Your Legal Companion for IEPs

1. Introduction to Special Education

• What Is Special Education?
• What Is an IEP?
• Being Your Child’s Advocate
• Getting Help From Others

2. Your Child’s Rights Under the IDEA

• Learning Disabilities
• IDEA and State Special Education Laws
• What IDEA Requires
• Individualized Education Program
• Working With Your School District

3. What Is a Learning Disability?

• Legal Definitions
• Scientific and Professional Definitions
• Does Your Child Have a Learning Disability?
• Signs of a Learning Disability
• Learning Disabilities and the IEP Process
• Harassment

4. Getting Started

• First Steps
• Obtain Your Child’s School Records
• Start an IEP Binder
• Keep Track of Deadlines

5. Developing Your Child’s IEP Blueprint

• Begin at the End: Define Your Child’s Needs
• Preparing an IEP Blueprint
• Other Sources of Information for the Blueprint
• What’s Next?

6. Evaluations

• When Evaluations Are Done
• The Evaluation Plan
• Analyzing the Tests
• Approving, Rejecting, or Changing the Evaluation Plan
• Reviewing the Report
• Reevaluations
• Final Evaluations

7. Eligibility

• Eligibility Requirements: Generally
• Eligibility Standards for Children With Learning Disabilities
• Preparing for the IEP Eligibility Meeting
• Attending the Eligibility Meeting
• Joint IEP Eligibility/Program Meeting
• If Your Child Is Not Found Eligible for Special Education

8. Gathering Information and Evidence

• Analyze the School District’s Information
• Chart Your Child’s Progress
• Explore Available School Programs
• Find Out About Related Services
• Compare Your Blueprint With the Existing Program and Services
• Generate Additional Supporting Information
• Independent Evaluations

9. Goals

• Skill Areas Covered by Goals
• Developing Goals
• When to Draft Goals
• Writing Effective Goals

10. Preparing for the IEP Meeting

• Schedule the IEP Meeting
• The IEP Meeting Agenda
• Organize Your Materials
• Draft Your Child’s IEP Program
• Establish Who Will Attend the IEP Meeting
• Final Preparation

11. The IEP Meeting

• Getting Started
• Simple Rules for a Successful IEP Meeting
• Become Familiar With Your School’s IEP Form
• Writing the IEP Plan
• Sign the IEP Document
• Parent Addendum Page

12. Resolving IEP Disputes Through Due Process

• Timeline for Requesting Due Process
• When You Can go Straight to Court Instead of a Due Process Hearing
• Before Due Process: Informal Negotiations
• Typical Due Process Disputes
• When to Pursue Due Process
• Who Can File?
• Your Child’s Status During Due Process
• Using a Lawyer During Due Process
• How to Begin Due Process
• Prepare for Due Process
• Mediation Specifics
• Due Process Hearing
• Hearing Decision and Appeals

13. Filing a Complaint

• When to File a Complaint
• Where to File a Complaint
• What to Include in a Complaint
• What Happens When You File a Complaint

14. Lawyers and Legal Research

• How a Lawyer Can Help
• Do You Need a Lawyer?
• Finding an Attorney
• How Attorneys Are Paid
• Resolving Problems With a Lawyer
• Doing Your Own Legal Research
• Online Legal Research

15. Parent Organizations

• Join a Parent Organization
• Form a Parent Organization

16. How to Use the Companion Page on Nolo.com

• Using the forms From the Companion Page
• Editing RTFs
• List of Forms

Appendixes  (All of the following appendixes are available on the Companion Page on Nolo.com)

A. Special Education Law and Regulations

B. Support Groups, Advocacy Organizations, and Other Resouces

C. The Severe Discrepancy Model

D. Sample IEP Form

E. Forms

Index

Chapter 1
Introduction to Special Education

What Is Special Education?

The details and reach of the Individuals with Disability Education Act are remarkable—no other law in this nation provides such clear and unique legal protection for children. Congress first enacted the IDEA in 1975 because public schools were frequently ignoring children with disabilities or shunting them off to inferior or distant programs. IDEA set forth a number of legal mandates for children receiving special education. The most important ones are:

     Your child is entitled to a “free appropriate public education” in the “least restrictive environment.”

     Your child is entitled to a comprehensive evaluation of his or her needs, and the district cannot evaluate your child without your approval unless it takes you to a due process hearing and prevails.

     Your child is entitled to have a written individualized education program (IEP) that is developed by an entire team, including you and school representatives, on at least an annual basis.

     Your child’s IEP must include measurable annual goals.

     Your child is entitled to “related services” that will help your child benefit from his or her special education.

     Your child is entitled to placement in a private school at public expense if the school district cannot provide an appropriate placement.

     Your child is entitled to be educated as close to home as possible and in the school your child would attend if not disabled.

     You can ask for a mediation and hearing before an impartial third party if you do not agree with the district about any component of the IEP, including even whether your child is eligible for special education.

     Your child’s IEP cannot be unilaterally changed by your school district. First, you must agree to that change.

What Is an IEP?

The acronym IEP can refer to several different things:

     the initial meeting that determines whether your child is eligible for special education (the IEP eligibility meeting)

     the annual meeting at which you and school representatives develop your child’s educational program for the following school year (called the IEP program meeting), or

     the actual detailed, written description of your child’s educational program.

The written IEP should include:

     the specific program or class for your child (called “placement”)

     the specific services (called “related services”) your child will receive, and

     other educational components, such as curricula and teaching methods.

There is one major caveat, however, in the rights that IDEA grants to your child. IDEA does not require that the school district provide the best possible program. The program that is individualized for your child only has to provide an appropriate educational experience. An appropriate educational experience is one that is reasonable, given your child’s particular needs. For instance, you may feel that the private school across town would be the best for your child in terms of accelerating his or her growth. But if the district’s program can provide a reasonable chance at growth, the law does not require the district to pay for private school placement. Or, you may feel that although three hours of speech therapy a week will work, six hours would be great. IDEA does not require “great.”

The key to preparing to advocate for your child is to focus on showing that the program and services you seek are appropriate. This book will explain the crucial steps in doing so, including:

     how to state your child’s needs as specifically and narrowly as possible, and how to make sure those needs are reflected in program components. For example, it is one thing to say “my child needs help with his expressive language”; it is quite another to say “he needs three hours a week of one-on-one speech help to work on his articu­lation and verbal pragmatics.” The first statement is much too broad; the second is specific and clearly states what assistance your child needs.

     how to provide specific proof of your child’s needs, by using an evaluation, a report, or testimony from an educator or professional who can specify what your child needs, why, and for how long.

     how to provide the evidence that backs up your position. It is always best if someone inside your school district—whether the classroom teacher, service provider, assessor or administrator—agrees with you about what your child needs. But because you may not always have that support, you may need an expert outside of the district to describe your child’s needs and recommend placement and services that will address those needs.

     how to use the proof you gather in the IEP process and, if the IEP team fails to agree with you, how to present it in a due process mediation or hearing.

     what to do when the district fails to follow the legal requirements set forth by IDEA.

Being Your Child’s Advocate

This book also highlights the practical aspects of being an advocate for your special education child. While these may seem obvious, it is always helpful to be reminded. The tips below can make the difference in whether or not you obtain an appropriate education for your child.

Organization, Organization, Organization

The path to success begins with meticulous organiza­tion, starting with knowing when there should be an IEP meeting and keeping track of your child’s progress. File copies of all letters you write to the school district, as well as notes you make of what people say and when. For example, suppose your child’s teacher tells you on Wednesday afternoon that your child needs speech therapy. You ask why and he or she explains. When you get home, you sit down and record the details (the date, time, place, and content of your con­ver­sation). This information may be vital at the next IEP meeting, when the issue of speech therapy comes up.

Always Ask Why

If you don’t know, ask. And if an answer is provided and you don’t feel it explained things fully, ask again. You are not an expert in IDEA law, but you will know enough of it to recognize the key components. If something does not make sense to you, or if an administrator says, “Well, we just don’t do it that way,” ask why. If he or she refers to a law (a statute or regulation) or a policy, ask to see a copy of it. If that does not work, write a letter asking for the information. You might phrase it like this: “You said last week [date] that the district could not provide my child with a one-on-one aide; that it was district policy [or because of budget cuts, or because you didn’t think my child needed an aide]. I would appreciate it if you would provide me with the basis for that position. Is it part of the district’s written policy, is it your opinion, or is it part of the law (if so, please send me a copy of that law)? Thank you.”

Style

It is likely that sometime during your child’s years in special education, you will go to an IEP meeting or have a conversation during which someone from the school district says something that offends you or makes you angry. Please keep in mind that you are more likely to persuade the district of your position if you act reasonably rather than in anger. Of course, though you have to be true to you own style and there is nothing wrong with being emotional, blowing a gasket does not usually work and only signals that the discussion has come to a close. If possible, in these situations it is best to be clear, precise, and determined. Give your reaction but be as measured and calm as you can, as in “I know you would not want to deny students what they need, but I believe that the reports we have submitted are clear and there is no doubt that my daughter needs a one-on-one aide, two hours a day. Her teacher said as much. I think your position is not based on evidence and I do not appreciate your tone of voice or the manner in which you are treating us. I hope we can resolve this positively through the IEP, but if not I can assure you we will proceed as we must.”

Your Child’s Teacher

Your child’s teacher is your best potential ally. My personal view is that teachers are as important as any working group in our nation. They teach, counsel, police, nurse, and often work all day, most nights, and many weekends to help children develop. And they do it for lousy pay, while shouldering a ton of paperwork (especially if they teach special education students), along with pressures from their own administration.

Your child’s teacher knows your child better than anyone else in the school system. If you can work directly and positively with the teacher, you will have a strong ally at the IEP meeting. That does not mean that the teacher will always agree with you; in the areas that he or she does, however, the teacher’s input is vitally important. Respect your teacher’s intelligence, motives, and time. Be reasonable in your demands.

Setting Realistic Goals

One of the hardest things a lawyer sometimes has to say to a family is that their IEP goals are not supported by evidence. As a parent, I understand how difficult this is to hear. But for the sake of your child, you sometimes need to face it: By looking at the evidence as objectively as possible, and recognizing when there is insufficient support for some or all of your goals, you will more effectively represent your child and eliminate wasted time and resources.  

Remember as well that neither party to the IEP—not the parents nor the school district—has to agree to anything, no matter how powerful the support is or how effectively one side makes its point. Parents are often frustrated when the school administrator simply says “No, we don’t agree about that.” But you want to yell, “My child needs it, the support is there for it, how can you possibly say that!?” Each party to the IEP has the absolute right to make a decision and stick with it. Parents who remain dissatisfied with the school’s position do, however, have a next step: They can challenge the school’s factual conclusions (such as whether your child is eligible) through mediation (see Chapter 12); and they can challenge the school’s interpretation of the law by filing a complaint (see Chapter 13).

It is imperative that you represent your child with a solid understanding of the law and its plusses and limitations. Otherwise, the process will be one of continual frustration. Think of it as going into a process where you will be a better advocate by knowing where the challenges are.

The IDEA’s mandates—goals, placement, and related services as close to home as possible—are not absolute but determined through the IEP process and, therefore, whether your child is entitled to a specific goal, placement or service will depend on your showing the need. For example, if you feel your child needs a related service or you want your child in her neighborhood school, it’s possible your school district will disagree. You will have to prove your child’s need and then the specifics of the related service—how often, provided by whom, and so on. That the law says your child is entitled to a related service is a broad mandate that’s dependent on an agreement by you and the school district.

As with any child with a learning disability, you will also need to specifically tie your child’s special needs to the placement, goals and services that you believe your child needs to address his or her learning disabilities. As they say, the devil is in the detail.

Getting Help From Others

Other parents, local groups, and regional or national ­organizations can be of great help as you wend your way through special education. The amount of information these folks have is amazing. Other parents and parent groups can be your best resource. Parents who have been through the process before can help you avoid making mistakes or undertaking unnecessary tasks. Most important, they can be a source of real encouragement. Chapter 15 provides further thoughts on ­making use of your local special ­education community.

Note: Reference is made throughout this book to parents, but the term is used to include foster parents and legal guardians. 

 

Get involved. Like many laws, after its initial passage IDEA was revisited and reapproved by Congress, in what’s known as “reauthorization.” Reauthorization does not happen every year, but when it does, it’s a good time for advocates and others to improve IDEA. If you are interested in that process, contact an advocacy group; you’ll find a list in Appendix B on this book’s Companion Page on www.nolo.com. See Chapter 16 for the link.

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