Monday, August 31, 2009

Back to School: Help I need a placement! (and other concerns)

It's back to school time around here, with some school districts starting back this week and many starting immediately after Labor Day. As expected, it is a busy time for all of us advocates and attorneys. Here are some of the concerns we hear all too often from parents as school starts back:

1) Where is my kid going to school?!

One of the common back-to-school disasters happens when a kid doesn't have a placement. Knowing where your kid will be in school when the year starts out seems like a pretty basic question, regardless of if your kid is on an IEP. How, you may ask, could not having a placement possibly happen?! Here are some examples based on real-life scenarios:

Scenario A: Child has been in an SDC for the past couple of years and now has "aged out" of that particular class. Parents disagreed with the offer of placement for the next school year, as the new SDC is substantially different and won't meet their kids needs. The school year starts, and parents and district are still in dispute. A problem arises because there is no "stay put" placement, since the child aged out of the previous classroom. Where does the kid go for the first day of school?

Scenario B: Child's specialized program, which the IEP team offered for this school year in the most recent IEP last spring, closed down over the summer based on an "administrative decision" and probably due to budgetary concerns, and no staff was available at that time to hold an IEP meeting.

Scenario C: Family moved into a new school district over the summer, and did not take the IEP document in to the school district because the office was closed, or they didn't know where to take it, or whatever the reason. On the first day of school, parents show up with the kid and the IEP, but the District does not have a placement readily available that is comparable to what the child previously received.

Scenario D: Child had significant emotional problems during the previous school year, to the point that he/she was unable to attend school due to anxiety. Parents requested assessments and an IEP at the end of the year, which have not yet been completed. Because there is no IEP, there is no offer of an appropriate placement, but because of the significant anxiety, child's doctor says he/she cannot return to school without a different program in place.

There are many scenarios which could lead to an issue about placement at the start of the school year. Advocates and parents (and districts) are often scrambling around at the last minute to locate an option that can be implemented. Here are a few tips on dealing with this:

Make lots of phone calls! In these circumstances, talking to a live person about the urgency of your concerns may get you further than starting off by sending a letter documenting all of the ways the district is out of compliance. That's not to say that you won't need to ultimately document all of your concerns, but starting out with a personal call may be the best first step.

Consider alternatives, but don't compromise your ultimate position. It's likely that what you are facing is a situation where there is a placement dispute that you may need to deal with further down the line through additional IEP meetings and due process complaints. In the meantime, you may have to be willing to accept some other alternative so that your child can go to school. Even if it isn't the best case scenario, this may be a situation where something is better than nothing, so you may need to consent to the placement being offered while documenting that you don't believe it is appropriate and you want to have an IEP meeting to discuss placement.

Try to anticipate these disputes. Although school is not in session and timelines for things like holding IEP meetings or conducting assessments may be different, parents can still pursue due process and all of their related rights during the summer. If you can anticipate that there will be a placement problem in the fall, try to resolve it early on. And if you have to file for due process, do so early in the summer so that the issue may be addressed in mediation, and so that you will have time to file for stay put before the school year starts if you have to.

Don't keep the kid out of school unless there is not any other option, or unless the child will be harmed in some way by going to school. Ultimately, it is the parent's choice, not the advocate's / attorney's. Parents have many factors that they have to weigh in these situations. If there is no placement in place, and the District offers something inappropriate for the start of the school year, you have to balance the advantages / disadvantages of keeping your child at home versus advantages / disadvantages of sending your child to an inappropriate placement. These are tough decisions! But ultimately, refusing to allow your child to attend the school at all, barring some clear indication that the child would be harmed, may work against you in later disputes.

2) I just got a call from the school - and they don't have an aide for my child!

This happens more often than you would think. It's the week before school, or even the day before, and parents get a phone call to say "we don't know if your child can start on the first day because we can't find an aide."

Is the aide support called for in your IEP to be provided by District staff or through a Non-Public Agency? If the aide is to be provided through an NPA, you may be able to do some of the "leg-work" yourself. Start calling around to see if any of the NPAs in your area have an aide available, then let the school know what you found out. Sometimes it is just a matter of getting the information to the right people.

Remind the District that compliance with the IEP is mandatory. If the District is saying that your child can't attend school because they don't have an aide (or other support) in place yet, document that statement in writing and also document your concerns regarding the fact that your child will lose educational benefit if he/she doesn't start the school year with all of the other kids.

Show up the first day anyway! Refusing to let your child attend school because they can't comply with the IEP is basically excluding your child from class because he/she has a disability. If school starts and there is still no aide in place, show up the first day with your child and a copy of your child's IEP and remind the District that they are obligated to implement the program called for in the IEP document. If they refuse to let your child attend class, you can follow this up with a letter documenting what happened.

3) My kid's IEP calls for transportation, but no bus showed up this morning to take him to school!

These situations arise when the school district's transportation schedule isn't all worked out before the school year starts. Sometimes, parents find out beforehand that their kid isn't on the bus schedule. Sometimes parents wait and wait the first morning, and no bus shows up. Other transportation mishaps can also happen the first week of school, like the wrong bus picking up the child, or the bus taking the child to the wrong school location.

Be patient and remember that mistakes happen. While you should document your concerns about the failure to implement transportation (which is a related service) pursuant to your IEP, you should also give the district an opportunity to correct this problem. Bus schedules are complicated, and some transportation guru who isn't part of the IEP process is working hard somewhere to map everything out and make sure the schedule covers every kid that is being transported. Make a phone call and let the school and district staff know that this happened, and that you expect the issue to be resolved immediately so that transportation is provided. Get an estimate as to when you can expect your child's bus schedule to be fixed. If multiple days go by, you may want to request that the district reimburse you for transportation you have had to provide yourself when the IEP wasn't being implemented.

4) My child is in general education, and his teacher didn't even know he had an IEP!

The start of the school year involves a lot of planning for school staff and teachers. They are busy getting their classrooms set up, creating lesson plans, studying new curriculum that will be used, organizing supplies, meeting parents, etc. If you find out that your child's teacher doesn't even know your child has an IEP, doesn't know what accommodations must be implemented, etc, it can be a very upsetting discovery! Reserve your frustration for the school district and the administrator involved in your child's IEP, not the teacher. Talk to the teacher frankly about your child's disability and why you think the IEP is important. Then make sure you let the school district know of the problem, and of your concerns regarding the fact that no one made sure the teacher had the IEP so that it could be implemented.

Ultimately, back-to-school can be a busy, stressful time for everyone involved. There are things you can do to prepare, and to help to ensure that everything will be implemented as needed for your child. But that doesn't guarantee that there won't be any back-to-school problems! Remember to stay calm, and to communicate with your child's school about the issues. Patience and persistence will help you get through whatever happens!

And one more thing- if you already have an attorney/advocate, give them a call as soon as you know these kinds of things are happening! All to often we get a phone call after-the-fact, when most likely there may have been something we could have done in the moment to help things get resolved faster! That being said, don't expect miracles! Ultimately, the District has the power to either comply with the IEP or not, to make resources available or not, or to come up with alternatives to ensure the child is educated even if disputes are happening.

Monday, August 10, 2009

Back To School: Preparing for the New Year

Summer is almost at an end, and soon it will be time for students, teachers and parents to gear up for school year 2009-2010! Most parents, whether of typically developing kids or kids with disabilities, are a little anxious as the school year approaches. What will this year's teacher be like? Will my child make new friends in the classroom? How will the curriculum expectations change? How will my child adjust to a new setting, like middle school? What will the homework expectations be? As parents of students with disabilities get ready for another school year, these questions also lead to questions and concerns about IEPs, assessments, progress reporting, instructional programs, related services, and other issues.

Here is a list of questions for parents to ask themselves as the school year approaches. Thinking about these things ahead of time and getting organized will help parents get this year off on the right track.

Is there an IEP “in place” for the start of the school year?

The school district is required to have an IEP in place at the start of the school year for each child within the district who is eligible for special education and related services. An IEP is “in place” if the District has made an offer of a free appropriate public education (FAPE), and is ready and able to implement the goals, services, accommodations and placement called for within that offer. If you had an IEP meeting in the spring that was not “finalized,” it should be reconvened before the school year starts, to ensure that a program is in place for your child.

Is the IEP signed / have you provided written consent?

If you agree with what the IEP team developed and the District offered in terms of goals, services and placement, you should make sure that you have signed the IEP form indicating your agreement and consent, and that this signature has been provided to the District. You don't want to be in a position of dealing with lack of implementation at the beginning of the school year because the District doesn't have your signature. If there are portions of the IEP that you don't agree with or consent to, or if you have additional concerns that have not been addressed, you should indicate this either in a letter or on the signature page of the IEP. Contact a local special education attorney or advocate to assist you with responding to the IEP if necessary.

Do you understand the IEP and the program that will be provided?

The IEP document should be clear enough for you to fully understand what goals will be addressed, how those goals will be measured, and what special education and related services will be provided. Frequency and location of the services should be specific. Additionally, the District should have included you in any team that made placement decisions, and should have provided you with adequate information about what placement will be offered / provided. Review the IEP document before the school year starts. If there are portions you don't fully understand, ask! If at all possible, discuss these questions with the case carrier, teacher or administrator prior to the start of the school year, so that when the year starts, you are fully informed about what your child will be recieving in his/her special education program.

Does your child’s teacher need additional information regarding your child’s needs?

Don’t assume that the (new) teacher has been given all of the relevant information. Although the school district must provide the teacher with information regarding the IEP so that it can be fully implemented, parents can be proactive in making sure the teachers have enough information. Most teachers will be open (and even grateful!) to friendly and courteous communication from you in regards to your child’s disability, IEP, and the accommodations he/she requires in the classroom. Share this information with your teacher at "open house" or "back to school night." Or, if appropriate, try to contact the teacher directly. Some parents I have worked with like to make a one page "cheat sheet" related to their child at the start of the school year. Remember that IEPs are often lengthy documents, and teachers have a lot of other information to review too. A single page of information about who your child is and what they need may be an efficient, friendly way to introduce yourself and your child to the new teacher.

What information came out of your child’s ESY program that should be shared with the team?

Did your child attend an ESY program or receive other instruction or services over the summer? Consider whether your child’s needs have changed over the summer in such a way that the District may need to reconsider what it has offered and will provide. For example, if your child attended an intensive remediation program that was private or outside of the school district, he/she may have made such progress that the goals written last year are not longer appropriate. Progress (or regression) may be an important consideration in many areas after a summer program, including both academics and non-academics. If you believe this information impacts the IEP, go ahead and let the District know in writing that another meeting needs to be convened to consider current data and make appropriate adjustments. Share information from the program, including progress reports and other data, when appropriate.

Are you aware of how progress will be reported to you during the school year?

Progress reporting is an important part of how you as a parent will be involved in the ongoing development of your child’s program. If you are not fully aware of your child’s progress, or lack thereof, you cannot effectively advocate for changes in the IEP when they are required. The IEP document is required to contain a statement of how progress will be measured and of when you will be provided periodic progress reports on your child’s goals. Check the IEP and make sure this is clear, and mark it on your calendar so that you can know when to expect reports.

What other things do you need to discuss with your child's teacher?

There are some things you will want to know about the new school year regardless of whether or not your child has an IEP. What school supplies does your child need? What are the schoolwide and classroom rules? Will there be any big projects this school year that you should plan on in advance? What are the homework expectations and policies in this class? Most importantly may be the question of how you will communicate with the teacher, and how information you need will get home to you. Will there be notes placed in your child's backpack? Are phonecalls / emails appropriate? These are things you should think about and gather information regarding. I often think that one of the biggest hurdles for parents involved in the special education system is communication. While many districts, administrators and teachers are great at communicating, too often there are limits and attitudes about communication with teachers in the special education world that would not necessarily even come up within the general education world. Remember that your child is a student first, and a special education student second. If you approach the start of the year as would any parent in the general education community in regards to opening the doors of communication with your child's teacher, those doors will possibly stay open for productive, two-way communication.

Have appropriate arrangements been made for transportation, medications, etc?

If your child's IEP calls for transportation to be provided as a related service, make sure that arrangements are in place for transportation to be implemented, and that you know the schedule, drop off / pick up place, and other relevant information. If your child is taking regular school district transportation, you also need to find out all of the relevant details regarding that. Otherwise, if you are arranging for transportation privately or are taking your child to school yourself, make sure you know the whens, wheres and hows of drop off, pick up, etc.

Medications may also require some advance planning and arrangments. Make sure all medication and prescription information is up to date, and see your child's pediatrician before school starts if needed. Fill out and return any necessary forms for the school nurse related to medication dosage and administration. If your child's teacher also needs to be made aware of any medication information, including possible side effects, share this information as appropriate.

Do you have organized records and a system in place for gathering documents related to your child's education?

Having everything organized is a great way to start the year off right. We recommend that parents organize their child's documents by category; IEPs, assessments, correspondence / communications, progress reports, other; and then chronologically within the category. There are other ways to do it: you could organize everything in one place chronologically with an index, or you could have a separate folder / binder for each school year. Go to the back to school section at the local discount store or supply store and get a three ring binder and some dividers, and then decide what system will work best for you.

The National Center for Learning Disabilities has a great checklist for what you should have within your child's records. You can print it out at their website. Your records should be in a system that is easily updated so that as the year goes by, you can add progress reports and other documents as appropriate. It is also a good idea to have a designated place for forms that you need to review, fill out and return to the school.

What can you do to prepare your child?

Back to school time is a transition, and can be stressful for any child, particularly for some children with disabilities. In most circumstances, there are many things parents can do to make the transition less stressful. "Priming" your child for the school year can be a great strategy - talk to your child about what to expect, focusing on the positive aspects. Let your child tour the school if needed or if it is a new setting. Work with your child's providers, if possible, to develop strategies like social stories to help the child get ready for the new year. Most importantly, be a good listener and listen to any concerns or worries your child has about school.

The website "Additude" has a great article on preparing your child with ADHD for going back to school, and their tips would be applicable to many kids with other diagnoses as well.

Remember that the IEP process is a team process, and truly successful implementation of an appropriate education can only come through team effort as well. If everyone does their part to get the school year started on the right track, there is a much greater opportunity for building success and meaningful progress for the child, as well as productive cooperation between parents and teachers throughout the year.

Friday, August 7, 2009

Autism on 20/20 Tonight

Watch 20/20 tonight, and be inspired by Carly, and
by her family's determination to help her find her voice.

You can read more about Carly on at "Carly's Voice"

Fast Fact Friday: Individual Services Plan

There are certain circumstances where a Parent of a student with special needs may decide to place their child in a private placement even if they believe the school district is providing an appropriate placement.

A parentally-placed private school child with a disability is, under the law a child "with disabilities enrolled by their parents in private, including religous schools or facilities that meet the definition of elementary school or secondary school," who have not been referred to that placement by the LEA. See 34 CFR 300.130. When you have privately placed your student, generally speaking, you are not entitled to services for that student.

School districts do, however, have an obligation to allocate some special education funds to parentally-placed private school children. If the school district decides to provide a student with any services they must develop an individual services plan, which describes the specific special education and related services to be provided to each private school student. See 34 CFR 300.132(b). These service plans are to be developed, reviewed, and revised consistent with the procedures governing IEPs. See 34 CFR 300.137(c)(1). In preparing service plans and providing services, the district must consult with private school representatives. See 34 CFR 300.137(c)(2). In particular, the district must ensure that a representative of the private school attends these meetings, or in the alternative, uses other methods to secure the involvement of such individuals such as individual or conference phone calls.

IEPs are generally more comprehensive than the more limited services plans developed for parentally placed private school children with disabilities designated to receive services. A services plan should reflect only the services offered to a parentally placed private school child with a disability designated to receive services and must, to the extent appropriate, meet the IEP content requirements or, when appropriate, for children aged three through five, the IFSP requirements as to the services that are to be provided. See Questions and Answers on Serving Children with Disabilities Placed by Their Parents at Private Schools, 106 LRP 57733 (OSEP 2006).

What to Expect When You're Expecting an IEP

With the start of school looming in the not-so-distant future it's time to get prepared for those IEP meetings - you know the ones you requested at the end of the school year and will be happening sooner than you know it once school is back in session. So here's some pointers for what you can expect when you're expecting an IEP and what to avoid.

Preemptive Strikes

If you requested an IEP at the end of the school year the District may have already scheduled an IEP or may be contacting you shortly to do so. As with many IEPs the District may only schedule a few hours for the meeting. If you think the meeting is going to take longer or, especially in this scenario, the IEP is to review reports from the school district, which you have not received a copy of yet, make a request for two IEP dates. As soon as school starts, if not sooner, send a follow-up letter requesting a second IEP date in the event that the meeting does not finish in the allotted time - indicate that if you have a chance to review the District's reports ahead of time then you likely won't need the second meeting. This will have one of two results: 1) the district will make sure you get the reports ahead of time; or 2) they won't be shocked when you ask to have more time to review the reports and come back a week later to finish the IEP. (Well in all honesty there is a third option where someone moans and whines about coming back again to finish the IEP - in that circumstance let them know that you value their time but you did indicate that you would need the reports ahead of time so they should really talk to the person in charge.)

Another issue that you may need to take a stand on before the meeting even happens is attendance of IEP members. Under the law required IEP team members need to be present or have been excused ahead of time. Required members include the core team members as well as anyone who may have done an assessment, for example. Many a time a school district will wait until the meeting to give you a form to sign to have the member leave or just say they have to leave. If you think you need all the members there the whole time or there is someone in particular whose input you think is necessary - let the district know in writing beforehand that you expect that person or persons to be in attendance the whole time or -again - they can schedule another meeting the following week to ensure full audience/IEP team member participation.

What Not to Say and How Not to Say It

I have clients ask me all the time what they shouldn't say at an IEP meeting. Generally speaking you should feel free to share any information you think is important about your child.

What you should not say is that you want what is "best" for your child. That's the most dreaded four letter word a client could say. As harsh as it may be and even if the district members of the IEP team freely toss it around,your student is not entitled to the "best" and therefore don't ask for it. And if you say it once you can't take it back - someone, somewhere at some point will remember that. (If only there was a citronella collar for parents that would spray them in the face every time they said "best" like with a barking dog.)

Also don't yell at the IEP team. I realize that this is emotional and that now that you can't say you want what is best you're feeling a little frustrated and that someone may be looking at you like you asked for your child to take a shuttle to the moon instead of an extra half hour of speech but above all else it is best if you keep your cool. Why? Well for starters every member of the team may not remember why you yelled but they will remember that you did and that can hurt your creditability later on if you need to go the next level (such as a due process hearing). Second, if you do decide to litigate a matter you don't want the impression that it was done for any other purpose other than to get what is appropriate for your child, and not to retaliate against the school district. Which brings us to a whole other list of things not to say - that you will make them pay, that you will sue someone personally, etc. Basically, you need to be the Mother Theresa, Gandhi, Dalai Lama, Martin Luther King of the IEP team. Find a way to get your point across and still get along with everyone or at least be civil.

Finally, know when it is best to say nothing at all. If the district is digging themselves a shallow grave - let them do it. This is probably the hardest part of any IEP meeting and can probably best be demonstrated with a real-life example. If you are tape recording an IEP meeting and several members of the team indicate that they don't have the power to make a decision in this matter and that you will need to speak to someone at the "district' (which apparently they are not a part of), just ask for clarification ("So, just to clarify you can't offer my student a NPS, speech and language, etc.") and when they affirm it is best to be quiet at this point. Why? Well, if you've been paying attention you would know that this is clearly a big no-no on the part of the IEP team and someone at the "district" may be more willing to be cooperative after you share this snippet of information.

Don't Sign Anything

I've said this before (I'm sure) but don't sign anything at the meeting that you haven't fully had the chance to read - and this goes for more than the IEP itself. What could they possibly ask you to sign, you ask, well here are a few: an invitation to the IEP meeting (that you never received), an assessment plan (for an assessment they will be presenting that you never agreed to or participated in), or an excusal of IEP team members (who you want there). Note that most of these are items that you had to agree to before the IEP meeting, not once you are sitting there ready to go.

My Favorite Thing To Say

And no it is not supercalifragilisticexpialidocious. It may, however, make you sound precocious. Anyway, I have found it is a way to disagree with what someone is saying and yet make them feel in control of the situation. Here's the setup: An IEP team member is rattling off about how your child does not need some related service, let's say speech and language. You, however, have their own report which indicates that the student has needs in the area of pragmatics. What to say: "Correct me if I'm wrong, but couldn't a speech therapist address pragmatics, and doesn't your report indicate that is an area of concern?" And now what can they say? The trick, of course, is to not ever say anything that is wrong and therefore never be corrected.

If after reading this you are under the impression that these types of scenarios could never happen - then it is likely you're a first-timer or early on in the process and would benefit from learning about what is legally mandated to be in an IEP. You should then see the posts labeled "Breaking Down the IEP" - a series of posts that walks you through the nuts and bolts of what goes in an IEP. The most beneficial thing a parent (or teacher, or any other IEP participant) can do is to educate themselves about IEPs, special education programs, and the rights and responsibilities of parents and districts. The more you know, the better you can advocate for your child!

Thursday, August 6, 2009

Related Services: Medical Services

Under the IDEA "medical services" that are eligible "related services" are those specific "services provided by a licensed physician to determine a child's medically related disability that results in the child's needs for special education and other related services." 34 CFR 300.34(c)(5). Therefore, if the medical services is necessary for diagnostic purposes it is required under the IDEA.

The Supreme Court has adopted a bright line rule on this issue as well, finding that medical services that can only be delivered by a physician are not related services and that health care support services, which can be administered by a person other than a physician are related services under the IDEA and therefore the responsibility of the school district. See Irving Independent School District v. Tatro, 555 IDELR 511 (1984), affirmed in Cedar Rapids Community School District v. Garret F. by Charlene F., 29 IDELR 966 (1999).

The Department of Education clarified in the 2006 IDEA Part B regulations that school districts are responsible for "providing services necessary to maintain the health and safety of a child while the child is in school, with breathing, nutrition, and other bodily functions (e.g., nursing services, suctioning a tracheotomy, urinary catheterization) if these services can be provided by someone who has been trained to provide the service and are not the type of services that can only be provided by a licensed physician." See Analysis of Comments and Changes to 2006 IDEA Part B Regulations, 71 Fed. Reg. 46571 (August 14, 2006). Thereofre, a medically fragile student, for example, would be eligible for health care related services that are supportive services the child needs to receive during the day in order to be able to attend school and thereby benefit from his or her education and should be noted in the child's IEP.

The Department of Education also clarified what type of medical services would not be related services. Specifically the DOE clarified that the optimization of a surgically implanted device's functioning, maintenance of the device or replacement of the device that requires the expertise of a licensed physician or an individual with specialized technical expertise beyond that typically available from school personnel (e.g., mapping of a cochlear implant) was not a related service. See id.; see also 34 CFR 300.34(b)(1). This does not limit, however, the right of the student with a surgically implanted device to receive other related services that are necessary for the child to receive a FAPE. It also does not limit the responsibility of the district to monitor and maintain devices that are need to maintain the health and safety of the child while he or she is being transported to and from school or is at school. Nor does it prevent the routine checking of a external component of a surgically implanted device to make sure it is functioning properly. See 34 CFR 300.113(b).

One related health service that a school district would likely responsible for would be vision therapy, if it was necessary to assist the child's educational needs and did not require administration by a physician. The decision about whether a student requires a related service such as vision therapy is, of course, a case-by-case determination for what is required for a FAPE.

For example, in Dekalb County Sch. Dist., the 11th Circuit ruled that a district's IEP for a student with a visual condition, which had not manifested itself in poor educational performance, prevented him from receiving FAPE. The court upheld an order to the district to pay for the student'svision therapy services. The evidence showed the student's significant visual problems would become much worse and interfere significantly with his ability to benefit from special education without the therapy. Therefore, the district was required to provide vision therapy in order to offer the student FAPE. See Dekalb County Sch. Dist. v. M.T.V. by C.E.V. and C.T.V., 45 IDELR 30(11th Cir. 2006). In Eugene Sch. Dist., however, it was determined that a student eligible for special education with Emotional Disturbance did not require vision therapy to benefit from his education as his above-average performance in reading comprehension undermined the parent's position that he required vision therapy to make academic progress. See Eugene Sch. Dist. 4J, 35 IDELR 52 (SEA OR 2001).