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Special Education Advocacy at School Meetings: Part 2

By Erin Han, Janeen Schlotzer, and Richard Cozzola – January 9, 2012


Part one of this article describes preparation for the various types of meetings that can occur in the special education process at schools.


Advocacy at a Special Education Meeting
Because special education meetings can easily involve eight to ten professionals, make notes of the names and specialties of each team member at the beginning of the meeting. Consider making a diagram of the room with people’s names and positions on the chart as a quick reference. Once you know the players, you are ready to begin.


Tread Lightly at First
In general, it is wise to tread lightly at the beginning of an individual education program (IEP) meeting rather than arrive in an argumentative or accusatory posture. The more information you have before articulating your position, the stronger your opinions will be. Give the school a chance to present its position. Sometimes the position the school presents at a meeting may be less adversarial than originally assumed or feared. School personnel are also more likely to be open and candid about their opinions when they do not feel like they are “on trial.” Listen and ask open-ended questions to gather information. You may even use some techniques that you learned in conducting expert-witness depositions—allowing the team as the expert to state its position, and then asking clarifying questions to learn additional facts that may be helpful to the position you are advocating. Then present your counter position, if you have one, using the information you have gathered from listening and questioning the school staff to support that position. If it becomes clear that the school is committed to a legal decision that is adverse to your client (such as denying eligibility or a needed related service), reaffirm your position and lodge a dissent if necessary.


Make All of Your Points
IEP meetings can quickly get derailed with many layers of issues. This is why it is important to have some sort of systematic way to make sure that all of your issues get addressed. Stay focused on all of the points that you came to the meeting hoping to make. One approach is to come to each IEP meeting with a three-column chart. In the far-left column, list in advance of the meeting all of the issues that you want addressed. Add more issues, if they emerge, as the meeting goes on. In the second column, note how the issues are addressed and resolved over the course of the meeting. In the final column, check off each resolved issue once you confirm that it is addressed in writing somewhere in the IEP. At the end of your chart, list the areas in which you or the parent needs to follow up after the conclusion of the meeting.


Be Strategic in the Information That You Release
The student may have outside diagnoses from a treating psychologist or psychiatrist that would aid the team in making an eligibility determination for that client. Get copies of outside reports in advance of the eligibility conference for the student. Talk to the parent and student about whether you think giving this information to the school will be helpful to their position. Then discuss whether they want the reports released and make sure you have appropriate consents for releasing the information to the school. Keep in mind that, once given to a school, an outside evaluation becomes a permanent part of that student’s record. If an outside report contains information that is simply too personal to include in the student’s school file, consider seeking a more limited or redacted form from the treating professional. Some doctors will offer to write a letter summarizing just the information deemed relevant to the school setting. Another option is to have the psychologist attend the eligibility conference and share relevant information with the team without putting the full reports into the file.


Acting as a Translator for Your Clients
School meetings are full of lingo. As the attorney, it is critical that you act as translator so that the parent and those who are part of the student’s advocacy team can fully participate in the meeting and understand the options being presented. Some of the language involves acronyms like IEP, BIP (behavior intervention plan), or shorthand names for tests. Others defy established rules of grammar. For example, schools may ask for “anecdotals,” and a parent, even one who teaches English at a university, may not know what the school wants. If the issue is attention deficit, such a story might be a parent’s explanation that his or her child has never been able to sit and work on homework for more than five minutes, even at home. This provides information about attention deficit in a concrete way.


When the attorney hears lingo, he or she should make sure that the client understands what is being said. This is usually fairly simple, but important. One approach is to speak directly to the client, saying, “When they say ‘BIP,’ they mean a plan to help Walter when he gets upset.” Another is to join with the parent as someone who may not understand what is being asked. For example, when the school asks for anecdotals, remember that you are there to help involve your clients in the planning that occurs. Help them understand what is going on without making them feel like outsiders. Ask the school staff, “When you say ‘anecdotals,’ do you want examples of when Jenny has trouble getting her words out?” This approach can help the parent feel less isolated.


Using Client Stories to Make Points
Your interviews with parents and others before a meeting may give you examples of problems that are identified elsewhere in formal evaluations. For example, a report may say that a student is able to read words well but cannot understand what he or she has just read aloud. If your interview provides an example of this, consider bringing it up at the meeting when the team is examining the issue. Once again, do what you can to help parents understand that they have something important to bring to the meeting. “Ms. Henderson, the psychologist just talked about some of Jenny’s reading problems. Could you talk about what happened when you were reading with her last week?” This provides corroboration for conclusions in evaluations and helps confirm the presence of issues that might otherwise be ignored. Historical information, such as medical problems or traumatic incidents that impacted a child, can also be helpful.


Use Breaks Well
Unlike trial, where an attorney cannot discuss testimony with a witness once that witness begins testifying, a school conference is more like a negotiation or mediation. The sides are free to take a break and discuss issues among themselves. Tell your clients and their supporters before the meeting that if they get overwhelmed or surprised by anything that happens, you can stop the meeting and step outside at any time. Let them know that if you believe that you need to meet briefly with them, you will say so and that when you are making such a request, it is important for the client to take the cue and meet with you. Tell your client that you will also suggest a break if you reach a crucial point in the meeting where any offer is being made that the parent must consider. Sometimes these breaks are critical to developing a plan—a parent may change his or her mind about what the student needs based on information learned at the meeting. The break gives the parent a time to talk about these issues with you.


A second type of break can occur if you and the school staff decide the team needs more information, such as additional testing or the introduction of outside reports, before deciding a question such as eligibility. Suggest that the team take a week to consider this additional information and then come back to the table. Just keep in mind the impact that any delays will have on the student when deciding whether this strategy is worth the time it will take.


Recording Your Dissent
The conclusion of the meeting is another time for a break—this time to discuss what the school is proposing with the parent and to determine your next step. If the school is proposing something with which the parent disagrees, identify the issue with the parent. These disagreements can be on a wide variety of subjects depending on the meeting: a school decision at a domain meeting that it does not see a need for a speech assessment, a determination at an eligibility conference that a student is not disabled, or a disagreement with a placement decision or the amount of a specific service at an IEP meeting, and so on. Go over the documentation with the parent. Decide whether you are going to try one more time to persuade the school to change its position. Remember that it is the parent who knows the child. The parent may change his or her opinion about what is best for the child based on what occurs at the meeting. For example, a parent who had been hoping to maintain a child in a regular classroom may become persuaded by school staff that the student needs a higher level of care.


Also remember that if the school maintains a position contrary to your clients’ goals, you must decide whether you will record your disagreement and how. Written dissents are not like evidentiary objections at trial; it is not necessary to record a written dissent to preserve your right to appeal on an issue. Nonetheless, as a practical matter, a dissent shows clearly that a parent disagrees with a school’s decisions to not find a student eligible or to place a student in a particular setting. This can be helpful if a parent seeks a due-process hearing on one of these issues and in that process seeks compensatory services to make up for the school’s failure to find a student eligible or to make a certain placement. In such a case, a dissent can rebut a school district claim that it should not be liable for compensatory services because everyone, including the parent, agreed at the time of the eligibility meeting that the student was not eligible for services. The primary purpose of the dissent is to identify the items of disagreement in writing. As such, it is the recording of the disagreement that is most important. You can do this in a couple of sentences or paragraphs. It is not necessary to cite each document or comment that supports your position. You can provide the details after the meeting if you later draft a request for an administrative due-process hearing.


Get a Copy of the IEP
Leaving a special education meeting with the paper documenting the meeting can be as important as leaving a court hearing with a copy of the final order. Depending on the meeting, some kind of document should be generated: a listing of relevant “domains” for testing at an eligibility meeting, a decision about whether a behavior was a manifestation of a disability at a manifestation determination review (MDR), or the individualized educational plan at an IEP meeting. The meeting may have also led to the generation of a variety of evaluations or other documents. Often, some technical difficulty will intercede to create a barrier between your getting copies of these various documents—a copier or printer breakdown, a meeting that school personnel are attending too soon after yours, and so on. After an hours-long meeting, it is tempting to ask the case manager to simply fax you a copy of the final documents rather than wait. Avoid this if you can. If you wait and review the final document, you will often find some discrepancies between what it says and what the team decided at the meeting. It is much easier to insist on an immediate change when you are right there with the same team members with whom you discussed the issue in question, particularly when these team members are as tired and anxious to adjourn the meeting as you are. This is the time to go through your checklist to make sure that all of your issues were addressed in writing in the IEP.


Leave the Meeting in as Congenial a Mood as Possible
Even if you leave the meeting with a dissent and expressed an intention to file due process, you can do this in a professional manner and in a way that is respectful to the team. Keep in mind that you are a part of this team for a limited period of time. In all likelihood, the parent and student’s relationship with this school will continue long after your departure from the case. Therefore, you do your clients a disservice if you further alienate the school as a result of your demeanor or treatment of the team. Keeping your cool from the beginning to the end of the meeting is easier than it might appear if you remember that you can always go back to your office and file for due process.


Special Education Myths that Derail Meetings
There are a number of legal “myths” commonly perpetuated by school staff at special education meetings around the country. They can arise at almost any point in the process and can quickly derail a parent or an advocate. Be careful not to fall into any of these traps.


Eligibility
“We can’t test your child because we haven’t had a chance to do response to intervention (RTI).” Schools are required to monitor all children for progress and to provide scientifically approved interventions for children who are not making this progress. While it is true that schools should be doing these screenings, the fact that the school has not done so does not provide the school with an excuse to deny a parent’s request for special education testing. If you believe that your child may have special education needs, your response should be firm: The school should begin an evaluation of the child, and it should set a meeting time within the Individuals with Disabilities Education Act’s (IDEA) time limits to discuss the evaluation and make an eligibility determination. If the school also wants to use RTI to evaluate the possibility of learning disabilities, it can do so, but that process cannot stop the evaluations from going forward.


“We would like to give your child a 504 plan instead of an IEP.” A 504 plan is a plan for accommodations under the Americans with Disabilities Act (Section 504 of the Rehabilitation Act of 1973, Pub. L. No. 93-112, 87 Stat. 394 (Sept. 26, 1973), codified at 29 U.S.C. § 701 et seq.). It is entirely appropriate for certain types of disabilities that do not impact the student’s academic learning or emotional functioning in the classroom, such as food allergies or diabetes. However, it does not require the same disciplinary protections or goal monitoring as an IEP. Therefore, if you are offered a 504 plan when you believe the child meets the requirements for eligibility under the IDEA, including eligibility under the “other Health Impairment” category for ADHD, you should demand that the student receive the IEP to which he or she is entitled. Bottom line: Don’t settle for the 504 plan when the student needs an IEP.


“Your child is earning good grades, so there is no impact on education and no need for an IEP.” This quote commonly precedes a school’s denial of special education eligibility. Remember that the key question is whether a disability has an impact on education. This impact refers to more than just grades and standardized test scores (Letter from Alexa Posny, Ph.D., Director, Office of Special Education Programs, to Catherine D. Clarke, Director, American Speech and Hearing Association (Mar. 8, 2007). The child’s social, behavioral, and emotional functioning in the classroom are also relevant measures of impact on education. A first-grade student with documented emotional challenges may be both getting good academic grades and facing suspensions. Make sure the school knows that if a child’s behavior results in missing many days of school, the disability is having a clear impact on his or her education, and he or she is eligible for an IEP to help with that impact.


MDRs
“The question we have to answer is whether your child knows right from wrong.” At some point in almost all MDRs, someone from the school will raise this question as the supposed crucial question to answer in determining whether a behavior is a manifestation of the child’s disability. Of course, this language appears nowhere in IDEA. Moreover, in our experience, it usually comes up in cases of children with ADHD/OHI or ED where such an inquiry is actually the antithesis of an appropriate MDR discussion. Children with ADHD/OHI may certainly “know right from wrong.” However, their disabilities may prevent them from controlling certain reactions or behaviors due to impulsivity, post-traumatic stress disorder, or other issues in line with their disabilities. Redirect the MDR to the critical issue, which is the connection between the disability and the action at issue.


After the Meeting
The Parent Is Unhappy with the Outcome
Discuss the parent’s legal options. These options vary depending on the situation. If the school has denied eligibility or made another determination based on its assessments, the parent may request an Independent Educational Evaluation at the school’s expense (34 CFR 300.501(b)) or file a request for a due-process hearing to challenge differences of opinion with the school district over the appropriate services or placement of the child. The parent can also file for a due-process hearing for other violations of the IDEA, such as the failure to complete an evaluation within the appropriate time periods. Beyond independent evaluations and due-process hearings, states have procedures for filing a compliance complaint with a state agency if there is a violation of a procedural mandate, such as failure to complete an evaluation in 60 days or a failure to conduct an MDR. Know how these options operate within your own state.


Make the Meeting Mean Something in the Life of the Student
A meeting that develops a good IEP is only one step in the process. It does little good to have a solid plan on paper with no follow-up. Parents should still confirm compliance. The services that you worked so hard to obtain in the IEP are only going to benefit the student if they are actually enforced. Sometimes a school’s compliance is obvious, such as when a child is placed in a different setting, such as a therapeutic day school. Sometimes compliance is harder to verify, such as whether a school is providing the actual amount of minutes set forth in the IEP or whether the student is making progress on his or her goals.


Maintaining regular communication with the school is vital for the parent to ensure compliance. The parent should ask for updates from the service providers as well as written documentation of the student’s progress toward each of the quarterly benchmarks. Impromptu visits to the child’s classroom can help verify if a 1:1 aid promised in the IEP is actually working with the child. We strongly suggest that the parent keep a written log of problems noted at the school as well as calls received from the school about problems. This will give you a better sense of the scope of the problems the student is experiencing and will help guide whether it is worth the effort to ask for another IEP meeting or whether it would be more effective to simply file for due process. Sometimes we ask the team to set up a “check-in” IEP meeting on a fixed date to discuss the appropriateness of the IEP developed. This is a particularly good idea in the case of a brand new IEP, where the team may have some lingering questions about appropriate placement and services.


Compliance and Private Therapeutic Day School Placements
If the team agreed to refer the student for a private placement, don’t close out the case until that placement has been approved. While the IDEA requires schools to place children in the placement defined by the IEP within 10 days of the date of the IEP, districts frequently exceed their 10 days to place the child. In such cases, you may have to consider a state compliance complaint or even a federal action if the child is missing school while awaiting placement.


Furthermore, your assistance will likely be needed to advocate for the right therapeutic day school. While some districts will send the student’s packet out to several schools simultaneously and encourage your child to visit all that extend interviews, other districts will only send the packet to one school and will then direct the parent to show up at that school to complete enrollment. When faced with this latter situation, we encourage the parent to agree to visit the school being offered, making it clear that he or she will not make a decision the day of the visit and will need to see another school if the offered school is inappropriate.


Talk to the Parent and the Student
Whether or not the child attends the IEP meeting, it is easy for him or her to get lost in the shuffle. Being qualified for special education services or being transferred to a therapeutic day school can be difficult for any student. Many students have a misperception of special education as only applicable for students with mental retardation. Unless you take the time to explain the specifics of the student’s eligibility category in a way that is empowering, the new label that you fought so hard to obtain actually may have a negative emotional impact on the student you are trying to help. For example, explain to your clients with a learning disability that this is a very distinct category from cognitive impairment and one that they only qualified for because they had average or above average intelligence.


Conclusion
The school education meeting is a legal forum unlike any that most attorneys have ever encountered. Navigating it using the skills you have, as well as some new ones, can lead to better outcomes for the student not only in terms of services offered but also in terms of helping the student to maintain a positive relationship with the school.


Keywords: litigation, children’s rights, special education, individual education program, manifestation determination review, behavior intervention plan


Erin Han and Janeen Schlotzer work with the Legal Assistance Foundation of Metropolitan Chicago in its Children and Family Law Practice Group. Richard Cozzola supervises the group.


 
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