Education Law Advocates, P.C.

October, 2008

Education Law Advocates, P.C.
Education Attorneys

Feature Article: How to Get Needed Services at School and Avoid "Due Process"

As frequent readers of this newsletter know, we believe that you, as the parent of a special needs child, have the ultimate responsibility for ensuring that your child receives all of the services at school that he or she needs to learn, grow and develop. No-one else knows your child as well as you do. No-one else remains involved with your child from year to year as you do. No-one else has the long-term responsibility for your child's future that you have.

What we are all about is helping you to meet that responsibility. Fortunately, there is much you can do on your own or with the help of others you select, such as a psychologist or non-attorney advocate, to get better results for your child at school. To name just a few, you can get better organized, learn more about IEPs, carefully prepare for - and follow up on - school meetings, learn more about your legal rights, document your important contacts with the school, and get clear on what your child needs so you can be clear on what you are asking the school to do. As they say, "clarity is power." To be successful in getting the services your child needs at school, you must get clear on what those services are.

If you consistently do the "right" things in advocating for your child at school, your chances for obtaining all of the services that your child needs - and is legally entitled to receive - will go up dramatically. We favor using these "informal" means for obtaining what your child needs at school, whenever possible. If you can't get better results on your own, and seek our assistance as lawyers, you will find that in most cases we will work to get those results through informal means as well, without filing for "due process" against the school district. Think about it. If you can get the services your child needs at school without going through the expense, time and aggravation of a "due process" action, why wouldn't you do it?

Of course, sometimes a parent will have no alternative but to file for "due process." Despite your best efforts, for example, the school may simply refuse to provide the services your child needs. Or you may need to file a due process complaint to preserve legal rights that otherwise could be lost due to a "statute of limitations," which limits the time for filing suit. (In part because of the statute of limitations, we encourage parents to consult with us whenever they believe their special needs child may have been denied needed services in the past). If you must go to due process, go into it with your eyes open, knowing both the potential risks and the benefits. And don't be afraid of it! But, in the main, we support reasonable attempts to obtain needed school services for your child before filing for due process.

Which brings us to the advice to parents of Dr. Linda Valentini. Dr. Valentini is a senior special education due process hearing officer. Over the past thirteen years, she has presided over more than 1,500 special education disputes in Pennsylvania. Here is Dr. Valentini's advice to parents on how to avoid due process:

How to Avoid Due Process - Parents

  1. If you feel that your child is not making progress, or if you don't understand what you are being told, bring your concerns to the district early rather than waiting for the problem to be compounded.
  2. Keep lines of communication open, but do not flood the school with visits, emails and letters. Organize your concerns, state them clearly in writing, and then ask for a meeting to be scheduled.
  3. Follow up meetings with a letter or email summarizing your understanding of what transpired, especially any agreements that were reached.
  4. Be cordial, but not chatty in your written communications. Avoid writing effusive praise for the teacher, or statements you may regret later such as, "This is Joey's best year ever" when you haven't seen the final progress reports.
  5. Know what the IDEA and its Regulations mean, not just what they say. Take advantage of resources such as the Education Law Center to have your questions answered. When looking for information, access balanced resources, for example PaTTAN [www.PaTTAN.net] or the Lehigh [University] conferences [http://www.lehigh.edu/specialseminars].
  6. Be reasonable and be open to looking at various ways of resolving a problem.

(Quoted with permission of Dr. Valentini, whose advice to parents on how to avoid due process was authored for use in various professional publications, as part of a handout that also includes information on how school districts can prepare for/avoid due process).

We think that is good advice. Questions? Comments? Contact us anytime.

"Fifteen Things about Me": Finding New Ways to Communicate with your School

We often talk about different ways that you as a parent can help get the results your child needs at school. (Example: Our article above on how to get the services your child needs at school without going to due process). Think about it. So much of your success as a parent in obtaining those services comes down to getting clear on what your child needs, effectively communicating those needs to the school, and following up until needed changes are made. Wouldn't you agree?

Of course, we all know that other factors may be at work, too. School staffing, budgets, lots of other factors can interfere with your ability to obtain needed services. And sometimes you and the school may simply disagree in good faith on your child's needs or how to help your child make progress. But communicating clearly, consistently and effectively with the school about your child is essential, in our view, to getting the services your child needs.

So we are always looking for new or different ways that parents can communicate with theschool about their child. Here's a link to a sample letter entitled "Fifteen Things about Me" that might give you some good ideas. It's available through National Learning Concepts (www.nlconcepts.com), a private company that focuses on products for children with autism and language delays. (If you would like to download the free letter, go to http://www.nlconcepts.com/autism-teacherletter.htm). The idea applies as well to any special needs child (or any "regular ed" child).

We aren't able to reproduce the letter here. So take a look by following the link above. Here is what we like about it most. First, it communicates in your child's voice. It is intended to be "from your child" to your child's teacher. It lets the teacher know, in the child's own voice, that your child may be nervous, and that she may need some time to adjust, but that she will try her best, even if it sometimes may not look like she is really trying. Second, it asks the teacher for help and, importantly, asks the teacher to see - and to believe in - the child's ability to learn and develop. Third, it describes what the child LOVES doing and HATES doing, what the child does well and what he needs the most help with, and it includes the skills that the child's parents (i.e., YOU) want him to develop this year.

Of course, you can adapt the letter as necessary so you communicate everything important about your child that the teacher needs to know. Keep it as short as you can. We suggest no more than two pages, if possible. Unless your handwriting is easy to read, we also suggest that you type the letter. And don't forget to date it and keep a copy!

Here's one final thought on the letter. If you send a letter like this one to the teacher, what about going over it with the teacher at the next parent/teacher conference or before then, if necessary? Your goal should be for this information to be "top of mind" for your child's teacher so that the teacher actually uses it. That may require some repetition and follow-up. You also might want to hand it out at the next IEP meeting as a way to help the team focus on your child's strengths and weaknesses, as you see them, and ways to help your child improve. You could also ask that it be attached to the IEP or included in the IEP folder.

There are lots of ways to improve your communication with the school. No single method of communication is the "answer." But this is one that you might find helpful.

Quick Tip: Visiting Your Child's Classroom

Have you visited your child's classroom? Have you observed your child in class to see how he learns, how he interacts with other children, and how he behaves? Has the teacher or your child reported problems in the classroom? Would you like to see for yourself what is going on?

In the past, some school districts allowed parents to observe their child in class; some did not. Pennsylvania now has adopted a new regulation that ends the confusion over whether a parent may observe their child in the classroom. Section 14.108 of those regulations states: "Parents shall have reasonable access to their child's classrooms, within the parameters of local educational agency policy." Check it out for yourself. (http://www.pafamilyliteracy.org/stateboard_ed/cwp/view.asp?A=3&Q=127165&stateboard_edNav=%7C10890%7C).

In plain English, this means that you as the parent now have the right to visit and observe your child in class, and school districts have the right to adopt reasonable rules governing these parent visits. We anticipate that schools will adopt rules requiring advance notice, limiting the number of parent visits, limiting the length of visits, and limiting a parent's activity in the classroom during the observation. Lawyers sometimes refer to such limits as "time, place and manner" restrictions. We have no problem with reasonable rules governing parent visits, just as we understand that our right to drive our car is subject to reasonable restrictions and highway safety laws.

As the parent of a special needs child, the more information you have about how your child is doing in school, the better you will be able to advocate for school services that your child needs to learn, grow and develop. Especially early on in your child's education, but even for some high school students (if your teenage child will let you visit!), we encourage you to visit your child's classroom from time to time to get a better idea of what is going on there. Of course, it is just a "snapshot" of what occurs there. And your presence alone may affect what you see. But such visits can provide you with valuable information about your child.

From the Legal Desk: Evaluations and Reevaluations - What You Should Know

Do you suspect that your child may have a learning problem or other disability that may require special education or related services? If so, you will need to request the school to evaluate your child. Or is your child already a special education student who isn't meeting her IEP goals or is having other problems at school? In that case, you may need to request a reevaluation of your child. In either case, there are certain things you should know.

First, understand that your child's IEP is only as good as the evaluation, tests and other data that it is based on. It's just common sense! How can you and the school team develop a sound plan to address your child's needs if you don't know what those needs are? The purpose of an evaluation or reevaluation is to accurately determine your child's current needs in order to develop a plan to address those needs and help your child move ahead in each area of need. The whole point is to put your child in a position to make progress from year to year.

So what kind of evaluation or reevaluation must the school perform? Answer: Under federal law, the school must conduct a "full and individual" initial evaluation to determine if your child has a disability that qualifies him for special education and assess her educational needs. (See the federal regulation on initial evaluations, 34 CFR § 300.301,at http://idea.ed.gov/explore/view/p/%2Croot%2Cregs%2C300%2CD%2C and then click on Section 300.301). Any evaluation or reevaluation also must include a review of the child's important records and the parent's comments. Any reevaluation must also determine whether any additions or changes to the child's IEP are necessary to enable him to meet his measurable annual goals. (See Section 300.305 of the federal regulations at http://idea.ed.gov/explore/view/p/%2Croot%2Cregs%2C300%2CD%2C300%252E305%2C

So what should you do if you want to obtain an evaluation or a reevaluation for your child? There are four main steps:

  1. Request an evaluation or reevaluation in writing. Email is fine in most cases, but proof of transmission is important. (By the way, by law a parent of a child age 3-21 cannot request a reevaluation more than once a year). Under Chapter 14 of the new Pennsylvania special education regulations, the school must then make a "permission to evaluate" form "readily available" to you. 22 Pa. Code Chapter 14.123. (http://www.pde.state.pa.us/stateboard_ed/cwp/view.asp?a=3&Q=127165). If you don't receive the form within a few days, call to follow up.
  2. Completeand return the "permission to evaluate" form. Until you return the signed permission to evaluate (or reevaluate) form, the school district is under no duty to begin the evaluation process. We recommend that you include information on problems and behaviors of your child that you have observed at home. If, for example, you assist your child with homework, and you have noted certain problems that your child has with reading, such as the way she pronounces words, write down your specific concerns on the form (or on an attachment, if you need more space) and request the evaluator to address those concerns in the testing and evaluation. Keep a copy of your completed form and a record of when you returned it.
  3. Follow up! Contact the school after a couple of weeks to check on the progress of the evaluation. Don't wait for two months to call, only to find out that the permission to evaluate form was never received! Be proactive!
  4. Read and understand the evaluation or reevaluation report. It may seem complicated at first, but you can understand most of it - and it is essential that you do. Prepare questions. Get answers. What does the evaluation tell you? How can the team use it to make needed changes to your child's IEP? What specialized instruction and related services does it indicate are needed? Prepare carefully for the IEP meeting.

Finally, remember that the "timelines" for the school to complete the evaluation or reevaluation have been shortened in Pennsylvania. The school must now complete the evaluation or reevaluation within 60 calendar days of the receipt of your written "permission to evaluate" form. But remember that "calendar days" for this purpose do not include the summer holiday. So if you wait until the latter part of April to submit your request, don't be surprised if you receive the evaluation in September. You can read the new state regulation at http://www.pde.state.pa.us/stateboard_ed/cwp/view.asp?a=3&Q=127165.

Evaluations and reevaluations are critically important in helping you and the school team assess and plan for your child. The more you know about them, the better you will be able to help your child get the services he or she needs.


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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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