Special Education News from EdLaw 
Information, Events, Tips and Advice for Parents of Special Needs Children in Pennsylvania

 October 2010
 



In This Issue
QUICK TIPS: QUESTIONS PARENTS FREQUENTLY ASK US
FEATURE ARTICLE: TIME FOR A "FALL CHECK-UP": FIVE SIMPLE STEPS TO HELP GET YOUR CHILD ON TRACK FOR A SUCCESSFUL SCHOOL YEAR
FROM THE LEGAL DESK: CAN A PARENT TAPE-RECORD IEP MEETINGS?
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UPCOMING EVENTS 
Chuck Pugh will be a panelist, Panel Discussion, IEPs, GIEPs and 504 Plans, Comm. for Special Education, LMSD, 10/26, 7:30 p.m., Bala Cynwyd M.S., Room 100, skineke@yahoo.com for information

Wrightslaw Special Education Law and Advocacy Conference, full day seminar, Springfield Country Club (Delco), 10/22, Information at  website or Barb Zimmerman, 610.246.4443

Homework Essentials for Your Child with AD/HD, Maureen McQuiggan, Ed.D., CHADD of Chester County, 10/19, 7:00 p.m., Information: 610.429.4060

Free Webinar, Long-Term Planning for Your Family Member, 10/14, 6:00 p.m., Paul Feldman, Esq., Call 1.866.428.4060

 

Dear (Contact First Name),


Can you believe it?  It's October already!  Your child has been back in school for at least a month.   So ...  how's your child doing so far in school this year?  Doing well?  Having problems?  Or don't you know?

   

Is he making progress in reading and math?  What are her teachers telling you?  Does he seem happy at school?  How is her homework coming?  How is he doing on tests and quizzes?  If she is receiving occupational therapy, physical therapy, social skills training, or other "related service" at school, is it helping?  Is she making progress? 

 

If your special needs child is doing well in school this year, that's great!  Keep working with your child and the school to keep a good thing going.  But what if your child isn't making progress?  Falling behind?  Stuck in a program that isn't working?   

 

Or what if you don't know how your child is doing at school?  Being in the dark may be okay for bats and mushrooms, but it's rarely good for parents.  Bad things can happen when you aren't looking.

  

So skim our article for ideas on how to take stock and take action to get your child on track for a successful school year.  And if you're wondering what questions we hear most often from parents,  check out the "FAQ" article.  Finally, we come back to an issue that comes up from time to time:  May a parent tape-record IEP meetings?

 

The more you learn - and the more you do - the better you will be able to help your child get the instruction, services and results that he or she needs to prepare for the road ahead.  So get to it!  And if you have any questions or want to check with us about how to get better results for your child at school, just call or email us.

 

Sincerely,

 

Education Attorneys Chuck and Michalisa Pugh

Voice:  610.696.5006

Email:  ed.law@comcast.net 

 

QUICK TIPS:  QUESTIONS PARENTS FREQUENTLY ASK US (FAQ)

Here are some of the most frequent questions we hear from parents who call our office or consult with us in person:

1.      How can I obtain my child's education records?

Answer:  You have the right under federal law to review your child's education records, which may contain helpful information, including evaluations or IEPs that you no longer can locate at home.  In nearly all cases, the school district will produce a copy of those records.  Although they may charge a reasonable copy fee, most school districts do not charge to copy the records, in our experience.  We have a form on the "Forms" page of our website that you can use to request your child's education records.   Although a district has 45 calendar days to respond to your request under the law, in our experience it will produce the records within a week or two.

2.      What's a "FAPE?" 

Answer:  "FAPE" stands for "free appropriate public education."  It describes the legal standard that a school district must meet in providing special education and related services to students who qualify as a "child with a disability" under the Individuals with Disabilities Education Act (the "IDEA").  But it's a vague, four-word phrase.  What does it really mean?  Disagreements over what this phrase means and what it requires a school district to do involving a specific child and specific facts are what helps keep education lawyers in business.  As a general rule, "FAPE" requires the district to develop an IEP for each disabled student that is "reasonably calculated" to permit the student to make "meaningful progress" in each identified area of need, and to provide the instruction and services specified in the IEP.  Simply put, FAPE reasonably requires a school district to provide a disabled student with the help the student needs to learn and make progress in key areas of need.

3.      How long does the school district have to complete its evaluation or reevaluation of my child?

Answer:  The district has 60 calendar days from the date it receives the parents' signed permission to evaluate (not counting the summer break), to complete the evaluation or reevaluation and provide a copy to the parents.  If the parent requests an evaluation orally (not in writing) from a "professional employee or administrator" of the district, the district has ten calendar days to provide the parent with a "permission to evaluate" form for signature and return. 

4.      Can a district be required to pay for an independent psycho-educational evaluation of my child by a psychologist of my choosing?

AnswerYes, if the district failed to complete its evaluation of the student in the required wayA federal special education regulation specifically authorizes a parent to seek an independent educational evaluation from the district if the parent "disagrees" with the school's evaluationHowever, under the regulation if the district opposes the parent's request, it is required to file for Due Process against the parent to defend its evaluation and produce evidence that it was  performed properlyThe parent would then be required to establish by evidence that the school failed to meet the required standards in performing the evaluation

5.      How often must the district reevaluate my special needs child?

AnswerEvery three years.  Children with mental retardation must be reevaluated every two years.  But keep in mind that you can request a reevaluation yearly.  As part of the reevaluation, you can request full cognitive ability and achievement testing.

6.      Can a school district be required to pay tuition for my special needs child to attend a private school?

Answer:  Yes, under some circumstances.  If the district cannot provide your child with what she needs to learn and make progress in the public school, that is; if it cannot satisfy its legal duty to provide your child with an "appropriate" education in the public school, it may be required to pay tuition for a private program that can give your child the education he needs.  To prevail in a "Due Process" action against the school district for tuition reimbursement, the parent generally must prove that the district did not provide the student with an "appropriate" education, that the private school can provide the child with an appropriate education, and that fairness favors full tuition reimbursement.  One or more expert witnesses frequently are needed in such cases to help establish the parent's right to tuition reimbursement

7.      Can parents recover their attorney fees from the school district if they are successful in a "Due Process" action? 

Answer:  Yes.  Federal law (the "IDEA") authorizes judges to award "reasonable attorneys' fees" to a parent who prevails in a Due Process action brought under the Act.  In most cases, a school district will pay attorneys' fees as part of a settlement of such cases as well

8.      How can I learn more about IEPs and goal-setting?

Answer:  There's a ton of information on the Web.  Try "Googling" using word searches like "IEP," "IEP advice," and "How to write IEP goals."  We like the articles at the Wrightslaw website (www.wrightslaw.com).  For advice specific to Pennsylvania, check out the "annotated" IEP form published by "PaTTAN," a part of the Pennsylvania Department of Education.  (See the "Forms" links at our website under "IEP forms").  You also will find other annotated Pennsylvania special education forms at the "PaTTAN" website. 

Questions?  Give us a call or email us at ed.law@comcast.net.


FEATURE ARTICLE:  TIME FOR A "FALL CHECK-UP":  FIVE SIMPLE STEPS TO HELP GET YOUR CHILD  ON TRACK FOR A SUCCESSFUL YEAR AT SCHOOL.

 

Wouldn't it be nice if you could simply trust that the folks at school would do whatever is necessary to provide your special needs child with the specialized instruction and related services your child needs to grow, learn and develop?  Of course, there are many excellent teachers and administrators who work hard at their jobs.  But the sad truth is that you as the parent can't "outsource" the responsibility to ensure that your child gets the help she needs at school.   

 

You're role is like that of a "project manager."  You need to make sure that the IEP team, teachers and others are school are fulfilling their separate roles and doing what they need to do to help your child make progress.  And you can do it!  Here are five steps to help you take stock now, early in the school year, and help ensure that your child will get the instruction and services he needs to have a successful year at school.

 

FIVE SIMPLE STEPS:  TAKING STOCK AND MOVING FORWARD
                                                                                                                                 

If you suspect that your special needs child isn't getting the results he or she needs to get at school, now would be a good time to take five simple steps that can make a difference this year and beyond.  Those five steps are:

 

1.   Stop and Think!  Do you drink coffee?  Tea?  Can you spare fifteen minutes?  Choose a quiet time at home.  Make a cup of coffee or tea.  Find a comfortable chair (by a window might be nice).  Now, settle in and ask yourself a few questions: 

  • What are my goals for my child this year?  Goals are essential.  Without goals, you have nothing to measure your child's progress against.  So what are they?  If you don't have any goals for your child, think about each of your child's needs - academic, social, physical or other.  Will she learn to read or do math at grade level this year?  Will he improve his classroom behavior, with no detentions or other school discipline this year?  If she is receiving physical therapy, occupational therapy or other "related services" at school, how much progress do you expect her to make in each of those areas this year?  So think of a few goals for your child for this year.  Jot them down.  Don't take a long time doing it and don't try to make the goals "perfect."  But get a picture in your mind of what you want to see your child achieve this year, write it down, and put it somewhere where you can pull it out and look at it from time to time.
  • How is my child doing at school so far this year?  What have you observed?  What has your child told you?  How does he look?  Is she doing homework?  Are you reviewing it?  Are you seeing progress?  Does he seem happy or unhappy at school?  What have the teachers told you about how she is doing to date?  How is he doing on quizzes and tests?  No-one knows your child better than you do.  So for now, just think about what you have observed and what you have learned so far this year about how your child is doing at school.
  • Am I getting the help I need for my child to succeed at school?   Ask yourself:  Is my child making progress from year to year?  Will she be ready to take the next step after she finishes high school?  Will he be able to live independently, obtain additional training or education, or find a good job?  What do I need to do to help him have the life I envision for him?

So take time to think.  Every action we take begins with a thought.  Consider thinking this through with your spouse or with a good friend, if you would find that helpful.  But take this essential step so you can get clear on what you want for your child.  If you aren't clear on what you want for your child, how can you help him get what he needs?

2.   Review the IEP!  Don't make the mistake so many parents of special needs children make.  They attend an IEP meeting in May, they receive a 25-page IEP they don't understand, they sign off on it, they take it home, they put it in a drawer - and they never look at it again!  A well-designed IEP can work for your child - but you have to work it!  You have to help put together the IEP as it needs to be and you need to breathe life into it.  That means you need to refer to it from time to time, determine if its goals are being met, and call another IEP meeting to change it as necessary.  If your child isn't making progress, don't wait a year until the next IEP meeting to express your concerns to the school.  So pull our the IEP and focus especially on the following three sections:

  • Present Levels (Section II)This section describes how your child is performing within the general education curriculum, including reading, math and writing, and how your child is progressing in relation to his peers.  Is your child performing at grade level in key academic areas?  If not, on what grade level is she performing?  Results of standardized tests and curriculum-based tests and probes should be included here.  It should give you a complete picture of where your child stands academically.  If your child has "functional" needs, such as social, behavioral, or physical needs, this section should also provide information on how she is progressing in those areas, including reports of a physical therapist or other "related service" provider.
  • Goals (Section V)Each IEP must include at least one annual goal for each separate area of academic or "functional" need (such as physical therapy or social skills training).  The goal must be clear and measurable.  If you can't understand the goal, the problem probably is the goal and not you!  It should state what level your child is reasonably expected to achieve within the next year.  If your child has a reading fluency problem, for example, the goal might state something like, "student will read 120 words correctly per minute when given a fifth grade reading passage on three consecutive weekly reading probes."  The school must provide you with progress reports at least quarterly showing whether your child is making progress towards achieving her goals.  This is different from "grades."  If you are not getting that information, you need to tell the school to provide it to you.  How else can you know if your child is making progress towards achieving his goals?  Use emails to obtain more frequent updates from the teachers.  Three months generally is too long to wait for critical information on your child's progress, in our opinion.  You need to be an active participant in your child's education.  That means you need to know from week to week how he's adjusting at school.
  • "Specially Designed Instruction" (Section VI).  This is an important section of the IEP with the confusing heading of "Special Education/Related Services/Supplementary Aids and Services/Program Modifications."  Think of it as the "student services and assistance" section.  Does your child need a one-on-one aide in the classroom?  That service would be specified here.  Special accommodations, such as preferential seating or an extra set of books?  Specially adapted content or teaching methods?  Physical therapy, occupational therapy, speech or language therapy, or social skills training?  School-based counseling?  A laptop, "alpha-smart" or other "assistive technology?"  This section should tell you what services and adaptations your child will receive, how much of it, and when it will be provided.

After reviewing the IEP, do you have questions about it?  Do you see problems with it?  Are the goals clear and measurable?  Do you know whether your child is making progress towards achieving each of her goals?  Is there a goal for each of your child's recognized needs?  Is he receiving the amount of speech or other therapy specified in the IEP?  Does he require other services he isn't receiving?  Schedule a meeting with the IEP coordinator to get answers.  Consider consulting with a non-attorney education advocate or education lawyer to help you understand the IEP and determine what steps are necessary.  Request another IEP meeting, if necessary.  Take action!

3.   Review the most recent school evaluation or reevaluation.  When was your child last evaluated?  The law requires an evaluation every three years (every two years for children with MR), and a parent can request one more frequently.  Have you read the district's evaluation and any reevaluations of your child?  They should provide important information on how your child performed on key standardized tests of both ability and achievement.  They should give you the school's assessment of your child's disability and the basis for their finding.  They should include recommendations for assisting your child in school.  Each area of need identified in the evaluation should be discussed in the IEP.  If there are parts of the evaluation you don't understand, make a list of your questions and get answers from the school psychologist or someone else.  You will be a more effective advocate for your child at school if you have read and understood your child's evaluation.  You can do it!

4.   Consider your "team."  If your child isn't making the progress he needs to make, you need to work harder with the school to get him the help he needs - or take other action, if the school won't cooperate.  You also may need to put together your own independent "team" to get the help you need for your child, which might include a tutor, a therapist, an independent, school-certified psychologist to perform a psycho-educational evaluation, a non-attorney education advocate, or an education lawyer.  Ask yourself:  How can I do a better job in obtaining the help my child needs at school?  Who can help me and my child?  We list "fee-based" and "no-fee" non-attorney education advocates on the "People Links" page of our website.  A good education advocate may be able to help you determine what actions to take at school and help you take those actions, attend school meetings with you, and so forth.  If you seek an advocate, look for one who is a good match, in terms of your own approach and personality.  But the point here is this:  Most of us can accomplish more acting with the assistance of others than we can on our own.  If your special needs child isn't getting the help she needs at school, you need to find a way to get her the help she needs.

5.   Take action!  None of what you think about, review or "consider," is going to make any difference for your child unless you take action.  That means calling a school meeting, consulting with others, learning more, emailing your child's teachers and getting updates, sitting in on your child's class at school to see for yourself what's going on, getting a meeting with the principal or special ed director, or doing whatever you have to do to get the school to pay attention and give your child the help he needs to learn, develop and grow.  Many parents tell us they can't seem to get the school to pay attention to them.  You can't get anywhere unless you can get the school to pay attention.  Be proactive.  Be persistent.  Don't take "no" for an answer.  But if that doesn't work, let us know.  We can help.

Questions?  Comments?  Call us at 610.696.5006 or email us at ed.law@comcast.net.        

FROM THE LEGAL DESK:  CAN A PARENT TAPE-RECORD IEP MEETINGS?

This question comes up from time to time.  We hear it from both parents and
advocates.  We wrote an extensive article on it in February 2009, which is posted on our website for those of you who would like to read a more detailed discussion.

 

We supply our "short answers" to three key questions concerning this issue below.  But before reading those comments, consider the following.  First, the available law on this issue suggests certain conclusions, in our opinion, but it does not compel them.  So reasonable people (including reasonable attorneys) might reach different conclusions.  We set forth our conclusions.  Second, every case is different and every set of "facts" is different.  If you are wondering whether in your particular case, you are legally entitled to tape-record your child's IEP meetings, we encourage you to review those specific facts with an education attorney.  Third, the conclusions we reach are based in part on Pennsylvania law.  If you live in another state, you may find this article and the longer discussion it is based on helpful, but you should check with an education lawyer in your own state because the law there may be different.

Here is the "short version" addressing the three questions on tape-recording that we think are important to consider: 

1.      Is a parent legally entitled to tape-record an IEP meeting? 

Answer:  The law supports a parent's right to tape-record an IEP meeting, at least where the parent can offer a reason for tape-recording that aids the parent's or child's participation in the IEP planning process.  In 1996, a Pennsylvania special education appeals panel held in favor of a parent's right to tape-record IEP meetings, where the parent stated that she wanted her child to be able to hear what was said on tape.  The panel cautioned that if the purpose of the tape-recording had been to use the recording as a "legal weapon or shield," it might have reached a different result.  While a decision by the appeals panel (the special ed appeals panels were terminated in 2008) is not "binding" on a hearing officer or court, it is authority that a hearing officer or judge might find "persuasive."  We note that an article by an attorney representing school districts on the Sweet Stevens website states "our overall sense of this issue is that a parent could pretty easily establish the need to tape record an IEP conference ...."

2.      Should a parent tape-record an IEP meeting?

  

Answer:  Education attorneys disagree about this question.  In our view, tape-recording an IEP meeting usually is not a good idea.  We believe that good relationships with good communication back and forth between the parent and school are most conducive to developing and carrying out an IEP that can meet a student's needs.  In general, we think tape-recording IEP meetings poses a risk of inhibiting the relationship between parent and school and restricting the communication between them.  The "IDEA" is designed in part to foster cooperation between the parent and school.  If I, as a teacher or administrator, know that I am being tape-recorded and that my comments can later be used as evidence against me in a Due Process hearing, am I as likely to speak freely at the IEP meeting?  Put differently, tape-recording meetings poses the risk of making the relationship with the team too "legalistic," in our view.  Of course, there may be instances in which tape-recording an IEP meeting is necessary or desirable, such as when a parent can't keep up with the discussion and needs to be able to review it later to help make sure she understands and can fully participate in the process.  If you are considering tape-recording your IEP meetings, think it through.  Ask yourself:  How will this help me get the services at school that my special needs child requires?  If you would like to discuss it with an education attorney, feel free to contact us.

 

3.      Can a parent legally tape-record an IEP meeting in secret?        

Answer.  No.  Tape-recording the statements of another without his permission is a third degree felony under the Pennsylvania Wiretapping and Electronic Surveillance Control Act, 18 Pa. C.S. § 5703.

Questions?  Contact us at 610.696.5006 or ed.law@comcast.net.