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Senator Jeff Sessions as Attorney General: What's WRONG with that IDEA?

Human Rights

By Nancy Hemenway

Human RightsSenator Jeff Sessions (Jefferson Beauregard “Jeff” Sessions III) is the new administration’s top pick to be the highest law enforcement officer in the land -the United States Attorney General. The Attorney General heads the US Department of Justice, which is charged not only with defending but also enforcing federal law, including the Individual Education for Disabilities [Improvement] Act (IDEA/IDEIA). Sessions hails from Alabama, a state that has yet to inact Autism insurance reforms. 
Although a potential appointment of Senator Sessions raises many concerns, the purposes of this article is to spotlight Senator Sessions’ previous remarks about special education in his official Senatorial capacity. 

Attorneys, advocates and parents of children with disabilities are on high alert as a result of based on remarks made by Senator Sessions in his May 2000 speech from the floor of the United States Senate.

On May 8, 2000 Senator Sessions gave a speech on the Senate floor. In his speech he opined, the need for reform of the IDEA. Senator Sessions, a former school teacher from decades gone by, calls the IDEA a “good goal” but he also said --

                                                              “We have created a complex system of federal regulations and laws that have created lawsuit after lawsuit, special treatment for certain children and that are a big factor in accelerating the decline in civility and discipline in classrooms all over America. I say that very sincerely.”

This statement by Senator Sessions shows an antiquated notion and degree of ignorance about the make-up of the student population in public schools.  Maligning the federal law and blaming the intended recipients of the strict procedural framework the rights and procedures is disingenuous and misplaced. Senator Sessions could have also discussed the well documented incompetency of some public school special education personnel from coast to coast. Failure in the classroom has little to do with the mandate to educate students with disabilities and more to do with failure of application of the law to meet the unique needs of students with disabilities.  

The IDEA guarantees students with disabilities a Free Appropriate Public Education (FAPE). (20 U.S.C § 1412 et sec)

 In his speech Senator Sessions directly blames the IDEA for the lack of control in the classroom.

                                    “We have children we cannot control because of this federal law.” 

That statement is preposterous. The lack of instructional control when trying to manage and teach children - and in particular children with disabilities - is attributable to a lack of understanding of the function of their behavior

Everything we as human beings think, do, or feel is behavior. All behaviors are ways to communicate. If one does not understand the function of a behavior there is almost no chance to change, or shape it to an acceptable or new appropriate behavior. Among many, there is a common misconception that inclusion is mainstreaming all students with disabilities into one classroom. Students who are mainstreamed need supports and sometimes adaptations to the curriculum. Without the appropriate supports, they fail, are punished, ostracized, and/or bullied. Special education under the IDEA mandates that school districts provide an education with services and supports that meet their unique educational needs.

Parents have good reason to be concerned for the welfare of their disabled children if Senator Sessions is appointed Attorney General of the United States. His May 8, 2000 speech on the Senate floor has, to my knowledge, not been rescinded or amended by Senator Sessions. Will Sessions support and defend IDEA or will he allow further degradation of a law designed to protect and educate children with disabilities?

Research shows us that children with disabilities are at a greater risk for restraint, seclusion and other abusive and aversive methods of discipline that perpetuate more unacceptable behaviors as unintended consequences of aversive actions and punishment by public schools.

Many of the letters and statements from educators that Senator Sessions discussed originate from teachers or school systems officials that are not evaluating and treating a student’s target behaviors appropriately with “best practice methods” to shape, change and teach appropriate new behaviors. Senator Sessions reaches his conclusions and opinions based not on statistics or data but “anecdotal stories” he received from constituents calling attention and giving him their perception of the problem.

In addition, Senator Sessions provided another anecdotal story line about a case in which two students were caught with weapons that the students said were accidentally left in their vehicles as a result of coming to school grounds from target shooting. One was expelled and never returned to school and the other was a special education student (disability not specified) who was assigned to an alternative school for 45 days before he returned to his school.  According to Senator Sessions,

                                “The second student’s handicap does not prevent him from knowing right from wrong.”

The point is not “right from wrong”. For example, his disability may not deter him from understanding right from wrong - but his executive function may if, for example, he has ADHD. In that situation the student could well have a diminished capacity to organize and also have a disturbance of his memory function. All of which could increase the likelihood that the student might forget his gun was in the car. In that analysis, the student would be punished as a result of his disability.  There is no way to know from this brief anecdotal story what the young man’s disability was. If the student’s executive function and memory issues are at issue his disability absolutely is important in determining how to proceed. Expulsion or other punishment based on an incapacity due to a disability is wrong, illegal and not very productive.

When a behavior of such magnitude occurs and expulsion is an issue, the IDEA mandates that students with a disability have a manifestation hearing to determine if the behavior was a result of the student’s disability.  Behaviors and specific learning and processing difficulties stemming from a disability are neurological or brain based.

Contrary to what Senator Sessions implied in his speech on the Senate floor, it is absurd to punish a student for a disability he may not have control over. It is unfortunate but punitive and coercive discipline is pervasive in schools today.  Punishment, coercion and a lack of positive behavior supports to prevent inappropriate behaviors produces the opposite affect and fallout in the form of more unwanted behaviors.

The solution to problem behaviors is not to weaken or defund the IDEA but instead to strengthen IDEA and training for educators who may not understand how to shape and teach new behaviors while extinguishing inappropriate behaviors. Senator Sessions thinks the government is already too big and that the IDEA and lack of control by educators is to blame for student behavior.  As US Attorney General Sessions he would be in charge of civil rights – including the civil rights of those with a disability. 
For more information about civil rights concerns See these articles from:  NY Times Article,  CNN Politics,  ABC News,  Equal Justice Society,  Special Needs Digest,  The Atlantic,  ACLU: Jeff Sessions the Facts,  Forbes,  
Autistic Self-Advocacy Network (ASAN),  

Please feel free to leave a comment

Other links of Interest:

10 Supreme Court Cases You Need to Know - Mass Advocates for Children

Since this was posted several weeks ago, the Sessions speech has been removed (like many government documents after the election) from the US Government website. Records of speeches and other government business can be found through the Congressional Record. For your convenience, we have copied the speech (link above in PDF) and HERE in a Word Document.

Another valuable tool to help you evaluate FAKE news sites HERE

Jeff Sessions, gave a speech on the Senate floor in 2000, very critical about the IDEA and even intimating at one point school shootings were a result of allowing disabled students in schools.The speech is and continues to be of concern, Sessions could present a threat to students with disabilities. Since we published this article, his speech has been removed from the Senate.gov website. Sessions has not clarified his views so we can only assume they have not changed. Here are excepts from the speech.

If this information is valuable to you, please like up on FACEBOOK, Tweet this on Twitter and send us a comment.

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

 

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”).

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.

Brice Palmer Special Education Advocate

 

One spring day in 1995 a mother knocked on the door and asked for some help with a special education problem.
Special Education?  Never heard of it. .
She asked me to go to a meeting at the school with her.
Armed with a copy of the Vermont Special Education Regulations, a Netscape Navigator browser and primitive e-mail, we readied ourselves for the meeting.

Special education has been my life’s work ever since.

I’m located in one of the most rural parts of an already rural state: Vermont. Even though we’re out in the woods, my services include special education advocacy, parent support, and coaching services for parents in almost any state. My services include litigation support for parents in due process hearings and State Review Office (SRO) appeals under section 1415 of the IDEA.

I also furnish legal writing and editing services for licensed attorneys appearing in federal district and state courts as well as in the U.S. Circuit Courts of Appeal for special education appeals.

The office has a full law library and a full special education law library, 24-7 on-line legal research subscription services, and Ruby the office dog.

Teacher, Writer, and Researcher
Brice was one of the curriculum developers for the SEAT advocacy training program. He and New York attorney and hearing officer Barbara Ebenstein taught the 2006 and 2007 classes of SEAT advocates in New York City.

He has taught special education law and advocacy for continuing legal education courses, continuing education courses for educators, protection and advocacy agency seminars, at annual conferences of the Council of Parent Attorneys and Advocates, and other parent advocacy groups.

His articles about special education and advocacy appear in a wide variety of publications.

Among them are 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 co-authored Defending the Legal Malpractice Claim Arising from Representation of Small Business (62 Am Jur Trials 395) with Lisa Chalidze, Esq.

Brice serves on the board of trustees for Camp Thorpe, located in Goshen, Vermont. Camp Thorpe is a 501(c)(3) organization that has provided summer camp experiences for disabled individuals for 87 consecutive years. He is also a former member of the COPAA board of directors.

Professional affiliations

Council of Parent Attorneys and Advocates (COPAA)
Legal Writing Institute
Education Writer’s Association