Dear Autism Mom,

I apologize for taking a little longer than usual to answer your last post. Is it just me, or are others on this list seeing more than the usual back to school IEP and Section 504 activity with school districts at this time of the year?

In your last post you wrote that I approach the IEP team as if the school district team members make up a rational body that is swayed by evidence and well-reasoned perspectives. You also wrote that unfortunately, this is not your experience.

This will be no comfort to you, but your experience is also mine as well as thousands of other parents. For starters, I never assume school team members (as a collective) will make reasoned or rational decisions. Quite the opposite. Because I don’t assume a collective reasoned or rational school team, I use a proactive advocacy strategy that includes tactics to overcome team member bias and lack of knowledge.

There is a reason I teach parents to take a proactive, rational and well reasoned approach to dealing with school district team members.

Someone at the meeting must be rationional and well reasoned

Why? Because unless we, as parents and advocates, keep reason and evidence constantly at the top of our advocacy tactics and strategies the school districts can - and will - lead us into deep trouble. And the trouble compounds over time.

With almost no exceptions (in my experience) every major problem with a child’s special education program can be traced directly back to the beginning of the child’s special education. You can try this for yourself.

Go back to the first documents in your son’s special education records. Look at the first IEP.

Look at the eligibility determination documents.
Look at the statement of present levels.
Look at the first annual goals. Are they tied directly to the present levels?
Look at the description of the specialized instructions and related services.
Look at the accomodations and modifications section.

I will bet a dollar to a hole in a doughnut that you will find the root cause of your current problems with the school district lurking there.

If you do find the root cause, then I’ll also bet the root cause started a chain of team decisions about your son’s IEPs that continue to compound until now. I also think you will find the unsound decisions the team made were not founded on undisputable evidence. In other words, the decisions were not reasonable.

The problems morph over time from problem A to problem B, to problem C, and so on.

And this brings us to one of your other points: Some members of the team are rational and well reasoned.

Yes, and you can use this to your advantage. Here are some tips about how to do it.

1. For the moment we will call the rationional and well reasoned team members potential allies.

2. There are several ways that you can identify the potential allies.

a. Duing the meetings watch the body language each school district team member displays. Watch for smiles, heads nodding in affirmation, smirks, wrinkled brows, sitting back in their chairs after a statement is made, sitting foreward in their chairs after a statement or a point is made. Watch for telltale signs of dishonesty. When an idividual speaks does that individual touch their nose, does that person speak with an open hand or a closed hand? If these things are not familiar to you then I urge you to Google the term body language.

b. Once you identify the potential allies (or ally) always speak directly to that person. I don’t mean that you should address that person by name. Simply look at that person when you have a point to make.

c. The allies you identify might never have anything to say during the meetings. They might be influential, though, in decisions made outside of the meeting. We never know just how much an influencer can affect the team decisions. As you know, some IEP decisions are made outside of the formal meetings.

d. When you speak during the team meetings do not use the word “you” inless your remarks are directed to a specific individual at the meeting. We all make this mistake from time-to-time. Always use that individual’s name instead of saying “you.” Doing that will let everyone else at the meeting know that you are specifically directing your comments or remarks to that individual and not to the generic “you” sitting around the table.

These are the reasons to avoid using the word “you.”

More times than not, when we say “you,” the subject of the comment or remark is the school district. So instead of saying “you denied my son the appropriate AT device,” say instead the school district denied the AT device. By using the generic “you,” the school team members will sense that as an attack on each of the district team members. Remember the culture of any group of people who work together is often similar to that a family. Attack one, and we attack the whole family.

It makes no difference how well the school team members know you or how many times you meet with those team members – you will never be considered anything other than an outsider by the “family.”

Lawyers often make this mistake in courthouses. They treat the judge with reverence while thinking nothing of dressing-down a court clerk for a delay or oversight. Everyone who works in the courthouse is “family.” Mistreat one and the rest of the “family” can make it doubly difficult to get what the lawyer wants or needs from the entire clerk staff.

And this brings us to another of your questions, or comments, about getting ready for a due process hearing.

For starters, getting ready for a due process hearing is tedious and technically demanding. If we do not lay the groundwork for a hearing during the team meetings and through our written correspondence with the school, putting together a due process claim and plan for the hearing is difficult if not almost impossible.

Although an administrative due process hearing shares some traits of a civil or criminal trial, an administrative due process hearing is less formal. Another trait not shared with a civil or criminal trial is the legal action itself.

A civil or criminal trial deals with something that happened at a specific time and place: The State alleges a crime, a party is injured by the alleged negligence of another party, and so forth. Yes, the facts of either kind of case can be complex. The facts in some kinds of cases such as fraud and conspiracy can stretch out over a great amount of time.

I’m not saying that a due process hearing isn’t as complex. I'm saying the opposite.

Special education cases involve hundreds, if not thousands of facts that occurred over several years. Still, even the most complex special education case can be reduced to a short statement of the case.

You must reduce your case to a short statement of the case and you must have a theory of the case.

Why? Because if you can't explain your case to someone who knows nothing about special education, you cannot explain it to a hearing officer through your exhibits and witness testimony in a way that will persuade the hearing officer to want to rule in your favor.

Does that surprise you? Just remember that even hearing officers and administrative law judges are also human beings.

The Road Map

Each alleged violation is founded on specific federal and state statutes (and the regulations). The undisputable facts will boil down to not hundreds or thousands, but to the least number of relevant facts among all the available facts for each claim in the request for due process. I’m using the term claim here to also mean issues the hearing officer will rule on.

The IRAC formula I mentioned in an earlier post will help any parent decide which among the available facts are the most relevant ones to use. These facts will be your exhibits and witness testimony outlines at the hearing for each claim (issue) raised in the request for due process.

A hearing officer or administrative law judge can decide specific questions which the IDEA specifies. No more and no less. They are:

[Legal questions] relating to the identification, evaluation or educational placement of a child with a disability, or providing FAPE to the child. See 34 CFR § 300.507.

And the IDEA limits what a hearing officer or administrative law judge can rule on; whether FAPE or an educational benefit was or was not provided by the school district. See 34 CFR § 300.513(a)(2) and (2).

Any remedy a hearing officer or administrative law judge may award is also limited to providing FAPE. Some of these include tuition reimbursement, compensatory education services, and reimbursement for Independent Education Evaluations. Each of those remedies are directly tied to the overarching question about whether the IEP did or did not provide a specific student a free, appropriate public education.

The Upshot

All of this means that we must constantly be preparing our “case” from day one. We don’t want a hearing but we must be ready if we need to ask for one. This is good proactive advocacy.

One of the side benefits of a proactive approach is the likelihood of a hearing during a child’s special education experience is dramatically reduced. Another side benefit is a school district is far more inclined to write an IEP that provides FAPE when that school district does it volunarily. Nobody likes to be told they were wrong by a hearing officer or a judge.

Another side benefit of a proactive advocacy approach is measured in dollars. A due process hearing (and any appeals of a hearing decision) costs more than the number of dollars we must shell out getting ready for the hearing and the hearing itself (and appeals). There are child care costs while a parent attends the hearing, lost wages or business income, travel expenses, and on, and on, and on. What cannot be measured in dollars is the stress the entire family experiences before, during, and after a hearing.

I’m not suggesting that we avoid a due process hearing at any cost. Far from it.

Sometimes a hearing is necessary. But when that necessary time comes, and if you have managed your child’s special education “case” on a continuing basis, the stress is less and fewer dollars are needed to prosecute the case at a hearing.

I also want to stress the Velvet Hammer allegory in one of my previous posts on this subject does not mean rolling over or surrendering to the school district.

This is what I mean by a Velvet Hammer.

Deal with the school district proactively, do it in a civil way, and when you must ask for a hearing, be ready to vigorously prosecute your case against the school district. Each witness, each exhibit, each fact you choose must advance the theory of the case you laid out in your request for a hearing.

The IDEA rules define what process is due. A due process hearing is to decide whether the school district gave you all the process that was due.

I hope this helps.

- brice