Persuasive Arguments in an IEP Meeting: Using the Law to Make your Point

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By Reed Martin, J.D.
Margaret B. enters the room where her son’s IEP meeting will be held. At the table sit his Special Education teacher, the school’s Speech Therapist, and the school’s ‘heavy weights’ – the psychologist, administrator, their attorney and two of his juniors. There you are alone, uneasy and desperate for services for your child. After very brief pleasantries (the attorney needs to leave in an hour), they present to you the completed IEP for your signature, assuring you that they have “done their best” in designing a program that will “hopefully work for the very difficult and unusual needs” of your son with autism. You look through it and it contains only two goals, very little in the line of additional services, and none of the accommodations you had previously presented to them as being helpful for your son. You think that more goals should be included, you say. The teacher tells you that IF your son can achieve these goals – and she’s not sure he can – then she’s willing to consider adding others later in the year. When you question how much this IEP will help your son, the psychologist steps in with a verbose explanation, in doctoral-level language, about why it’s the “best” program to meet his needs.He adds that this is his PROFESSIONAL opinion, and he’s the one who has been trained to know these things. The administrator echoes that school funding doesn’t support any other services, but adds, “here’s a list of therapists who can provide you with those services, for a fee, of course.” Your intimidation level skyrockets. Depressed, sad and confused, you mention that you’d like to visit the classroom a few times and see how this plan is working for your son. “ABSOLUTELY NOT” booms the attorney, citing the illegal nature of invading other children’s privacy. You sign the IEP, leave the room, worried about how you’re ever going to pay for the services your son really needs. “Is this how it’s supposed to go?” you wonder. “Doesn’t anyone care about my child’s future but me?”

Sound familiar, in whole or in part? This scene is probably familiar to any parent who has attended an IEP meeting. And, it’s fraught with illegal actions and claims by everyone present, some perhaps even knowing and intentional law breaking. Every day of every week we hear from parents who attend an IEP meeting, only to leave it dazed and confused, battered and beaten, without the services their child needs. What to do? Know the law; plain and simple. It’s your best tool for obtaining appropriate services for your child with autism. And, to help you walk into that IEP meeting better prepared, we’ve assembled some of the most common complaints below, explained what’s legal and what’s not, and included the legal citation or court case that backs it up. Carry it with you to your next meeting, armed with knowledge that can help you contest what your school is saying and effectively advocate for services.

IEP GOALS
The Federal laws governing special education (IDEA, Section 504 and the Americans with Disabilities Act) do not allow any limit on the number of goals or the number of areas to be addressed on an IEP (or 504/ADA plan). A school who tells you otherwise is in clear violation of the law. And, you can catch them in this violation, in writing. School personnel are required to document any such statement about limiting the number of goals, in writing on the IEP minutes. Furthermore, they are required by Federal law [20 U.S.C. 1415(b)(3) and (c)] to also put in writing to the parent that they are rejecting the parent’s request to address additional goals, a written explanation of why they reject the request, a description of all the options they considered in arriving at this decision, why these other options were rejected, a description of what evaluation, assessment or other reasoning they are using as a basis for their decision, and any other relevant factors.

These report details (and the IDEA asks for even more of them!) have to do with procedural requirements of designing a special education plan for your child. In the first special education case to be dealt with by our U.S. Supreme Court, Board of Education v. Rowley, 458 U.S. 176 (1992), Chief Justice Rehnquist stated that first we look to see if “the Act’s procedures were complied with” and only after that do we inquire whether “the resulting IEP was reasonably calculated to confer benefit.”

Whether or not the IEP might confer benefit is not even a question in our above scenario. If taken to court, the school would be found in flagrant violation of the Act’s procedural requirements, without even discussing if it was appropriate. (See, for example, Shapiro v. Paradise Valley Sch. Dist. 9th Circuit, 2003.)

PRIOR WRITTEN NOTICE
That the school has to address, in writing, those procedural requirements of how they arrived at their decisions is referred to in the IDEA as “Prior Written Notice”. A common violation of the law reported over and over to us is that the school personnel say ‘The IEP is your Prior Written Notice.’ They know about the requirement and have come up with this crafty response. But it’s illegal.

The IDEA statute details at 20 U.S.C. 1415(c) the seven elements (some of which we described above) that must be put in writing. If you are told the IEP is your notice, here’s what to do. Send a copy of your IEP back to your school and ask them, in writing, to explain to you, in writing, what text in the IEP answers the seven elements required in the Federal law. This writer has reviewed over 6,000 IEPs and has never seen Prior Written Notice satisfied in a single one. Lately, we have begun to see IEPs with a page cleverly entitled “Prior Written Notice”, but none of these documents have fulfilled the statutorily required seven elements.
Between no limits on IEP goals and the procedural requirements of Prior Written Notice, you’re armed with federal legislation that is extremely powerful for you to get an IEP that is appropriate for your child. USE IT!

MEDICAL, NOT EDUCATIONAL
A related issue to appropriate goals and services on the IEP is the question of what constitutes ‘education.’ Parents are frequently told by school personnel that while a particular request for a child is important, that therapy or service “is medical, not educational” and thus not the responsibility of the school to provide. Some schools even appear helpful, offering parents information on a particular type of evaluation or service to obtain on their own. Other schools agree that the service might help and are willing to accommodate it into the child’s day at school, provided the parents arrange for it, and pay for it, because again, it’s “not educational”.

The U.S. Supreme Court decided in a 9?0 decision in 1984 (Tatro v. Irving Independent School District, 468 U.S. 883) that ‘education’ extends far beyond just academics, and includes services such as transportation; developmental, corrective and other supportive services; psychological services; physical and occupational therapy; recreation including therapeutic recreation; social work services; counseling services including rehabilitation counseling; orientation and mobility services and medical services for diagnostic and evaluation purposes. (20 U.S.C. 1402(22)). The Supreme Court reaffirmed that ruling in a 7?2 decision (Cedar Rapids Community School District v. Garret F, 119 S.Ct. 992) in 1999. The schools in both cases were ordered to pay for the medical diagnostics and to pay for, or provide themselves, the services needed. The IDEA also provides a detailed list of related services that, if appropriate, the school is mandated to provide. This is quickly found within the IDEA regulations at 34 C.F.R. 300.24(2)-(15) and also in the Q&A that accompanies the regs at 34 C.F.R. 300, App.A, Q&A 34. Ask yourself two questions about the item(s) you want included on the IEP: 1) is it something the school offers to nondisabled children? If so, they’re required to make it possible for your child with autism to participate too; 2) does it contribute to the ability of your child with autism to benefit from his daily school experience? If so, it’s EDUCATIONAL. Don’t let the school tell you otherwise.

SECTION 504
Many parents inquire about Section 504 and its applicability to the education of a child with autism/AS, only to be told “We don’t do 504” or “504 is not special ed.” Another response we hear is: “If you have a complaint under 504, you need to send it to the Office for Civil Rights in Washington, D.C, ? we don’t investigate 504 complaints.”

Oh, my! How sad that this school is so uninformed and so blatantly illegal in their actions. Section 504 at 34 C.F.R. (Code of Federal Regulations) 104.5 is entitled “Assurances Required.” It requires your school district and State Education Agency to send written forms to the Federal Government which assure that they are in complete compliance with Section 504 ? or else they cannot receive a penny of any kind of Federal financial assistance.

Furthermore, 34 C.F.R. 104.33 of the 504 regulations are entitled “Free Appropriate Public Education” and require “the provision of regular or special education and related aids and services.” So, next time you hear “We don’t do 504” ask your school district if it gets federal money and if so, ask in writing for a copy of their assurance to the Federal government that they are in full compliance with Section 504 – a condition of that funding.

If you’ve been reading our columns in the Autism Asperger’s Digest for any length of time, you know that this writer actively advocates that Section 504 is an extremely powerful piece of legislation in obtaining services for a child with autism, sometimes more so than the IDEA. A parent can use both pieces of legislation as support for a child’s education; it’s not an either/or situation in an IEP meeting. That’s another complaint we sometimes hear, “You can’t mix IDEA and 504.” Wrong. IDEA, 504 and ADA are available for obtaining the services and education your child needs. Be bold!

APPROPRIATELY TRAINED PERSONNEL
Parents are increasingly asking their school for information about the personnel that are dealing with their child. They may worry about the teacher’s knowledge of autism or Asperger’s, or the teacher’s aide, who often treats the child in a very punitive manner. Or it might be that the parents feel the staff are just not reaching their child. Are these people really trained to meet your child’s needs?
The Federal law has required since 1968 that your school district and State Education Agency have in place “a comprehensive system of personnel development that is designed to ensure an adequate supply of qualified special education, regular education and related services personnel…” that are “appropriately and adequately prepared and trained.” 20 U.S.C. 1412(14) and (15) documents this requirement. In a nutshell, it means that ALL personnel who come in contact with your child need to be trained in the specific disability (autism or Asperger’s), not just ‘special education’, that the school has an adequate number of these trained people, and that their training is extensive and specific enough that it is ‘appropriate’ to deal with your child’s needs. Not John’s, or Sue’s or Jamie’s needs, who also have autism but are more high functioning or don’t manifest the same needs. They need to be trained to help your child. Need we say more?

Parents now have a right under the recent No Child Left Behind Act to write their school, and ask for a response in writing, about the credentials, qualifications, training, and so forth of personnel who are going to be in contact with their children. We hear from parents that they are told by their school that they cannot discuss credentials of a school person at an IEP meeting and that the IEP certainly cannot dictate the training of a school person. WRONG. That is exactly what the IEP meeting is for ? to clarify the needs of that one child and assure that the school personnel assigned will be competent and trained to meet them. And that is exactly why No Child Left Behind gives you the right to question their training.

GOOD FAITH EFFORT by STAFF
Law makers have taken an increasingly strong stance that supports the idea that even appropriately trained staff is not enough in designing a child’s education plan. The IDEA at 34 C.F.R. 300.342(b)(3) requires that your school district assure that “Each teacher and provider is informed of his or her specific responsibilities related to implementing the child’s IEP and the specific accommodations, modifications, and supports that must be provided for the child in accordance with the IEP.” This speaks to everyone being informed and responsible.

Once they are informed, the IDEA also requires accountability, at 34 C.F.R. 300.350(a)(2) that everyone is making “a good faith effort to assist the child to achieve the goals and objectives or benchmarks listed in the IEP.” The fact that the law establishes that “good faith effort” standard is very important because the parent can rightly inquire into whether it is being met. A teacher who says about something in the IEP “I am not going to do that in my classroom” will be breaking the law. Even if he doesn’t say it at the meeting, but never implements the IEP requirements, that is still breaking the law. An IEP team who refuses to hire someone trained and qualified to provide services your child needs is breaking the law. You might want to ‘mention’ in the meeting that recent changes through Supreme Court decisions (see Gerber v. Lago Vista and Davis v. Monroe on our website) provide the possibility to sue not just the school, but personally the administrator and the special education teacher, and the speech therapist and anyone else in the school system who works with your child if they are not satisfying the federal requirements.

SUSPENSION/EXPLUSION
Is your child repeatedly being suspended because of his/her behavior? Are teachers referring to your child as a ‘behavior problem’? Yet you know that the behavior is not willful, but is a manifestation of his challenges with autism that the school is ignoring? Are you hearing the term ’emotionally disturbed’ taking the place of his Autism or Asperger’s syndrome label? While disconcerting, that is not all that bad. Whatever the cause may be for a child’s ‘behavior problem’, if the school identifies that one exists, the IDEA requires that a very sophisticated and comprehensive evaluation be undertaken to determine the source of the problem, the conditions under which the behavior manifests and the design of a Positive Behavior Intervention Strategy and Support Plan. (20 U.S.C. 1414(d)(3)(8)(i)). More good news: the evaluation has to be done within 10 days, so help for your child should be forthcoming soon.

Many parents tell us that after mentioning this legislative requirement to the school, the school states they have no idea what the parents are talking about. What to do? Put your request in writing, ask for an evaluation, a new IEP meeting, and Prior Written Notice from the school explaining the school’s refusal to conduct the evaluation and the meeting to develop the Positive Behavior Intervention Strategies and Support plan. That should get their attention.

OBSERVATION IN THE CLASSROOM
You’ve met with the school, the IEP you’ve designed should be promising, you’re excited about its implementation. But you want to know how the program’s working. You want to observe it in action, as often children with autism cannot tell us what we really want to know. However, when you ask about this in the IEP meeting, the school emphatically states that you cannot visit the classroom because it would violate the privacy rights of the other children.

Wrong. The U.S. Supreme Court has indicated in a recent decision, Falvo v. Owasso Indep.Sch.Dist. [122 S.CT. 934, 2002] that an observation of your child does not violate the Federal privacy laws established under the Family Educational Rights and Privacy Act [20 U.S.C. 1232g].
If this citation doesn’t get you a pass to visit the classroom, demand, in writing, that your school make that statement in writing and that they enclose a copy of the minutes of the school board meeting when the board adopted the written policy barring parents from visiting or observing their child being educated.

TRANSITION PLANNING
What parent of a child with autism/AS is not worried about their child’s life after school ends? Parents around the country tell us that when they raise the issue of Transition Planning at their IEP or 504/ADA meetings, the school responds that transition planning is really the province of the State Rehabilitation Agency and gives the parent the phone number.

Transition Planning was placed in the ADA in 1990, the IDEA in 1990 (20 U.S.C. 1402(30) with regs at 34 C.F.R. 300.29) and Section 504 in 1992 (Pub.L. 102-569). It is to begin when it is clear that it is needed, but in no way later than the seventh grade. A fully functioning and appropriate educational plan under Section 504 essentially addresses transition planning from its onset in elementary school, as it outlines goals that extend beyond grade 12. An entire generation of students have now passed from kindergarten through twelfth grade since 1990 without the protection that would have been afforded if schools had complied with these laws, which they swear in their application for Federal dollars that they are carrying out.
We have written about Transition Planning in previous columns of the Digest and through our website (www.reedmartin.com). To date we have not yet seen an adequate Transition Plan, except one which was forced on a school system through judicial action: Yankton School Dist. v. Schramm, 93 F.3d 1369 (8th Cir. 1996). If you’re having problems with Transition Planning, retrieve that case, study it and use it.

FRIENDS/ADVOCATES at the IEP MEETING
We usually recommend that parents not attend an IEP meeting alone. Especially just one parent. It is extremely difficult for even an informed parent to deal with all the school personnel, listen, raise questions of the evaluator, try to get closure, and so forth. However, many tell us that when they take a friend or an “advocate” with them, the school insists that the advocate has to leave the room, because the school board attorney has said they violate some law (that no one can produce) that bars disruptive personnel from the IEP meeting.

That’s called intimidation, plain and simple. The parent advocacy movement is large and growing and schools have to realize that parents will be bringing advocates to evaluations, IEP meetings, reviews of student records, and Hearings. The courts and the Congress have supported parents in this right for over 25 years. (20 U.S.C. 1414(d)(1)(B)(vi); 34 C.F.R. 300.344(a)(6) and (c)).
When parent advocates began beating school board attorneys in Hearings and at IEP meetings, the school board attorneys began to fight back that it was the “unauthorized practice of law.” That is just not true. The fact is that a lot of parents and parent advocates are just smarter, harder working and care more about one child’s future than the attorney who has been hired to mask the fact that the child is being denied an appropriate education.

If you hear such jargon from the school’s attorneys, we suggest that you demand of the school board an accounting of how much they paid attorneys to fight parents in special education cases. Then put that information in your local newspaper. One school district this writer interacted with paid their attorneys $946,000 in one year to fight parents. That money could have trained a lot of personnel, provided aides to a lot of teachers, bought a lot of materials and made a real difference in the lives of many students.
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We often demand that our school system be educated, informed, responsible and accountable. However, as parents and our child’s strongest advocates, we need to demand the same of ourselves. Read the legislation, learn the facts, go to your IEP meetings educated and aware. It can make all the difference in the world for your child’s education and future.

BIO
Reed Martin, J.D. has specialized in special education rights for over 30 years, working with attorneys and parents in all 50 states on special education issues. He has litigated under Section 504, the ADA as well as the IDEA. Reed is active in educating parents and professionals on special education issues through his many published books and manuals and is a frequent conference presentor across the U.S. Visit his website for more detailed information. Sign up for his free email newsletter on special education issues: www.reedmartin.com

“Reprinted with permission from the May-June 2003 issue of the Autism Asperger’s Digest, a bimonthly 52 page magazine devoted to autism spectrum disorders. Published by Future Horizons, Inc. For more information: www.autismdigest.com or call 800.489.0727.”

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