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Special Education Unzipped

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[NOTE: Feel free to ask questions about this or any article on the Ask an Advocate Forum where Brice Palmer will answer your questions.]

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The IDEA’s procedural safeguards expect that parents will advocate for the student.

That means you―the parent—are the first line of defense for your child’s right to a free and appropriate public education.

Let’s begin by saying that when we have difficulties with the Old Overshoe School Team,[1] our first thought is usually not about asking for a due process hearing. No, we ask for a Team meeting or send an email message or a letter to let the Team know we believe our child is not getting something we believe our child needs.

How do we enforce the laws?

Our enforcement powers reach beyond requests for due process hearing.

Each time we go to a Team meeting we are enforcing the various rights included in the IDEA and, or, Section 504.

Examples of enforcement beyond formal complaints are:

Asking for an independent educational evaluation (IEE)
Asking for changes in the IEP or 504 plan
Asking for changing the placement to an out of district school at public expense

NOTE: The procedural safeguard rights are remarkably different in the IDEA and Section 504.

What are the rights under the IDEA and 504? They are the programs, services, specialized instructions, physical placements, and educational placements contained in an IEP or 504 plan. Section 504 also provides a free appropriate public education. Unlike the IDEA, Section 504 forbids discrimination based on disability against an eligible student.

Those of us who are not attorneys can become bewildered with the “process” and “procedure” that go with getting an appropriate IEP or 504 plan.

We whack away trying to make changes. And, we become discouraged because, we say, the school district stacks the cards against us.  But what can we do about it?

We can improve our odds if we understand how to analyze the problem (what we believe is a violation). There may be more than one problem to solve, but we must analyze each individual problem analyzed separately. Then, after we analyze each problem we can then tell the story of your “case” in a way that unfolds in an easy and logical way.

For most of us, the biggest quagmire begins with the statutes and regulations.  Having a basic understanding of how to find and then apply our particular facts to the statutes and regulations will help us do at least two things:

(1) We can increase our ability speak to the Team with authority and,

(2) We can save many hours and dollars for attorney fees if we know how to organize our thoughts and sort through the basic “issue questions” before we hire an attorney.

The bad news is that school districts generally hire lawyers who specialize in or have a practice concentration in special education law. 

The good news is you do not need not be an attorney—or speak legalese—to find your way through the maze. 

The Catch:

You need to know there is a formula. Success or failure depends on how well you understand and follow the procedures set out by the regulations. The real trick here is to learn how to analyze your child’s IEP or 504 plan while not adopting the language of an attorney or paralegal.  Remember, if you try to act and sound like a lawyer the other side is not going to be kind. 

The regulations are in place to insure that not one individual receives benefits under the IDEA or Section 504 who is not eligible to receive them.  That means the regulations and procedures are in place to assure that children who are in need of special education get a free and appropriate public education (FAPE). It also meant that children who are not eligible do not have a right to a FAPE.[2] 

Disraeli’s[3] notion was that justice is but truth in action. From that we can infer justice follows the truthful application of the laws.

Finding the truth in the “legal” sense means applying a set of facts to a rule, statute, or regulation. If the facts fit the rule, then the “truth” is that the rule should apply.[4]

Clean and neat, right? 

I’m sorry to say applying the regulations do not always lead to successfully getting appropriate services at the local school district level.

To appreciate how to advocate for services in Team meetings, evaluation planning meetings, negotiations for services, and other similar meetings, we must know how a decision is made by a hearing officer.

Keep that in mind and you will improve the odds for getting needed services if you have a basic understanding of some important concepts about how formal and informal decisions are made by school districts and hearing officers.

Following the analysis formula helps us organize the way we deal with the school district in our Team meetings, our correspondence, requests for evaluations, and so on.  . 

Applying the facts to the rule

Applying the facts to the rule is THE PROCESS and THE PROCEDURE that we and the school district must follow.

Remember this: The school district does not have a “Because I said so rule.” 

Knowing how formal hearing decisions are made gives us a blueprint, or formula, for everything that happens BEFORE we file a formal complaint.[5]

That might sound weird. Let me explain.

The IEP is the school district’s legal definition of what a free appropriate public education is for the specific student for whom it was written.

School district lawyers advise their clients to write an IEP that is legally defensible. That means the school district lawyer is looking at an IEP as if that IEP is going to wind up in front of a hearing officer.

You do not have to be a lawyer to learn the basic skills to do this. As we said in an earlier article, you just need to know how lawyers think.

Finding the truth in the legal sense means applying a set of facts to a rule, statute, or regulation and reaching a conclusion. If the facts fit the rule, then the “truth” is that the rule should apply.

We can make up a situation, analyze it, and use the same formula for analyzing any violation you believe the school district made in your child’s IEP or 504 plan.

Let’s say the Town of Fertneyville has a local ordinance.

The ordinance reads as follows:

Rule (the Town Ordinance):

FVO 01-220-375 § 1095. Handheld use of portable electronic device prohibited

(a) Definition. As used in this section, "hands-free use" means the use of a portable electronic device without use of either hand by employing an internal feature of, or an attachment to, the device.

(b) Use of handheld portable electronic device prohibited. A person shall not use a portable electronic device while operating a moving motor vehicle on a street or state highway within the Fertneyville town limits. The prohibition of this subsection shall not apply:

(1) to hands-free use; (2) to activation or deactivation of hands-free use, as long as the device is in a cradle or otherwise securely mounted in the vehicle and the cradle or other accessory for secure mounting is not affixed to the windshield in violation of section 1125 of the Fertneyville Town Ordinances; and

(3) when use of a portable electronic device is necessary for a person to communicate with law enforcement or emergency service personnel under emergency circumstances.

NOTE: This is a method for coming to  an informed conclusion about whether the school district violated your child’s right to FAPE or your procedural safeguard rights under the IDEA.

IRAC is an acronym for Issue, Rule, Analysis, and Conclusion. IRAC is just one of many such analysis formulas used for legal analysis of court decisions, statutory interpretation and so on. We are not generally concerned with court decisions at the Team meeting level. Although the IRAC formula isn’t normally used for analyzing a student’s current situation in special education, I have found that it is one of the easiest ways for parents and advocates who are not attorneys get an objective look at the dispute and reach a conclusion about whether a valid issue is present.

Work all the way through to the end.  Skipping around will not work.  Remember, all formal decisions handed down by hearing officers and judges are, reached by the same kind of analysis method. This is an orderly and objective method for applying the facts to the rule.

A completely fictional analysis:

Background (story of the case)

Bubba lives in the town of Fertneyville in the state of your choice. On December 5th, 2015 a snowstorm moved in during the night. The storm left three feet of snow on the town streets. The Fertneyville snow plows had not yet plowed the roads when Bubba decided he must go to the grocery store to stock up on beer, bread, milk, and other sundry foodstuffs He had no idea whether the storm would linger or even when the snow plows would clear the streets. So Bubba fired up his snowmobile and gallantly struck out of the grocery store.

Bubba pulled up to a stop at the intersection of 1st and 4th street. About a half block before he came to a full stop at the intersection, he whipped out his cell phone to call home to see if Dorothy wanted him to pick anything else up at the store.

The Fertneyville Town traffic sergeant Jessy was watching the intersection through is binoculars from his perch on top of a close by residential porch. Sergeant Jessy jumped off the porch and hurried to the intersection in a flash. He was wearing snowshoes.

“Bubba, you are in violation of Fertneyville Ordinance FVO 01-220-375 § 1095 because I witnessed you driving and talking on your cell phone that was squarely in your hand when you was talking on it. I hereby grace you with this citation for driving while operating a portable electronic device.”

Issues: (legal questions that are put before a decision maker to decide)

1. Is a snowmobile a motor vehicle under State Law?

2. May a town ordinance supersede the State motor vehicle laws?

Analysis: (Apply the rule)

1. The state in which Fertneyville is located requires the owner of a snowmobile to register the snowmobile with the state department of transportation and must be titled by the state department of transportation, and display the license plate on the rear of the snowmobile. The owner of the snowmobile must also have a valid insurance certificate.

2. The State does not include the following in the definition of a motor vehicle

Pull behind trailers, farm tractors, self-propelled manure spreaders, and snowmobiles. State Statute 1492 § (d) and (e)

3. Under the State Constitution, the State has sole authority for regulating all State Highways, Town Streets and Town roads. State Constitution, Article 7 section 15.

Conclusion:

Bubba did not violate FVO 01-220-375 § 1095(b) of the Town Ordinances that prohibits using a handheld portable electronic device while operating a motor vehicle.

Take any IDEA you believe deprives your child a FAPE or any violation you believe denied or significantly impeded your parental right to participate. Analyze the violation in the same methodical way. Again, analyze each violation you find in the IEP separately. This method also applies to a basic analysis of discrimination or retaliation under Section 504

In our next article we will talk about how to use your violation analysis to deal with the school district on an informed and more powerful position.  

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[1] We use the word Team because some states use the term IEP Team, others use the term Planning and Placement Team (PPT). New York uses the term Committee on Special Education (CSE).

[2] The IDEA and Section 504 provide for a free and appropriate public education.

[3] Benjamin Disraeli, (21 December 1804 – 19 April 1881) was a British politician, writer and aristocrat who twice served as Prime Minister.

[4] (Sometimes a rule has exceptions that may negate some or all of the application of the rule to the facts. This is the “keep reading” rule. Keep reading the rule to see if it has exceptions..

[5] A formal complaint includes a request for due process, a state administrative complaint and an OCR complaint for discrimination or retaliation on the basis of disability.

The IEP Team Says They Will "Consider". . .

A schoolgirl in front of a blackboard considering all the synonyms for the word consider.

What Does "Consider" Actually Mean: More than you ever wanted to know about what the word consider means.

By Brice Palmer

As if there were not enough things about how school districts interpret various regulations in the IDEA and Section 504, the word “consider” seems to be one of the most irritating roadblocks we face during IEP and 504 meetings.

You present your information, participate in the meeting, you show the Team members your independent evaluations and other information about your child’s disability and what happens?

The school says, “thank you – we considered it.”

The information you gave to the school falls into an education records dark hole.

The word consider appears in the IDEA many times and I will not catalog them all here. Each time the word “consider” appears in the IDEA, that word is connected to some sort of action.

Two examples:

IDEA 2004 tells us that in developing the IEP, the IEP team shall consider:

1.  the child's strengths

2.  the parent's concerns for enhancing the child's education

3.  the results of the initial evaluation or most recent evaluation

4. the child's academic, developmental, and functional needs. ([1])

Another example is connected to independent education evaluations at either public expense or parental expense. 34 CFR § 300.502(c)-(d)[2] requires the school district to give consideration of independent educations obtained at public expense or the parent’s expense. The IEE must meet the school district’s criteria.

So what does the word consider mean? That word is a verb, and has two forms.

Form 1. The district must consider a parent’s independent evaluation. This form of the verb is connected with action. (Transitive verb)

Form 2. Ms. Sped considers me to be a pain in the neck.

According to Black’s Law Dictionary, the word consider means to think about, or to ponder or study and to examine carefully.[3] (Intransitive verb)

As far as I can determine, each time the word “consider” appears in the IDEA and the federal regulations that implement the IDEA, the word consider is used to signal action.

These are some synonyms for that form of the word consider:

analyze, appraise, assess, be attentive, cerebrate, cogitate, confer, consult, contemplate, debate, deliberate, devote attention to, digest, evaluate, examine, gauge, heed, inspect, mark, meditate on, mull over, muse, notice, observe, pay attention to, ponder, pore over, probe, reckon, reflect upon, regard, ruminate, scrutinize, study, take into account, think about, turn over in one's mind, weigh

The other form of the word consider is also a verb, but it is used to indicate thinking about something (I consider the IDEA as a good law). Another example is “I consider Mr. Palmer to be a pain in the neck advocate”.

For those who want to know, the English word consider comes from an Old French word, considerer. It means to "reflect on, consider, study. And the old French word considerer comes from the Latin word, considerare, which means "to look at closely, observe".

What have hearing officers and courts said the word consider (in the action sense) means?

Here are five illustrative decisions and one decision that limits the amount of consideration.

Community Consolidated Sch. Dist. No. 180, 27 IDELR 1004, 1005-06, the court said,

"[T]he failure to receive and consider parental information, including evaluations they may obtain, directly denies parents the pivotal role they should enjoy in the development of their child's placement. This role includes not only providing evaluations or other information, but discussing such information. Consideration of such outside information also ensures that a program is individualized and provides a check on the judgments being made by school officials regarding the child."

Deal ex rel. Deal v. Hamilton County Bd. of Educ., 42 IDELR 109 (6th Cir. 2004).

The court ruled that the school district denied parents of a student with autism the opportunity to meaningfully participate in the IEP process when it placed their child in a program without considering his individual needs.

The 6th Circuit concluded that although the parents were present at the IEP meetings, their involvement was merely a matter of form and after the fact because the district had, at that point, predetermined the student's program and services. It found the district's predetermination violation caused the student substantive harm and therefore denied him FAPE. Remedy: Private school tuition reimbursement. (The District Court in Deal ex rel. Deal v. Hamilton County Bd. of Educ., 46 IDELR 45 (E.D. Tenn. 2006) subsequently determined that the district's eclectic program was substantively appropriate.)

Briere v. Fair Haven Grade Sch. Dist., 25 IDELR 55 (D. Vt. 1996).

The court ruled that the IEP was significantly defective and the school district limited the parent's right to participate in IEP formulation by refusing to discuss the placement proposed by parent, delaying scheduling an IEP meeting for 23 months, and failing to finalize the resulting IEP for another year. Remedy: Private school tuition reimbursement

­­

DiBuo v. Bd. Of Educ. of Worcester County, slip no. S-01-1311 (Nov. 14, 2001)

The US District Court (Maryland) ruled that an IEP team's failure to consider the private evaluations submitted by the parents was such a serious violation of the IDEA that failing to consider the parent’s evaluations established that the school district denied the student of a free appropriate public education.

However, according to one court, consideration can go too far.

D. v. Manheim Township School District, No. 04-4535 at page 15, (E.D.Pa. 9-27-2007)

The US District Court for the Eastern District of Pennsylvania said,

“Thus, plaintiffs' argument is only compelling if, in requiring the IEP team to "consider" the severity of a student's disability, the regulation requires that the team formally and explicitly deliberate over the taxonomy of the student's diagnosis. This interpretation would betray the sensible understanding of "consider."

“The Oxford English Dictionary defines "consider," in its transitive form, as follows: "to contemplate mentally, fix the mind upon; to think over, meditate or reflect on, bestow attentive thought upon, give heed to, take note of." Oxford English Dictionary Online (2nd ed. 1989). This definition does not suggest that an object of consideration must be articulated and actively discussed. One may "consider" a factor relevant to a decision by bearing it in mind and allowing it to inform and shape one's reflections on a matter.”

Thank you for this interesting question. I hope this little article answers your question about what the word consider means in special education.

As you deal with the school district, remember that words have meaning – sometimes more meanings than we realize.

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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 Case, Learning 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.

Ask Brice a Question on the the Educational Expert Forum  
Email:                               brice@shoreham.net
Website:                            http://www.bricepalmer.com

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[1] Wrightslaw: Special Education Law, 2nd Edition, page 103; Wrightslaw: From Emotions to Advocacy, 2nd edition, page 164.

[3] Black's Law Dictionary Free Online Legal Dictionary 2nd Ed., http://thelawdictionary.org/consider/

 

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