PARENTAL PARTICIPATION IN IEP PROCESS IS A CRITICAL FEATURE UNDER IDEA- DURING IEP MEETINGS AND IMPLEMENTATION OF SERVICES

One of the complaints I often hear from parents is that the school is not allowing them to be a part of the decision-making process. They are allowed to speak at the IEP meetings only to have their opinions and ideas shot down by the school district. At the end of the IEP meeting they are presented an offer of FAPE in a take it or leave it manner. Lawmakers designed the IEP process to be collaborative and, as such, nobody should leave an IEP meeting feeling like they were not an important part of the process.

According to the IDEA, the IEP team shall include parents of the child with a disability. (20 USC Section 1414(1)(B)) Parents are listed first in order as IEP team members. Often times, parents are not represented by an advocate or attorney at the IEP meeting. Therefore, lawmakers devoted an entire section of the IDEA to procedural safeguards. (20 USC 1415) Some of those safeguards are:

  • Notice of meeting (time, purpose, location, and who will be in attendance);
  • Right to bring others with knowledge/expertise regarding the child;
  • Meeting scheduled at a mutually agreed upon time and place;
  • Alternative means of participation;
  • Right to a copy of the evaluation reports and any other documents considered in making decisions by the IEP team;
  • Right to an Independent Educational Evaluation (if parents disagree with a district’s evaluation); and
  • Right to due process.

When formulating an IEP, a school district “must comply both procedurally and substantively with the IDEA,” M.L. v. Fed. Way Sch. Dist. 394 F.3d 634,664 (9th Cir. 2005) (citing Rowley v. Hendrick Hudson Sch. Dist. 458 U.S. 176 (1982), so that the process will be informed not only by the expertise of school officials, but also by the input of the child’s parents or guardians,” Endrew F. v. Douglas City Sch. Dist. 580 U.S. (March 22, 2017). (M.C. v. Antelope Valley Union High Sch. Dist. No. 14-56344 (9th Cir., March 27, 2017)) The courts recognize the parents have a unique perspective on their child and observe their child in a multitude of situations.

Parental participation shall be meaningful. Meaningful participation is more than attendance at the IEP meeting. (Amanda J. v. Clark County Sch. Dist. 260 F.3d 1106 (9th Cir. 2001) District representatives are allowed to meet before an IEP meeting to develop a proposal or response that will be discussed at a later meeting. (34 C.F.R. 300.501(b)(3)) School districts should never say “we don’t do that here” or “we won’t consider that.” It prevents the parties from collaborating and builds mistrust.

The court frowns upon school districts lack of transparency during the IEP process, as well as during the implementation of the IEP. Congress is just as concerned with parental participation in the enforcement of the IEP as it is in the formation.  (Rowley 458 at 205) Parents must be able to monitor and enforce the services that their child is to receive. When a parent is unaware of the services offered to the student—and, therefore, can’t monitor how these services are provided—a FAPE has been denied, whether or not the parent had ample opportunity to participate in the formulation of the IEP.  (M.C. at 14)

If you have a question about whether your legal rights to participate in the IEP process has been less than meaningful, give me a call at 925-551-1041. Each case is unique to a specific set of facts and must be analyzed separately.

 

(Note: This Blog/Web Site is made available for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The website has been designed to be a resource for information on matters that might be of interest to current or potential clients but does not establish that relationship. For further information visit my Disclaimer page- https://specialedlegaljourney.com/about/disclaimer/)

MEDIATION IN SPECIAL EDUCATION CASES

In California, approximately 96% of due process complaints filed with the Office of Administrative Hearings are resolved without a hearing….

Parents and school districts often experience positive relationships. There are times, however, where differing perceptions of what the student needs and can accomplish arise and create a barrier to reaching an agreement. Parents and school districts can disagree about which educational program, methodology, or service is necessary.

In 2004, when Congress amended the IDEA, mediation was added as a procedural safeguard to resolve disputes between parents and school districts.  20 U.S.C. Section 1415(e) requires school districts establish procedures to resolve disputes through a mediation process, at minimum when a hearing is requested. Mediation is  a voluntary process where a third party (mediator) assists parties who have come together to resolve a dispute. In California, parties can request mediation with or without filing for a due process hearing.

The reauthorized IDEA also added a requirement that the local educational agency shall convene a meeting within 15 days of receiving notice of a parents’ request for a due process hearing. This meeting is called a resolution session. The resolution session is guided by law in that it shall:

  • Include a representative of the agency who has decision-making authority;
  • Only includes attorneys if the parents bring an attorney;
  • Allow parents to discuss their complaint and the facts that form the basis of their complaint; and
  • The school district must be provided an opportunity to resolve the complaint.

The resolution session can only be cancelled through an agreement by the parents and the school district. The parties may waive the resolution session to use mediation instead.

In my experience, schools typically want to waive the resolution session and participate in mediation. I like the idea of a resolution session but have found that it often doesn’t result in a resolution of the claim. By the time a complaint has reached a level to require due process, the relationship has been broken and a third party facilitator is helpful to bring the parties back together.

When considering mediation for a special education claim, it is important to remember the benefits of mediation. Mediation is less expensive than due process. Mediation requires the parties to make compromises and often starts the process of repairing the relationship.  Mediation is confidential and allows creative solutions.

Parents who wish to bring an attorney to mediation need to understand that attorneys are not permitted to attend a “Mediation Only” request with the Office of Administrative Hearings. Therefore, it may be necessary to file a Request for Mediation and Due Process Hearing.

As a trained mediator, I understand the value of an informal resolution of special education claims. Children are best served when the parties can come to a resolution to provide an appropriate education without the necessity of holding a due process hearing.

(Note: This Blog/Web Site is made available for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The website has been designed to be a resource for information on matters that might be of interest to current or potential clients but does not establish that relationship. For further information visit my Disclaimer page- https://specialedlegaljourney.com/about/disclaimer/)

 

HELP THE SCHOOL YEAR GET OFF TO A GREAT START

The end of summer and beginning of a new school year can be a stressful time for parents with a child who has an IEP or 504 Plan. There are things parents can do to help get the new school year off to a great start.

Establish a Good Relationship with Your Child’s Teacher.

Your child’s teacher or teachers have a lot of responsibilities leading up to the new school year. Don’t assume that they have the time to review your child’s IEP or 504 Plan. That doesn’t mean that you approach your child’s new teacher or teachers in a hostile manner and put them on the defensive. Many teachers appreciate a parent who provides a summary of strengths and struggles of an incoming child with a disability. Provide your child’s teacher with a copy of their IEP or 504 Plan. I always recommend adding information regarding strategies that have worked for other teachers. Be sure to close out the letter thanking them for their time and letting them know that you are there to support your student and the teacher.

Review Your Child’s Most Recent IEP.

It is important to review your child’s IEP to make sure you understand your child’s current goals and what the school agreed to provide.  If you have questions regarding the clarity of any provisions of the IEP, write to your child’s case manager or the appropriate service provide and ask for clarification. If informal attempts to clarify provisions of your child’s IEP are unsuccessful, call an IEP meeting.

Take Time to Organize Your Paperwork.

I recommend parents start a new folder or binder every year. The folder or binder should be used to keep track of relevant IEPs, communication, progress reports, assessments, and meeting notes. I also recommend parents keep copies of work samples that show your child’s strengths and weaknesses. These documents will be helpful during future IEP meetings and in the event disagreements lead to due process.

Determine if Any New Issues Have Arisen.

The new school year is a good time to think about whether new academic, social, organization, or behavior concerns have arisen. Inform the IEP team in writing regarding any new concerns. Don’t wait for your child to struggle, or worse fail.

If you believe your child’s IEP does not provide FAPE  or your child’s 504 Plan is no longer sufficient, consult with an attorney on how to get things on the right track.

 

(Note: This Blog/Web Site is made available for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The website has been designed to be a resource for information on matters that might be of interest to current or potential clients but does not establish that relationship. For further information visit my Disclaimer page- https://specialedlegaljourney.com/about/disclaimer/)

DURING TIMES OF DISAGREEMENT, CAN A DISTRICT SIT BACK AND FORCE THE PARENTS TO FILE FOR DUE PROCESS?

In most instances where a child is already receiving special education services, the simple answer is no. The Individuals with Disabilities Act (“IDEA”) provides procedural protections to parents and local educational agencies (your school district). One of those procedural protections is the allowance of an impartial due process hearing with respect to the provision of a free and appropriate public education to a student (“FAPE”). Parents and the local educational agency may file for due process to resolve disputes related to the identification, evaluation, or educational placement of a student.

School districts have a mandatory responsibility to file for due process when a disagreement arises with parents of a student receiving special education services. The school district is required to continue to provide the services set out in the student’s IEP while they resolve the remaining disputes. Failure to request due process for a protracted period of time is a serious procedural violation of state law. Porter v. Manhattan Beach Unified School Dist. (C.D.Cal., Dec. 21 2004 (Case No. CV 00-8402 GAF)) 105 LRP 40577.

The school’s responsibility to file for due process also extends to the obligation to have an IEP in place at the beginning of the year. (34 C.F.R. 300.323(a), see also M.M. v. School Dist. Of Greenville County (4th Cir., 2002) 37 IDELR 183) School districts “cannot excuse their failure to satisfy the IDEA’s procedural requirements by blaming the parents.

 

Something to consider…. The party who files the administrative complaint has the burden of persuasion by a preponderance of the evidence. (Schaffer v. Weast (2005) 546 U.S. 49) It isn’t always advantageous to file due process when the school district has the obligation to file. Please also understand that a procedural violation alone doesn’t entitle a parent to seek relief from the school district. If you would like more information regarding this issue, contact me at (925) 551-1041 to discuss the facts of your particular case.

DOES ANYTHING HAPPEN IN SPECIAL EDUCATION, OUTSIDE OF ESY, OVER SUMMER

School is out and site staff is off for the summer. It may seem as though the special education process is on hold. While it’s true that some timelines are tolled during school breaks in excess of 5 days, including summer, that doesn’t mean everything is on hold. If you are concerned that the IEP last offered to your child is incomplete, or if your child’s needs have changed significantly over the summer, you are entitled to request an IEP team meeting. Additionally, if you believe your child has been denied FAPE then you may start or continue due process. Summer may be a good time to review your child’s IEP and work to resolve any major issues before school begins.

REQUESTING AN IEP OVER THE SUMMER

In certain circumstances, summer vacation is not a legitimate excuse to delay having an IEP meeting. The IDEA requires that an appropriate IEP be in place by the beginning of the school year. (34 CFR 300.323) Therefore, if the IEP last developed before the end of the school year was not complete, or did not include necessary supports for the student to receive a free and appropriate public education at the start of the coming school year, it may be necessary to reconvene and IEP meeting over the summer to finalize the IEP.

Your local school district may refer to CA ED Code Section 56343.5 which states,

A meeting of an individualized education program team requested by a parent to review an individualized education program pursuant to subdivision (c) of Section 56343 shall be held within 30 days, not counting days between the pupil’s regular school sessions, terms, or days of school vacation in excess of five schooldays, from the date of receipt of the parent’s written request.

It may seem that the school has a valid argument. However, federal law trumps state law. If a child’s IEP needs to be modified during the summer to ensure that an appropriate IEP is in place at the beginning of the school year, a meeting must be held.

School districts face difficulties during the summer months. Many school staff contracts do not require them to attend IEP meetings over the summer. That leaves district administrative personnel to resolve the issues without the assistance of the staff members who are regularly a part of the student’s IEP team. District staff is often hesitant to make substantial changes without the other team members.

If your child’s IEP needs to be updated and can’t wait for school to begin, don’t let the above-mentioned issues deter you from calling an IEP meeting. Put all your requests in writing to the superintendent of special education for your district. If the school refuses to hold an IEP meeting and make necessary changes to your child’s IEP, you may be able to go back to the school and request compensatory services lost from the beginning of the school year until the time when an IEP meeting is held. If the issue is critical enough, contact an attorney to discuss your concerns and determine if your request is reasonable.

DUE PROCESS OVER THE SUMMER

While your site school staff may have the summer off, special education administrative staff members are still working. This allows due process matters to be filed, negotiated, and heard during summer breaks. If you believe your child has been denied a free and appropriate public education you can file a complaint with the Office of Administrative Hearings. The timeline for due process hearings is not tolled over the summer. Due process proceedings are typically completed within 75 days of filing.  That means it is possible to file a due process complaint at the beginning of summer and have it heard before school resumes.

While it is possible to file for due process and have your case heard over the summer, there can be advantages and disadvantages to doing this. An attorney who is knowledgeable regarding special education law can help weigh these considerations.

 CONCLUSION

Summer break be a reason a student starts a new school year without an IEP, or with an inappropriate IEP. District administrative staff work over the summer and provide an opportunity to work through major issues. If you are receiving push-back from the district it may be worthwhile to have an attorney review your file and write a letter on your behalf.

 

 

(Note: This Blog/Web Site is made available for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The website has been designed to be a resource for information on matters that might be of interest to current or potential clients but does not establish that relationship. For further information visit my Disclaimer page- https://specialedlegaljourney.com/about/disclaimer/)

 

NEW RULING: A SCHOOL MUST OFFER AN IEP REASONABLY CALCULATED TO ENABLE A CHILD TO MAKE PROGRESS APPROPRIATE IN LIGHT OF THE CHILD’S CIRCUMSTANCES

Earlier this week, the Supreme Court issued a ruling in Endrew F. v. Douglas County School District. The Supreme Court unanimously issued a ruling on the level of benefit IDEA requires public schools to provide to students with disabilities. In the past, the level of benefit school districts were required to provide was de minimis, or negligible. In this week’s ruling the court ruled that schools must offer an IEP that is reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.

School districts have often argued that the level of benefit only needs to provide some benefit, as opposed to no benefit. This standard has long been a source of frustration for parents.  The Supreme Court in Endrew recognized the adequacy of a given IEP turns on the unique circumstances of the child for whom it was created.

The Supreme Court recognizes the need to defer to the judgment of school officials, informed by their own expertise and in light of the views of a child’s parents or guardians. The Supreme Court recognized the decisions made by an IEP team are of critical importance to the life of a child with a disability.

 

(Note: This Blog/Web Site is made available for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The website has been designed to be a resource for information on matters that might be of interest to current or potential clients but does not establish that relationship. For further information visit my Disclaimer page- https://specialedlegaljourney.com/about/disclaimer/)

HELP! I HAVE AN IEP AND THE SCHOOL DIDN’T PROVIDE THE ASSESSMENT REPORTS

I was recently preparing for an IEP when the school district representative indicated that they wouldn’t be able to provide the assessment reports until the day of the IEP. The staff recognized providing the reports prior to the IEP as “best practices.” This is not the law.

34 CFR 300.613(a) provides the legal requirement for the school district to permit parents to inspect and review any education records relating to their children, including assessment reports. If a parent makes a request, the school district is required to comply without unnecessary delay and before any meeting regarding an IEP.

Case law supports a parent’s rights to review the assessment reports prior to the IEP. “[T]he informed involvement of parents” is central to the IEP process. (Winkelman v.Parma City School Dist. (2007) 550 U.S. 516, 524 [127 S.Ct. 1994]. Protection of parental participation is “[a]mong the most important procedural safeguards” in the Act. (Amanda J. v. Clark County School Dist. (9th Cir. 2001) 267 F.3d 877, 882.)

Parents should always request a copy of their child’s educational records, including assessment reports, prior to an IEP. In order to provide enough time to receive the documents and review them I suggest making the request at least two weeks prior to the scheduled IEP.

Should you have any further questions, please contact Kristin Springer at specialedlegaljourney@comcast.net.

(Note: This Blog/Web Site is made available for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The website has been designed to be a resource for information on matters that might be of interest to current or potential clients but does not establish that relationship. For further information visit my Disclaimer page- https://specialedlegaljourney.com/about/disclaimer/)