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Education Records - Newsletter January 30, 2015

Messy Desk

In education Records Part I, we talked about the state and federal rules that tell us what our education records rights are and how to write the letter to ask for access to the student’s records.
This article is about rolling up your sleeves and going document diving ― with a life vest.

But before rolling up our sleeves, there is an important thing that we left out of the first article

Namely, what about test protocols? Are they education records?

The answer is yes.

FERPA defines "educational records" as records maintained by the schools (or their agent) that relate to an individual student. Even though the school may say that test protocols are “personal notes” or that they are protected under copyright laws, neither of those excuses are supportable. A basic requirement is that a parent must review the protocols under the school’s supervision, and a parent may not have a copy of the protocols.

Once you get and organize them, where you will use your records

  • IEP Team meetings,
  • 504 Team meetings
  • discipline manifestation meetings,
  • state administrative complaints,
  • mediation,
  • due process hearings and,
  • 504 complaints to the Office of Civil rights (OCR).

Is this hard to do?

No. It isn’t difficult but it does take planning and organization. My promise to you is that if you can do it (and yes, you can) you are going to be far ahead of the curve for being able to prove to the school that you have been right all along and the school district has denied your student a free appropriate public education. And, you might be able to do it without a lot of expense.

If you do need to hire an attorney later you will have saved yourself time and money because organizing and analyzing records is a major part of putting a case together.

Getting organized before your review

Tools

Have the following tools:

  • Plenty of sticky notes for flagging pages that you want to copy,
  • Plenty of paper to make personal notes on,
  • Patience.

After your review at the school you will need these things

  • Two Banker’s Boxes. They are inexpensive. You can get them one at a time or in packages of 3 from your favorite box store such as Office Depot or Staples.
  • On the front and top of one box, use a magic marker and write ORIGINALS
  • On the front and top of the other box, us a magic marker and write COPIES
  • OPTIONAL: An inexpensive scanner that will make pdf copies. An iPhone, smartphone, or an iPad photo is not a suitable substitute.

Rules for the ORIGINALS

It is important to keep the school's file in the same order it is given to you. Go through it page by page. You can get copies of everything in it, so it is not important to read every word on each document while you are at the school.

What is important is to make an inventory of every document in the file. Your inventory will verify whether the school gave you a copy of all your files and whether the school vacuumed what it gave to you.  

To make an inventory

  • List each document’s date, who created or wrote it, who it went to, and a very short description of what the document is about. Here is an example:

01/04/2002 Letter from Ms. Tamera Time-Out. Schedule for OT evaluation.

  • Do not mark, write on, spindle, mutilate or otherwise disturb your ORIGINAL set of copies.
  • File each of the records in chronological order, newest on top, oldest at the bottom. (NOTE: A record may have more than one page. If a record has X number of pages, that is one record.

Exception to the do not write on these records rule:

In the lower right hand corner of the first page of a record, use a PENCIL – NOT A PEN, and write the date of the record.

Example: 1/21/15.

Later, if you need to copy one or more of these records for due process hearing exhibits, you can erase the date. This is a tip Pete Wright has been teaching for many years.

  • Optional – It is a good idea to record the date, time, and the name of the person at the school who gave you the records. You can do this on a blank piece of paper and make it the very first record in your ORIGINALS box.

Now What?

When you finish with the ORIGINALS make an exact set of copies for your WORKING COPIES box.

Put these working copies in chronological order – newest record first, oldest record last

You may write on them, underline, highlight, and attach sticky notes to them.

The very first step in refining your advocacy as an art form and unleashing the possibilities with an artist’s grace and skill begins with getting and organizing your records.

Organizing and using education records.    Things you need to do to get organized.

Doing the organization will pay big dividends later.

Your review at the school

1.      Insist that the school provide you with a room with privacy. You do not want someone looking over your shoulder to intimidate or frustrate your review. That said, you can count on the school putting a school employee in the room with you. Believe it not, you can use that person to your advantage. For example, you can say to that person

The school is obviously concerned about the integrity of the records, so please hand each record to me to review and I will hand it back to you for filing.

2.      It is important to keep the school's file in the same order it is given to you. Go through it page by page. You can get copies of everything in it, so it is not important to read every word on each document while you are at the school.

3.      What is important is to make an inventory of every document in the file. That way, when the school gives you the copies you will know if the file has been vacuumed.

To make an inventory, list each documents date, who wrote it, who it went to, and a very short description of what the document is about. Here is an example:

Example 1: 01/04/2002 Letter from Ms. Sped to Tamera Time-Out. Schedule for OT evaluation.

Example 2: 02/15/2002 Prior Written Notice of IEP meeting from Ms. Sped to Parents.

NOTICE: A document can have more than one page. For example, a letter with two pages is one document. An IEP document is the entire IEP (first page through the signature page), an evaluation document is the complete evaluation. 

4.      Look at everything in the file. School people often make their own notes on sticky notes. These sticky notes are often still attached to the documents in the files. Make a note of any document that a sticky note is attached to, and make your own notes about what the sticky note said. Any highlighted portions of a document will not be picked up in the copy machine, so make a note of documents that have highlighted portions.

This is how your own note would look in the inventory:

 11/20/2002. Letter from Parent to Ms. Sped. Request for IEE. (Yellow sticky attached that says:” Parent wants IEP – AGAIN”)

5.      Look at the file folder itself. You will often find notes written on the front, back or inside covers of the file folder. Make a note of everything written on the file folder. You never know when an obscure telephone number or comment will later connect with a nice piece of evidence.

6.      Education records also include what some schools call a contact log. That is a record of incoming and outgoing telephone calls, letters, etc. that relate to the student. You can find all kinds of stuff in these logs. Not the least of which is "tone." For instance, you might find an entry that reads something like

"Ms. Gripealot called AGAIN and was told you were NOT available."

7.      Look for letters written to or from the school’s attorney. If you find any, put flags on them and ask that they not be copied for your use. The information contained in these letters or other communications could be protected by attorney-client privileg, and unless you are a lawyer you wouldn't know how to make that determination. Anyway, by following this practice you will at least show the school’s attorney that you are honest.

8.      Do not assume the school gave you the entire record. You might find files in the office of the 504 coordinator, the school nurse, the special education director, etc. These files may have records that are not in the "main" file. Sometimes the “main” file is called the cumulative (CUM) file.

9.      While you are in the school offices, look around and try to decide who on the office staff seems to be in charge. Before you leave, ask that person for a copy of the school's 504 policy, attendance policy, or any other policy that you can think of. These documents are the stuff of which mediation and due process dreams are made.

10.    Look for posters and other signs or notices pinned to the office walls and the walls along the hallways inside the school. You will be amazed at the stuff some of those signs an notices say that will be in direct conflict with how the school treats your child’s education. The warm and fuzzy gets rubbed off by the time it gets inside the IEP meeting room.

What to do when you get copies of your records:

FIRST RULE -

Put a large rubber band around the package records with a note attached that states the date you received the copies and from whom you received them. You will file these “originals” in a separate Banker’s Box later.

The “originals” are the records you will use later to copy and use as exhibits or attachments if you have to get ready for a due process hearing, write a state administrative complaint, or an OCR complaint letter. 

Make a SECOND set of copies as your working set. These you can underline, make notes on, etc. KEEP THESE SEPARATE FROM THE FIRST SET.

Now, arrange your SECOND set of copied documents in chronological order. Oldest date on the bottom, most recent date on top.

Next, make yourself a time-line based on the documents. Then, make yourself an index of the documents listing the date, author, and a brief description of the subject of the document. This will save you bunches of hours and headaches later when you are trying to dig around in a pile of papers looking for the "smoking gun" document you thought you saw months ago.

After you have done all of these steps, look at the details in each document.

Look at the dates. Are there any discrepancies? Do the date sequences follow the rules? For instance, if a document showing an initial placement decision is dated before the date on an initial evaluation report, then BINGO. Is the date on the IEP before, or after the date of notice of meeting?

Check everything and take nothing for granted. We all fall into the trap of reading records with an uncritical eye. We assume evaluators are qualified, we assume dates are correct, we assume the information is correct, we skim over the stuff that we do not understand, we just scan repetitive documents assuming that they are just copies, and so on. RULE: Any piece of paper that looks like a copy, but has something different on it (a handwritten note, underline, different date, etc.) is a distinctively different document.

Why do all of this? With few exceptions, a serious dispute with the school begins during the earliest stages of the special education relationship with the school. The story begins at the beginning. Was a child misclassified early on? Was a full initial evaluation performed? What fell through the cracks and kept on falling through the cracks? Were assumptions made earlier accepted as “truth” and then carried forward through the following years? Dig it out. Assume nothing. Do not proceed on your own beliefs. Do not look at a current IEP and make a hasty decision about “what the problem is.

Gleaning through the documents will force you to weed out the records and facts that are not essential for telling the story.

Nothing is more impressive than being prepared well enough to show up at an IEP meeting or negotiation conference with just a few well - chosen documents that tell the story. My heart sings when the school folks show up with tons of documents because I know district will drag out every one of those little critters, and their story is going to be so boring that the mediator or other decision maker’s eyes are going to glaze over during the presentation of their case.

 

The two extra miles that will pay dividends:

Extra mile No. 1. Keep a set of your records on your computer. Here’s how to do it:

For whatever operating system your desktop or laptop computer you use (yes – a desktop or laptop computer, not a smart phone or iPad).

  • Create a folder and name it Your Child’s name v Name of School or school district. Example: Jane D v Old Overshoe SD.
  • Inside that folder, create these folders
  • Correspondence
  • IEPs
  • Evaluations
  • State Complaint (if applicable)
  • OCR Complaint (if applicable)
  • Due Process Complaint (if applicable)
  • Facts and Notes

Explanations:

The IEP folder should hold hard copies of each of your child’s IEPs.

Naming protocol: name each IEP by date. Examples:

  • 2013-2014 IEP;
  • 2014-2015 Draft IEP;
  • 2014-2015 IEP.

Always use the same date format for each IEP and your computer will automatically keep them in chronological order.

The same naming protocol should also be used for the contents of each one of your folders.  

Evaluations folder.

Always put the date as the first part of the file name: Example:

  • 12.14.2014 Dr. X evaluation.

This tells us the file is Dr. X’s evaluation performed on December 14, 2012.

The same name protocol should be used for the contents of the correspondence folder. Example:

  • 02.06.2013 Letter from Buffy and
  • 02.10. 2013
  •  Response to Letter from Buffy (February 6, 2013).

 

Extra Mile No. 2

Make spread sheets for easy reference and for getting ready for meetings, mediation, writing complaints, and hearings.

Use any spreadsheet program. You can use Google Docs, or whatever spreadsheet program came with your word processing program. If you do not have a word processing program you can get a good one for free at http://www.libreoffice.org/

This program includes a word processor that will save in a Microsoft Word format, a spread sheet program, and more.

 

Two edited examples of a spreadsheet follow this page.

 

Each one records different information.


 The U.S. District Court, Central District of California in Newport-Mesa v. California Dept. of Ed held that a California statute requiring copies of test protocols to be provided to parents of special education students falls within acceptable "fair use" under federal copyright law. You can read the decision at http://www.leagle.com/decision/20051541371FSupp2d1170_11412
34 CFR §99.3
Attorneys use the word “document, or documents.” We use the word records for this article because that is the word used in FERPA and the IDEA.
The school’s attorney has an attorney-client relationship because the school’s attorney gives legal advice to the school and defends the school when a parent files a complaint
If you have more than one child in special education, make a separate computer file for each of your children. Example: Jane D. v Old Overshoe SD and John D v. Old Overshoe SD.

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