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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

IEP'sWebinar: Are Like a Box of Chocolates - You Never Know What You're Gonna Get

Webinar - IEPs educational jargon

Webinar - IEPs educational jargon

Direct Link to the Recording

[Note: Webinars are recorded using GotomyWebinar by Citrex. For some reason the first 10 minutes of this presentation did not record. However the majority of the presentation is here. If you have questions, please do not hesitate to email INCIID or Brice.]

“My momma always said, life is like a box of chocolates. You never know what you're gonna get.” 
Forrest Gump 

Isn’t the “You never know what you’re gonna get” feeling what you have when you finish the annual review, go through several draft versions, and the district gives you the final IEP—and asks you to approve it? 

When you do get a copy of the final IEP you’re worn down. In one-way or another the whole meeting routine became less about your child and more about personalities and the school district. An onlooker might describe the serial IEP meetings for the annual review as an old fashioned goat roping contest. 
Are the present levels and the annual goals so elastic that explaining them after the fact in ways to explain away how the district implemented them? 
They aren’t, you say? 
But what do you do about it? 

There is a dark side to using educational jargon. Brice Palmer discusses the importance of language, clear  concise writing and getting rid of educational jargon in IEPs.
This webinar was recorded on June 10, 2015.  If you have questions, please post them to Brice here.

This webinar is based on the article: IEPs are like a box of chocolates. You never know what you're gonna get!

Download the PDF

Making Decisions and Analyzing the Facts

Cartoon: Who made the decision to invite the cat?
Blackboard  Half Truths

By Brice Palmer

[NOTE: REGISTER for the next workshop with Brice scheduled May 21 at 7:30 PM ET;

We all have them. Dark and stormy nights before Team meetings. We burn the midnight oil combing through the records looking for FAPE denying critters camouflaged by vague, symbolic, and sometimes meaningless language hiding in 8 point type.

It can get ugly.

We stress out. We know the meeting is going to be another IEPcalypse. The school’s side of the table will be loaded with more people than the IDEA calls for. The school district’s lawyer will be there – and – sometimes claims to be a “member” of the Team because the school invited them to attend. The facilitator or compliance coordinator will be there. And, they will all be talking over one another. Precious time wasted by a cacophonic chorus.

Sometimes we get stretched to the breaking point. We must complain. So we complain. And we complain again. And we complain again. We begin to ask ourselves whether anyone ever listens.

In a movie called Sweet Liberty, Alan Alda played a history professor whose book was picked up by a movie studio. The movie folks moved to the professor’s home town to film the story. Of course the screen writers and movie producer immediately began tweaking the story, the period costumes, and so forth – The professor was furious. So we complain. And we complain again. And we complain again. We begin to ask ourselves whether anyone ever listens.

The professor collared the director and said something to the extent the contract said he, the professor, must be consulted on all script and script changes.  The producer took a copy of the contract from the professor’s hand, turned a page or two and said: I have just consulted with you. At that point the producer turned and walked away.

Don’t we feel like the professor when the Team smiles, says everything is okeydokey and thanks us for being at the meeting? Yes we do.

Despite the mess, parents generally have a good intuitive notion about what is and what is not right with an IEP. Many parents, though, do not know effective ways to complain and prove their complaints.

We must define what we mean by complain.

Informal complaint: A few Synonyms: squawk grumble, gripe, bellyache, protest, and beef.

Formal complaint:  Charge, pleading, bill of particulars, allegation,

That means that when we want to complain (advocate for change) at a Team meeting we want the school district to do something or stop doing something connected to the IEP or 504 plan. And, it means we must complain in a way the procedures and the “system” can deal with our complaint. The procedures and the “system” cannot process our squawks, grumbles, gripes bellyaches, protests and beefs.

Does that mean we cannot squawk, grumble, gripe, bellyache, protest and bring up our beefs? No. We can, but we must not allow our anger to take over the conversation. Remember the one who can make you angry is the one who can control you.

Which brings us to the reason for this article: Getting heard.

In the legal sense, complaining and talking about complaining has been going on for centuries. During the 6th Egyptian dynasty[1], for example, Ptahotep issued an important instruction. It is paraphrased 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.

Admission:

Yes, I am guilty. Sometimes I do get antsy when a frustrated parent calls and I'm eager to drill down to what the real issues are. And yes, parents do actively remind me of that when they call and I urge them to focus on the reason they are having trouble with the school district. I sometimes forget that they want – and need – to pour out their heart.  When it happens I have a silent talk with myself about a universal truth of human nature:

We human beings will tolerate all kinds of abuse except one: We do not tolerate being taken for granted. Still, we cannot get far toward getting what a student needs without knowing what legitimate [2] complaints exist in a student's Plan and the way the Plan is implemented. Why go through all of that? Because when we need to complain about something we believe is not right (legitimate) in an IEP or 504 plan, our complaints are always related to a legal question:

Does the Plan provide a free appropriate public education or not?

Has an action, lack of action, or policy caused discrimination or not?

The IEP is the school district's legal definition of an individualized free appropriate public education for a specific student. The primary question all school district attorneys ask-

Is The IEP Legally Defensible?

We should also ask the same question: Does the IEP provide the student a free and appropriate public education at public expense?  And if not, why not, and what do we want the school to do about it (what is the remedy)?

Why should we use this approach?

Is all of this nit-picky use of words and looking for the supporting facts necessary for making your argument (presentation) during a Team meeting? Yes. It is necessary because we are always more likely to get more cooperation from the school district if we can mutually fix the problem with the least amount of legal wrangling. Another reason is what happens or does not happen in a Team meeting may well be the factual foundation for an administrative or formal complaint later.

Blackboard  Half TruthsFind The Real Issues

Whether we want to complain at a Team meeting or by a more formal way of complaining, the question is how do we decide what the real issues are? Yes, correctly identifying the real issues is a lot of work. We need to think like an investigator. We also need to think about what an IEP is. What is it supposed to do? What is its function?

We can begin by not thinking about an IEP as a series of pieces and parts. The IEP is a whole document.  Unless we look at the whole document we, and the school district, sometimes name solutions before naming the unique educational needs of our student. As you know, this is a serious problem.

We can change that by asking a basic question.

The IEP and its function

The function of a Plan is to provide an educational benefit to the specific student named in the IEP.

An analogy:

Nobody wants a checking account at the bank.  What we want is safe place to store our money so we can pay for things with a check instead of carrying around a bunch of cash.  We want an ATM card or a credit card for the same reasons.

Likewise, nobody wants an IEP for the sake of having one. We want what an IEP will do; deliver; an education plan tailored to the student's unique educational needs at no cost to the parent and helps the student make adequate annual educational progress no matter what the student’s disability is. Every student must receive an educational benefit.

The similarity of a bank checking account and an IEP is exactly the same: Both perform a function that delivers us a benefit.

The analogy of the checking account ends there because we cannot just close our IEP account with the school district and find another one in town to use.

Well, ok, you know the IEP is supposed to perform a function, which is to provide a free and appropriate public education. But woe is me: It is getting harder to get necessary changes made. I mean, it’s like pulling teeth. You’d think every school district member of the Team has a financial stake in a student’s IEP whether it is good, bad, or indifferent.

Thinking about the function of an IEP or 504 plan can change the conversation with the school district. An IEP is not a matter of “this piece” and “that piece.” All the “pieces: must be functioning in harmony to give a student what the student needs, get the protections of the rules, and offer educational benefits.

Form follows function

Form follows function is a principle associated with architecture and industrial design. The principle is the shape of a building or object should be based on its intended function or purpose.

And so it is with the “pieces” of an IEP. All the IEP or 504 plan[3] “pieces” must be designed such the finished product, the Plan, delivers what it is intended to deliver. That is why the present levels of academic achievement and functional performance (PLOPs) section is the first piece of the Plan. It is the cornerstone of the plan’s architecture. The information in the present levels must be objective and backed up with measurable information. “Nimrod is a pleasant boy and everyone loves him” is a purely subjective statement. The Plan cannot be appropriate for the student if the present levels are not objectively stated, have measurable information and is factually correct.

The theory of the IDEA

The theory is the evaluation is the foundation for an IEP. It is no mistake that an evaluation of a child suspected of needing special education is the top box the school has to check off before anything else happens to create an IEP.  That evaluation is intended to prove that a child is or is not eligible for special education and, to define the unique educational needs of an eligible student.

You might say the evaluation is the foundation that supports an IEP because the architecture of a unique IEP must stand firmly attached to the evaluations.  Educational Placement, then, is supposed to be decided by how the student's unique educational needs must be met and where the specifics in the IEP should be delivered by the school district.

All IEPs are not created equal

Theory vs. The Real World In a nutshell

First Step: Evaluation

 Evaluations are properly used for:

  • Screening
  • Eligibility
  • defining unique educational needs
  • determining present levels of educational performance           

School districts currently use evaluations that concentrate on eligibility at the expense of evaluations for the other purposes. Schools have tried to use eligibility evaluations for just about everything.

Second Step: Two piles of needs

  • conditions needed for learning, (often these conditions are defined in the evaluations, but never make it to the IEP) and
  • conditions needed for educating. (for example., modifications, accommodations, specialized instruction).

Third Step: The IEP must fit the student

The IEP should give us a clear picture of the student. All too often, though, we get a clear picture of this piece or that piece, but not of the student. Begin by assessing the student's unique educational needs.

Highlight the child's unique educational needs and the evaluators' recommendations. Compare the unique needs and recommendations to the IEP. Drill down and find how many of those unique educational needs and recommendations are dealt with in the IEP.

One way of tracking the information is by using a spread sheet program such as Microsoft Excel or another similar program. Libre Office[4] has just such a program. It is free and works just as well as Microsoft Excel.

If the only issue in special education is whether an IEP provides FAPE, then the facts of a case will eventually become the “argument” that you will make during IEP meetings or in a complaint or a request for a formal hearing.  If the underlying facts are defined poorly the arguments become poorly defined as well.  Children identified as having disabilities under the IDEA are entitled to a Free and Appropriate Public Education (FAPE) in the Least Restrictive Environment (LRE).

Definition of a Free appropriate public education. 20 USC 33 § 1401 (9) 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.

Identify each suspected violation separately.

Begin with the Present Levels of Academic Achievement. Then, move through the other sections of the IEP one section at a time. Do not skip any section. Remember the IEP is a whole document – not pieces parts.

For each suspected violation, identify the State special education regulation that applies to that specific suspected violation. For example, if you believe the school district’s notion of ESY for your child is a violation, go to your State’s regulations that control ESY. Do not overlook the State definition of ESY (or any other terms).

The next step is to compare the facts as you find them in the records to the exact language of the regulation.  

Hypothetical Example

Nimrod’s mother wrote several letters to the school to ask the school to give Nimrod ESY during the school year and during the summer vacation.

At the last IEP meeting she asked for ESY again. The District’s response has been consistent: (a) Nimrod does not quality for ESY because Nimrod has not regressed and (b) even if Nimrod qualified for ESY, the District limits ESY services to the first three weeks of summer vacation. The school district has not given Nimrod’s mother an explanation (in a prior written notice) that explains why the district turned down her request and the district did not explain any alternatives the district considered.

For this illustration we will use the Ohio special education regulations. The title of the Ohio special education regulations is the Ohio Operating Standards for the Education of Children with Disabilities. NOTE: Be certain that you use the most current version of your state’s regulations.

Ohio defines ESY in the section under the Free Appropriate Public Education Rule 3301-51-02(G).

The legal question (issue) in this hypothetical is:

Under the Ohio Operating Standards (the Ohio regulations) Rule 3301-51-02(G), did the school district deny a free appropriate public education for Nimrod by denying him ESY services? Ohio defines ESY in the section under Free Appropriate Public Education Rule 3301-51-02(G).

Extended school year services

(1) General

(a) Each school district must ensure that extended school year services are available as necessary to provide FAPE, consistent with this rule.

(b) Extended school year services must be provided only if a child’s IEP team determines, on an individual basis, in accordance with rule 3301-51-07 of the Administrative Code, that the services are necessary for the provision of FAPE to the child. Additionally, the school district shall consider the following when determining if extended school year services should be provided:

(i) Whether extended school year services are necessary to prevent significant regression of skills or knowledge retained by the child so as to seriously impede the child’s progress toward the child’s educational goals; and

(ii) Whether extended school year services are necessary to avoid something more than adequately recoupable regression.

(c) In implementing the requirements of this rule, a school district shall not:

(i) Limit extended school year services to particular categories of disability; or

(ii) Unilaterally limit the type, amount, or duration of those services.

The definition of ESY in Ohio is at Rule 3301-51-02(G)(2).

Definition

As used in this rule, the term “extended school year services” means special education and related services that:

(a) Are provided to a child with a disability:

(i) Beyond the normal school year of the school district;

(ii) In accordance with the child’s IEP; and

(iii) At no cost to the parents of the child; and

(b) Meet the standards of the Ohio department of education.

How is the school year defined? Is it limited to a specific number of instructional days in a calendar year or does it also include the number of instruction hours per day for the school year? We know that extending the school year for ESY means services during the summer break. Can we also include additional instruction hours during the school year as ESY services?

Relevant Facts:

1. Nimrod is a 13 year old student enrolled in the Old Overshoe Middle School.

2. He has had an IEP since he entered the 4th grade.

3. His category of disability is Other Health Impairment (OHI) because the school nurse diagnosed Nimrod’s condition as opposition defiant disorder (OCD) when he was in the 4th grade.

4. A series of independent evaluations by licensed evaluators show Nimrod has a speech and language processing problem.

5. The present levels of academic achievement and functional performance section of his current IEP include the following statement: “Nimrod’s defiant behaviors interfere with his willingness[5] to learn to read and write at grade level. Nimrod’s mother refuses to allow medication. His willingness to learn is a function of his defiance and he could read and write at grade level if he was medicated and he chose to learn.”

6.  Nimrod’s latest reading level as recorded by the school district in his current IEP shows that he is three years behind in reading and writing.

Take the facts and the language of the regulation for exactly what they say. Do not imagine other facts that might also be present.

Come to your conclusion and answer this question:

Under the Ohio Operating Standards (the Ohio regulations) Rule 3301-51-02(G), did the school district deny a free appropriate public education for Nimrod by denying him ESY services because it

(1) would not give him ESY services during the school year

And/or

(2) limits ESY services to the first three weeks of summer vacation.

Is it worth spending time to wring out your argument in this way for an IEP meeting? I leave that to you to decide. Just remember, though, the IDEA does not give local education agencies the privilege of having the “I said so” doctrine.

Use the “formula” we just used for getting ready to complain.

About complaints

We can make a complaints at Team meetings as well as in a State administrative complaint. We can also ask for a due process hearing. The difference is the forum and the degree of formality of the complaint and how the complaint is decided. Always try to resolve a complaint at the lowest level of formality needed.

The old saying about the squeaky wheel gets the grease is a true comment about the way we sometimes complain. However, squeaks are mostly just annoyances.  The school district can easily discard or ignore constantly squeaking wheels. (Mom is overprotective, wants a Cadillac education, and on, and on, and on).

Nevertheless, well thought out complaints presented in a clear way are necessary. Public schools do not try hard to find dissatisfaction. And, they do not correct problems presented to them unless those problems come to their attention by strong advocacy.

Key Concept:

An Individualized Education Plan (IEP) is nothing more and nothing less than the education agency’s formal legal definition of FAPE for a specific student. Every underlying issue, or question, is about FAPE, and every public education agency has a statutory duty to provide FAPE for every eligible disabled or handicapped child in its jurisdiction. 
Pick one:

ESY
Attorney Fees
Alternative Placement
Assistive Technology|
Assistive Services
Present Levels of Educational Performance
Annual Goals and Short Term Objectives
Transportation
Independent Evaluations
Discipline

Think of school district decisions like this:  Every decision about special education is a final decision unless a challenge to that decision made.  Even choosing to ignore a situation and do nothing is an administrative decision.  Remember this the next time a special education administrator says, “My hands are tied.”

The formula, or recipe, for challenging decisions is in the procedural safeguards.

Identify the real issues by objectively analyzing the facts

If we have not been trained or taught how to objectively analyze the facts and issues in a special education conflict, we have a difficult time identifying the issues (questions) of their case.  Here is a quick introduction to helping you decide the real issues of a special education case:

1. Go through the IEP section by section.

2. For each section that you suspect has a procedural violation that denies FAPE identify the state special education regulation that controls that particular procedure. Examples are Child Find, evaluations, present levels of academic achievement and functional performance, transition, etc. If you are not familiar with the IEP sections just use the state regulation table of contents to guide you through finding the right rule and section.

3. For each unique violation you believe happened, gather the documented evidence that you have that proves – or tends to prove – (a) the violation occurred and (b) the violation caused harm (denial of FAPE).

4. Analyze the suspected violation and denial of FAPE one at a time. Do not jump around. A good way to handle this is to use a separate file folder for each suspected violation.

First, write the rule[6] word for word on the first page of the analysis. Next, compare the facts that you have documented. List each fact separately. Just list them as #1, #2, etc.

You can identify them by the name of the document. Example, #1: Letter from Ms. Special Education Director, dated x-xx-xx

Next, compare the facts with the exact language in the rule. If the facts show that the regulation was violated, then you can argue that a denial of FAPE happened.

 

Example analysis outline:

1. Write your question:

Did the school district deny Nimrod a free appropriate public education because it failed to properly evaluate under the Child Find Provision (write the regulation number)

2. Write the exact language of the regulation on your analysis page.

3. Compare the facts with the exact language of regulation. The facts will show whether the district did or did not follow the Child Find provision.

4. Draw your conclusion. The school did (or did not) violate the Child Find regulation and as a result, denied Nimrod a free appropriate public education.  

Note: With the exception of some procedural differences and the so called educational benefit standard,[7] the substance of a free appropriate public education in Section 504 and the IDEA are the same.[8] You can read a full explanation of FAPE under Section 504 at http://www2.ed.gov/about/offices/list/ocr/docs/edlite-FAPE504.html

"Wresting ambiguity from the jaws of clarity."

That remark came from Judge Alex Kozinski as he delivered a paper on the language in contracts.[9] I think we can steal it fair and square by applying that concept to IEPs and special education meetings

IEP graffiti - Excerpts from real IEPs

The following is a collection of excerpts from IEP documents that Otis[10] gleaned from our files during 2000-2001. If you have some that you would care to add to this collection . . . feel free to do so. Just send them to askotis@shoreham.net

1. "[The Student] has a language-based Learning Disability which has made it difficult for him to access reading, spelling and writing instruction."

Translation: This student has a learning disability which impedes his ability to use language. As a result of that disability, he is not able to demonstrate that he is getting an adequate educational benefit from his reading, spelling, and writing instructions.

2. "Reading comprehension is difficult for [the Student]. He has an easier time understanding narrative than non-fiction.’’

Comment: The fiction is that the writer of the sentence above is an educated educator.

3. "The Student] is a careful reader who takes him (sic) time with the decoding process."

Translation: The student either has a neurological disorder or we have not taught him how to read. We will obscure all of this in the record by assigning a catch-all phrase such as "decoding process," and use it to explain that he is a slow and careful reader.

And, more from the same IEP. .

"At times this effects (sic) his level of understanding because he forgets what he is reading about."

Translation: "We've really, really tried, but it is all the Student's fault because he is such a slow reader. He forgets from one word to the next what he is reading."

"The [Student] needs to work on his automacticity with words to increase his rate of comprehension.

Question: Huh? Can anyone out there decode the word automacticity in this context?

Automaticity

1. the state or quality of being spontaneous, involuntary, or self-regulating.

2. the capacity of a cell to initiate an impulse without an external stimulus.

http://medical-dictionary.thefreedictionary.com/automaticity

Also found in: Dictionary/thesaurus, Encyclopedia, Wikipedia.

automaticity /au·to·ma·ti·ci·ty/ (-mah-tis´ĭ-te)

4. The following sentence was the entire transition plan for a child in Florida:

"[The Student] will be exposed to a variety of prevocational activities to better determine his interests."

Question: Care to try to translate that into a transition plan? Can't you just imagine what might happen here if the school folks said to the kid, "Look, kid, we are going to ask you to go expose yourself in front of a variety of prevocational activities”?

5. From a Florida IEP:

"During bathrooming [the Student] will pull his pants down with verbal prompts as needed 80% of the time."

Question: Has anyone seen my verbal prompts? Hurry, I gotta bathroom.

"After toothbrushing, [the Student] will use a damp washcloth to wipe his mouth with verbal prompts 80% of the time.

Comment: We are hopeful that the Student does not wipe his mouth with the same verbal prompts he used to pull his pants down (80% of the time) for bathrooming. Perhaps, the verbal prompts not used 20% of the time for pulling his pants down are left-overs, and can safely be used for wiping his mouth after toothbrushing.

"Toileting is a priority need for the parents and school."

Comment: Now let’s just think about that for a moment. Yes, toileting is a priority for all human beings, including parents. But - can you just try to imagine a school with gastric distress?

And from a Statement of Present Levels of Performance description from the same Florida IEP:

"[The Student's] emotional psychological and behavioral issues are integrated parts of his unique educational needs. It is critical that he generalize behaviors across all environments."

Request: If any reader can translate the statement above into an education plan, please write to me. I  would really, really, really, like to know what it means.

6. From a short term goal description from a Kentucky IEP:

"Play or attend to functional computer."

Translation: "Here's the deal, kid, ask the teacher which computer in the room is functional. You should then either play with it - or simply attend to it."

Noteworthy: The Goal, for which the short term objective was written was absolutely blank: Nada. Zip. El Voido.

7. Another of our favorite short term objectives:

"New tasks will be introduced bi-weekly."

No comment necessary.

8. Graduation: The following appears on a student's IEP graduation options page (Florida).

Under Graduation options, a check mark appeared in the box for the option "Exceptional Student Certificate of Completion."

In the next section, appearing on the same page, the following comment is made:

"[Student's] intellectual functioning level does not permit him to understand the school rules as outlined in the "Student's Rights and Responsibilities Handbook."

Question: What, other than time served, did the student complete during 12 years of being in school? A "certificate of completion" is reminiscent of a lyric line in a song from a television western series of years gone by: "Move ‘em in, head ‘em out - Rawhide."

9. One of our favorite recommendations comes from a letter written to a student's parents in the state of Tennessee by a school counselor. As background information, you should know that the student was, and always had been, placed in a fully self-contained segregated classroom with disabled students, all of whom were classified as severely autistic or mentally handicapped, or both.

"It is also felt by the undersigned that [the Student] benefits a great deal from the classroom group sessions where he has an opportunity to see and learn from his peers participation in affective settings."

Right. . .

10. This is one of my favorite annual goals. It appeared in an IEP from New Hampshire.

"[The Student] will demonstrate body part identification with verbal prompts only."

Question: How does one do that? Maybe, in the same way, one could pull down one's pants with verbal prompts. "Now let me see, where did I put those verbal prompts?" "Maybe they are in my locker, no - in my backpack - no -." "Teacher, I can't demonstrate a body part because I can't find my verbal prompts."

11. "Parent was not present at the actual 6/12/01 meeting."

Question: Is this some indication of a meeting shell game? Which pea is the meeting under? "Oh - sorry mom, you missed it again - we had a virtual meeting on 6/12/01, but you missed the actual 6/12/01 meeting."

12. "With some verbal input from [Mom], she requested that the team draft an IEP for her."

Question: Would anyone out there care to outline this sentence? Now let's see: subject, predicate, object of whatever it is. Oh, I see.  This is an outcome-based sentence.

DOWNLOAD THE ARTICLE AS A PDF

We hope some of these suggestions and methods help you avoid dark and stormy nights. Remember that you know your child better than anyone else. Making the Team meeting your forum for arguing from a legal perspective instead of on intuition will make your advocacy stronger.

Thanks.

—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


[1]             2300-2100 B.C.

[2] The word legitimate comes to us from the mid-15th century by way of the middle French word ligitimer, which comes from the Latin word legitimus (lawful) which comes from the Latin word Legis (law). Today we also use the informal synonyms “genuine” and “real” in the sense of a “genuine complaint” or the “real issues”.

[3] Under the amendments to Section 504 through the amendments to the ADA, Section 504 now includes a free appropriate public education which with a few exceptions, mirrors the FAPE requirement in the IDEA.

[5] Notice here that the district shifted the cause of Nimrod’s problems to his “willingness” to learn to read and write at grade level.

[6] A rule is a regulation or statute.

[7] The standard under Hendrick Hudson Dist. Bd. Of Ed. V Rowley, 458 U.S. 176 (1982) is “a basic floor of opportunity. However, that is no longer the standard in some Circuits. Special education attorney Dorene Philpot has y argued this issue and she has outlined the case law on this subject. You might find that discussion and outline on her website. http://www.dphilpotlaw.com/html/special-ed.html If it is not on her website just drop me an email to brice@shoreham.net and I’ll send it to you. Put Philpot in the subject line.

Under Section 504, “T o be appropriate, education programs for students with disabilities must be designed to meet their individual needs to the same extent that the needs of nondisabled students are met.”

[8] “No otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”  (Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. 794. )

[9] Judge Alex Kozinski, Distinguished Jurist In Residence Program, Touro College Jacob D. Fuchsberg Law Center, March 16, 1994.

[10] Otis the wonder dog oversaw the office from 1994 until he went to his beloved meadow behind the office for the last time in 2007.  

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.

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.

DOWNLOAD this article as a PDF

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

Sign-up for any of the 24 part Series of Workshops online - Next meeting is April 1, 2015 at 7: pm ET

 

[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/