| Special Education News from EdLaw |
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| Information, Events, Tips and Advice for Parents of Special Needs Children in Pennsylvania |
April 2009
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UPCOMING EVENTS |
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after High School
Arc of Chester County
610-696-8090
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It's IEP season! Although schools prepare IEP's throughout the year, spring is probably the busiest time, as schools and parents plan for the coming school year.
Planning really is a key to developing an IEP that works for your child. Planning and, of course, active participation by you as the parent. The special education system can't work for your child the way it should unless you are a full participant in the process.
That is why, for example, the governing special education law - the Individuals with Disabilities Education Act of 2004 - requires the IEP team to include the child's parent. ( 34 CFR Section 300.321). It also is why schools must make reasonable efforts to ensure that a parent attends the IEP meeting. ( 34 CFR Section 300.322).
But just showing up at the IEP meeting probably isn't going to ensure that your child gets the specialized instruction and services he or she needs. You need to actively participate to really make a difference.
But what can you do to get a better IEP for your child? Our feature article focuses on common "IEP" mistakes that parents make. We don't want you to fall into those traps, so we tell you where they are. More important, we suggest some simple steps you can take beginning now to help get the IEP your child needs.
Remember: You are the key to getting better results for your special needs child at school. And you can do it!
Taking these simple steps in this "IEP season" - and throughout the year - will help you make a big difference for your child at school.
Sincerely,
Education Attorneys Charles and Michalisa Pugh
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FEATURE ARTICLE: The Top 5 "IEP" Mistakes Parents Make - And How to Avoid Them
Does this sound familiar?
The school contacts you to let you know when your child's annual IEP meeting will be held. When it's time, you go to the meeting alone. There are five or ten school folks sitting around the table when you arrive. You feel a little nervous attending a meeting with a roomful of people. When the meeting begins, they hand you a draft "IEP" that is 15-20 pages long. You haven't seen it before. You have no idea what it says. You leaf through it quickly but can't really focus on it. For the next hour or so, the school folks go through the IEP and make comments on your child. They sometimes use confusing terms you don't understand. You ask a few questions, which they answer. By the end of the meeting, you are more confused than when it started. They ask you to sign a form approving the IEP. You're not sure what it means, but you want to cooperate. So you sign the form. When you arrive home, you put the IEP away with some other school papers. You don't look at it again. A year later, the school contacts you to arrange an IEP meeting. The process begins again.
Changing Your Approach to the IEP Process
Let's get clear on one thing up front: The IEP process does not have to be this way! It should not be this way! The IEP is as vital to your child's progress at school as our lungs are to breathing. It's not just a "contract." It's the key document that brings together what is known about your child and her disability, the services she has received, her progress (or lack of progress) over the past year, her need for specialized instruction and related services for the coming year, the type and quantity of the instruction and services, and the goals the school will help her achieve. The IEP is the blueprint for your child to learn, grow and develop.
It's all of these things - or it's none of these things, if it's not done right. In all too many cases, the IEP meeting is just an empty exercise that reflects little thought, wastes everybody's time, and produces a document that everyone ignores. You as the parent play a vital role in determining whether the IEP becomes the key programming and planning tool that can make a big difference in your child's life, or a waste of everybody's time.
So you need to accept the responsibility of making the IEP process work for you and your child. How? By taking some simple steps. Below we discuss the five big IEP mistakes that many parents make - and how to avoid them. But before you read about those five things, we ask you to keep in mind the following.
- Nobody's perfect! Don't feel that you must do all of it perfectly or all at once. It's a process. Take one step at a time. Make small improvements. Build from there. Don't make the "perfect the enemy of the good" - and hang back from taking the necessary action.
- There's a world of ideas out there! Second, understand that these are the five biggest IEP mistakes that parents make in our opinion. Other attorneys or advocates may focus on different IEP problems or methods for getting better results. What we offer are our ideas based on our experience, knowledge and observations. There are books, articles, websites and other resources on IEP's and special education. The more you learn, the more effective you will be.
- One size doesn't fit all! We offer a common-sense approach that we believe will help parents become better advocates for their child. If you become a better, more persuasive advocate, shouldn't your chances of gettiing what your child needs at school increase? Think about it. But will this approach lead to better results in every case? Of course not. Sometimes, for example, a school simply is not willing to provide the services that your child needs. That's why we have courts and lawyers!
Avoiding the IEP Traps
So here are the five biggest IEP mistakes we think parents make, along with our suggestions for a different approach that can help produce better results for your child:
- Mistake No. 1: Not understanding your child's disability. Knowledge is power, at least if you act on it. Your child's needs and future are too important to be left entirely to a changing cast of characters in the school building. Do you understand your child's disability? Have you read the school's initial evaluation report on your child? If he has a reading disability, for example, what's the nature of it? Does he have a problem with "decoding?" Reading comprehension? Can he sound out words he hears (phonemic awareness)? What else do the evaluation and other reports tell you about your child's strengths and weaknesses? How's he doing on the PSSA's, if he is eligible to take them? Do you know what the PSSA's are? If not, you should find out. You don't need to become an "expert" in your child's disability, but you should learn all you can about it. You can't help fix a problem that you don't understand.
- Mistake No. 2: Failing to track your child's progress under the current IEP. You can't be effective in developing a new IEP unless you know how your child performed under the old one. When did you last look at your child's IEP? What goals does it contain? Is your child making progress towards achieving those goals and, if so, how much progress has she made with respect to each one? What do your child's progress reports or report cards tell you about her progress? For younger children especially, when did you last observe her in the classroom? If you don't know the answers to these questions, pull out your child's IEP and progress reports. Here's the critical question: Is your child making progress in each area of need? If not, why not? You need to get those answers! Then use that information at the next IEP meeting.
- Mistake No. 3: Failing to get ready for the IEP meeting. To develop a better IEP, it is essential to plan ahead. As Henry Ford said, "Before everything else, getting ready is the secret to success." What steps should you take? First, review your child's evaluations, reevaluations and current IEP. (See items 1 and 2 above). Second, think ahead. Get clear. What do you want to accomplish at the meeting? What would be a successful outcome of the meeting and how can you help achieve it? Third, prepare a handout for the meeting that identifies your chief concerns and, whenever possible, your suggested resolutions. This could be in the form of a "Parent Agenda." (We like the forms in From Emotions to Advocacy" by Pete and Pam Wright, which you can pick up at www.wrightslaw.com or www.amazon.com). Fourth, get out in front! Why wait until the IEP meeting to express your concerns to the special education supervisor or other responsible team member? Consider sending your written "parent agenda" well in advance of the IEP meeting. Consider a "pre-meeting" with just one or two key people at school to go over items, if any, that you are not comfortable addressing in a big IEP meeting. Ask if they will provide you with a copy of the draft IEP before the meeting so you can review it. (The law doesn't require it, but a few school folks will do it). Fifth, don't go alone! Determine who else will participate as part of your "team." Your spouse? A non-attorney advocate? A psychologist? A tutor? A one-on-one aide? Even a good friend. If they are needed but can't participate in person, find out if they can participate by phone. Then, as a courtesy, email your contact on the IEP team to let them know who besides you will be participating in the meeting, and why.
- Mistake No. 4: Failing to get the most out of the meeting itself.
The IEP meeting presents a unique opportunity to listen, learn and make your points, as you work to develop an IEP that will meet your child's needs. So listen carefully to what is said around the table. Seek to understand - and to be understood. Ask for clarifications where necessary. Take notes. (Or, better yet, assign that responsibility to your spouse, advocate or another person who attends with you). Second, support your requests with reasons. Do you believe your child needs an extra hour of "occupational therapy" each week? Why? How will your child benefit from the additional "OT?" How will your child be damaged if the OT isn't increased? Who can support you in this request? An independent evaluator? Someone else? Third, don't sign off on the IEP at the meeting. Take it with you. Think about it. You have 10 days to return the "NOREP" to the school after receipt to indicate your approval or disapproval of the IEP. Fourth, don't let yourself "lose" it at the meeting. Getting upset or angry is understandable, but shouting is rarely the answer, in our opinion. It can interfere with your communication with the school and be used against you if you ever end up in "Due Process." Our advice: If you feel yourself starting to "lose it," ask for a break for five minutes or so or even postpone the meeting, if necessary. Try again another time. Finally, are you satisfied with the IEP the team developed? If not, seek another meeting to work our your differences. Be persistent.
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Mistake No. 5: Failing to follow through. Avoid the "out of sight, out of mind" syndrome. It's easy to do. You put the IEP in a drawer and forget it. The IEP shouldn't be just words on paper; it's the map that shows the way to a better life for your child. If you were using a map to drive from here to Boston for the first time, wouldn't you need to consult that map frequently? Otherwise, you might get lost before you get out of Pennsylvania. The IEP is your map for your child. It shows the destination, how to get there, and resources along the way. If you lose your way going to Boston, you would need to use the map to make adjustments. It's the same with the IEP. Of course, you won't ever get to Boston if the map is wrong. Same with the IEP. Where's your special needs child headed? How does his IEP help him get there? Second, don't think of the IEP process as just the IEP meeting itself or the week or two before and after the meeting. It's a continuos process! When you make your breakfast for your child in the morning, do you say to yourself, "Boy, I'm glad that's done! Now, I won't ever have to do that again." Consult your child's IEP at least monthly. Is your child on track. Is he making progress? Is he getting the services specified in the IEP? If he's not on track, what action do you need to take to get him back on track? Go see his special education teacher? Call another IEP meeting? Email the special education supervisor? Don't let a year pass only to find that your child is not getting the help he needs. Finally, within a few days after the IEP meeting, send a short email to your key contact on the team. Thank them for the opportunity to participate in the meeting. Briefly list your understanding of what was accomplished at the meeting. Describe any important items that you believe remain to be accomplished. Express any concerns you have and the reasons for those concerns. Create a record! Than follow through. If important items were not achieved, seek action. Call to follow up. Look for other ways to solve the problem. Maybe you need an "IEP facilitator" to work with the team. Maybe you need to get your child's psychologist more involved. Maybe you need to get a better idea of your legal rights. But, whatever you do, do something! Take action! Don't just ignore it and hope for a better result in a year when the IEP team meets again.
So these are our "top 5" IEP mistakes parents make, and how to move past them. If you aren't getting the results your child needs at school, there's no time to waste. Get started! Your child is counting on you.
Questions? Comments? Other ideas? Contact us anytime.
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FROM THE LEGAL DESK: SUPREME COURT SENDS A MESSAGE ON PEER-ON-PEER SEXUAL HARASSMENT AT SCHOOL
Every court case tells a story.
The Facts
A little girl rides the school bus every day to her kindergarten class in Barnstable, Massachusetts. In February, she tells her parents that whenever she wears a skirt to school, a third grade boy on the bus bullies her into lifting her skirt and pulling down her underwear.
Her parents notify the school's principal, and both the school and the police investigate. The police decide that there isn't enough evidence to bring criminal charges against the boy. The principal decides that there isn't enough evidence to discipline the boy. He offers to transfer the girl to a different bus. The parents refuse because, in their view, this would unfairly punish their daughter. They propose, instead, that the boy be transferred to a different bus. After the school refuses to make this change, the parents begin transporting their daughter to school by car.
The following year, their daughter reports problems with the same boy in school hallways and during gym class. Her parents complain to the school, but the school takes no action. Afterwards, the girl refuses to participate in gym class and frequently stays home from school.
The Law
The parents sue the school board and certain individuals, including the superintendent, seeking "money damages" for the school's failure to take action to protect their daughter from "sexual harassment" by the boy. They bring the suit in part under a federal law known as "Section 1983." Congress originally enacted Section 1983 a few years after the Civil War partly to give freed slaves a legal right to sue state or local officials, such as a sheriff or mayor, for money damages if they failed in their duty to uphold the law and protect them from attacks by the Klu Klux Klan. Over the years, many other types of litigants have filed Section 1983 actions.
But how could the parents of the little girl hope to recover against the school superintendent and others at the school under Section 1983? Under the law, school officials are considered to be local government officials who can be liable for money damages under Section 1983, if they deprive a student of her rights under federal law or the U.S. Constitution. But what constitutional right of the little girl was violated? The 14th Amendment to the Constitution says that no state shall deprive any person of the "equal protection of the law." This amendment creates a constitutional right for individuals to be free from harassment based on their gender. So the parents here sought money damages against the school officials on the ground that their failure to act deprived their daughter of her constitutional right not to be harassed by her male classmate.
But there was another problem for the parents. The lower courts dismissed their "Section 1983" claim because they found that another federal law known as "Title IX" was the parents' "exclusive remedy." Title IX is a federal statute enacted by Congress in 1972 that prohibits federally funded education programs, including public school districts, from discriminating against a student based on his or her gender. As part of their lawsuit, the parents also had asserted a claim against the school board under Title IX, but the lower court dismissed that claim because it found that the facts didn't support it. So after years of litigation, the parents' lawsuit was "running on fumes." Their Section 1983 claim had been knocked out. Their Title IX claim had been knocked out. Their only hope was an appeal to the Supreme Court.
Fortunately, the Supreme Court ruled in the parents' favor. In a unanimous decision, the court ruled that the parents could maintain their Section 1983 action for money damages against the school committee and individual school officials. The court found that Congress never intended, when it enacted Title IX, to prevent parents or others from bringing a separate Section 1983 claim against state or local officials based on gender discrimination. If you would like to see how they reached this conclusion, read the decision. ( Fitzgerald v. Barnstable School Committee, 129 S.Ct. 788 (January 21, 2009)).
A Happy Ending?
Litigation can be hard and long - and expensive. The Supreme Court's decision isn't the end of the road for these parents. It ruled only that the parents have the legal right to try to prove that they are entitled to recover damages under Section 1983. In other words, the parents now will get their "day in court," and a chance to try to "prove their case" before the trial judge or jury. Will they win? That is impossible to say.
So why does this Supreme Court decision matter? Because it makes clear that a parent whose child is the victim of sexual harassment at school now has an additional legal basis - Section 1983 - to recover money damages in a court of law against school officials who fail in their legal duty to protect the children in their care. Are these cases easy to win? Not in our opinion. Under both Title IX and Section 1983, the parents must get over a high bar to satisfy the "burden of proof" required by those laws. But the Supreme Court's decision in Fitzgerald puts "another legal arrow in the quiver" of a parent whose child has been sexually harassed at school.
If your child is being harassed at school by other children, there are steps you can take short of filing a lawsuit that can help. One of those steps is to put the school on notice in writing of the harassment that is occurring. But take action promptly. No child should be afraid to attend school. No child should have to live with being bullied, whether it's "sexual" bullying or any other kind!
If you want more information, call us. We can help.
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QUICK TIP: Graduation from High School Generally Ends Your Child's Right to Receive Special Education
We have encountered a few parents who were not aware of the legal effect of high school graduation on their child's right to continue to receive special education services. So here's a quick tip.
As a general rule, if your child graduates from high school, he or she cannot continue to receive special education. The federal special education regulations state:
(a) General. The obligation to make FAPE available to all children with
disabilities does not apply with the respect to the following:
(3)
(i) Children with disabilities who have graduated from high school
with a regular high school diploma.
(ii) The exception in paragraph (a)(3)(i) of this section does not
apply to children who have graduated from high school but have
not been awarded a regular high school diploma.
(iii) Graduation from high school with a regular high school
diploma constitutes a change in placement, requiring written prior
notice in accordance with Sec. 300.503.
(iv) As used in paragraphs (a)(3)(iii) of this section, the term
regular high school diploma does not include an alternative
degree that is not fully aligned with the State's academic
standards, such as a certificate or a general educational
development credential (GED).
So here's the "translation" of that statute (yes, the law can seem like a foreign language sometimes). Schools are not required to provide special education services to a student who has graduated from high school with a "regular high school diploma." A student generally may participate in a graduation ceremony so long as there is an agreement (in writing!) confirming that the school will not award the student a regular high school diploma until the student requests it and will continue to provide special education services until that time. The school must provide the parent with "prior written notice" of their legal rights before graduating the student from high school.
One other thing: There is an "age" limit on eligibility for special education, too. In Pennsylvania, a student is not eligible for special education after the last school year in which the student turns 21. So, for example, if a student turns 21 in October, 2009, she could continue to receive special education services until the end of the 2009/2010 school year.
Questions? Comments? Contact us anytime.
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