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Thread: Getting An IEE Thrown Out

  1. #11
    Join Date
    May 2012
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    Default Getting An IEE Thrown Out

    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

  2. #12
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    May 2012
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    7

    Default Getting An IEE Thrown Out - The Saga Continues

    Brice ~~

    Now it is my turn to apologize for the delay. No matter how much one prepares "back to school" time is always hectic.

    Allow me to return for a moment to my original question. The fact of the matter is that the school district has decided to accept the IEE. Our objections, detailed by us in a three-page rejoinder, are part of the IEE report file.

    If I may I would like to encourage parents to submit written "Parent Input" statements. They seem, to me, to be our only opportunity to make sure our points are entered into the record in our words rather than relying on the notes (paraphrasing) of a school district employee.

    Our choice now is to use the IEE to our best advantage. Why is it that they choose to act on some of the evaluator's suggestions but not others? Plus, with the recommendations that they have decided to implement we find the execution to be sloppy at best. More (possible) fuel for the Due Process fire?

    I must admit that after almost ten years of IEP meetings I still don't feel as if I have a good grasp on the process. What does it mean if you sign or don't sign an IEP document? My understanding is that they don't need a parent's consent for anything except evaluations. The most we can say is that we disagree with the team's decisions.

    Speaking of teams I'm also unclear on what team meetings qualify as IEP meetings & when decisions can be made. For example, right before the school year began we met with some members of the team - two administrators, the special ed teacher and one therapist - to decide about bringing our son back to school (one day, as it turned out) early. Other questions arose such as an APE eval and the issue of allowing him to ride a bicycle at school as part of his behavior plan rather than a tricycle but these questions were delayed yet again. Can the team make decisions without a gen ed teacher in the mix? What kind of documentation (meeting notes?) is the district obligated to retain from this kind of get-together? Are there supposed to be official notes from all team meetings, whether or not they are formal IEP gatherings? Are we entitled to a copy of the official district notes?

    I must admit as I listen to myself ask these questions I wonder how parents manage to prevail in any but the most cut-and-dried situations. You have shared lots of wisdom with us. It is clear that "slow and steady" is the only chance we have to prevail, carefully documenting our conversations, asking questions and receiving responses in writing and saving all the paperwork we get in an organized fashion.

    As we work to build our case I'm seeing that we need several different types of documentation - the legal principals, precedents and citations under which we are bringing our complaint plus the paperwork the school has issued detailing their plans plus evidence such as expert witness testimony showing where the district has fallen short. Then we have to specify the remedy we are requesting as well as the legal underpinnings as to why the remedy we suggest is appropriate. Of course all this is built with the knowledge that even though the school district is regarded as the "expert" the burden of proof lies with the complainant - us!

    If I might add yet another question, what do we expect from Due Process? I understand that there are timelines for motions and hearings, etc. What happens if we prevail at Due Process? If the district decides to appeal does that mean that none of the remedies the ALJ provides go into effect until the legal process is exhausted? Is there any kind of ballpark timeline to how long this could take? Is there any notion of swift justice since we are dealing with minors?

    Thank you very much for all your careful and detailed reflection on my questions.

  3. #13
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    May 2012
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    27

    Default

    Hi, Autism Mom.

    You are right. Back to school time is hectic. But it doesn’t have to always be that way.

    That’s the good news.

    The bad news is that a parent’s diligent advocacy for their child’s special education program (the IEP) is a constant – year ‘round – thing.

    The good news is that managing – yes, managing - your own child’s special education program will pay dividends throughout the school year. Learning how to do it isn’t difficult.

    Here’s the rub.

    The school district looks at an IEP much differently than we parents and advocates do.

    The school district’s benchmark is whether an IEP is legally defensible.

    We, on the other hand, look at an IEP for its appropriateness for our specific student.

    Is there a difference? Yes, because our motive for completing (and implementing) an IEP properly is different from the school district's motive.

    The difference is so important that my answer to you today will be on one single topic:

    What in the world does appropriate mean, and why.

    I’ll tackle the other questions you asked in your last message with serial answers spread out over several days because understanding what appropriateness means is fundamental to understanding everything in an IEP – and – everything done in preparation for writing one, including Independent Education Evaluations (IEEs).

    In 1990, OSERS defined appropriateness in its Letter to Anonymous:

    "A public agency provides an "appropriate" special
    education program by observing the evaluation and
    placement procedures of Regs. 300.530-300.534, the least
    restrictive environment procedures of Regs. 300.550-
    300.556, the IEP procedures of Regs. 300.340-300.349,
    and the procedural safeguards of Regs. 300.500-300.514."

    (17EHLR 391 (1990)).

    When we read the OSERS language we find that OSERS did not give us a plain language definition of the word appropriate except to say that to be appropriate, the school district must follow the rules.

    We are still left wondering; what in the world does appropriate mean and why does it mean what it means?

    We have said before there is no issue under the I.D.E.A. that does not relate directly to FAPE. If you accept that, then we can say that for something the school provides or that we ask for in an IEP, that something must be necessary for the student to receive a free and appropriate public education.

    The word appropriate is an adjective that means, at least when we talk about the I.D.E.A., a suitable place or condition for a specific student.

    Some School District Examples:

    1. A modified textbook that is appropriate for the student’s reading level.

    2. The school district conducted an appropriate reading evaluation.

    3. A 1:1 classroom aide for (the specific student) is an appropriate accommodation.

    BUT - the word appropriate is conditional. The appropriateness must be conditioned on some other thing in the sentence.

    The book is appropriate because the book is written at the student's reading level as determined by his last evaluation.

    The evaluation is appropriate because the procedures for conducting an evaluation were faithfully met.

    You can almost always test any sentence that has appropriate in it by applying the Because test.

    Why go though this exercise? Because when we use words and special education jargon over and over again we tend to use them without giving a lot of thought anymore to what they mean.

    The word appropriate in special education is too important to the educational welfare of children to not be clear about what it means.

    The word because is your best little friend when you deal with school district IEP team members.

    Armed now with a fresh way to see the word appropriate, then how can we use it effectively?

    The first place to start is with the school district.

    The next time you go to an IEP meeting, mentally count the times the school folks use the word appropriate.

    Here are just a few examples:

    School District: "We don’t feel that is appropriate for the student."

    School District: "It’s not appropriate."

    School District: "The student will demonstrate appropriate behaviors 90% of the time while in the classroom environment and in other domains."

    School District: "The student’s behavior is not appropriate" (Schools will use the word inappropriate).

    Say What?

    The trouble is, squishy and unclear statements like these create misunderstandings.


    In the first two examples there is no conditional attachment to the adjective - Appropriate. Therefore, whoever uses that stock phrase has said nothing about anything necessary – or not necessary – to provide FAPE.

    In the third example, “The student’s behavior is not appropriate,” the speaker is bootstrapping their own definition of what is appropriate behavior to set the standard.

    Wait just a minute. Stop everything. Think about that.

    What, for example, is not appropriate about an autistic individual who pounds a fist into the beanbag – or doesn’t tell someone “it’s bathroom time again!”

    Hint: When the school district uses the word behavior, it is referring to something the school folks don't like.

    We cannot allow schools to decide what appropriate behavior is for every child in every category of disability by using either an individual’s own or the community’s collective notion about what is appropriate behavior.

    I do not think it is appropriate behavior for people to stop at the 7-11, buy a six – pack of beer and drive down the street drinking it. Despite what the state law might say about that sort of behavior, some communities do not find it at all inappropriate.

    We know how the school folks use and misuse the word appropriate.

    What about us? How should we use the word?

    The answer is simple: Don’t.

    Do not try to get services by justifying them as appropriate. The school folks do not use the same logic that you just learned. Instead, use strong words such as, Need, Essential, Necessary, Critical, Crucial. These are active words that imply action is necessary, or infers a sense of urgency.

    Appropriate is a passive word. Passive words delay everything. Your life with the school will take on a whole new patina if you avoid speaking and writing passive sentences and phrases.

    For example, instead of saying "I would ask that the district provide me with donuts and coffee at each and every IEP meeting."

    Compare that sentence with, "I want the school district to serve donuts and coffee at every IEP meeting."

    In another article for this forum I'll write something about using plain language.

    HINT: Even if you are a lawyer, don't write or talk like one when you're dealing with the school district about your child's IEP.

    Read the following portion of Section 1401 and take an inventory of the strong words that either imply or mandate action. This text defines An Appropriate Public Education.


    20 U.S.C. Section. 1401(8) tells us –

    • The education shall be provided at public expense under
    public supervision and direction and without charge (free to the parents).
    • Must meet the standards of the state educational agency;
    • Must include an appropriate preschool, elementary or
    secondary school; and
    • Specialized instruction and needed related services are
    provided in conformity with the individualized education
    program required under 1414(d).

    The language of the IDEA has a lot of musts and shalls.

    When you hear someone at the IEP table say “The team feels (fill in the blank) ask that person what they mean by “feel.” Ask what data or other objective information they used to develop their “feeling.”

    Bore in. Demand understandable answers. Otherwise, the school folks will just blow away your precious child’s chances at independence and an education because of how the school “felt.”

    Test it for yourself. Think back about going to an IEP meeting when you thought you understood everything that went on during the meeting. THEN, after you left, got into your car, and started the ignition - it dawned on you that you weren’t at all sure about what did go on during that meeting.

    You aren't alone. We’ve all been there.

    My next answer for you will follow in a few days. I’ll answer your question – or rather misgivings – in your statement,

    “I must admit that after almost ten years of IEP meetings I still don't feel as if I have a good grasp on the process.”

    The answer to this misgiving will include a discussion about signing IEPs, what constitutes an IEP meeting, and something about Independent Education Evaluations – how to get the school to listen to what you have to say about them.

    Thanks for your questions. I hope this answer helps.

    Brice

  4. #14
    Join Date
    Jul 2005
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    226

    Default

    Hi Brice --

  5. #15
    Join Date
    May 2012
    Posts
    7

    Default More Input on IEP Meetings?

    Hi Brice!

    Your last post ended with the following:

    You aren't alone. We’ve all been there.

    My next answer for you will follow in a few days. I’ll answer your question – or rather misgivings – in your statement,

    “I must admit that after almost ten years of IEP meetings I still don't feel as if I have a good grasp on the process.”
    The answer to this misgiving will include a discussion about signing IEPs, what constitutes an IEP meeting, and something about Independent Education Evaluations – how to get the school to listen to what you have to say about them.

    As usual, I await your well-thought out guidance.

    Thanks! Autism Mom

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