going to end, etc:

1. Most importantly, remember that ANY change to your child's IEP, including the placement and services he/she receives, cannot be done unilaterally / outside of the IEP process. At the least, an IEP meeting should be held and/or you should be given prior written notice of any proposed changes, after which you have the right to disagree with the proposal. You shouldn't sign an "administrative addendum" or other IEP document that is simply sent to you stating that residential placement is no longer available.

2. If a service is listed in an IEP already (i.e. outpatient mental health services, residential placement), that service / placement is, by definition, related to the student's education. No matter what agency was funding them before, services that were not related to a child's education and necessary for the child to make progress should not have been listed in the IEP. Thus, the school district's should not be able to argue that they are not responsible for mental health services or residential placement because those things were not "educationally related."

3. If a school district has made a referral for assessment by County Mental Health under AB 3632, and now that assessment will not go forward because of suspension of the mandate, the obligation to evaluate the child in this area falls back onto the District. The school district is obligated to evaluate a child in all areas of suspected disability, and the referral can be argued to be indication that the district acknowledges this as an area of suspected disability / an area that needs to be assessed.

4. A district's unilateral determination to stop services or placement due to the lack of funding through the department of mental health may give rise to a compliance issue, which can be addressed through a compliance complaint filed with the CDE, or to due process issues, which can be addressed by requesting a due process hearing with the Office of Administrative Hearings. Likely, there will be an influx of these types of cases in the coming weeks.

Finally, this is certainly all confusing and chaotic, and school districts, mental health agencies, providers, and parents are left to figure out on a case by case basis what will happen next. If you are impacted by this and fear that services will be eliminated, you should consult with a special education attorney for assistance.

Call to Action on the Truancy Bill: Part 3

Truancy Bill Part 3: Sample Letter

Please read Part 1 and Part 2 for more information on this topic, including contact information and instructions for contacting the Governor's office.

Below is a sample letter for parents, advocates, etc to utilize in order to contact the Governor's office about this issue. You can (and should) personalize this letter prior to sending it.

INSERT YOUR CONTACT INFORMATION

INSERT THE GOVERNOR'S CONTACT INFO (See Part 2 of this series)

DATE

Re: SB 1317 / Please Veto

Dear Governor Schwarzenegger:

I am writing to request that you veto SB 1317, the truancy bill authored by Senator Leno. There are already serious penalties for parents who neglect their children, a concept which includes failure to ensure that the child is educated. Since this bill comes into play with a student who has missed 10% of the year to date, depending on the time of year, it could be applied based on a small number of absences. It is vague in defining parent fault: it applies to a parent "who has failed to reasonably supervise and encourage the pupil's school attendance." It does not set forth any exception for parents who are not currently encouraging school attendance for very good reasons. It could easily be interpreted to make absences that do not fall within the narrow excuse categories recognized by law, regardless of the reasons for those absences, a serious offense capable of wreaking financial havoc through large fines and separating families by jailing parents. Students miss school for many reasons, some obviously bad and some of which may represent the best choices in bad circumstances. Their out of school activities range from committing juvenile offenses to caring for sick siblings to watching TV to receiving intensive educational services for 30-40 hours per week at their parents' expense. This bill treats very different types of "truancy" the same. It could easily worsen the problems that lead to absences.
While the theory seems to be that prosecutors will use discretion wisely, it is not realistic to expect that they will be able to investigate reasons for truancy in each case, and this bill does not require them to. Alternatives to punishment are optional. Though the bill does not apply to home schoolers who intend to home school and provide appropriate paperwork from day one, it would greatly endanger parents forced into informal homeschooling by absence of appropriate special education services or by bullying midway through the school year. Districts in special education disputes would attempt to apply it to students who are in tutoring programs that are not certified as schools. This bill would empower administrators who refuse needed services or who dismiss complaints about bullying and harassment without adequate investigation. It would allow oppositional teenagers to create massive legal problems for their parents. It would terrify parents who have good faith, reasonable beliefs that their child needs to be removed temporarily from school until problems are discussed and addressed, and could frighten them out of taking steps which are necessary for their children's progress and even safety.
Please work this budget year on protecting school funding, and figuring out how parents and teachers can work together to do more with less. Please veto this measure which would instead pit schools and parents against each other.

Sincerely,

YOUR NAME

Call to Action on the Truancy Bill: Part 2

Truancy Bill Part 2: How to get involved and make yourself heard on this issue

Please read Call to Action on the Truancy Bill: Part 1 for information about why this bill would be unjust for parents of students with disabilities.

Contacting the Governor: For this "call to action," Parents, advocates, attorneys and others in the special education community are encouraged to send a letter (see sample in Part 3) by either email or fax, or call one of the office numbers below to provide your input.

1. Email: http://gov.ca.gov/interact#email

2. By fax or phone call to Governor's office in Sacramento:

Governor Arnold Schwarzenegger
State Capitol Building
Sacramento, CA 95814
PHONE: 916-445-2841
FAX: 916-558-3160

3. By fax or phone call to District office across CA

Fresno Office
2550 Mariposa Mall #3013
Fresno, CA 93721
PHONE: 559-477-1804
FAX: 559-445-5328

Los Angeles Office
300 South Spring Street
Suite 16701
Los Angeles, CA 90013
PHONE: 213-897-0322
FAX: 213-897-0319

Riverside Office
3737 Main Street #201
Riverside, CA 92501
PHONE: 951-680-6860
FAX: 951-680-6863

San Diego Office
1350 Front Street
Suite 6054
San Diego, CA 92101
PHONE: 619-525-4641
FAX: 619-525-4640

San Francisco Office
455 Golden Gate Avenue
Suite 14000
San Francisco, CA 94102
PHONE: 415-703-2218

Part 3 of this posting will include a sample letter for your use, courtesy of the California Association of Parent Child Advocacy.

Call to Action on the Truancy Bill: Part 1

Truancy Bill Part 1: Why the call to action is necessary

Over the past couple of months here in California, Senator Leno's "Truancy Bill" has been a big topic in the world of public education. The bill's well-intentioned point is to "improve efforts to fight truancy," and as an effect of those efforts, hopefully do something to prevent kids from becoming juvenile delinquents. As noble as this sounds, and as much as we need to combat truancy issues in our schools, as written, the serious negative consequences for truancy (including jail time for parents or hefty fines) could be applied in circumstances involving students with disabilities in a harmful and unjust manner.

Take for example some of the following scenarios:

* Parents disagree with the school district's offer of placement and services because they believe that the child requires intensive 1:1 instruction or an ABA (applied behavioral analysis) based program. They remove their child from school for part or all of the school day, providing appropriate notice as required under special education laws, and place their child in a private program at their own expense. Case law recognizes the importance of allowing Parents the opportunity to fund private placements and services, and take the financial risk of seeking reimbursement for those programs, rather than requiring Parents to leave their child in a "potentially inappropriate" setting. This right would be virtually stripped if those Parents would face jail time as a penalty for invoking this process.

* Child with a disability has serious anxiety and depression, and refuses to go to school. Although not physically "sick" in a traditional sense, the child's health and well-being may be affected if he/she attends school with such extreme levels of anxiety, and Parents keep the child home until alternatives can be agreed upon or supports can be put into place. Parents will not be able to make these decisions about their child's welfare under this bill.

* Child with a disability has social/emotional and/or behavioral difficulties that include school refusal. Parents are doing everything they can to attempt to get the child to school or encourage school attendance, but school district officials don't believe they are doing enough. Those Parents may face the penalties called for under this bill.

* Child with a disability has been seriously harassed or bullied by other students because of his/her disability, and Parents have reported the bullying to school officials, who have done nothing in response to prevent the bullying from occurring. Parents do not feel the school is a safe environment because of the physical harm being caused to the child. These Parents would not be able to keep their child home until safety is ensured. Effectively, school personnel who "ignore" such reports of bullying would be empowered to do so.

These are hypotheticals based on scenarios that special education attorneys, advocates and parents see and experience on a regular basis. There is no language in the bill to provide an exception for such scenarios, and the language that is included is vague and easy to misinterpret, misapply, and even abuse. Most alarmingly, perhaps, is the lack of clarity as to what constitutes a "chronic" truancy problem giving rise to the penalties it imposes. Because these penalties are triggered by missing 10% of the school year to date, without further clarification, interpretation could lead to imposition of penalties for a very small number of dates depending on the time of the school year. (For example, 30 school days, or approximately 6 weeks, into the year, a child who had missed only 3 days would be considered chronically truant.)

The current state of this bill is that it has passed the state Senate and House, and is awaiting the Governor's action on it. Thus, this "call to action" is for Parents, advocates, etc in the special education community to contact Governor Schwarzenegger and request that he veto SB1317, the "truancy bill."

Parts 2 and 3 of this posting will include contact information and a sample letter.

Fast Fact Friday: Special Education Assessment Plan

A school district are required to provide notice to parents when it proposes to initiate an evaluation or re-evaluation of a special education student, pursuant to the "prior written notice" requirements of the I.D.E.A. Specific to evaluations, the notice must "describe any evaluation procedures" is proposes to conduct. 20 U.SC. section 1414(b)(1). Because of this requirement, and because of timelines and other issues that are impacted by when a parent gives consent to assess, districts must develop ways to provide the required information and obtained written consent to its proposal to assess. This is commonly referred to as a "special education assessment plan."

California law specifies:

If an assessment for the development or revision of the individualized education program is to be conducted, the parent or guardian shall be given, in writing, a proposed assessment plan...

California Education Code section 56321(a)

As assessment plan must

• Be Understandable - that is, it should be in "language easily understood by the general public" and should be provided in the native language or other mode of communication of the parent / guardian
  
• Explain the purpose of the assessments proposed
  
• Explain the areas to be assessed
• Describe / explain the types of assessments that the district proposes to conduct
• Provide information regarding procedural safeguards
  

See 34 C.F.R. section 300.503; 20 U.S.C. section 1414(b)(1); California Education Code section 56321(b)(1)-(4).

End-of-the-School-Year Checklist for Parents

1. Review your child's IEP document

• Is the IEP ready to be "in place" for the start of the next school year? Is it clearly documented and is the District ready to implement it?
• Do you understand the program that will be in place or do you have questions? Now is a good time to ask questions about the program, as there will likely be limited availability of anyone who can answer your questions during the summer.
• Have you signed the IEP to indicate consent and / or provided a written response?

* Note that because of scheduling difficulties over the summer, it may be easier to request an IEP meeting now if you have any concerns about your child's program for next year.

2. Meet with teacher(s)

• Attend parent-teacher conferences or otherwise arrange for communication with your child's current teacher to get an update on your child.
• If possible, and if next year's schedules are already known to the school / district, find out who will be your child's teacher next year. You may be able to communicate with them now more easily than during the summer if you want to speak with them in advance.

* This is a good time to ask the current teacher questions like "If you were getting my child as a student for the first time, what would you like to know about his/her needs?" This will be helpful information to share with next year's teacher.

3. Get an update on your child's progress

• Make sure you have progress reports by the last reporting period of the school year (i.e. when grades come out). As applicable, obtain both a progress report on IEP goals and a report card with grades. Ask for data sheets if applicable.
  
• Carefully review report cards, progress reports. Did you child make expected progress? Is he/she meeting his/her IEP objectives / making progress towards annual goals? Are his/her grades or anything on his/her report card a concern?

* If needed, request an IEP meeting now to discuss your child's progress, changed needs, or lack of expected progress so that the team can evaluate whether changes need to be made to the program for the following school year. The end of the year is a good time to reflect on "how did this program work?" and "what changes should we make?"

4. Organize records

• Organize IEPs, assessments, correspondence, report cards, etc into a 3 ring binder so that all documents are easily accessible. (Click here for our tips on organization of school documents)
  
• The end of the school year is a great time to make sure your child's records are organized. Update your binder or organizational systems with all of the documents from this school year, and go ahead and make a place for next school year's info now so you'll be ready in the fall.

* In some cases, the end of the year may be a good time to do a records request to the school district and obtain copies of your child's file.

5. Review information regarding ESY (Extended School Year)

• Does the IEP offer ESY and if so, do you fully understand what is offered? (Read here for one school district's view on how ESY determinations are made)
  
• Make sure you know when, where and what will be provided.
• Are there any forms that you need to submit for enrollment for ESY?
• Make sure you find out whether or not your child will be receiving related services (speech, OT, etc) during the summer, and how those will be scheduled. If you are going to opt out of the classroom / instructional portion of the District's ESY offer, ask whether the services will still be available.

* If ESY was not offered, decide if there is a dispute about this, and if you need to put the District on notice that you believe ESY is necessary. Contact a special education attorney or advocate if needed.

6. Sign up for summer activities

• Don't forget that summer is also about fun and taking a break from school!
• Find out what camps, sport and other activities are available in your community. (www.mysummercamps.com has a directory of summer camp programs for kids, including a listing specific to kids with special needs)
  
• If your child participates in school-year extra-curricular activities, like sports or clubs, make sure that you are aware of anything that carries over into the summer.
  
• Research how to sign up for activities so that you can make sure your child will be able to participate. Get copies of any applicable policies and procedures, and find out about the time commitment and schedule.
• Consider whether your child needs reinforcements, behavior support, or other supplementary aids or supports to participate.

* Help your child maintain continuity by gathering contact information for your child's school friends to use for play dates and activities during the summer.

Fast Fact Friday: Attorney or Advocate at IEP Team Meetings

Is a parent permitted to bring an advocate or attorney to an IEP meeting?

Yes! Parents are permitted, at their own discretion, to bring to the IEP meeting any individual with "knowledge or special expertise regarding the child." 20 U.S.C. 1414(d)(1)(B)(vi); 34 C.F.R. section 300.344.

This can include an advocate, friend, relative, attorney, other professional, caseworker / social worker, therapist, etc.

It is important to note that if the parent invites the individual, it is the parent who has the ability to make the determination as to whether the person has "knowledge or special expertise." The District can't, therefore, prevent parents from bringing an advocate or an attorney to the meeting! Even if there isn't already a dispute, and even if the District has not invited their own attorney, the parent has the explicit right to include any individual he/she deems to be an appropriate IEP team member, including their attorney or advocate.

This provision goes towards the ability of parents to meaningfully participate in the IEP process. Parents can choose to bring an educational advocate or special education attorney to assist them in participating and will help to ensure that they fully understand the offer. If they are denied the right to bring such persons to an IEP meeting, they may in turn be denied the ability to give informed consent to the program.

Due Process Cases: What is Mediation All About?

Mediation is a voluntary alternative dispute resolution process in which an impartial third party ("mediator") helps the parties to resolve their dispute but does not and cannot impose a solution.

Mediation Under the IDEA:

States are required to "ensure that procedures are established and implemented to allow parties to disputes involving any matter, including matters arising prior to the filing of a complaint... to resolve such disputes through a mediation process." 20 U.S.C. section 1415(e)(1).

States must "ensure that the mediation process (i) is voluntary on the part of the parties; (ii) is not used to deny or delay a parent's right to a due process hearing...; (iii) is conducted by a qualified and impartial mediator who is trained in effective mediation techniques." 20 U.S.C. section 1415(e)(2).

What to Expect:

A mediation session usually happens fairly shortly after the 30 day "resolution period" contemplated for in the IDEA, or in some states may even be available during that time period. Note that in some instances, parties may not have both a resolution session and a mediation. Mediation is voluntary, so the parties can decide not to attend / participate. Unless each side is clearly not going to attempt to reach an agreement, mediation is worth your time to attempt to reach a settlement.

At the start of the mediation, an effective mediator should describe the process to parents and their representatives. Typically, a mediator will let the parties know that mediation is confidential, and that what is discussed in mediation can't be put into evidence at a subsequent hearing. A mediator should also explain any rules for the process, explain whether all parties will remain in one room or "caucus" separately, and answer any questions.

Sometimes, it is helpful for the parties to give a brief statement that provides an overview of their position and of what they are seeking in a settlement agreement. This is both for the benefit of the mediator - who needs this information to effectively guide communication - and is for the other side - who needs to hear what your position is and how strong you are in it.

A mediator's role is essentially to help with the communications between the parties. While there are many theories of effective mediation techniques, in terms of whether the mediator is simply relaying information or is more involved in helping to brainstorm solutions, a good mediator will always be able to effectively communicate each party's position and offer to the other side.

Many special education disputes are resolved through mediation. Ideally, mediation also allows for the two sides to communicate and air their disputes so that parents and the district may have a chance in the future of a productive relationship.

Due Process Cases: What is a Resolution Session?

"Informal Dispute Resolution" can refer to many different things in the context of special education cases. Many school districts may have their own informal dispute resolution ("IDR") processes, in which a parent can meet with or speak with someone about their disagreements without having to file for a due process hearing or go to a mediation. Even in the context of a due process case, there is an opportunity to "informally resolve" the issues between the parents and the district.

Definition of "Resolution Session"

A resolution session is a process by which parties meet without a neutral third party and attempt to resolve their dispute.

Rules / Statutory Basis

The Resolution Session and Informal Resolution Period were created in the 2004 changes to IDEA;

"Prior to the opportunity for an impartial due process hearing... the local educational agency shall convene a meeting with the parents and the relevant member or members of the IEP Team who have specific knowledge of the facts identified in the complaint
(i) within 15 days of receiving notice of the parents complaint;
(ii) which shall include a representative of the agency who has decision-making authority on behalf of such agency;
(iii) which may not include an attorney of the local educational agency unless the parent is accompanied by an attorney; and
(iv) where the parents of the child discuss their complaint, and the facts that form the basis of the complaint, and the local educational agency is provided the opportunity to resolve the complaint, unless the parents and the local educational agency agree in writing to waive such meeting or agree to use the mediation process in lieu of the resolution session"

20 U.S.C. section 1415(f)(1)(B)

Any agreement made in the resolution session must be in writing, is enforceable, and can be voided by either party within 3 business days of execution. 20 U.S.C. section 1415(f)(1)(B)(iii)&(iv).

What to Expect:

An informal resolution session is to be held within 15 days after parents filed for due process. The statute allows for a 30 day "resolution period" meaning that although the resolution session must occur within the first 15 days, the district has an opportunity to try to resolve the dispute within 30 days before the time period for the hearing and a decision commences. If a district files for due process against a parent an informal resolution session does not have to be held and the 30 day period does not toll.

A school district representative will most likely contact the parents prior to the deadline to schedule a resolution session (sometimes referred to as an "informal"). Parents are required to attend the resolution session, unless the parties both agree in writing to waive it. If the school district doesn't agree, and parents still refuse to participate, then all of the applicable timelines stop until parents agree to go to the informal.

Whether attorneys or advocates attend the resolution session with parents is a case-by-case determination. There are pros and cons of having and attorney or advocate there, but many parents feel that they would be easily bullied if they went alone. The law anticipated that attorneys would not be involved in this process, and therefore parents cannot get reimbursed for an attorney's time spent attending the resolution session.

A resolution session is sometimes convened with only the parents and a district representative, like a special education director. However, sometimes the school district will have many participants, including members of the IEP team.

Even if a district does not typically settle cases at this level, the informal resolution process can be helpful to the overall settlement negotiations in a case. Often, the fact that a "decision-maker" has been forced to immediately get involved in the case, to meet with the parents first-hand, and to familiarize themselves with the facts contained in the complaint, can be very effective. Sometimes, if a subsequent mediation is held, it may be much more productive because it is not the first time the parties meet, and the "decision-maker" will at least have already read the complaint.

Back to School: Help I need a placement! (and other concerns)

It's back to school time around here, with some school districts starting back this week and many starting immediately after Labor Day. As expected, it is a busy time for all of us advocates and attorneys. Here are some of the concerns we hear all too often from parents as school starts back:

1) Where is my kid going to school?!

One of the common back-to-school disasters happens when a kid doesn't have a placement. Knowing where your kid will be in school when the year starts out seems like a pretty basic question, regardless of if your kid is on an IEP. How, you may ask, could not having a placement possibly happen?! Here are some examples based on real-life scenarios:

Scenario A: Child has been in an SDC for the past couple of years and now has "aged out" of that particular class. Parents disagreed with the offer of placement for the next school year, as the new SDC is substantially different and won't meet their kids needs. The school year starts, and parents and district are still in dispute. A problem arises because there is no "stay put" placement, since the child aged out of the previous classroom. Where does the kid go for the first day of school?

Scenario B: Child's specialized program, which the IEP team offered for this school year in the most recent IEP last spring, closed down over the summer based on an "administrative decision" and probably due to budgetary concerns, and no staff was available at that time to hold an IEP meeting.

Scenario C: Family moved into a new school district over the summer, and did not take the IEP document in to the school district because the office was closed, or they didn't know where to take it, or whatever the reason. On the first day of school, parents show up with the kid and the IEP, but the District does not have a placement readily available that is comparable to what the child previously received.

Scenario D: Child had significant emotional problems during the previous school year, to the point that he/she was unable to attend school due to anxiety. Parents requested assessments and an IEP at the end of the year, which have not yet been completed. Because there is no IEP, there is no offer of an appropriate placement, but because of the significant anxiety, child's doctor says he/she cannot return to school without a different program in place.

There are many scenarios which could lead to an issue about placement at the start of the school year. Advocates and parents (and districts) are often scrambling around at the last minute to locate an option that can be implemented. Here are a few tips on dealing with this:

Make lots of phone calls! In these circumstances, talking to a live person about the urgency of your concerns may get you further than starting off by sending a letter documenting all of the ways the district is out of compliance. That's not to say that you won't need to ultimately document all of your concerns, but starting out with a personal call may be the best first step.

Consider alternatives, but don't compromise your ultimate position. It's likely that what you are facing is a situation where there is a placement dispute that you may need to deal with further down the line through additional IEP meetings and due process complaints. In the meantime, you may have to be willing to accept some other alternative so that your child can go to school. Even if it isn't the best case scenario, this may be a situation where something is better than nothing, so you may need to consent to the placement being offered while documenting that you don't believe it is appropriate and you want to have an IEP meeting to discuss placement.

Try to anticipate these disputes. Although school is not in session and timelines for things like holding IEP meetings or conducting assessments may be different, parents can still pursue due process and all of their related rights during the summer. If you can anticipate that there will be a placement problem in the fall, try to resolve it early on. And if you have to file for due process, do so early in the summer so that the issue may be addressed in mediation, and so that you will have time to file for stay put before the school year starts if you have to.

Don't keep the kid out of school unless there is not any other option, or unless the child will be harmed in some way by going to school. Ultimately, it is the parent's choice, not the advocate's / attorney's. Parents have many factors that they have to weigh in these situations. If there is no placement in place, and the District offers something inappropriate for the start of the school year, you have to balance the advantages / disadvantages of keeping your child at home versus advantages / disadvantages of sending your child to an inappropriate placement. These are tough decisions! But ultimately, refusing to allow your child to attend the school at all, barring some clear indication that the child would be harmed, may work against you in later disputes.

2) I just got a call from the school - and they don't have an aide for my child!

This happens more often than you would think. It's the week before school, or even the day before, and parents get a phone call to say "we don't know if your child can start on the first day because we can't find an aide."

Is the aide support called for in your IEP to be provided by District staff or through a Non-Public Agency? If the aide is to be provided through an NPA, you may be able to do some of the "leg-work" yourself. Start calling around to see if any of the NPAs in your area have an aide available, then let the school know what you found out. Sometimes it is just a matter of getting the information to the right people.

Remind the District that compliance with the IEP is mandatory. If the District is saying that your child can't attend school because they don't have an aide (or other support) in place yet, document that statement in writing and also document your concerns regarding the fact that your child will lose educational benefit if he/she doesn't start the school year with all of the other kids.

Show up the first day anyway! Refusing to let your child attend school because they can't comply with the IEP is basically excluding your child from class because he/she has a disability. If school starts and there is still no aide in place, show up the first day with your child and a copy of your child's IEP and remind the District that they are obligated to implement the program called for in the IEP document. If they refuse to let your child attend class, you can follow this up with a letter documenting what happened.

3) My kid's IEP calls for transportation, but no bus showed up this morning to take him to school!

These situations arise when the school district's transportation schedule isn't all worked out before the school year starts. Sometimes, parents find out beforehand that their kid isn't on the bus schedule. Sometimes parents wait and wait the first morning, and no bus shows up. Other transportation mishaps can also happen the first week of school, like the wrong bus picking up the child, or the bus taking the child to the wrong school location.

Be patient and remember that mistakes happen. While you should document your concerns about the failure to implement transportation (which is a related service) pursuant to your IEP, you should also give the district an opportunity to correct this problem. Bus schedules are complicated, and some transportation guru who isn't part of the IEP process is working hard somewhere to map everything out and make sure the schedule covers every kid that is being transported. Make a phone call and let the school and district staff know that this happened, and that you expect the issue to be resolved immediately so that transportation is provided. Get an estimate as to when you can expect your child's bus schedule to be fixed. If multiple days go by, you may want to request that the district reimburse you for transportation you have had to provide yourself when the IEP wasn't being implemented.

4) My child is in general education, and his teacher didn't even know he had an IEP!

The start of the school year involves a lot of planning for school staff and teachers. They are busy getting their classrooms set up, creating lesson plans, studying new curriculum that will be used, organizing supplies, meeting parents, etc. If you find out that your child's teacher doesn't even know your child has an IEP, doesn't know what accommodations must be implemented, etc, it can be a very upsetting discovery! Reserve your frustration for the school district and the administrator involved in your child's IEP, not the teacher. Talk to the teacher frankly about your child's disability and why you think the IEP is important. Then make sure you let the school district know of the problem, and of your concerns regarding the fact that no one made sure the teacher had the IEP so that it could be implemented.


Ultimately, back-to-school can be a busy, stressful time for everyone involved. There are things you can do to prepare, and to help to ensure that everything will be implemented as needed for your child. But that doesn't guarantee that there won't be any back-to-school problems! Remember to stay calm, and to communicate with your child's school about the issues. Patience and persistence will help you get through whatever happens!

And one more thing- if you already have an attorney/advocate, give them a call as soon as you know these kinds of things are happening! All to often we get a phone call after-the-fact, when most likely there may have been something we could have done in the moment to help things get resolved faster! That being said, don't expect miracles! Ultimately, the District has the power to either comply with the IEP or not, to make resources available or not, or to come up with alternatives to ensure the child is educated even if disputes are happening.

Back to School: Get Ready with Organized School Records

The start of the 2009-2010 school year is fast approaching, and as parents prepare, this is a great time to get all of those IEP documents, assessments, and other school records into order. Organizing your child's files is a great way to ensure that you start the school year out right. With organized files, you are able to find documents quickly, access information regarding your child's needs, and track changes in your child's program. Ultimately, you become a better and more effective advocate for your child. Here's out tips for how to do it:

Records to Gather:

• All of your child's IEPs, including annual IEPs, triennial / three-year reviews, and any addendums or amendments
• Any assessments conducted by the school district, including protocols and notes from those assessments
• Any assessment plans or written correspondence related to the district's assessments
• Any assessments, evaluations or other reports that you have obtained privately / independently
• Progress reports, report cards, and results from periodic classroom assessments
• Statewide or districtwide assessment / testing results
• Correspondence to and from your child's school, teachers, providers, etc
• Discipline records or reports regarding your child's behaviors
• Other relevant documentation regarding your child's unique needs and special education program
• Copy of your "parent rights" that you recieve from the school district

* You have a right to review your child's records from the school district. Make a request in writing in order to review the records or obtain copies.

Supplies Needed:

• Three-ring binders - you will need at least one large binder (more if your child is older / has a lot of records) for older records and one medium to large one to organize this year's documents as you receive them
• Dividers with labels. Color-coded ones work well.
• Inserts with pockets for loose documents
• Hole-punch
• Pen or marker
• Colored paper

Organizing Your Records from Previous School Years:

1. If your child is older, and has many years worth of documents, start by dividing up the documents by elementary school years, middle school years, high school years.
2. Separate the documents in piles by the following categories:
a. IEPs
b. Assessments / Evaluations, Independent Reports
c. Progress Reports, Report Cards, Statewide Testing Results
d. Discipline records, behavior notes, behavior logs, etc
e. Correspondence, communications and emails
f. Other documents
* If your child has applicable medical needs, or other areas, you can add additional categories as needed
3. Within each category, put the documents into chronological order
4. Make labels for each section of your binder using the file dividers. The labels should correspond to the above categories. i.e. Make labels for "IEPs" "Evals" "Progress" "Behavior" "Correspondence" "Other"
5. Put documents into sections in chronological order, using a single colored sheet of paper between each separate document.
* Dividing records by category has the benefit of enabling you to easily find information in your child's files and track changes in IEPs, etc from year to year. Other methods could include dividing by school year; or simply putting all documents in chronological order with an index.

Tips for Setting Up a System for Current School Year:

1. Start with labels for your second binder that match the categories discussed above. Throughout the school year, you can add documents to these categories as you receive them, which will make it easy to transfer them into your archiving binder when the year is over.
2. Add an additional divider labeled "Notes." In that section, add blank paper or some format to use as a log or journal throughout the year. Make notes of any phone conversations, meetings or other discussions with teachers and staff regarding your child's educational program.
3. Insert a folder that can be used for forms and other communications that you need to sign and return.
4. Use either the front pocket of the binder or an insert to hold a contact list with teachers, providers, IEP case carriers, district administrators, your advocate, and others who are important to the development and implementation of your child's IEP.
5. Add additional dividers according to your needs.
6. If you can print out a school calendar, put a copy of it at the very beginning of this binder.

Remember that the goal here is to make this system easy for you to utilize and access, so organize in a way that works best for you!

Back To School: Preparing for the New Year

Summer is almost at an end, and soon it will be time for students, teachers and parents to gear up for school year 2009-2010! Most parents, whether of typically developing kids or kids with disabilities, are a little anxious as the school year approaches. What will this year's teacher be like? Will my child make new friends in the classroom? How will the curriculum expectations change? How will my child adjust to a new setting, like middle school? What will the homework expectations be? As parents of students with disabilities get ready for another school year, these questions also lead to questions and concerns about IEPs, assessments, progress reporting, instructional programs, related services, and other issues.

Here is a list of questions for parents to ask themselves as the school year approaches. Thinking about these things ahead of time and getting organized will help parents get this year off on the right track.

Is there an IEP “in place” for the start of the school year?

The school district is required to have an IEP in place at the start of the school year for each child within the district who is eligible for special education and related services. An IEP is “in place” if the District has made an offer of a free appropriate public education (FAPE), and is ready and able to implement the goals, services, accommodations and placement called for within that offer. If you had an IEP meeting in the spring that was not “finalized,” it should be reconvened before the school year starts, to ensure that a program is in place for your child.

Is the IEP signed / have you provided written consent?

If you agree with what the IEP team developed and the District offered in terms of goals, services and placement, you should make sure that you have signed the IEP form indicating your agreement and consent, and that this signature has been provided to the District. You don't want to be in a position of dealing with lack of implementation at the beginning of the school year because the District doesn't have your signature. If there are portions of the IEP that you don't agree with or consent to, or if you have additional concerns that have not been addressed, you should indicate this either in a letter or on the signature page of the IEP. Contact a local special education attorney or advocate to assist you with responding to the IEP if necessary.

Do you understand the IEP and the program that will be provided?

The IEP document should be clear enough for you to fully understand what goals will be addressed, how those goals will be measured, and what special education and related services will be provided. Frequency and location of the services should be specific. Additionally, the District should have included you in any team that made placement decisions, and should have provided you with adequate information about what placement will be offered / provided. Review the IEP document before the school year starts. If there are portions you don't fully understand, ask! If at all possible, discuss these questions with the case carrier, teacher or administrator prior to the start of the school year, so that when the year starts, you are fully informed about what your child will be recieving in his/her special education program.

Does your child’s teacher need additional information regarding your child’s needs?

Don’t assume that the (new) teacher has been given all of the relevant information. Although the school district must provide the teacher with information regarding the IEP so that it can be fully implemented, parents can be proactive in making sure the teachers have enough information. Most teachers will be open (and even grateful!) to friendly and courteous communication from you in regards to your child’s disability, IEP, and the accommodations he/she requires in the classroom. Share this information with your teacher at "open house" or "back to school night." Or, if appropriate, try to contact the teacher directly. Some parents I have worked with like to make a one page "cheat sheet" related to their child at the start of the school year. Remember that IEPs are often lengthy documents, and teachers have a lot of other information to review too. A single page of information about who your child is and what they need may be an efficient, friendly way to introduce yourself and your child to the new teacher.

What information came out of your child’s ESY program that should be shared with the team?

Did your child attend an ESY program or receive other instruction or services over the summer? Consider whether your child’s needs have changed over the summer in such a way that the District may need to reconsider what it has offered and will provide. For example, if your child attended an intensive remediation program that was private or outside of the school district, he/she may have made such progress that the goals written last year are not longer appropriate. Progress (or regression) may be an important consideration in many areas after a summer program, including both academics and non-academics. If you believe this information impacts the IEP, go ahead and let the District know in writing that another meeting needs to be convened to consider current data and make appropriate adjustments. Share information from the program, including progress reports and other data, when appropriate.

Are you aware of how progress will be reported to you during the school year?

Progress reporting is an important part of how you as a parent will be involved in the ongoing development of your child’s program. If you are not fully aware of your child’s progress, or lack thereof, you cannot effectively advocate for changes in the IEP when they are required. The IEP document is required to contain a statement of how progress will be measured and of when you will be provided periodic progress reports on your child’s goals. Check the IEP and make sure this is clear, and mark it on your calendar so that you can know when to expect reports.

What other things do you need to discuss with your child's teacher?

There are some things you will want to know about the new school year regardless of whether or not your child has an IEP. What school supplies does your child need? What are the schoolwide and classroom rules? Will there be any big projects this school year that you should plan on in advance? What are the homework expectations and policies in this class? Most importantly may be the question of how you will communicate with the teacher, and how information you need will get home to you. Will there be notes placed in your child's backpack? Are phonecalls / emails appropriate? These are things you should think about and gather information regarding. I often think that one of the biggest hurdles for parents involved in the special education system is communication. While many districts, administrators and teachers are great at communicating, too often there are limits and attitudes about communication with teachers in the special education world that would not necessarily even come up within the general education world. Remember that your child is a student first, and a special education student second. If you approach the start of the year as would any parent in the general education community in regards to opening the doors of communication with your child's teacher, those doors will possibly stay open for productive, two-way communication.

Have appropriate arrangements been made for transportation, medications, etc?

If your child's IEP calls for transportation to be provided as a related service, make sure that arrangements are in place for transportation to be implemented, and that you know the schedule, drop off / pick up place, and other relevant information. If your child is taking regular school district transportation, you also need to find out all of the relevant details regarding that. Otherwise, if you are arranging for transportation privately or are taking your child to school yourself, make sure you know the whens, wheres and hows of drop off, pick up, etc.

Medications may also require some advance planning and arrangments. Make sure all medication and prescription information is up to date, and see your child's pediatrician before school starts if needed. Fill out and return any necessary forms for the school nurse related to medication dosage and administration. If your child's teacher also needs to be made aware of any medication information, including possible side effects, share this information as appropriate.

Do you have organized records and a system in place for gathering documents related to your child's education?

Having everything organized is a great way to start the year off right. We recommend that parents organize their child's documents by category; IEPs, assessments, correspondence / communications, progress reports, other; and then chronologically within the category. There are other ways to do it: you could organize everything in one place chronologically with an index, or you could have a separate folder / binder for each school year. Go to the back to school section at the local discount store or supply store and get a three ring binder and some dividers, and then decide what system will work best for you.

The National Center for Learning Disabilities has a great checklist for what you should have within your child's records. You can print it out at their website. Your records should be in a system that is easily updated so that as the year goes by, you can add progress reports and other documents as appropriate. It is also a good idea to have a designated place for forms that you need to review, fill out and return to the school.

What can you do to prepare your child?

Back to school time is a transition, and can be stressful for any child, particularly for some children with disabilities. In most circumstances, there are many things parents can do to make the transition less stressful. "Priming" your child for the school year can be a great strategy - talk to your child about what to expect, focusing on the positive aspects. Let your child tour the school if needed or if it is a new setting. Work with your child's providers, if possible, to develop strategies like social stories to help the child get ready for the new year. Most importantly, be a good listener and listen to any concerns or worries your child has about school.

The website "Additude" has a great article on preparing your child with ADHD for going back to school, and their tips would be applicable to many kids with other diagnoses as well.

Remember that the IEP process is a team process, and truly successful implementation of an appropriate education can only come through team effort as well. If everyone does their part to get the school year started on the right track, there is a much greater opportunity for building success and meaningful progress for the child, as well as productive cooperation between parents and teachers throughout the year.

What to Expect When You're Expecting an IEP

With the start of school looming in the not-so-distant future it's time to get prepared for those IEP meetings - you know the ones you requested at the end of the school year and will be happening sooner than you know it once school is back in session. So here's some pointers for what you can expect when you're expecting an IEP and what to avoid.


Preemptive Strikes


If you requested an IEP at the end of the school year the District may have already scheduled an IEP or may be contacting you shortly to do so. As with many IEPs the District may only schedule a few hours for the meeting. If you think the meeting is going to take longer or, especially in this scenario, the IEP is to review reports from the school district, which you have not received a copy of yet, make a request for two IEP dates. As soon as school starts, if not sooner, send a follow-up letter requesting a second IEP date in the event that the meeting does not finish in the allotted time - indicate that if you have a chance to review the District's reports ahead of time then you likely won't need the second meeting. This will have one of two results: 1) the district will make sure you get the reports ahead of time; or 2) they won't be shocked when you ask to have more time to review the reports and come back a week later to finish the IEP. (Well in all honesty there is a third option where someone moans and whines about coming back again to finish the IEP - in that circumstance let them know that you value their time but you did indicate that you would need the reports ahead of time so they should really talk to the person in charge.)


Another issue that you may need to take a stand on before the meeting even happens is attendance of IEP members. Under the law required IEP team members need to be present or have been excused ahead of time. Required members include the core team members as well as anyone who may have done an assessment, for example. Many a time a school district will wait until the meeting to give you a form to sign to have the member leave or just say they have to leave. If you think you need all the members there the whole time or there is someone in particular whose input you think is necessary - let the district know in writing beforehand that you expect that person or persons to be in attendance the whole time or -again - they can schedule another meeting the following week to ensure full audience/IEP team member participation.

What Not to Say and How Not to Say It

I have clients ask me all the time what they shouldn't say at an IEP meeting. Generally speaking you should feel free to share any information you think is important about your child.

What you should not say is that you want what is "best" for your child. That's the most dreaded four letter word a client could say. As harsh as it may be and even if the district members of the IEP team freely toss it around,your student is not entitled to the "best" and therefore don't ask for it. And if you say it once you can't take it back - someone, somewhere at some point will remember that. (If only there was a citronella collar for parents that would spray them in the face every time they said "best" like with a barking dog.)

Also don't yell at the IEP team. I realize that this is emotional and that now that you can't say you want what is best you're feeling a little frustrated and that someone may be looking at you like you asked for your child to take a shuttle to the moon instead of an extra half hour of speech but above all else it is best if you keep your cool. Why? Well for starters every member of the team may not remember why you yelled but they will remember that you did and that can hurt your creditability later on if you need to go the next level (such as a due process hearing). Second, if you do decide to litigate a matter you don't want the impression that it was done for any other purpose other than to get what is appropriate for your child, and not to retaliate against the school district. Which brings us to a whole other list of things not to say - that you will make them pay, that you will sue someone personally, etc. Basically, you need to be the Mother Theresa, Gandhi, Dalai Lama, Martin Luther King of the IEP team. Find a way to get your point across and still get along with everyone or at least be civil.

Finally, know when it is best to say nothing at all. If the district is digging themselves a shallow grave - let them do it. This is probably the hardest part of any IEP meeting and can probably best be demonstrated with a real-life example. If you are tape recording an IEP meeting and several members of the team indicate that they don't have the power to make a decision in this matter and that you will need to speak to someone at the "district' (which apparently they are not a part of), just ask for clarification ("So, just to clarify you can't offer my student a NPS, speech and language, etc.") and when they affirm it is best to be quiet at this point. Why? Well, if you've been paying attention you would know that this is clearly a big no-no on the part of the IEP team and someone at the "district" may be more willing to be cooperative after you share this snippet of information.

Don't Sign Anything

I've said this before (I'm sure) but don't sign anything at the meeting that you haven't fully had the chance to read - and this goes for more than the IEP itself. What could they possibly ask you to sign, you ask, well here are a few: an invitation to the IEP meeting (that you never received), an assessment plan (for an assessment they will be presenting that you never agreed to or participated in), or an excusal of IEP team members (who you want there). Note that most of these are items that you had to agree to before the IEP meeting, not once you are sitting there ready to go.

My Favorite Thing To Say

And no it is not supercalifragilisticexpialidocious. It may, however, make you sound precocious. Anyway, I have found it is a way to disagree with what someone is saying and yet make them feel in control of the situation. Here's the setup: An IEP team member is rattling off about how your child does not need some related service, let's say speech and language. You, however, have their own report which indicates that the student has needs in the area of pragmatics. What to say: "Correct me if I'm wrong, but couldn't a speech therapist address pragmatics, and doesn't your report indicate that is an area of concern?" And now what can they say? The trick, of course, is to not ever say anything that is wrong and therefore never be corrected.

If after reading this you are under the impression that these types of scenarios could never happen - then it is likely you're a first-timer or early on in the process and would benefit from learning about what is legally mandated to be in an IEP. You should then see the posts labeled "Breaking Down the IEP" - a series of posts that walks you through the nuts and bolts of what goes in an IEP. The most beneficial thing a parent (or teacher, or any other IEP participant) can do is to educate themselves about IEPs, special education programs, and the rights and responsibilities of parents and districts. The more you know, the better you can advocate for your child!

Breaking Down the IEP: How Progress Will Be Measured

A student's IEP goals must be clearly measurable and must address that student's unique needs arising from his / her disability. Goals are the central part of an IEP; they set standards for what the child will learn and achieve under the proposed program. Essential to a parents understanding of the child's progress and the appropriateness of the program, therefore, is how progress will be reported. The IDEA requires a statement within the written IEP document regarding this.

Specifically, the IDEA requires:

"a description of how the child's progress towards meeting the annual goals... will be measured and when periodic reports on the progress the child is making toward meeting the annual goals (such as through the use of quarterly or other periodic reports, concurrent with the issuance of report cards) will be provided."
20 U.S.C. section 1414(d)(1)(A)(III).

How will progress be measured?

This is closely related to the discussion of how goals should be written so that they are measurable. The starting place for determining how progress will be measured is within the goal itself - make sure it is clear what accuracy level the child will be expected to achieve to meet the goal; include a reliability indicator, such as 3 out of 4 trials, if appropriate, and make sure that the specific skills themselves are clear.

Determining "how" progress will be measured also involves deciding how information regarding progress will be gathered. Will there be specific data collection that indicates specifically how a child performed on the skill for each trial? Will classroom work samples be sufficient to track progress on a skill? Should the teacher utilize an assessment measure to indicate the child's achievement level to determine progress? The IEP team needs to consider how information will be collected, and make sure this is clear in the IEP. Although observational information may be useful for future IEP meetings, a subjective measurement of progress should be avoided as a sole indicator whenever possible.

Examples:

Child's annual goal = read 50 new sight words from a 2nd grade high frequency word list with automaticity as measured by teacher collected samples

Progress measured by: teacher samples
Teacher indicates directly on list of high frequency words the words that student reads, and adds these up. The list itself is a record of student's progress.

Child's annual goal = remain on task for at least 10 minutes during a teacher-directed desktop assignment or activity, with no less than 2 verbal prompts in 3 out of 4 trials as measured by data collection charts.

Progress is measured by:
Data collection chart
Date: 06/12
Lesson: Math
Time on task: 6 minutes
prompts: 3

When will progress be reported?

The IEP document needs to specifically identify when "periodic reports on the progress" towards the child's annual goals will be produced and provided to parents. These periodic reports can be concurrent with the issuance of report cards, but should include specific information related to the child's specific goals. Because the IDEA now only requires short term objectives for students who are provided with alternative assessment measures, it may be difficult to quantify a child's progress towards the ultimate goal for the periodic report. If objectives are included in the IEP, the periodic report can tell parents whether or not the child has met the objective for that time period. If not, then information about how the child has progressed should still be made availalble.

Providing sufficient information within a periodic report of progress goes back to the goals itself being measurable. If the goal has a clearly measurable, objective standard that can be quantified or recorded in some way, then the child's current level on that same objective standard can be reported for a periodic report.

Example:

Child's annual goal = read 50 new sight words from a 2nd grade high frequency word list with automaticity as measured by teacher collected samples

Periodic Report for First Reporting Period

periodic reports on the progress the child is making toward meeting the annual goals (such as through the use of quarterly or other periodic reports, concurrent with the issuance of report cards) will be provided

Relationship to Other Procedural Safeguards

School districts are obligated to revise a child's IEP as appropriate "to address any lack of expected progress toward the annual goals and in the general education curriculum, where appropriate." 20 U.S.C. section 1414(d)(4)(A)(ii)(1). This means that if during the time period covered by an annual IEP, the student is not making expected progress, the District should convene the team to discuss whether adjustments to the goals or the program are required. It is important that the goals themselves are clearly measurable, and that there are reporting periods clearly identified for when progress will be reported, so that if the child is not making progress, the team, including parents, are aware of this. If the IEP does not clearly establish how and when progress will be measured, the team may not be aware until the next annual IEP that the child is not making adequate progress. This may cause a loss of educational benefit, in that the District thereby did not revise the IEP as appropriate to meet the child's needs and enable him/her to meet the annual goals.

Ultimately, an important purpose of making sure that the goals are measurable and that progress is reported periodically is to ensure meaningful parent participation in the process. Parents cannot fully participate in ongoing discussions regarding their child's program or annual IEP meetings if they do not know whether or not the child is making expected progress. If parents are fully informed regarding their child's progress, or lack thereof, under the special education program being provided, they are more able to understand the appropriateness of the program being offered, and to ask for additional services or supports when needed.

Breaking Down the IEP: Present Levels of Performance

When an IEP team is convened to discuss the program and services for a student with a disability, the school district is responsible for ensuring that a written document is created. An IEP is defined as "a written statement for each child with a disability that is developed, reviewed, and revised in accordance with [the IDEA]." 20 U.S.C. section 1414(d)(1)(A). There are specifically delineated portions of this "written statement" that make up required content for an IEP.

The first on the IDEA's list of required content is "present levels of performance;" often referred to by its acronym, "PLOP."

PLOP means:

"A statement of the child's present levels of academic achievement and functional performance, including (aa) how the child's disability affects the child's involvement and progress in the general education curriculum; (bb) for preschool children, as appropriate, how the disability affects the child's participation in appropriate activities; and (cc) for children with disabilities who take alternative assessments aligned to alternative achievement standards, a description of benchmarks or shortterm objectives."

Present levels of academic achievement

Academic achievement refers to a child's performance in academic areas, including reading and language arts, math, science, and history or social studies. This refers to what your child knows and can do at the present time as related to the core academic subjects. PLOP in academic achievement should provide the team with information about what the child's skills are. How are the child's reading and math skills as compared to the general education curriculum standards? Did your child meet his / her previous goals related to academics? What level were those goals set at, and if your child did not meet the goals, what level did he/she reach? What does your child's report card say about their performance?

Present levels of functional performance

Functional performance refers to a child's skills and achivement in areas that are "not considered academic or related to a child's academic achievement." See Commentary, Federal Register, at page 46661. Functional skills include areas such as daily living activities, motor skills and communication. Because PLOP must address both academic and functional performance, the IEP team needs to consider all areas of need arising from the child's disability when developing PLOP, regardless of if these areas directly impact academic achievement. Consider factors such as your child's ability to communicate in the classroom and with peers, your child's motor skills needs, any difficulties with organization or work habits, how your child socializes, etc. Ask the teachers for input about how your child "functions" on a day to day basis as compared to other kids his/her age.

How the child's disability impacts involvement and progress in general education

The requirement that PLOP specifically address how the disability impacts involvement and progress in general education curriculum should be considered when developing both PLOP for academic performance and PLOP for functional performance. When considering a child's academic achievement, for example, it is important to compare this to what the child is expected to do / learn in order to make progress in general education curriculum. If your child's disability affects his / her reading skills to the extent that this impacts her progress towards general education curriculum standards, for example, this needs to be noted in the PLOP. In the areas of functional skills, any functional performance deficit that affects how the child can participate in the curriculum should be noted as such. Additionally, the IEP document should consider, as a whole, how the disability impacts involvement in general education. Does the child's disability require a specialized setting or specialized instruction that cannot be provided in general education? Does the child's disability require modifications to the general education curriculum? These are issues the team should be considering when developing PLOP.

Preschool children

There is nothing in the law that states that IEPs for preschool children do not have the same requirements for content as for other students. There is, however, a consideration in the requirement for PLOP regarding preschool children in terms of access to age appropriate activities. For preschool children, it may be the case that they are not yet being taught "general education curriculum," and there may not be specific curriculum standards that apply. Instead, there may be "readiness skills" and developmentally appropriate activities, designed to get the child ready for a Kindergarten program. The IDEA recognizes this, and requires that when appropriate, the IEP document include a statement of PLOP related to how the child's disability impacts his/her ability to be involved in age appropriate activities.

Alternative achievement standards

Prior to IDEA 2004, the IEP was required to include a statement of goals that includes objectives or benchmarks towards meeting those goals for all students with disabilities. IDEA 2004 removed this language under "goals" and instead included additional language under the provision for PLOP. Students who are assessed using "alternative measures" that are aligned to alternative achievement standards, rather than general education standards, require shortterm benchmarks in order to measure their progress towards goals. Although this is now included under PLOP, it will be fully discussed in the next blog post in this series, which addresses goals.

Importance of PLOP to the IEP process

A clear and accurate statement of a child's present levels of performance, both in academic and functional areas, is the foundation for establishing a good IEP. PLOP provides the team with a baseline from which to develop goals, consider necessary services, discuss appropriate specialized instruction, and ultimately develop a program that will meet the child's unique needs and provide educational benefit. If the PLOP is vague, inaccurate or incomplete, then the IEP will likely not address each of the child's unique needs arising from his/her disability.

A sufficient statement of the child's PLOP is also critical for meaningful parent participation. Without accurate and complete information about how a child is performing and functioning, it would be impossible for a parent to be fully informed and to meaningfully participate in discussions regarding the child's unique special education needs.

For example, in an Oregon case, the ALJ concluded that the school district denied FAPE to the student, based in part on the finding that the district repeatedly failed to report the student's current performance or issue reports that documented progress towards IEP goals. The ALJ noted that mere identification that the child had "ongoing educational difficulties" was not enough for a statement of PLOP, noting that the parent did not have enough information regarding how the PLOP was related to the child's IEP goals. The ALJ found fault with the district's "recycling" of PLOP from year to year without updating the information.
Ashland School District, 47 IDELR 82 (SEA OR 2007).

In a New Mexico case, an appeal officer found that the District had denied FAPE to a student because the parents were denied meaningful participation in the IEP process. The IEP documents failed to include a statement of the student's present levels of performance, particularly in the area of reading, and did not include adequate information to allow the parent to fully participate in the development of a program. Because the IEP lacked information about the student's PLOP, parent had an erroneous belief that he continued to require a restrictive placement in a separate facility to recieve adequate specialized instruction. Although the district "recommended" a less restrictive setting, it continued to place the child in the specialized program due to the parent's request. The judge noted that this placement was inappropriate, and that the parent only requested it because of the lack of information she was provided regarding her child's current academic performance.
Rio Rancho Pub. Schs., 40 IDELR 140 (SEA NM 2003).

How specific should PLOP be?

The statement of PLOP should be specific enough to clearly establish with sufficient detail what the child's particular needs are in each area. Vague statements are not sufficient to lay an adequate foundation for a good IEP. The child's levels of performance need to be clearly defined so that anyone reading the IEP and working with the child has sufficient information to be able to address those needs and measure progress.

For example, in a New York case, the state review officer determined that the school district's IEP was inappropriate because the document did not contain sufficient details regarding the child's present levels of performance and specific special education needs. The IEP in question stated that the child had "difficulties" in motor skills and functional communication, but did not identify any specific difficulties that arose for this child. The vagueness of the statement of PLOP meant that the goals were not designed to match the student's actual needs, and therefore there was not a sufficient "foundation" for development of an appropriate program.
In re Child with a Disability, 50 IDELR 236 (SEA NY 2008)

Where information is derived from

Information contained within a statement of PLOP may come from a variety of sources, such as progress reports from previous IEP goals, report cards demonstrating a student's academic achievement in the classroom, informal observations, data collection, formal evaluations, teacher input, etc. Remember those things that the District must "consider" when developing the IEP, as discussed in the previous post. The District should take into consideration a variety of sources of input to develop PLOP that accurately, completely and specifically identifies the child's strengths and weaknesses in each area.

Parent participation in development of PLOP

Parent participation is critical to the development of a procedurally and substantively appropriate IEP, and there is nothing to support an argument that parents should not participate in the development of PLOP. As discussed in the previous post, the "concerns of the parent" are a part of what must be considered when developing the IEP. If the parent concerns are relevant to what the child's current levels of performance and achievement are, it would be appropriate for these concerns to be considered when developing PLOP. On a logical basis, it would be irrational for the District not to include relevant and accurate information provided by the parent in relation to what the child currently knows and can do.

Parents should prepare for the IEP meeting by carefully considering for themselves what the child's PLOP are in areas related to academics and functional skills. Look over information you have been provided throughout the year from your child's teachers and service providers. Make sure you have copies of any statewide or standardized testing results, report cards, progress reports, and evaluations. Make a list of what you see as important performance and achievement information from this information, and use that as a "checklist" when discussing PLOP with the IEP team.

Finally, the discussion of a child's PLOP can be a good indicator of how the remainder of the IEP team meeting is going to go. If the District is not allowing parents to actively participate and provide input, or is not giving the parents sufficient information, during this part, that may be an indication that the District is not going to have a meaningful meeting that involves everyone and develops an appropriate program. Disagreements are certainly possible regarding what a child's actual levels of performance and achievement are, a meaningful discussion of those disagreements should take place. If the parent believes that the IEP document is not accurately describing a child's needs and PLOP, it is likely that the parent also won't believe the IEP is designed to meet the child's needs. Ultimately, everyone needs to be proactive, information needs to be fully shared, and sufficient details need to be provided so that the PLOP really does lay the foundation for an appropriate program.