Education Law Advocates, P.C.

April, 2009

Education Law Advocates, P.C.
Education Attorneys

FEATURE ARTICLE: The Top 5 "IEP" Mistakes Parents Make - And How toAvoid Them

Does this sound familiar?

The school contacts you to let you know when your child's annual IEP meeting will be held.When it's time,you go to the meeting alone.There are five or ten school folks sitting around the table when you arrive. You feela little nervousattending a meetingwitha roomful of people. When the meeting begins, theyhand youa draft "IEP"that is15-20 pages long. You haven't seen it before. Youhave no idea what it says. You leaf through it quickly but can't really focus on it.For the next hour or so, the school folksgo through theIEP andmake comments on your child. They sometimes use confusing terms you don't understand.You ask a few questions, which they answer.By the end of the meeting, you are more confused than when it started. They ask you to sign a form approving the IEP.You're not sure what it means, but you want to cooperate. So yousign the form. When you arrive home,you put the IEP away with some other school papers. You don't look at it again. Ayear later, the school contacts you to arrange an IEP meeting.The process begins again.

Changing Your Approach to the IEP Process

Let's get clear on one thing up front:The IEP processdoes not have to be this way! It should not be this way! The IEP is as vital to your child's progress atschool asour lungs are to breathing. It's not just a "contract." It's the key document that brings together what is known about your child and her disability,the services she has received, her progress(or lack of progress) over the past year,her need forspecialized instruction and related services for the coming year, the type and quantity of the instruction and services, and the goals the school will help her achieve.The IEP is theblueprint for your childto learn,grow and develop.

It's all of these things - or it's none of these things, if it's not done right.In all too many cases, the IEP meeting is just an empty exercise that reflects little thought, wastes everybody's time, and produces a document that everyone ignores.You as the parent play a vital role in determining whether the IEPbecomes the keyprogramming and planning tool that can make a big difference in your child's life, ora waste of everybody's time.

So you need to accept the responsibility of makingthe IEP process work for you and your child. How? By taking some simple steps. Below wediscuss the five big IEP mistakes thatmany parents make - and how to avoid them. But beforeyouread about those five things, we ask you tokeep in mind the following.

  • Nobody's perfect! Don't feel that you must do all of it perfectly or all at once. It's a process. Take one step at a time. Make small improvements. Build from there. Don't make the "perfect the enemy of the good" - and hang back from taking the necessary action.
  • There's a world of ideas out there! Second, understand that these are the fivebiggest IEP mistakes that parents makein our opinion.Other attorneys or advocates mayfocus on different IEP problemsor methods for getting better results.What we offer are ourideas based on our experience, knowledge and observations. There are books, articles, websites and other resources on IEP's and special education.The more you learn, the more effective you will be.
  • One size doesn't fit all! We offer a common-senseapproach that we believe will help parents become better advocates for their child.If you become a better, more persuasive advocate, shouldn't your chances of gettiing what your child needs at schoolincrease?Think about it. But will this approach lead to better results in every case?Of course not. Sometimes, for example,a school simply is not willing to provide the services thatyour child needs. That's why we have courts and lawyers!

Avoiding the IEP Traps

So here are the five biggest IEPmistakes we think parents make, along with our suggestions for a different approach that can help produce better results for your child:

  1. Mistake No. 1: Not understanding your child's disability.Knowledge is power, at least if you act on it. Your child's needs and future are too important to be left entirely to a changing cast of characters in the school building. Do you understand your child's disability? Have you readthe school's initial evaluation report on your child? If he has a reading disability, for example, what's the nature of it? Does he have a problem with "decoding?"Reading comprehension? Can he sound outwords he hears(phonemic awareness)? What else do the evaluation and other reports tell youabout your child's strengths and weaknesses?How's he doing on the PSSA's, if he is eligible to take them? Do you know what the PSSA's are? If not, you should find out.You don't need to become an "expert" in your child's disability, but you should learn all you can about it. You can't help fix a problemthat you don't understand.
  2. Mistake No. 2: Failing to track your child's progress under the current IEP. You can't be effective in developing a new IEP unless you know how your child performedunder the old one. When did you last look at your child's IEP? Whatgoals does it contain?Is your child making progress towards achieving those goals and, if so, how much progress has she made with respect to each one? What do your child's progress reportsor report cards tell you about her progress? For younger children especially, whendid you last observe her in the classroom? If youdon't know the answers to these questions, pull out your child'sIEPand progress reports.Here's the critical question: Is your child making progress in each area of need? If not, whynot? You need to get those answers! Then use that information at the next IEP meeting.
  3. Mistake No. 3: Failing to get readyfor the IEP meeting.To develop a better IEP, it is essential to plan ahead.As Henry Ford said, "Before everything else, getting ready is the secret to success."What steps should you take? First, review your child's evaluations, reevaluations and current IEP. (See items 1 and 2 above). Second, think ahead. Get clear.What do you want to accomplish at the meeting? What wouldbe a successful outcomeof the meeting and how can youhelp achieve it? Third, preparea handout for the meeting that identifies your chief concerns and, whenever possible, your suggested resolutions.This could be in the form of a "Parent Agenda." (We like the forms in From Emotions to Advocacy" by Pete and Pam Wright, which you canpick up at www.wrightslaw.com orwww.amazon.com). Fourth, get out in front! Why wait until the IEP meeting to express your concerns to the special education supervisor or other responsible team member? Consider sending your written "parent agenda"well in advance of the IEP meeting. Consider a "pre-meeting" with just oneor twokey people at school to go overitems, if any, that you are not comfortable addressing in a big IEP meeting. Ask if they will provide you with a copyof thedraft IEP before the meeting so you can review it. (The law doesn't require it, but a few school folks will do it).Fifth, don't go alone! Determine who else will participate as part of your"team." Your spouse? A non-attorney advocate? A psychologist? A tutor?A one-on-one aide? Even a good friend. If they are needed but can't participate in person,find out if they canparticipate by phone.Then, as a courtesy,email your contact on the IEP team to let them know whobesides you will be participating in the meeting, and why.
  4. Mistake No. 4: Failing to get the most out of the meeting itself.The IEP meeting presents a unique opportunity to listen, learn and make your points, as youwork to develop an IEP that will meet your child's needs.Solisten carefully to what issaid around the table.Seek to understand - and to be understood. Askfor clarifications where necessary. Take notes. (Or, better yet,assign that responsibility to your spouse, advocate or another person who attends with you). Second, support your requests with reasons. Do you believe your child needs an extra hour of "occupational therapy" each week? Why? How will your child benefit from the additional "OT?" How will your child be damaged if the OT isn't increased? Who can support you in this request? An independent evaluator? Someone else? Third, don't sign off on the IEP at the meeting.Take it with you. Think about it. You have 10 days to return the"NOREP" to the school after receipt to indicate your approval or disapproval of the IEP. Fourth,don't let yourself "lose" it at the meeting.Getting upset or angryis understandable, butshoutingis rarely the answer, in our opinion.It can interfere with your communication with the school and be used against you if you ever end up in "Due Process." Our advice:If youfeel yourselfstarting to "lose it," ask for a break for five minutes or so or even postpone the meeting, if necessary. Try again another time. Finally,are you satisfied with the IEP the team developed? If not, seek another meeting toworkour your differences. Be persistent.
  5. Mistake No. 5: Failing to follow through.Avoid the "out of sight, out of mind" syndrome. It's easy to do. You put the IEP in a drawer and forget it.The IEP shouldn't bejust words on paper;it'sthemap that shows the way to a better life for your child. If you were using a map to drive from heretoBoston for the first time, wouldn't you need to consult that map frequently? Otherwise, you might get lost before you get out of Pennsylvania. The IEP is your mapfor your child. It shows thedestination,how to get there, and resources along the way. If you lose your way going to Boston, you would need to use the map to make adjustments.It's the same with the IEP. Of course, you won't ever get to Boston ifthe map is wrong. Same with theIEP.Where's your special needs child headed? How does his IEP help him get there? Second, don't think of the IEP process as just the IEP meeting itself or the week or two before andafter themeeting. It's a continuos process! When you make your breakfast for your child in the morning, do you say to yourself, "Boy, I'm glad that's done! Now, I won't ever have to do that again." Consult your child'sIEP at least monthly.Is your child on track. Is he making progress? Is hegetting the servicesspecified in the IEP? If he's not on track, what action do you need to take to get him back on track? Go seehis special education teacher? Call another IEP meeting?Email the special education supervisor? Don't let a year pass only to find that your child is not getting the help he needs. Finally, within afew days after the IEP meeting, send a short email to your key contact on the team. Thank them for the opportunity to participate in the meeting.Briefly list your understanding ofwhat was accomplished at the meeting. Describe anyimportant items that you believe remain to be accomplished. Express any concerns you have and the reasons for those concerns.Create a record! Than follow through. If important items were not achieved, seek action. Call to follow up. Look for other ways to solve the problem. Maybe you need an "IEP facilitator" to work with the team. Maybe you need to get your child's psychologist more involved. Maybe you need to get a better idea of your legal rights. But, whatever you do, do something! Take action! Don'tjust ignore it and hope for a better resultin a year when the IEP team meets again.

So these are our "top 5" IEP mistakes parents make, and how to move past them.If you aren't getting the results yourchild needs at school, there's no time to waste.Get started! Your child is counting on you.

Questions? Comments? Other ideas? Contact us anytime.

FROM THE LEGAL DESK: SUPREME COURT SENDS A MESSAGE ON PEER-ON-PEERSEXUAL HARASSMENT AT SCHOOL

Every court case tells a story.

The Facts

A little girlridesthe school bus every day to her kindergarten class in Barnstable, Massachusetts.In February, she tellsher parents that whenever she wearsa skirt to school, a third grade boy on the busbullies her intolifting her skirt and pulling down her underwear.

Her parents notifythe school's principal, and both the school and the police investigate.The police decidethat thereisn'tenough evidence to bring criminal charges against the boy. Theprincipal decidesthat there isn't enough evidence todisciplinethe boy.He offers to transferthe girl to adifferentbus.The parents refuse because, in their view,this would unfairly punish their daughter. They propose, instead, that the boy be transferred to a different bus.After the school refuses to make this change,the parents begintransportingtheirdaughter to school by car.

The following year, their daughter reportsproblems with the same boyin school hallways and during gym class. Her parents complain to the school, but the school takes no action.Afterwards, the girl refuses to participate in gym class andfrequently stays homefrom school.

The Law

The parents sue the school board and certain individuals, including thesuperintendent, seeking "money damages" for the school's failure to take action to protect their daughter from "sexual harassment" by the boy. They bring the suit in part under a federal law known as "Section 1983." Congress originally enacted Section 1983a few years after the Civil War partlyto give freed slaves a legal right to sue state or local officials, such as a sheriff or mayor, for money damages if theyfailedin their duty to uphold the law and protect them fromattacks by the Klu Klux Klan.Over the years, many other types of litigants have filed Section 1983 actions.

But how could the parents of the little girl hope to recover against the school superintendent and others at the school under Section 1983? Under the law,school officials areconsidered to be local government officials who can beliable formoney damages under Section 1983, if they deprive a student of herrights under federal law or the U.S. Constitution. But what constitutional right of the little girl was violated? The14th Amendmentto the Constitution says that no state shall deprive any person of the "equal protection of the law."This amendmentcreates a constitutional right for individuals to be free from harassment based on theirgender. So the parentshere soughtmoney damages against the school officials on the ground that their failure to act deprived their daughterof her constitutional right nottobe harassed by her male classmate.

But there wasanother problem for the parents. Thelower courtsdismissed their "Section 1983" claim because they found thatanother federal law known as "Title IX" was the parents' "exclusive remedy." Title IX is a federal statuteenacted by Congress in 1972 that prohibits federally funded education programs,including public school districts, from discriminating against a student based onhis or her gender. As part of their lawsuit, the parents also had asserteda claim against the schoolboard under Title IX, butthe lower court dismissed that claimbecause it found that the facts didn't support it. So after years of litigation, the parents' lawsuit was "running on fumes." Their Section 1983 claim had been knocked out. Their Title IX claim had been knocked out. Their only hope was an appeal to the Supreme Court.

Fortunately,the Supreme Court ruled in the parents' favor. In a unanimous decision, the courtruled that the parentscould maintain theirSection 1983 action for money damages against the school committee andindividual school officials.The courtfound that Congress never intended, when it enacted Title IX, to prevent parents or others from bringing a separate Section 1983 claim against state or local officials based on gender discrimination.If you would like to see how they reached this conclusion, read the decision. (Fitzgerald v. Barnstable School Committee, 129 S.Ct. 788 (January 21, 2009)).

A Happy Ending?

Litigation can be hard and long - and expensive.The Supreme Court's decisionisn't the end of the road for these parents. Itruled only thatthe parents have the legal right to try to prove that they are entitled to recover damages underSection 1983.In other words, the parents now will get their "day in court," and achanceto try to "prove their case" before the trial judge or jury. Will they win?That is impossible to say.

So why does this Supreme Court decision matter? Because it makes clear that a parent whose child is the victim of sexual harassment at school now has an additionallegal basis -Section 1983 - to recover moneydamages in a court of law against school officials who failin their legal duty to protect the children in their care. Are these cases easy to win? Not in our opinion.Underboth Title IX and Section 1983, the parents must get over a high bar to satisfy the "burden of proof" required by those laws. Butthe Supreme Court's decision in Fitzgeraldputs "another legal arrow in the quiver" of a parent whose child has been sexually harassed at school.

If your child is being harassed at school by other children, there are steps you can take short of filing a lawsuit that can help.One of those steps is toput the school on notice in writing of the harassment that is occurring. But take action promptly.No child should be afraid to attend school. No child should have to live withbeing bullied, whether it's "sexual" bullying or any other kind!

If you want more information, callus. We can help.

QUICK TIP:Graduation from High School Generally Ends YourChild's Right to Receive Special Education

We have encountered a few parents who were notaware of the legal effect of high school graduationon their child's right to continue to receive special education services. So here's a quick tip.

As a general rule, if your child graduates from high school, he or she cannot continue to receive special education. The federal special education regulations state:

  1. (a) General. The obligation to make FAPE available to all children with disabilities does not apply with the respect to the following:
    (3)
    1. (i) Children with disabilities who have graduated from high schoolwith a regular high school diploma.
    2. (ii) The exception in paragraph (a)(3)(i) of this section does not apply to children who have graduated from high school but have not been awarded a regular high school diploma.
    3. (iii) Graduation from high school with a regular high school diploma constitutes a change in placement, requiring written prior notice in accordance with Sec. 300.503.
    4. (iv) As used in paragraphs (a)(3)(iii) of this section, the term regular high school diploma does not include an alternative degree that is not fully aligned with the State's academic standards, such as a certificate or a general educational development credential (GED).

(34 CFR Section 300.102(a)).

So here's the "translation" of that statute (yes, the lawcan seem like a foreign language sometimes). Schoolsare not required to provide special education services to a student who has graduated from high school with a "regular high school diploma." A student generally may participate in a graduation ceremony so long as there is an agreement (inwriting!)confirming that the school will not award the student a regular high school diploma until the student requests it and will continue to provide special education services until that time.The school mustprovide the parent with "prior written notice" of their legal rights before graduating the student from high school.

One other thing: There is an "age" limit on eligibility for special education, too. In Pennsylvania, a student is not eligible for special education after the last school year in which the student turns 21. So, for example, if a student turns 21 in October, 2009, she could continue to receive special education services until the end of the 2009/2010 school year.

Questions? Comments? Contact us anytime.

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Education Law Advocates, P.C. skillfully represents parents and their special needs children in southeastern and central Pennsylvania, including West Chester, Lower Merion, Coatesville, Paoli, Downingtown and Upper Darby, and throughout the Philadelphia metro area, including Chester County, Montgomery County, Delaware County, Bucks County, Philadelphia, Lancaster County and Berks County.

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