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PARENT RIGHTS A copy at every IEP A copy at every IEP Not always written in easy to understand language Not always written in easy to understand language.

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Presentation on theme: "PARENT RIGHTS A copy at every IEP A copy at every IEP Not always written in easy to understand language Not always written in easy to understand language."— Presentation transcript:

1 PARENT RIGHTS A copy at every IEP A copy at every IEP Not always written in easy to understand language Not always written in easy to understand language They can be a lot different from what is stated at the IEP meeting. They can be a lot different from what is stated at the IEP meeting.

2 THE RIGHT TO PARTICIPATE You are a necessary IEP team member – they cannot have an IEP without you under most circumstances. 20 U.S.C. § 1414(d)(1)(B)(i). You are a necessary IEP team member – they cannot have an IEP without you under most circumstances. 20 U.S.C. § 1414(d)(1)(B)(i). You must also be present for ANY meeting that discusses the educational placement of your child. 34 C.F.R. § 300.327. You must also be present for ANY meeting that discusses the educational placement of your child. 34 C.F.R. § 300.327.

3 THE RIGHT TO PARTICIPATE Your rights extend to more than mere presence at the meeting. Your rights extend to more than mere presence at the meeting. You must be informed of all options. You must be informed of all options. This includes: This includes: The full continuum of placements The full continuum of placements All in-school and non-public options All in-school and non-public options An opportunity to observe placements An opportunity to observe placements

4 PRIOR WRITTEN NOTICE The name Prior Written Notice is a bit of a misnomer. The name Prior Written Notice is a bit of a misnomer. Most of the time, PWN comes AFTER a request has been made. Most of the time, PWN comes AFTER a request has been made. Requires the District to Put their Proposal or Refusal in Writing. Requires the District to Put their Proposal or Refusal in Writing.

5 PRIOR WRITTEN NOTICE The PWN must have certain contents (34 C.F.R. § 300.503) including: The PWN must have certain contents (34 C.F.R. § 300.503) including: A description of the proposed or refused action A description of the proposed or refused action A description of each evaluation, record, or report, relied upon in making the decision A description of each evaluation, record, or report, relied upon in making the decision An explanation of WHY the District is taking the action An explanation of WHY the District is taking the action

6 PRIOR WRITTEN NOTICE The PWN must have certain contents (34 C.F.R. § 300.503) including: The PWN must have certain contents (34 C.F.R. § 300.503) including: A statement of procedural safeguards. A statement of procedural safeguards. Sources for parents to contact. Sources for parents to contact. A description of other options considered and rejected. A description of other options considered and rejected. Any other factors. Any other factors.

7 PRIOR WRITTEN NOTICE Note takers at the IEP are always District employees, and their notes are often slanted in favor of the District. Note takers at the IEP are always District employees, and their notes are often slanted in favor of the District. Use the PWN requirement to get requests and responses in writing from the District. Use the PWN requirement to get requests and responses in writing from the District. PWN must be provided within a “reasonable” time. Usually within a week or two is considered acceptable. PWN must be provided within a “reasonable” time. Usually within a week or two is considered acceptable.

8 CONSENT/REFUSAL A Parent’s most potent weapon. A Parent’s most potent weapon. The District cannot implement any change in services, or any special education at all, without your express, written consent. Cal. Educ. Code § 56346. The District cannot implement any change in services, or any special education at all, without your express, written consent. Cal. Educ. Code § 56346.

9 CONSENT/REFUSAL The District cannot assess or evaluate your child for special education without your consent. The District cannot assess or evaluate your child for special education without your consent. Different from tests all children take or “screenings.” Different from tests all children take or “screenings.” The District cannot force special education on a parent. If a parent refuses all special education services, the District can’t force them – not even with Due Process The District cannot force special education on a parent. If a parent refuses all special education services, the District can’t force them – not even with Due Process

10 CONSENT/REFUSAL However, the District CAN force you to have your child assessed if he or she is already in special education. However, the District CAN force you to have your child assessed if he or she is already in special education. The District must evaluate your child every three years, and any time they have notice of a change in suspected disability. The District must evaluate your child every three years, and any time they have notice of a change in suspected disability. Due Process can be used to force these assessments. Due Process can be used to force these assessments.

11 CONSENT/REFUSAL In the IEP, it may feel like the District controls the offer. In the IEP, it may feel like the District controls the offer. But remember that they can’t implement or change anything without your consent. But remember that they can’t implement or change anything without your consent. If you don’t like what you see, simply say No. If you don’t like what you see, simply say No.

12 CONSENT/REFUSAL The IEP is not an “all or nothing” agreement. The IEP is not an “all or nothing” agreement. You can agree to any part you like, and disagree to any part you don’t like. You can agree to any part you like, and disagree to any part you don’t like. The IEP is also not the end. Think of it as the District’s first offer in a negotiation. The IEP is also not the end. Think of it as the District’s first offer in a negotiation.

13 NONDISCRIMINATORY ASSESSMENTS Assessments must not be “culturally discriminatory” or biased. Assessments must not be “culturally discriminatory” or biased. In general, most standardized tests are appropriate across cultures. In general, most standardized tests are appropriate across cultures. The exception is that, due to a court case, African American children may not receive IQ tests for special education eligibility. The exception is that, due to a court case, African American children may not receive IQ tests for special education eligibility. IQ tests have been held to be inherently biased. IQ tests have been held to be inherently biased.

14 INDEPDENDENT EDUCATIONAL EVALUATIONS (IEEs) Another potent weapon. Another potent weapon. If you don’t feel like the District’s reports are accurate, you can request that they pay for independent testing by private individuals. If you don’t feel like the District’s reports are accurate, you can request that they pay for independent testing by private individuals.

15 INDEPDENDENT EDUCATIONAL EVALUATIONS (IEEs) Once your request is made, the District has only two options: Once your request is made, the District has only two options: Say Yes and pay for the assessment; or Say Yes and pay for the assessment; or File for due process to show that their assessments are appropriate. File for due process to show that their assessments are appropriate. The District may not say “no.” The District may not say “no.” The District may not ignore your request or delay their response. The District may not ignore your request or delay their response.

16 INDEPDENDENT EDUCATIONAL EVALUATIONS (IEEs) If they agree to fund it, you can choose any individual you like, as long as they are qualified. If they agree to fund it, you can choose any individual you like, as long as they are qualified. Some reasonable criteria, such as minimum credentials and location of the evaluation can be set up by the District. Some reasonable criteria, such as minimum credentials and location of the evaluation can be set up by the District. Some other items that would prevent you from flying someone out from the East coast might also be appropriate. Some other items that would prevent you from flying someone out from the East coast might also be appropriate.

17 INDEPDENDENT EDUCATIONAL EVALUATIONS (IEEs) What about cost limitation? What about cost limitation? Our position has always been that they cannot set arbitrary limits on cost. Our position has always been that they cannot set arbitrary limits on cost. Doing so prevents you from choosing an appropriate assessor. Doing so prevents you from choosing an appropriate assessor. The CDE (wrongly) states in their parent rights that cost limitations are appropriate. The CDE (wrongly) states in their parent rights that cost limitations are appropriate.

18 INDEPDENDENT EDUCATIONAL EVALUATIONS (IEEs) What if the District files for due process? What if the District files for due process? In that case, you must demonstrate in a hearing that their assessments were inappropriate. In that case, you must demonstrate in a hearing that their assessments were inappropriate. If the District succeeds, you can still get independent assessments, but they won’t be at District expense. If the District succeeds, you can still get independent assessments, but they won’t be at District expense. Given the cost associated with a hearing, most Districts prefer to pay for the testing. Given the cost associated with a hearing, most Districts prefer to pay for the testing. In individual cases, a District may file. In individual cases, a District may file.

19 EDUCATIONAL RECORDS You can inspect, review, obtain copies, and even challenge some records in your child’s file. You can inspect, review, obtain copies, and even challenge some records in your child’s file. Your rights are protected by both the IDEA (34 C.F.R. § 300.613) and FERPA (20 U.S.C. § 1232g). Your rights are protected by both the IDEA (34 C.F.R. § 300.613) and FERPA (20 U.S.C. § 1232g).

20 EDUCATIONAL RECORDS When you request a copy, the District may charge actual copy costs – usually about ten cents per page. When you request a copy, the District may charge actual copy costs – usually about ten cents per page. If that price would prevent you from getting the records, they must give them to you for free. If that price would prevent you from getting the records, they must give them to you for free. You can challenge disciplinary reports, suspensions, and grades in some circumstances. You can challenge disciplinary reports, suspensions, and grades in some circumstances.

21 “STAY PUT” There are two items commonly referred to as “Stay put.” There are two items commonly referred to as “Stay put.” The first is when due process or a court case is actually pending. The first is when due process or a court case is actually pending. There, the law states (20 U.S.C. § 1415(j)) that the child continues to receive the same services until the court figures things out. There, the law states (20 U.S.C. § 1415(j)) that the child continues to receive the same services until the court figures things out.

22 “STAY PUT” “Stay Put” can also apply without a due process hearing. “Stay Put” can also apply without a due process hearing. Since the District can’t make any changes to the educational program without your consent, if you don’t provide consent, there won’t be any changes. Since the District can’t make any changes to the educational program without your consent, if you don’t provide consent, there won’t be any changes. So if you say “no,” the District has to implement a “stay put.” So if you say “no,” the District has to implement a “stay put.”

23 DUE PROCESS HEARINGS If you have a disagreement, you have the absolute right to a hearing. If you have a disagreement, you have the absolute right to a hearing. Theoretically, that means a neutral Hearing Officer and an unbiased courtroom. Theoretically, that means a neutral Hearing Officer and an unbiased courtroom. In practice, OAH is anything but neutral. In practice, OAH is anything but neutral. In one case, the District admitted that it predetermined the IEP – the ALJ got the facts wrong and botched the case. In one case, the District admitted that it predetermined the IEP – the ALJ got the facts wrong and botched the case.

24 DUE PROCESS HEARINGS Technically, you can go the due process for any violation of the IDEA. Technically, you can go the due process for any violation of the IDEA. From a practical standpoint, due process is best saved for substantive disputes. From a practical standpoint, due process is best saved for substantive disputes. OAH simply will not resolve procedural errors (like blowing the timelines) to your satisfaction. OAH simply will not resolve procedural errors (like blowing the timelines) to your satisfaction.

25 MEDIATION You have the right to a mediator at no cost. You have the right to a mediator at no cost. You DO NOT have the right to a mediation. You DO NOT have the right to a mediation. A mediation is a voluntary process where both sides are pushed toward settlement. But no one there can force it. So if either side doesn’t want to settle, then there won’t be a mediation. A mediation is a voluntary process where both sides are pushed toward settlement. But no one there can force it. So if either side doesn’t want to settle, then there won’t be a mediation.

26 MEDIATION Your mediator will be an ALJ from OAH. Your mediator will be an ALJ from OAH. They won’t be acting as a judge and so cannot make any decisions. They won’t be acting as a judge and so cannot make any decisions. Because mediation is confidential, they will also not be allowed to be your Judge if the case goes to hearing. Because mediation is confidential, they will also not be allowed to be your Judge if the case goes to hearing.

27 COMPLIANCE COMPLAINTS In addition to due process, you can also file a Compliance Complaint. In addition to due process, you can also file a Compliance Complaint. Instead of a Judge, an “investigator” from the CDE looks at your claim, calls both sides, and makes a determination. Instead of a Judge, an “investigator” from the CDE looks at your claim, calls both sides, and makes a determination. This is limited to very cut and dry issues: This is limited to very cut and dry issues: The IEP says X and they gave me Y The IEP says X and they gave me Y The law says 30 days and they took 40 The law says 30 days and they took 40

28 COMPLIANCE COMPLAINTS Compliance Complaints will not work for substantive defects about what services are “appropriate” for the child. Save that for due process. Compliance Complaints will not work for substantive defects about what services are “appropriate” for the child. Save that for due process. Whereas you might not get much from due process for the procedural errors, a Compliance Complaint can provide some relief. Whereas you might not get much from due process for the procedural errors, a Compliance Complaint can provide some relief.

29 COMPLIANCE COMPLAINTS Advantage over due process: Advantage over due process: Easier Easier Cheaper Cheaper Can challenge procedure Can challenge procedure Disadvantage Disadvantage Take at least 60 days Take at least 60 days Investigator with little legal expertise Investigator with little legal expertise No issues of “appropriateness” No issues of “appropriateness”

30 DISCIPLINE In general, a child with special needs can be disciplined the same as a typical child. In general, a child with special needs can be disciplined the same as a typical child. However, if that causes them to miss more than ten school days, it will be a “change in placement” and special rules are involved. However, if that causes them to miss more than ten school days, it will be a “change in placement” and special rules are involved. The IEP team must call a “manifestation determination” meeting The IEP team must call a “manifestation determination” meeting

31 DISCIPLINE In a manifestation determination, the IEP team looks at whether the behavior was related to the disability. In a manifestation determination, the IEP team looks at whether the behavior was related to the disability. If not, the child can be punished like any typical child. If not, the child can be punished like any typical child. If so, then he goes back to his usual placement and the Team must discuss additional supports or services that may be necessary. If so, then he goes back to his usual placement and the Team must discuss additional supports or services that may be necessary.

32 DISCIPLINE There are special rules for issues with guns, drugs, or where severe bodily injury is inflicted. There are special rules for issues with guns, drugs, or where severe bodily injury is inflicted. In those cases, the child can be removed for up to 45 days even if it was a manifestation of the disability. In those cases, the child can be removed for up to 45 days even if it was a manifestation of the disability.

33 INFORMED OF PRIVATE SCHOOL POLICES Two kinds of Private School placements. Two kinds of Private School placements. The first is a child at a private school simply because the parents like it better, or want a religious education. The first is a child at a private school simply because the parents like it better, or want a religious education. In that case, the District is responsible for a proportional share which usually works out to a few related services each year. In that case, the District is responsible for a proportional share which usually works out to a few related services each year.

34 INFORMED OF PRIVATE SCHOOL POLICES The second kind is where the District offer is inappropriate, and for that reason the parent must place the child in a private school. The second kind is where the District offer is inappropriate, and for that reason the parent must place the child in a private school. In that case, the District is responsible for the cost of the placement. In that case, the District is responsible for the cost of the placement. The District won’t pay initially. But reimbursement may be granted if you are successful in a due process hearing. The District won’t pay initially. But reimbursement may be granted if you are successful in a due process hearing.

35 TOP TEN IEP STRATEGIES Knowing your rights is good, but how does that translate into a successful IEP? What is a successful IEP? While every case is different, and there are times to use honey, and times to use vinegar, there are some general tips that can only help the vast majority of IEPs.

36 #1: Know the Legal Standard Obviously you can’t know it all, but there are same basics. The District does not need to provide the “best” placement, or one that “maximizes potential.” Instead, they need only provide enough to ensure a “meaningful educational benefit.” –If you go in asking for the “best” you’ll be disappointed.

37 #1: Know the Legal Standard Everything you want is “appropriate.” Everything you don’t want is “inappropriate.” If you say something is “best,” then the District can say no. After all, they don’t have to provide the “best.”

38 #2: Do Your Homework Request assessment reports and data in advance in writing. –Most Districts like to give you the reports at the IEP. This limits your ability to respond or ask questions. –Review them in advance. Have questions and concerns ready to go at the IEP. –Ask yourself, does this sound like my child?

39 #2: Do Your Homework Review prior IEPs, report cards, and goal progress. –Know your child’s strengths and where your child needs extra help. Be concrete and give examples here. –Keep communication open with your child’s teacher. Often, they can provide insights outside of the IEP that are useful in the meeting.

40 #2: Do Your Homework Know what works best for your child. –If certain methodologies work better than others (i.e. Floor Time, Rapid Prompting, etc.), be sure to be able to speak to them at the meeting. Find out about District qualifications. –Don’t be afraid to ask at the IEP. There is a difference between an SLP and SLPA. –If a private provider is necessary, come with their information handy.

41 #3: TAPE RECORD THE IEP! Always, Always, Always, tape record the meeting. You are allowed to tape record as long as you give 24 hours written notice. Tape recording changes the demeanor of the meeting. The District is less likely to rely on an invalid “policy” or to tell you certain programs are “unavailable.”

42 #3: TAPE RECORD THE IEP! Recording is better than the IEP Notes –It is impossible to reflect all of the discussions in the notes. –The recording won’t be slanted like the notes can be. –The District can’t change their mind and offer something else. –It helps you to remember the IEP meeting.

43 #4: DON’T BE AFRAID TO ASK Sitting at a table against five or more District people can be intimidating. But remember that you are your child’s advocate. Worst case scenario is they say, “No.” –It may even open the door to an out-of-the- box type service or discussion Don’t be afraid to ask about educational minutia.

44 #5: Advocacy Starts with Present Levels It may be tempting to breeze through the PLOPs, but be sure to get your information in. PLOPs drive goals which drive services. Get a PLOP for every area of need. –If you see an expressive, as well as receptive delay, then make sure that gets noted.

45 #5: Advocacy Starts with Present Levels Make sure baselines are accurate. –Avoid language like, “has difficulty with.” –You want some level of measurability. Write down each area of need as it is discussed in the meeting. –When it comes to goals, you’ll want to check them off one by one to be sure there is at least one goal in each area.

46 #6: Your Child’s Program is All About Goals Make sure that goals reflect high expectations for your child. –Mastery is generally held to be at 80% –Goals should be at least that high, possibly higher. Remember that goals are “Annual.” –Districts will sometimes push merely the next developmental step, even if it could be taught in less than a full year.

47 #6: Your Child’s Program is All About Goals Know the California Content Standards. –The standards state what must be taught at each grade. –Make sure your child’s goals match up as closely as possible with the content standards. –The standards can be found at http://www.cde.ca.gov/be/st/ss

48 #6: Your Child’s Program is All About Goals Avoid “Language Rich” dismissals –Sometimes the District will tell you that speech goals or services are not necessary because your child is in a “language rich” environment. –Every classroom is language rich. Your child needs related services because a “language rich” classroom isn’t enough for them.

49 #6: Your Child’s Program is All About Goals “Incorporated into the Curriculum” –This is not a reason to deny a goal. –“We teach OT all day long from the time they take off their backpack.” Not appropriate. –The exception is for some very academic goals that may be part of the general teaching. –Even then, it is often a good idea to have a goal so that it can be specifically measured.

50 #6: Your Child’s Program is All About Goals Goals Drive Services. Theoretically, then, more goals = more services. –However, your child’s needs are also in play. A child with apraxia may need more services even with fewer goals. Goals can help drive methodology. Keep Services in mind. –A goal for social skills at lunch might require an aide during lunch time.

51 #7: Know the LRE The best strategy here is just to apply the law with the District. The law says there are four factors to look at: –Benefits of the less restrictive setting –Benefits of the more restrictive setting –Negative impact on less restrictive setting –Cost

52 #7: Know the LRE The most important factor is the benefit of the less restrictive setting. –Cost is almost never a determining factor. Bring these up in the IEP. Talk about the benefits your child will receive and whether he can access a general education curriculum.

53 #8: Fight for Services Remember, the District employees are not Experts in their fields. –While they may have more training than the average parent, they are not a dispassionate individual out for the child’s best interests. –They tend to side with the District since the District signs their paycheck. –They also have a busy schedule and look more into how to fit your child in, than at his or her unique needs.

54 #8: Fight for Services Challenge District staff. –They aren’t experts. –“I don’t see how my child is going to progress with only 20 minutes of speech given the needs we spoke about.” –Remind the District about goals and PLOPs. Remind the District about every time they discussed “challenging” behaviors and ask how those behaviors are going to be met with so little service.

55 #8: Fight for Services Bring your own Experts. –Ultimately, the District probably knows more about what’s out there than you do. It may be necessary to bridge this information divide. –Experts speak the language. They can recommend methodologies. They can challenge the District in terms they understand. –If you have an IEE, that person will often make a good expert at the IEP.

56 #9: Sleep on the Offer During an IEP meeting, a lot of information is coming at you very fast. Take a night or two to slow down and consider the offer. The District may want you to sign right away, but you don’t have to. After reflecting, you may have additional concerns or thoughts that need to be addressed.

57 #10: Discussion doesn’t end with the IEP It is rare that the District gives you everything you want at the IEP meeting. But, you can negotiate after the meeting as well. Think of the IEP as the opening offer. If you have leverage (such as having a good “stay put”) you may be able to bargain into something better than the initial IEP offer.

58 OTHER THINGS TO KNOW The District’s “Pre-IEP Planning Meeting” The District’s “Pre-IEP Planning Meeting” Is it legal? Maybe…. Is it legal? Maybe…. The District may meet to review reports, discuss parent requests, and even potentially develop a draft IEP offer. The District may meet to review reports, discuss parent requests, and even potentially develop a draft IEP offer. The District MAY NOT make any decisions at this meeting. The District MAY NOT make any decisions at this meeting. The line can be a fuzzy one. The line can be a fuzzy one.

59 OTHER THINGS TO KNOW Can the District file for Due Process Against me? Can the District file for Due Process Against me? Yes. Yes. Any time you don’t consent to the full IEP offer, the District is supposed to file. Any time you don’t consent to the full IEP offer, the District is supposed to file. Cal. Educ. Code 56346(f) Cal. Educ. Code 56346(f) Districts don’t always do it though, because sometimes its cheaper to continue services than file for hearing. Districts don’t always do it though, because sometimes its cheaper to continue services than file for hearing.

60 OTHER THINGS TO KNOW Read the IEP notes before you leave the meeting. Read the IEP notes before you leave the meeting. The notes can’t capture everything, that’s why you tape record. The notes can’t capture everything, that’s why you tape record. But notes are easier to read and review than audio tape. But notes are easier to read and review than audio tape. Make sure the notes aren’t totally off base, and make sure you have your most important concerns written down. Make sure the notes aren’t totally off base, and make sure you have your most important concerns written down.

61 QUESTION AND ANSWER


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