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Don't Be Afraid to Ask

Don’t Be Afraid To Ask by Brice Palmer

[Webinar Date: May 12 7:30 PM Register] You’ve heard over and over: Ask, and you shall receive.

As the Rolling Stones put it, you may not always get what youwant, but sometimes, just because you asked… You might get what you need!

Chorus

You can’t always get what you want
You can’t always get what you want
You can’t always get what you want
But if you try sometime
Well, you just fight find What you need

Do you ask for what your child really needs to thrive and makeprogress at school? And, do the words you use blur the main message about what your child needs?

Words

Special education, as well as general education, is loaded with obscure jargon terms that may sound scholarly and authoritative – but – do those words get the result you want and your child needs?

In too many instances, education jargon words work against you because most of those words are either intended to carry a vague message or the words are not appropriate for saying exactly what your child needs.

For example, the word access is in almost every parent email or letter that I get. What does access mean in the real world your child has to deal with every day? The word access in special education comes from the statutes and regulations that means a child must have access to the school’s programs and services as well as the school building itself. I call it a squishy word because when we talk to the school and ask for what the student needs we are limiting what we are asking for. Access means just that. Access. It does not mean anything more.

There is a terrific free Texas Education Consumers Association publication (resource) titled Education Terminology Every Parent Must Understand It is free and you can download Here: http://www.nychold.com/hirsch-termin.html#glossary

Know exactly what and why you want what you want.

Define what your child needs for a Free and Appropriate Public Education. Define exactly why what you ask for is necessary. Do not just jot it down. Write it and rewrite it until you can ask (not request) for it in plain everyday language and with confidence.

Practice with a friend.

You will not always get what you want or what your child needs the first time around. Why isn’t the school going to give you what you want? Just ask. Ask for whatever your child needs. You just have to be willing to ask in a straightforward well-crafted way. No, it isn’t a magic thing. It will not always work the first, second, or third time.

Make this routine a habit. Use it in your everyday dealing with any situation in your life.

But – what will you ask for?

Have you critically read your child’s present levels of academic achievement and functional performance section of the IEP?

There is a reason why that section is at the very top of every IEP written. That section gives us and the school a baseline from which all of the specialized instructions, related services, modifications, and accommodations are set in the rest of the IEP. That section is supposed to have measurable information in it.

When was the last time you saw any measurable information in your child’s present levels?

I want to introduce you to Patricia Howe. Pat is an extraordinary advocate and advocacy teacher. You can find her on her Facebook page at

https://www.facebook.com/public/Patricia-Howe

Pat developed a parent’s outline for present levels many years ago. I have used it and have given it to parents for at least 10 years. Her outline appears below. Modify it to fit your student’s situation or for any changes in your state’s regulations about present levels.

Use Pat’s outline and you will be far better informed and prepared to ask for what your student really needs at any IEP meeting.

Parent Form

I. Preparation

A. Request copies of Evaluations, Reports, that the Team will consider at the

meeting

B. Obtain copies of all information you will submit

C. Obtain written reports from independent service providers

D. Other preparation
 

II. Present Levels of Performance (Parent’s Observations, Perspective)

A. Home

B. Community

C. Leisure and recreational activities

D. Activities of daily living

E. Fine and gross motor skills

Reports from school and independent therapists

F. Speech/Language

H. Social/Emotional

Reports from school counselors and private therapists

I. Verbal Abilities

J. Independent Education Evaluations

K. Medical information

L. Letters, reports from physicians
 

III. Strengths (what can the student do well?)

A. Social/Emotional

B. Communication abilities

C. Athletic abilities

D. Academic abilities (Specific, i.e., math, handwriting, spelling, etc.)

E. Likes and interests

F. Personality

G. Leisure/Recreational activities

H. Activities of daily living

I. Fine/Gross motor

J. Verbal skills

IV. Challenges (What is difficult for the student?)

A. Social/Emotional

B. Communication abilities

C. Athletic abilities

D. Academic abilities (specific, i.e., math, handwriting, spelling, etc.) keeping up with classmates

E. Likes/dislikes

F. Personality

G. Leisure/recreational activities

H. Activities of daily living

I. Fine/gross motor

J. Verbal skills

K. Homework issues

V. Needs

A. Accommodations

1. Highlighting textbooks

2. Written instructions to supplement oral instructions

3. Study sheets

4.. Word processor

5. Dictate answers

6. Extra time for assignments

7. Oral testing

B. Modifications to the curriculum

1. Manipulatives

2. Submit posters in place of written book reports

3. Break down assignments into parts

4. Shortened assignments

5. Graph paper for math problems

6. Calculator to reinforce skills mastered or to prevent frustration

7. Computer assisted instruction

C. Related Services

1. Speech/language therapy

2. Paraprofessional or classroom aide

D. Physical/occupational therapy

E. Transportation

1. Special bus route

2. Special equipment

3. Reimbursement

F. Assistive technology

1. communication boards

2. laptop

3. writing tools assistance

G. Counseling

H. Transition Services

1. Vocational assessment

2. Aptitude/Ability assessment

I. Other Services

1. Adaptive physical education

2. Specialized instruction

3. Computers or software

4. Vocational training

J. State/school-wide assessment program

K. Need for additional assessments or evaluations
 

VII. Goals and Objectives

A. Pull from strengths, challenges, needs

B. Here Patricia had a note that reads “See “The Prospector and the Goal

 

VIII. Placements

A.  Never address placement in the parent report

B.  Careful drafting of the parent report may achieve desired placement
 

IX.  No One Likes Surprises

  1.  Provide the parent report to the IEP team chairperson a week before the team

meeting.

 

Yes, doing this is a lot of work. Doing it, though, will prepare you for your IEP meetings

so you can be much more persuasive when you ask for what you want.

-Brice-

About Brice

Brice is a full time working advocate. If you want to know more about Brice and what he does, go to his website at www.bricepalmer.com and click on the Our Story tab near the top of the page or, just click here: 

 May 12, 2016 at 7:30 Register here

Advocacy: Your Child's Most Important Team Member

Two women shouting at each other

By Brice Palmer

[Note: REGISTER and join us for the Webinar to discuss this article on March 10, 2016 at 7:30 PM ET]

The opening sentence in our last article and webinar was “This INCIID article is about your child’s most important Team member -  You.”

The assertion that you – the parent – are your child’s most important Team member hit a nerve because a lot of parents from different states have called me to unload about the treatment and indifference they have been faced with from their school. This complaint by parents is not new. It has been topical for many years – but – I have never seen it as often as now.

What’s going on here?

Two women shouting at each other We could try to explain it by trying to account for cultural and social changes. We could, but I don’t think this is where we should look for a solution to the problem. And, I don’t think the state and federal special education law is where to look for an answer.

Instead of looking for answers, should we first begin by asking questions? OK, you might be wondering how this is relevant to you. The truth is, if you want solutions to key problems, chat rooms and social media is probably not the place to look. The pursuit of the truth is not answers but questions—specifically, which are the most important ones to be asking.

So when someone says they “want to make a difference,” ask that person what specific difference they want to make.

What are the most important questions we can ask?

  • what is the most important or difficult thing you need to overcome in your IEP meeting advocacy?
  • How can you increase the odds in your favor in tough situations?
  • What will it take to improve your working relationship with the school district?

First, recognize that It is not wrong to insist that the school district must faithfully follow the procedures to develop an IEP or 504 plan that works for your child.

And, acknowledge that it is not wrong for you to vigorously advocate for your child’s educational welfare. Congress put the procedural safeguards and parental participation in the IDEA on purpose.

Strong and ethical advocacy should be rewarded, not belittled or punished.

Second, understand that nobody triumphs on a complaint or difference of opinion by accident.

Third, be the best you that you can be.

Fourth, build your own network of knowledgeable parents and others who will help you.

Handling tough situations with nasty school districts or school district Team members.

Trigger Warning:

The following couple of paragraphs have what my mother called an “ugly word”.

Several years ago a Stanford professor, Robert L Sutton, wrote a book based on an essay he wrote for the Harvard Business Review. In 2007 that book was awarded the Quill Award for the best business book in 2007.

The title of the book is The No Asshole Rule: Building a Civilized Workplace and Surviving One That Isn't.

The theme of this book is that bullying behavior in the workplace worsens morale and productivity. 

The author, Robert Sutton, insisted on the tile of the book because, he said, the word asshole has a stronger effect than other words such as bully or jerk.

Sutton set out two tests for recognizing an asshole:

1.    After encountering the person, do you feel oppressed, humiliated or otherwise worse about yourself?

2.    Does the person target people who are less powerful than him or her?

Sutton also listed unpleasant behaviors he called The Dirty Dozen

  1. Insults

2.    Violation of personal space

3.    Unsolicited touching

4.    Threats

5.    Sarcasm

  1. Flames

7.    Humiliation

8.   Shaming

9.    Interruption

10.Backbiting

11. Glaring

12. Snubbing

 

Over the years I have recommended this book to several parents. 

 

Some important skills you need to develop.

Telling the story of your case (whether at an IEP meeting or in a complaint).

Begin by telling your child’s story – your child’s story is not an explanation of the disabilities. Your child’s story is a human story that includes who your child is.

Question: What is more important: the nature of the disability or the uniqueness of your child?

Follow up by telling the story of the case – it is not about the problems and struggles you have with the school district. The trick is finding the truth (provable facts) that matter in your case and being able to talk about those provable facts as a part of your story. 

 

Do you have a hook, or an anchoring truth that you can weave through your story?

 

OJ Simpson Murder Trial: "If It Doesn't Fit, You Must Acquit"

Wednesday, June 21, 1995, O.J. Simpson holds up his hands before the jury after putting on a new pair of gloves similar to the infamous bloody gloves during his double-murder trial in Los Angeles. The return of O.J. Simpson to a Las Vegas courtroom next Monday, May, 13, will remind Americans of a tragedy that became a national obsession and in the process changed the country's attitude toward the justice system, the media and celebrity.

The prosecution's request to have OJ Simpson try on a pair of gloves spawned a phrase that became an enduring motto and marked a key moment in the case.

 "If It Doesn't Fit, You Must Acquit".

And the jury did just that. OJ Simpson was acquitted on the charge of murder.

We are trying to sell our story at every meeting, with every letter, with every email message, and every formal complaint.

Aristotle suggested that in any argument, three issues are relevant: 1) logos~the logic of the argument; 2) pathos-the emotion associated with the case; and 3) ethos - the character of the speaker.

I realize that what is suggested in this article is a new way of thinking and planning for many parents.  For as long as I can remember, parents have been told by the “experts” that their only hope is to fight fire with fire – get nasty.

There is a very big difference between getting nasty and applying advocacy skills that truly make you the most important – and effective - Team member for your child.

Breakthroughs happen only when someone asks why not, and thinks beyond conventional wisdom. It’s not wrong to want to get the right things done right. But curiosity, imagination and a strong desire to truly understand the nature of people and of special education with a good measure of humility is a path less traveled that should be rewarded, not belittled.

 

- BP -

 

 

[1]r with those tough customers.

 

 

 

 

 

[1] Cartoon character Pogo. Created by cartoonist Walt Kelly

Special Education Advocacy for 2016: The Most Important Team Member

Down Syndrome girl holding the arms of her parents
Photo of Ruby the hounddog
paw prints

Down Syndrome girl holding the arms of her parents[Register for the 2016 Jan. 13 Webinar here.]

This INCIID article is about your child’s most important Team member:  You.

What links all of those subjects together in everyday life for too many special education parents is trying to keep some sort of order in their family and personal lives while also dealing with all of the special education stuff. The special education stuff seems to wrap its tentacles around everything in their personal lives.[1]

This past year (2015) the number of frustrated and overwhelmed parents who get in touch with me is at an all-time high.

A typical parent who contacted our little operation out here in the woods has attended several workshops and mini-courses for special education parents. And, typically, the workshops and mini-courses were primarily concentrated on the regulations, how an IEP or 504 plans should be written, procedural safeguards, writing complaints and so on and so forth.

We might ask what is causing the problem?   I cannot answer that question.

A better question is -  what can you do about it?

W.C. Fields said, (paraphrased) “Sometimes you have to take the bull by the tail and face the situation” [2]

To illustrate taking the bull by the tail I’d like to tell you about my dog Ruby. Photo of Ruby the hounddog

The reason she is in this article is because Ruby is a metaphor for how far too many special education parents are worn out; at their emotional brink; angry; distrustful; afraid; or cautious about attending Team meetings.   

The story of Ruby.

Ruby came to live with me out here in the woods by way of the Middlebury Animal Shelter. It took about 15 seconds for me to decide Ruby (the name I gave her) must go home with me. The people at the animal shelter tried to talk me out of taking

her. Several families had previously picked her out of the crowd – and every one of them brought her back to the shelter. Why?

Because Ruby was an emotional wreck. She had been abused. In fact, when she came to live at my place it took her about eighteen months to decide that I was not going to hit her. She was hyper hand shy.  It took her about another few months for her to decide I was not going to take her back to the shelter.

She has been out here in the woods reigning over the house and office for almost eight years.

And don’t parents who have similar feelings get that way by being abused in various ways at Team meetings? I think Ruby’s emotional condition and hand shyness is remarkably similar to how parents feel and react to Team abuse.

Team abuse is a strong allegation.  For this article we aren’t going to talk about the many manifestations of Team abuse because it is more important to recognize abuse when you don’t see it and how to Go Forth.

A few Team abuse tactics:

Packing the Team meeting with way more school people and “experts” than are necessary.

Spending way too much time talking about stuff that isn’t relevant to specific Plan elements.

Ignoring parental participation letters

Scheduling meetings without consulting the parent to see if the meeting date is convenient for the parent.

Scheduling meetings for an hour when everyone knows the meeting can’t even cover 1/10th of what has to be discussed in an hour.

The highest function of any Team meeting is to do the right thing for the student. What is right is faithfully applying the procedures in the regulations.   Doing the right thing for the student is way better than a meeting conducted by the Team’s “I said so” doctrine. 

How can you make that happen?

“Do not go where the path may lead;

go instead where there is no path and leave a trail.”

~ Ralph Waldo Emerson ~

Remember these things:

  1. Everyone wants to be respected. Demand respect from the Team and treat the Team with dignity and respect – even if they don’t deserve it.
  2. All of us would rather be asked than be told. Frame what you want the Team to do in the form of a question. For example, you want the IEP to decrease the time your student needs in the resource room. Ask, can we reduce the number of hours Nimrod spends in the resource room?
  3. People want to know why. Using the question in No. 2, ask Why can’t the number of hours in the resource room be reduced?
  4. All of us would rather have options than threats. School district Team members are hypersensitive to threats by a parent. They perceive requests for a due process hearing in just about anything that a parent demands. That means that if a sticky issue is being discusses, you might ask the Team, What options do we have to solve this issue? This deescalates the tension being built up in the meeting.
  5. Most of us always want to have a second chance. Yes, I know you have bent over backwards trying to get something important changed. But ask yourself whether the things you bent over backwards about were framed in the form of questions instead of in the form of demands.
  6. Rule of reciprocity

This is a simple principle. All of us have a sense of obligation to return favors after someone does us a favor (even if the favor is not normally perceived as a favor by the other person). For example, if a school Team member made a helpful comment or persuasive comment during a Team meeting you might send that person a nice email message or mail a card to thank that person for her helpful participation in the meeting. Courtesy? Yes, but more. If you acknowledge that person’s positive contribution to the meeting, then that person is more likely to reciprocate with more positive comments during future Team meetings.

But what of the person in the Team meeting that threw a crowbar in the gears during the meeting? You can still complement that person. For example, you might write to that person and say something like this: Although we didn’t agree on X during the Team meeting I appreciate your time and consideration of X.  A message similar to that will do more good than writing to that Team member saying how angry you are and how you think she should be relegated to IEP Hades.

Are thinking that I have gone soft? If you are, the answer is no. Every parent and every advocate should use techniques to get what a child needs in the IEP or 504 plan. Treating Team members with dignity and respect (even if they don’t deserve it) will go a long way in getting more cooperation than blowing up and writing nastygrams. After all, that is our job. Get the best IEP or 504 plan the student deserves under the rules and procedures.

Go forth - Do your thing - Leave a trail,

~ Ruby ~  paw prints

 

-Brice-  

This is our last issue before 2016  INCIID sponsors the articles and webinars brought to you for free monthly throughout the year. While these are offered free to parents they cost INCIID to provide them. Just 20 people donating $55 each will cover the annual cost of the webinar software and newsletter services necessary to bring these events to you. If you think these events are useful, think about a year-end tax deductible of gift of any amount to INCIID. Click HERE to Donate!

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[1] One classic resource for helping overwhelmed parents is a publication written by Pete and Pam Wright titled From Emotions to Advocacy. You can find it at http://www.wrightslaw.com/bks/feta2/feta2.htm

 

[2] William Claude Dukenfield (January 29, 1880[  – December 25, 1946), better known as W. C. Fields, was an American comedian, actor, juggler and writer.[2] Fields' comic persona was a misanthropic and hard-drinking egotist, who remained a sympathetic character despite his snarling contempt for dogs and children. Source: https://en.wikipedia.org/wiki/W._C._Fields

 

Maneuvers: Planning Before You Complain

There are no Perry Mason moments in special education complaints.
Boxer waiting for food

by Brice Palmer
Boxer waiting for foodJoie de vivre (Joy of Life) with a side order of ugh.

First, my apologies for the delay of this article. The last few weeks have given me a roller coaster ride of ups and downs in the emotional sense.

It all started with researching my old client files and old COPAA discussion list conversations for this series of articles about reading cases, writing complaints, and finding ways to resolve our differences with the school district. I wanted to see what sorts of problems over the years that parents have had with advocating for their children’s special education. Of course none of this is a scientific or even a complete bit of research. My client files reach back to 1996 through today, which spans the 1975 Education for All Handicapped Children Act (EAHCA), IDEA 1997, and IDEA 2004.   

And that leads us into the purpose for this article.

Thank you for the wonderful article suggestions made after our last article discussion. Some of the suggestions overlapped with respect to the broad category of writing complaints, state administrative complaint procedures, and due process hearings.

For the next few articles we will combine those several suggestions and talk in general about complaints, state department of education investigations, due process hearings and Office of Civil Rights (OCR) complaint and OCR determination letters. Each of them have a lot in common.

Today, though, we are pushing one question to the head of the line. The question was about filing a complaint without “giving away your case.” This is a great question because it ties directly with our last article about how to read cases and how written case decisions are structured. This topic is a matter of case strategy and tactics. Should we hold our cards close to the chest or should we lay the whole thing out

The best answer to the question about filing a complaint without “giving away your case” was expressed by an attorney member of COPAA at one of the early annual COPAA conferences. I cannot remember who it was. I think it was Wayne Steedman. That attorney began his break-out presentation with these words:

“There are no Perry Mason moments in special education hearings” [1]

There are no Perry Mason moments in special education complaints. Perry always won his trials in no small part because at the last moment he pulled a surprising piece of evidence out the hat that acquitted his client. Don’t count on that gambit in special education cases.

Why? Because the complaint you filed against the school district will go immediately to the school district’s attorney. And that attorney will read the student’s education records to find every document, email, and scraps of notes looking for evidence that will crush your case. The school’s attorney will interview every school district employee that had anything to do with you and your child. The school’s attorney will also craft their hearing tactics and strategy well in advance of the day the hearing begins.

How do I know that? Because all special education defense attorneys have a manual published by LRP that tells school district attorneys exactly every step they need to take to defend their client school district against a parent complaint. The school district’s attorney will make certain there will not be any Perry Mason moments.

So what did my research of old files reveal?

Prior to Weast v. Schaffer (4th Cir 2004), resolving differences with a school district was generally less contentious than today. I’m not saying it was easy. I am saying that before the landmark case of Weast v. Schaffer (4th Cir 2004) a working relationship with a school district was more in line with the intent of the IDEA, which encouraged informal resolutions through the Team meeting procedures. Now, school districts seem to be consistently on guard for a complaint filing. The 4th Circuit in Weast changed the burden of proof to the party who initiated the action (complaint for due process). In fact on one occasion shortly after Weast v. Schaffer, one of the participants in our after article webinars and I attended an IEP meeting for her child – the LEA looked us square in the eye and dared us to file for a due process hearing.

So should we file a complaint without “giving away the store?” My opinion is no. Write your complaint with every piece of credible evidence you have that shows the school district’s attorney that you have a strong case, you know what you are complaining about, and that it will be better for the school to mediate or resolve the complaint before the hearing (or state administrative complaint) investigation.  Follow the formula for how a court or hearing officer decides a case – reverse engineer that formula for laying out and proving your case in your complaint.

An Aesop's Fable

A Gentleman, having prepared a great feast, invited a Friend to supper; and the Gentleman's Dog, meeting the Friend's Dog, "Come," said he, "my good fellow, and sup with us to-night." The Dog was delighted with the invitation, and as he stood by and saw the preparations for the feast, said to himself: "Capital fare indeed! This is, in truth, good luck. I shall revel in dainties, and I will take good care to lay in an ample stock to-night, for I may have nothing to eat to-morrow." As he said this to himself, he wagged his tail, and gave a sly look at his friend who had incited him. But his tail wagging to and fro caught the cook's eye, who, seeing a stranger, straightway seized him by the legs, and threw him out the window to the street below. When he reached the ground, he set off yelping down the street; upon which the neighbors' dogs ran up to him and asked him how he liked his supper. "In faith," said he, with a sorry smile, "I hardly know, for we drank so deeply, that I can't even tell you which way I got out."

Moral of Aesops Fable: Those who enter by the back stairs must not complain if they are thrown out by the window.

Brice 
 

[1] Perry Mason is a fictional character, a criminal defense lawyer who is the main character in works of detective fiction written by Erle Stanley Gardner. The character of Perry Mason was adapted for motion pictures and a long-running radio series. The radio series were adapted for television by CBS television. That series ran from 1957 to 1966. The character of Perry Mason was played by Raymond Burr (pictured below).  Source, https://en.wikipedia.org/wiki/Perry_Mason

 

What Does "Appropriate" Really Mean?

What exactly does appropriate mean as far as IDEA goes?

by Brice Palmer

What exactly does appropriate mean? [NOTE: Register for the Webinar on Thursday July 16, 2005 7:30 PM] The question about what the word appropriate means in the IDEA is one of the most important questions you can ask.
The fundamental concept of the word appropriate is- compared to what? 
How do we know how to compare (in the IDEA) what is appropriate and what is not appropriate (inappropriate)?
Let me disclose again that I am not an attorney and I am not a legal scholar by any stretch of the imagination. 

Statutory interpretation
Answering our question about what does the word appropriate mean in the IDEA must begin with something called statutory interpretation. Don't panic. It isn't as scary as it sounds. 
Statutory interpretation is the process courts use interpret and apply legislation. Interpretation is sometimes necessary when a case involves a statute. Sometimes the words of a statute have a plain and straightforward meaning. 

There are instances, though, that some ambiguity or vagueness in the words of the statute require a hearing officer or judge to resolve the ambiguity.
Hearing officers and judges use various tools and methods to interpret language in a statute. Some of those tools are long standing principles and rules of statutory interpretation, legislative history, and purpose. In the courts in the U.S., judges may apply rules of statutory interpretation to legislation passed by the legislature or is delegated legislation. Delegated legislation can be in the form of administrative agency regulations.   

We touched on this subject earlier in this series of INCIID articles.
Assume, for example, that a statute requires that cell phone use while driving a motor vehicle is a violation of the state motor vehicle code.  If the statute (code) does not define the term "motor vehicles", then that term will have to be interpreted if questions arise in a court of law. 
In an earlier INCIID article we did this exercise when the question was whether a snowmobile is (in the state in question) defined as a motor vehicle. In that hypothetical Bubba was driving his snowmobile on a city street, was pulled over and given a ticket for talking on his cell phone while driving a motor vehicle. In our hypothetical the state motor vehicle code did not include snowmobiles in the definition of a motor vehicle.

The question for us is "what does the word appropriate" mean in the IDEA? 
The IDEA itself tells us what appropriate means. If we can prove the IDEA defines the word appropriate we can take comfort in a few US Supreme Court decisions that tell us we are on the right track.
"We begin with the familiar canon of statutory construction that the starting point for interpreting a statute is the language of the statute itself. Absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive.:" Consumer Product Safety Commission et al. v. GTE Sylvania, Inc. et al.,447 U.S. 102 (1980). 
And,
"[I]n interpreting a statute a court should always turn to one cardinal canon before all others. . . .[C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says there." Connecticut Nat'l Bank v. Germain, 503 U.S. 249 (112 S.Ct. 1146, 117 L.Ed.2d 391). And, "[w]hen the words of a statute are unambiguous, then, this first canon is also the last: 'judicial inquiry is complete.' Connecticut National Bank v. Germain, (1992)" 503 U.S. 249, 254.

The US Supreme Court recently decided two cases in which statutory interpretation and constitutional (language) interpretation was a big deal. I mention these two decisions because lawyers and scholars will study, write, and debate these two decisions for decades. Although the subject of each of the cases are different, the cleft between the majority opinions and the dissenting opinions are wide and woolly. 
King v Burwell,  576 U.S. ___ (2015) 

Question presented (to the Court): 
Section 36B of the Internal Revenue Code, which was enacted as part of the Patient Protection and Affordable Care Act, authorizes federal tax-credit subsidies for health insurance coverage that is purchased through an "Exchange established by the State" 
The question presented was whether the Internal Revenue Service may publish regulations to also extend the tax-credit subsidies to insurance coverage bought through Exchanges established by the federal government. In this case, even the meaning of a capital S or a lower-case s received a great deal of attention. 
Obergefell v.Hodges, 576 U. S. ____ (2015) 

Two questions presented:
1. Whether the Fourteenth Amendment requires a State to license a marriage between two people of the same sex. 
2.  Whether the Fourteenth Amendment requires a State to recognize a same-sex marriage licensed and performed in a State which does grant that right.
You can read both of these decisions at http://www.scotusblog.com/case-files/cases/obergefell-v-hodges/ and http://www.scotusblog.com/case-files/cases/king-v-burwell/
The legal literature and case decisions on statutory interpretation is enormous and goes back several centuries - way before there was a United States. 
Still, we meeting navigators must have a way to come to a reasoned decision about what is and what is not appropriate in an IEP. 
The unfortunate problem is that we assume we know what is or is not appropriate. It also seems many school district people also assume they know what appropriate means. 
It is also true that (in my experience) parents often have a keen instinct about what is and what is not appropriate in their child's IEP. The problem, though, is many of them do not know how to prove their intuitive conclusion. And without being able to prove it, they lose.
This magic formula will help you know when someone pulls the old switcheroo about what is or is not appropriate for your student.
What does the IDEA statute say? Remember from the discussion earlier that we should not read a section of a statute isolated from the context of the whole act? And that when a court interprets legislation it must not be guided by a single sentence or part of a sentence? And the court (and us) should look to what the whole law provides as well as the legislation's object and policy? (Paraphrased from Richards v. United States, 369 U.S. 1, 11 (1962).

Begin at the beginning.
The IDEA begins with the Act, which Congress wrote and passed. The Act is the Individuals with Disabilities Education Improvement Act of 2004.  You will find the congressional purpose of the law and other important information about what Congress (the legislature) intend the IDEA to be and do in the Act. 
The Act is then put into statutory law, which is located at 20 U.S.C. 1400. You can find it here: https://www.law.cornell.edu/uscode/text/20/chapter-33
The US Department of Education then writes regulations that implement the statutes. The regulations are located in the Code of Federal Regulations (CFR) Chapter III. You can find it here: https://www.law.cornell.edu/cfr/text/34/chapter-III

Do you need all of that information for your day-to-day dealings with the school district? 
No, but knowing where you can find it is important when you need it.

For analyzing FAPE, we begin with the definitions at 20 USC 33 §1401. 
20 USC 33 33 §1401 (9) Free appropriate public education

The term "free appropriate public education" means special education and related services that-
(A) have been provided at public expense, under public supervision and direction, and without charge;
(B) meet the standards of the State educational agency;
(C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and
(D) are provided in conformity with the individualized education program required under section 1414 (d) of this title.

Read this carefully. Do not look at it and say sure, I've seen that before. 
Read each line. If any sub part (A through D) is not met you may be looking squarely in the eye of a denial of FAPE. For example, we all know the F in FAPE means free. But read (A) again - Free is just one of three separate parts of (A). 
Read (B). Have you looked at your State's learning standards? So far I have not found one State's learning standards that exempt students who have an IEP or FAPE under a 504 plan.
To me, appropriate for a specific student means each element of the definition of FAPE at 20 USC 33 33 §1401 (9) must be met. 
When we are deciding whether an IEP is appropriate we can use the same method hearing officers and courts use to analyze a legal question (issue). An issue is usually stated something like this: 

Whether the Old Overshoes School District denied the student a free appropriate public education by telling the parent ESY is available only during the three weeks during the summer beginning two weeks after the end of the school year.

Where would that issue appear in 20 USC 33 33 §1401 (9) Free appropriate public education? You are on good ground if you chose (D) are provided in conformity with the individualized education program required under section 1414 (d) of this title. 

You can read Section 1414 (d) at https://www.law.cornell.edu/uscode/text/20/1414 NOTE: Scroll down the page or term search (d) Individualized education programs.
Continue reading through to (e) (Educational placements
The Federal Regulation:
34 CFR §300.17. You can read it at https://www.law.cornell.edu/cfr/text/34/300.17
34 CFR § 300.320
Definition of individualized education program. You can read it here: https://www.law.cornell.edu/cfr/text/34/300.320

If you find using the cornell.edu references cumbersome I recommend getting a copy of Wrightslaw, Special Education Law, 2nd Edition. This is the most authoritative and easy to use book about the IDEA statutes, regulations and more. And no, I am not affiliated in any way with Wrightslaw.com. 

So in plain language, what does appropriate mean in the IDEA? I hope this article will help you define it when you suspect you see it.

Synonyms for appropriate used as an adjective:
Applicable, apt, correct, fitting, good, opportune, pertinent, proper, allowable, acceptable, applicable, fair, just, justifiable, lawful, legal, and legitimate.    
In passing: Consider putting together a local parent study group to nail these analysis concepts down.

Have fun.
Best regards.
-Brice

You are invited to post a question for Brice about this article or any other special education question on the INCIID Ask The Advocate Forum by going to 
http://www.inciid.org/forum/forumdisplay.php?51-Ask-the-Educational-Advo...

 

Advocacy: Parental Participation

Advocacy special education - Asian girl walking to schoolParental participation.

By Brice Palmer

Is it a right?

[NOTE: Come to the Webinar with Brice Palmer speaker and bring your questions about parental rights and participation. REGISTER HERE. ] 

Parental participation has trickled up to near the top of the list of what irritates many parents.  I don’t know how widespread that irritation is. What I can say is many parents who get in touch with me are furious about getting shut out of being able to take a worthwhile role during IEP meetings.  Specifically, parents tell me that they resent facilitators or compliance officers who dominate the IEP meeting conversation.

That word “meaningful” is what school districts seem to quibble over.

We say the IDEA gives parents a right to take part in IEP meetings and develop the IEP.

What is a right?

And what gives parents the right to participate in a meaningfully way?

According to W.W. Buckland, the word right is “one of the most ambiguous words in the English language”.[1] When we use the word right in special education we mean that we have an interest or expectation guaranteed by law.[2]

The IDEA guarantees a parent’s right to participate, right. Oh yeah, you say? And you know Mr. Garner’s description of a right isn’t the way it works in your school district, right? You have the law on your side, right?

Mark your calendar for August 24, 2015. That day is the 1,605th anniversary of the first sacking of Rome by the Visigoths. As the story goes, the barbaric Visigoths led by Alaric banged on the gate of Rome demanding entry to the city. The Romans replied saying, you cannot come into Rome – we have laws.

To which the Visigoths replied – we have weapons and a nasty temperament.

Rome fell.

It was the nature of the Visigoths to break things. Rome relied on its laws thinking the Visigoths would appreciate that a law is a law.

Warning: I am neither an attorney nor a legal scholar. What follows is the result of a little poking around to see what some heavyweight decision makers have said about a parent’s right to “meaningfully” participate. 

The trail begins in 1988[3] when the US Supreme Court said Congress provided the team that develops the IEP must include the parents, 20 U.S.C. § 1414(d)(1)(B)(i), and must consider “the concerns of the parents for enhancing the education of their child,” citing 20 USC § 1414(d)(3)(A)(ii). In addition, the Court said, ([t]he IEP team must “revise the IEP as appropriate” to address information about the child provided by the parents. Honig v. Doe, 484 U.S. 305, 311 (1988).

These principles are also a part of the US Supreme Court’s opinion in a case called Board of Education. v. Rowley, 458 U.S. 176, 179 (1982)

The IDEA preserves those principles by “ensur[ing] that all children with disabilities have available to them a free appropriate public education” and by “ensure[ng] that the rights of children with disabilities and parents of such children are protected.” 20 U.S.C. § 1400(d)(1)(A) & (B). You can read the rule at https://www.law.cornell.edu/uscode/text/20/1400

In 2005 the US Supreme Court issued its opinion in Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 53 (2005) (“Parents and guardians play a significant role in the IEP process.”).

The school district must provide a free (and) appropriate public education “in conformity with” the child’s IEP. 20 U.S.C. § 1401(9). In particular, the child’s educational placement must be “based on the child’s IEP.” 34 C.F.R. § 300.116(b)(2) (formerly § 300.552(b)(2)). Finally, parents must be members of “any group that makes decisions on the educational placement of their child.” 20 U.S.C. § 1414(e).

The US Supreme Court has not swayed from those principles.  In 2007, the US Supreme Court wrote in a case called Winkelman ex rel. Winkelman v. Parma City Sch. Dist., 127 S. Ct. 1994, 2000 (2007):

“This Court consistently has recognized the critical importance of the IDEA’s procedural protections. Rowley, 458 U.S. at 205 (“the importance Congress attached to these procedural safeguards cannot be gainsaid”).

And, the Court said,

“(parents enjoy “enforceable rights” at the administrative stage and in federal court). The Court concluded that “[t]he IEP proceedings entitle parents to participate not only in the implementation of IDEA’s procedures but also in the substantive formulation of their child’s educational program.”

“It seems to us no exaggeration to say that Congress placed every bit as much emphasis upon compliance with procedures giving parents and guardians a large measure of participation at every stage of the administrative process, see, e.g., §§ 1415(a)-(d), as it did upon the measurement of the resulting IEP against a substantive standard.”

Active participation on the part of parents is an important principle in the procedural safeguards the Court was talking about. An important part of the mandatory procedural safeguards is to secure the rights of parents to have an active role in educational decisions concerning their disabled child. That is set into the law at 20 U.S.C. § 1415(b)(1) (parents must be given the opportunity to examine all records relating to their child and “to participate in meetings with respect to the identification, evaluation, and educational placement of the child, and the provision of a free appropriate public education to such child”. You can read it here https://www.law.cornell.edu/uscode/text/20/1415

Yet, it seems many parents are marginalized by the school district during meetings and follow-up correspondence. And, we often argue that there are laws that give us the right to actively and substantially participate (meaningfully).

Aren’t we a little like the Romans when we say to the school, you can’t cut us out of the decision loop because there are laws that give us the right to participate? And doesn’t the school reply with something similar to what the Visigoths said – we have weapons and a nasty temperament?

What is more important; that we understand the nature of the laws or to understand the nature of people?

What good is a right if we aren’t able to enforce that right?

The history of parental participation goes back a long time – and – that history is an eye opener.

Letter to Gramm, Office of Special Education and Rehabilitative Services

June 12, 1990. 17 IDELR 216, 17 LRP 1294

‘Under EHA-B, the special education and related services required by a child with handicaps must be contained in the child's individualized education program (IEP). 34 CFR Part 300. Placement decisions must be based on the child's IEP. School districts must afford the parent every opportunity of participating in the IEP meeting. [EHA-B, requires that each child's IEP be developed, reviewed, or revised at a meeting between parents and school officials, which must occur at least annually. 34 CFR §§ 300.343-300.344.] Under EHA-B, parents "are expected to be equal participants along with school personnel" at all IEP meetings. Appendix C to 34 CFR Part 300 (Ques. 26). The IEP meeting serves as a communication vehicle between parents and school personnel, and enables them, as equal participants, to jointly decide upon the child's needs, the services to be provided, and the anticipated outcomes. If, during the IEP meeting, parents and school staff are unable to reach agreement, the agency should remind the parents that they may seek to resolve their differences through due process procedures. Appendix C to 34 CFR Part 300 (Ques. 33). Every effort should be made to resolve differences between parents and school staff without resort to a due process hearing (i.e., through voluntary mediation or some other informal step). However, mediation or other informal procedures may not be used to deny or delay a parent's right to a due process hearing. Ibid. I am enclosing for Mr. Donaldson's information a copy of questions and answers about IEPs that appear at Appendix C, 34 CFR Part 300 (Ques. 26-35).

Notice that the history of OSEP and the courts discussing parental participation is about the law, but they are also speaking between the lines to human nature. 

Question: As we advocate for a child, is it more important for us to concentrate on the nature of the law or to concentrate on the nature of people?

-BP-

About the author:

Brice is a special education advocate who works with parents across the country. He has practiced, taught and written about special education advocacy since 1995.  His articles have appeared in The Beacon Journal, published by Harbor House Law Press, Autism Asperger’s Digest, published by Future Horizons, Inc., Family Focus, the quarterly newsletter published by Families for Russian and Ukrainian Adoption (FRUA), and various articles appearing at www.wrightslaw.com. Some of the Wrightslaw articles are: Do the Documents Speak for Themselves?How to Prepare Your CaseLearning To Negotiate Is Part of the Advocacy Process, and How and Why to Tape Record Meetings.

Brice lives out in the woods near Benson, Vermont.  Your can reach him by phone at (802) 537-3022. 
Brice also answers questions on the  Educational Advocate Forum so all can benefit from the answers. or you can Email him.


[1] W.W. Buckland, Reflections on Jurisprudence 32, 1945,

[2] Garner’s Dictionary of Legal Usage, Bryan A. Garner

[3] Congress passed the Education for All Handicapped Children Act (“EAHCA”) in 1975. In 1990, Congress changed the name of EAHCA to the Individuals with Disabilities Education Act (“IDEA”).

Meeting Preparation: What you need to know about what you need to know (continued)!

Vol. 1, No. 8 April 29, 2015

[NOTE: REGISTER for Brice's Webinar on May 6, 2015 from 7:30-8:30 PM EST] 
Let’s say the IEP Fairy did not arrive and sprinkle FAPE dust on everything you wanted the school to change or add to the IEP.[1]

The meeting is about to end and you are sitting there steaming about what did not get done. You know the meeting is coming to an end because you aren’t the only one in the room who is getting fidgety. Some are even packing up their stuff.  You know what’s coming next is a lot of yada yada yada and chair shuffling.

You, on the other hand, are not finished.

You paid attention during the meeting.

You had your copy of the IEP or proposed IEP and used it for your checklist during the meeting.

What is clear is you came to the meeting far more prepared to talk about your child’s IEP than the school district members.

Anger is welling up from your ankles to the top of your head.

Is there anything you can do besides stomp out to the car, jam the keys into the ignition and drive home with fire in your eyes?

A very good special education attorney whose name is Darrel Till Mason in Virginia taught me this meeting technique at a COPAA conference many years ago. It works.

The first step is for you to take control.

Yes, you. The moment you see people fidgeting and gathering their stuff, speak up. The object is to get a good closure.

The second thing to do is clarify the status of the IEP.

a)   Just say you want to be sure about what has (or has not) been agreed to during the meeting. This is where the notes you made in your copy of the IEP pays off.

b)   Your notes in the various sections of the IEP will help you close the meeting by unfolding your notes as a complete picture of the status of the IEP.

c)   Go section by section and get confirmation from the school district agreement was reached or agreement was not reached (for each section). If some progress or partial agreement is made in some sections, be sure to say so.

d)   For sections that were not fully agreed to or were partially agreed to, ask whether any additional information will be helpful for reaching an agreement (consensus). If the school does think additional information is a good idea, be sure to lock down who will get the additional information – and – lock down a time or date when that additional information will be available for the Team’s consideration.

e)  Inform the school district Team members that you believe another meeting is necessary for further discussion.

f)     For anything that was agreed to during the meeting, ask when the school will I        implement those changes.

g)    Ask the school district to include your summary in the minutes of the meeting.

h)    Always take your calendar to meetings. Take out your calendar and ask when the next meeting will happen.

i)     If essential Team members did not attend the meeting and therefore the meeting was a complete waste of time you should remind the school district that everyone, including you, are busy. And, before another meeting is scheduled you want assurance that the necessary people will attend the next meeting and adequate time must be allotted for the meeting.

j)     End the meeting with grace: Say thank you.

 

Never accept NO from someone who is not authorized to say YES. If a decision must be made by someone else, insist that that someone be present at the next meeting.

After you get home and get comfortable, write a letter (not an email message) to the school district and ask for a Written Notice if the school did not agree with some or all of what you wanted to get changed. The school must give you a written notice that explains what the school proposed and you did not agree with, or what the school refused to agree to that you proposed for the IEP.

The notice must include:

            1. A description of the action proposed or refused

            2. An explanation about why the action was proposed or refused.

            3. A descriptions of any options the school district considered AD an explanation about why those options were rejected.

            4. A description of each procedure, test, education record, or report used as the basis for the proposal or refusal of the action.

            5. A description of other factors relevant to the proposal or refusal of the action

            6. A reference to the procedural safeguards

7. Sources for where you can obtain assistance in understanding the provisions in the written notice

The IDEA tells us that the school district is required to send a written notice. However, think back and try to remember whether the district has ever sent you a written notice after a meeting in which not everything was agreed to or implemented.

Heads Up:

Do not accept a pre-printed Written Notice form that does not detail every aspect of what is required in a written notice.

Request for written notice checklist:

            1)        Make your request for Written Notice in writing.

            2)        Date your request for Written Notice.

            3)        State the date of the IEP meeting in which requested action(s) requested were denied or that the school proposed the action(s) that you did not agree with.

            4)        Clearly describe what action(s) were denied or proposed.

            5)        Clearly state when you expect to receive the notice from the school. 

            6)        Keep a copy of your request for Written Notice for your records.

 

A sample request letter for written notice is at the end of this article.

Practice all of these suggestions for ending a meeting with a trusted friend. Do it several times before the Team meeting. This will give you confidence and strength.

For your practice sessions, do it in a way that avoids mocking the school district Team members. Yes, it might be fun to mock them but my guarantee is that if you practice these techniques without mocking and making fun of the school’s Team members you will be more confident and prepared than you ever thought possible.

 

Sample letter

Your name

Your mailing Address

Your telephone number and (optional) your email address

 

Date

Name of the school district

School Contact’s Name and title

School’s mailing address

 

      Reference: Nimrod E: DOB 3-29-2012, Student No: 3012506

 

Dear Ms. Speduleader, LEA:

 

During the last Team meeting held on April 15th, 2015, I asked the school Team members to provide three things for Nimrod in his IEP:

  • Extra time to complete his written assignments.
  • A paraprofessional in his history classes, and
  • I proposed that the district decrease the time Nimrod spends in the resource room.

The school district Team members refused each of my requests.

Please send a full written notice required by the IDEA to me to my home address.

I expect the notice to include an explanation about why the school refused each of these actions;

  • A description of any other options the Team considered;
  • The reasons why those options were rejected;
  • A description of each evaluation procedure, test, record, or report the school used as a basis for its action; and
  • A description of any other factors that had a bearing on the school’s action. 

I understand that this notice should be sent to me by the school district within a reasonable time. I will appreciate receiving the notice within five business days of the date of this letter.   Thank you.

Respectfully,

Nimrod’s mother

-end of letter-

The next article is about complaining and, what in the world is an IEP, anyway?

To whet your interest, the next article begins with –

“In the the legal sense, complaining and talking about complaining has been going on for centuries. During the 6th Egyptian dynasty (2300-2100 B.C.), for example, Ptahotep issued an important instruction. It is paraphrased it here“

The Instruction of Ptahhotep (pronounced Pta-hotep)

If you are one who leads,

Listen calmly to the speech of one who pleads;

Don’t stop the pleader from purging their body

Of that which they planned to tell.

One in distress wants to pour out their heart

More than that their case be won.

About one who stops the pleas

One says: “Why does one reject it?”

Not all one pleads for can be granted,

But a good hearing soothes the heart.

 We want someone to listen.

-Brice

You are invited to post a question for Brice about this article or any other special education question on the INCIID Ask The Advocate Forum 

Download the article as a PDF file.

[1] My friend Sonja Kerr is the originator of the terms IEP Fairy and FAPE dust.

How Safe is Our School House: 2015 Report Restraint and Seclusion

Pair of restraints

The updated 2015 edition of How Safe Is the Schoolhouse? An Analysis of State Seclusion and Restraint Laws and Policies, written by Jessica Butler, has been published by the Autism National Committee.. The purpose of the report is to describe and examine state restraint and seclusion statutes, regulations, rules, and policies/guidelines in effect as of March 2015.

How Safe is the Schoolhouse is the leading discussion of state restraint and seclusion laws, having been in the last few weeks cited by National Public Radio, the Washington Post, and previously by ABC News, ProPublica, and other national and state media.

Seclusion and restraint are highly dangerous interventions that have led to death, injury, and trauma in children. The Government Accountability Office (GAO) documented at least 20 stories of children who died in restraint, and other children have died and been injured in seclusion.

Congressional bills providing comprehensive, mandatory protections have been led by Senator Tom Harkin and Congressman George Miller in prior Congresses, with the House bill being reintroduced in February 2015 by Congressman Bobby Scott and Congressman Don Beyer. But they have not become law, meaning that today, the law that affects parents and students is the law of their own states. For this reason, parents need to know what their state laws are and how they fit into the schemes used in other states. This report uses 51 “states” to include the District of Columbia.

Only 22 states have laws providing meaningful protections against restraint and seclusion for all children; 34, for children with disabilities. A few states have weak laws, a few others protect only against one practice and not the other; and others have only nonbinding, suggested guidance, or nothing at all.

Virginia was the most recent state to adopt a law in March 2015. Several states also took action in 2014 or attempted to do so. Only 16 states by law require that an emergency threatening physical danger exist before restraint can be used for all children; 20, for children with disabilities. Because restraint is so dangerous, it should be used only when necessary to protect physical safety. There are 14 states that protect all children from non-emergency seclusion; 20 protect children with disabilities. By law, only 2 states ban all seclusion for all children; 5, for children with disabilities. The remainder have statutes and regulations limiting seclusion to emergencies threatening physical harm.

Many states have loopholes in their laws that undermine them and leave children unprotected from dangerous restraint and seclusion. Parents should be be notified quickly of the use of restraint or seclusion, in order to watch for concussions, hidden injuries, trauma, and to seek medical or psychological care. But 34 states do not require parents to be notified within 24 hours when restraint and seclusion are used on all students, 25 states, when used on students with disabilities.

The report also analyzes how the bills championed in Senator Harkin and Congressman Miller in prior Congresses have impacted the states. How Safe is the Schoolhouse examines and analyzes the state laws because the issue has been left to the states. Parents of a student in Augusta, Georgia or Philadelphia, Pennsylvania can move to suburbs across the state boundary and find their child’s strong protections suddenly absent or reduced to very limited protections. Because parents need to know what their state law protections are, How Safe provides and analyzes those state laws and policies (or lack thereof). 

Download the Report

Webinar Recording: Extended School Year (ESY) March 18, 2015

Power Point Slide introduction to the Extended School Year presentation

link

ESY (Extended School Year) Power Point and Audio (Webinar) from March 18, 2015

This webinar is part of 5 of INCIID's 24 part series on Special Education Pathways to Proactive Parenting 

We suggest you read or download the article ESY and then listen to the webinar.

We welcome your comments and suggestions.

ESY: It's that time of year

Photo on the beach with blackboard that says Summer
Snow scene in the Woods of Vermont

Snow scene in the Woods of Vermontby Brice Palmer

(Note: [NOTE: Feel free to ask questions about this or any article on the Ask an Advocate Forum where Brice Palmer will answer your questions.Brice will discuss this article and answer your questions online March 18th - recording here. This is the 5th article in a 24 part series on special education advocacy for parents.)

I don’t know why school districts put off thinking about ESY until the last part of the school year.

But just because your school district Team puts it off is no reason why you should put it off if your student needs Extra School Year Services. The key is being prepared before you confront the Team with your request for ESY (or any other change you want in the IEP).

In our last article we mentioned that knowing how a hearing officer analyzes a complaint is important for improving your chances of success at Team meetings. What it all means is that we must be well prepared before the Team meeting begins. That’s just smart advocacy.

Well, ok, but how do we prepare, or get ready to advocate when the crunch begins?

Allow me give you a personal experience with preparation.

The photograph in this issue is a picture taken through the window of my little office space. In fact, about a month ago the snow was about 5 feet deep and the temperature plunged to -17 degrees – for three days in a row. The water well froze.

You can imagine the trouble and inconvenience. No running water for a couple of months. But this wasn’t my first rodeo. It happens almost every winter.

So late in the summer, I make sure that there are a couple of hundred gallons of potable water stored to take care of the necessities. Without that preparation, the dog and I would be in dire straits because every winter we get snowed in. I cannot get out and go anywhere until the last of April or the first weeks of May.

The amazing thing is that the frozen water well thing could have been prevented if I had thought of building an insulated well house. It just didn’t cross my mind until a friend suggested it.

I tell this personal story only to emphasize that all of us can survive if we do the right things to get ready for the storms – and special education presents us with an abundance of storms.

What I am suggesting here is that you are not just a parent. I know, school districts love to tag you with that characterization. No. You are your child’s first and most powerful advocate. The catch is that your ability to fill that role is 100 percent dependent on your ability to be ready for the storms.

In earlier articles we covered getting and organizing your education records, how to decide what is and what is not a legal issue, and we covered how to read and apply your facts to a regulation.[1]

Those are the basic skills you need for everything you do to become a persuasive advocate. Applying these skills will put damper on he said, she said Team meetings.

Photo on the beach with blackboard that says SummerWhat are the odds for success?

The word odds implies a game of chance; a gamble.

All of us know the voice behind the curtain whispers―“There is no such thing as a level playing field.”

Don’t listen to that voice behind the curtain

Why would we want to gamble when the odds are stacked against us? We wouldn’t.

We must deal with the school from a position of strength. Your strength will be greater if you understand some important concepts about how administrative agencies[2] implement the law and make formal and informal decisions.

Due process hearings, State administrative complaints, and OCR complaints get a lot of attention because they are the big sticks you have in your pocket. But are they truly the big sticks? I don’t think so.

The IDEA and Section 504 presume that parents and schools will first try to resolve their differences at Team meetings.  

What follows here is about ESY. You can use same formula for any IEP or 504 problem.

 

Practical Application.

Let’s set up a hypothetical issue that we want to resolve during a Team meeting.

Extra School Year Services (ESY).

First we need to know what ESY is.

According to the U.S. Department of Education and Rehabilitation, ESY is special education and related services provided to a student beyond the normal school year. Typically ESY is provided during the summer months. ESY is provided if the IEP Team determines, on an individual basis, that the services are necessary for the provision of FAPE to the child. ESY services must be provided at no cost to parents in accordance with the standards of the State educational agency (SEA). 34 CFR §300.106.

1. Describe in your own words WHY (the reasons) the student needs ESY. Use the word Because.

          My child needs ESY because . . . . .

2. Find the rule (regulation) that controls ESY decisions.

         

ESY services are special education and related services that are provided to a child with a disability beyond the normal school year of the school district typically during the summer. Each school district must ensure that ESY services are available to children with disabilities, including highly mobile children, if the IEP Team determines, on an individual basis, that the services are necessary for the provision of FAPE to the child. ESY services must be provided at no cost to parents in accordance with the standards of the State educational agency (SEA).[3] 34 CFR §300.106.

3. Locate the education records that prove the student needs ESY to receive a FAPE.

Your documents (evidence) must prove that without ESY, the student will be denied a FAPE.

4. Apply the facts from your education records to the rule.

You can read the federal rule at the Cornell Law Website:

Be certain to compare your state department of education regulation to the federal regulation.

5. Reach a conclusion – the student does or does not meet the requirements for ESY (leaners don’t count anywhere except in the game of horse shoes)

Hypothetical conclusion: Extra School Year services are not limited to the summer months. Calene must have ESY for speech and language because she is not making adequate yearly progress in her speech and language annual goals. She is not getting the educational benefit we all agreed that she needed when we wrote her IEP.

6. Develop your story of the issue. That is, write your script for presenting and justifying your request for ESY. The ideal time to tell the story is at the beginning of the Team meeting – or – at your first opportunity to speak at the meeting. Get the elephant in the room.

Hypothetical story of the issue (or case). This is similar to an opening statement an attorney would make at the beginning of a due process hearing or a court trial.

My son Nizel is struggling and we are all aware of it. He is struggling because he is not making adequate yearly progress in his IEP annual goal for reading. If he does not have an opportunity to catch up between now and next year he will flounder.

I am here to formally ask this Team to include ESY for him during this school year (and/or during the summer months) because without it, the District will be denying Nizel a free appropriate public education. I came to this conclusion by looking at the ESY rule and Nizel’s education records, I have Nizel’s records with me to prove that he is struggling. I will answer any questions you have, Thank you.

Tip: Once you finish your opening statement – stop talking. Wait for the District to respond even if the wait seems to last an hour. If you talk first, you release the pressure from the District.

Put your evidence together and practice making your opening statement with a trusted friend. Do not mock the school district. Do it just as if you were standing in front of a hearing officer making your opening statement.

Once you become comfortable making your opening statement you next practice showing your documented proof. Do this with your trusted friend. Do not mock the school, Let your friend critique your performance.

Yes, I know this sounds like a bunch of boring stuff. Yet, keep in mind that your boring stuff delivered live in front of the Team might turn into the District’s not so exciting stuff.

One last thing

Although you are presenting your case to the Team, the primary audience is the school district’s attorney. We want that attorney to recognize that you have a solid case and the District might lose on this issue at a due process hearing.

 

Download the ESY as a PDF

 

[1] If you missed those articles you can download them from http://www.inciid.org/advocacy-article-series-links

[2] A public school Team is part of an administrative agency – the state department of education.

[3] OSEP, Letter to state directors of special education, July 19, 2013.

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