COPAA Round-up from Paradise
JJSanDiego

We've just returned from Paradise, as in Paradise Point Island, San Diego, where we attended the 17th annual COPAA (Council of Parent Attorneys & Advocates) conference.  We can't say we missed the snow!

COPAA's conference is an annual source of inspiration to us, as we join our colleagues in protecting the Civil Rights of students who have disabilities. At YourSpecialEducationRights.com, we constantly strive to empower parents, and COPAA is an organization committed to this cause we hold so dear. Read more

Lessons from Darien’s Special Education Audit: Don’t Assume Anything is as it Seems
school

It's a sad fact that many parents have to question if their school districts are actually providing the services laid out in their child's IEP (Individualized Education Program).  We see it often in our special education advocacy.  It's not uncommon for a parent to report to us that their child told them they haven't been receiving their special education and related services.   It usually happens something like this:  "So, Tommy, have you been enjoying working with Mrs. Jones in the speech room?"  "Oh, I haven't seen Mrs. Jones since Halloween.  I think she might have had a baby or something.  I'm not going to the speech room anymore."  Yikes!

Even worse, for many children who, due to the nature and severity of their disability, can't tell their parents what is happening in school, parents suspect services aren't being delivered, but have a hard time knowing for certain.

So we were not surprised to learn that a financial audit, which was part of an on-going probe of Darien, Connecticut's special education department, revealed fraudulent practices that are downright sickening. The Darien special education department received over $200,000 for special education services that never happened! You can read the details here.  Before the audit of their special education books, a deep probe into the school district's overall special education practices and procedures revealed serious violations of the IDEA (Individuals with Disabilities Education Act).  Now we have learned that, not only was Darien removing necessary services from children's IEPs, but they were charging the State for those services anyway!

While your school district may not be puffing their special education books to receive extra funds (and we certainly hope they aren't!), you may believe or suspect your child isn't receiving their prescribed services.

So how do you prove it?

In our experience, questioning the integrity of teachers and school staff can lead to serious ill-feelings.  No parent really ever wants bad blood with the very people who are working with their child.  But let's face it, this is serious.  You're entitled to know if your child is actually receiving what is in their special education plan, and your child is entitled to be receiving those services.

So how do you ask for documentation that doesn't put everyone on the defensive and, from a practical standpoint, get you the information you need to help your child?  And there it is, "the information that you need to help your child."  As parents, we want to know what our child is working on so we can reinforce or generalize the skill at home or in the community, depending on the skill.  We also want to know whether the services the school is recommending in the IEP are working!  Here are a few easy ways to get the information you need:

  1. Ask that a home/school communication log be developed.   This can take many forms:  email, notebook, or a specially-designed form that can capture what was worked on at school.  If your child is missing services, it should be fairly easy to notice if that provider isn't filling out their portion.
  1. Ask for regular "team meetings" that include you as a parent.  These can be monthly, bi monthly, or quarterly.  We suggest that you have those meetings put into the IEP as required to happen.  When you meet with the team, you should be able to have a better sense of whether services are being delivered regularly.
  1. You can ask to observe a particular session in school.  This will require advance scheduling and notice, but this is a good way to get a sense of what is happening.
  1. Ask your child.  We realize there are some children who are non-verbal, but if your child can communicate, and is a fairly reliable reporter, this is often the best way to find out if a service is happening.

As with all things related to special education disagreements, make sure you are documenting any services you feel have been missed.  If it's happening a lot, put an email or letter together to the district asking why your child is missing these services.  If it becomes an issue, your district may have to make up those sessions at a later date through what is called "compensatory education," so it's important to keep records.

Lastly, we want to say that we know that there are wonderfully dedicated teachers and school staff where these suspicions do not apply.  We also know that educators have the same life challenges we all have; they get sick, they have family members who pass away, etc.  But we need to take a page from the Darien, Connecticut probe, and not assume that everything is as it seems.

 

No Days From Snow Days & Other Acts of Nature
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We are often asked here on the East Coast if the instruction lost from snow days for students who receive special education should be made up by the school district. While snow days certainly don't happen in all parts of the country, there are lessons to be learned for other cancellations of school due to weather events or unforeseen closures of school.  The question really is this: if school is cancelled for everyone, regardless of the reason, should lost instructional time for student who have IEP's (Individualized Education Programs) be made up?

Let's break it down.  Here in Connecticut, for example, too many snow days cause many school districts to go under the number of instructional days required by the State.  Each state has its own number of required instructional days.  When this happens, school districts are forced to borrow days back from the winter or spring vacations or add them onto the end of the school year.  In this case, everyone's snow days are being made up and there should be no issue for students who receive special education.

But what about snow days that aren't made up for everyone?  Students with disabilities are entitled to receive the same benefits of their school system that all students receive, otherwise it would be discriminatory.  In a situation in which ALL students have missed school, the child with a disability is being treated the same as his or her non-disabled peers. In fact, there is no mention of make up days for student's who have IEPs anywhere in the IDEA (Individuals with Disabilities Education Act).

That said, the loss of instructional time can certainly have a different impact on a student who has an IEP, so I suppose one could make the argument that the loss of instructional time could result in a denial of FAPE (Free Appropriate Public Education).  If the loss of instructional time truly resulted in the denial of FAPE, then the reasonable request would be to ask for compensatory education.  Compensatory education is truly make-up instructional time which "compensates" for a loss.  If this is the route that you choose as a parent, proceed with caution as the denial of FAPE must be demonstrated and documented.

Our analysis boils down to this: generally speaking, school cancellation which effects all students equally would be hard to argue as having a discriminatory effect on students with disabilities.  However, whether the impact of significant absences from school would pose great harm to a student with a disability in a way which would impact that child's IEP must be reviewed, as with all IEP considerations, on an individual basis, and based on that child's unique needs.

Safety First
avontepic

When I learned the news about Avonte Oquendo's disappearance, I reacted as a mother of a teenage son who has an autism spectrum disorder, intellectual disability and is non-verbal.  I reacted as a mother whose own child had gone missing on the way home from school.  I also reacted as a special education advocate who has worked with hundreds of families who have children who are similar to Avonte and mine.  When you have a child who needs supervision to be safe, Avonte's story is a parent's worst nightmare.

I shudder for Avonte's parents and wonder, "how could this happen?"  The fact is it shouldn't happen.  It is unconscionable and unjustifiable.  I've followed the news about Avonte and I hope changes will come as result of this tragic, tragic course of events.

It took a frightening event with my son for me to realize that I could have his IEP (Individualized Education Program) reflect protocols to address safety issues.   In my son's case, his van was a half hour late coming home from school, which never happened.  I know my situation can't compare to what the Oquendo family has gone through, but it was the event for me that made me realize I must put safety first in my son's IEP.  So on that day, when the van was 10 minutes late I called my son's aide on his cell phone.  His aide was a wonderful grandfather who cared for my son like his own. He informed me that the driver deliberately took off without him and he was furious about it. I immediately called the police to see if there was traffic on the route they traveled. There was not. I alerted the police about the situation. Twenty more painful, panic-filled minutes passed. When my son finally arrived home, I was furious with the driver.  I asked him why he left the bus yard without my son's aide.  He said, "I didn't know he had to come with me."   I knew he was lying as he had driven with my son and his aide for the entire previous week.  He had deliberately left without him, which I imagined was to get my son alone.  Needless to say he was fired.  So many things had gone wrong that should have never been allowed to happen.

All I knew was that my son was alone with this man for a half hour which could not be accounted for.  My son could not tell me what happened.  What an awful feeling it was when I had to check my son's private areas.  To this day, I will never know if anything happened.  But I'll tell you what, I was a mother on fire!

From that day forward, his IEP included detailed instructions for the transportation company and his school.  The driver is to never leave the bus yard without the aide, the driver and aide are assigned to my son's route and follow the protocol, and there is a plan in place for when either one of them is sick and can't drive that day.  My son's school has a protocol which details that he should never be released from school if the driver shows up alone.  This safety plan is a part of my son's IEP.

I do also worry about wandering off and elopement at school.  Thankfully, a safety plan for wandering isn't something I had to incorporate into his IEP as his school follows strict, school-wide procedures.

Wandering and elopement is a common challenge for many children and adults who have autism and other developmental disabilities.  When your child is at risk for elopement at school, I want you to know that you can meet with your IEP team and request a written plan or protocols to address behavior that puts your child at risk.  You can request ongoing staff training on the written protocols.  I've been involved with many IEP teams over the years in developing and incorporating safety plans into the IEP.  Also, ask to see your school’s written, school-wide protocols for elopement.

Whatever puts your child at risk, please, please know that you can address it through your child's IEP.

We Don’t Do That in This District

There are lot's of things I hear at IEP team meetings that cause me to bristle and take a deep breath.  One of them is when I hear "We don't do that in this district."

It was recently said at a meeting in which we were discussing the possibility of a student requiring a residential program as part of an appropriate placement.  The director said, "we've never paid for the residential portion of an educational program,  we don't do that here."

As I usually do,  I took a few deep breaths and contemplated my response to make sure I said something appropriate.

I explained that I was a uncomfortable with his response and I would be more than happy to ignore it.  But, if he really meant it and wanted it on the record, than I would request for the district's position to be on the record.  Loud and clear!

I explained that I was uncomfortable with it because he was predetermining what the IEP team was going to decide about the student's program.  Additionally, it sounded like it was their policy not to do such things, and it wouldn't be appropriate for the district to have a policy about what they do and don't pay for as a part of a student's IEP.

He rethought his definitive statement about not paying for residential portions of educational placements and said he wanted to wait to see what the evaluators had to say about what the student needed.
I confirmed that I thought that was a great idea!
The Gift of Knowledge

It's been a couple of years now that I've been blogging about special education legal issues.  Unfortunately, the realities of juggling a busy law practice, a family, and other professional commitments don't allow me to do it enough, and I continue to yearn to bring information about parents' rights to a wider audience.

When I started this blog, I had been practicing special education law for well over a decade.  I thought I understood that parents of kids with disabilities were often unaware of their rights under the IDEA.

I didn't have the first clue.

What I failed to account for was that my experiences and impressions as a special education attorney were, by definition, limited to those families who have the ability to contact a lawyer!  I'm not just talking about financial means, although that is a HUGE part of it.  I am talking about parents who are willing and able to question authority.

Suddenly I started getting tons of emails, phone calls, questions and comments from my blog readers across the country about their experiences.  These parents weren't trying to hire a lawyer.

These parents wanted information.

Many were just beginning to understand that their child wasn't getting what they needed from their school districts, and that maybe they had a right to do something about it.  Many more had become informed about their rights, but felt completely powerless to enforce them.

As the scope of the problem became more clear to me, I started working in earnest with a friend and colleague, Julie Swanson, who is a non-attorney advocate here in Connecticut.  Julie and I met 15 years ago when my late father represented her son in one of the first cases involving the appropriateness of autism programming in our State.  Since that case was (successfully) resolved all those years ago, Julie became more and more passionate about advocating for children's rights under the IDEA.

One night, over dinner, Julie planted an idea.  She was convinced that the reason so many children with disabilities receive sub-standard programs is not just that parents are largely uninformed about their rights, but that there is no easy, mainstream opportunity for them to learn about them.  She was pretty much preaching to the choir at that point, but over time we started coming up with various models.

How could we "spread the word" about special education advocacy to parents?

We decided that the answer was to simplify the special education process as much as possible.  As our ideas started to gel, we had the fortune of meeting up with a wonderful group of producers of educational videos who believed in our mission.  It has taken nearly two years to develop, but I am proud to announce the birth of www.YourSpecialEducationRights.com.

Our concept is simple.

Julie and I have filmed dozens and dozens of short, easy to understand video clips on numerous topics relevant to special education rights.  Parents (or grandparents, or students for that matter) subscribe to the website at a reasonable annual rate.  They can watch the video segments whenever they want, as often as they want, at any time of the day.  Watch when the kids are asleep or while getting ready for an IEP meeting.  We like to think of it as a cross between a webinar and a talk show!  New series are added continuously.

As the video library grows, so too grows knowledge, and a feeling of empowerment.

We have several series on IDEA basics and terminology.  We have a series called "Crisis Corner" for urgent matters.  We have a series focusing on the bullying of kids with disabilities.  We have a multi-part series called "My Child Is In a Psychiatric Hospital.  Now What?" with step-by-step suggestions depending on whether or not your child has an IEP, 504 Plan, or is not yet identified for services.  We have "Jen and Julie's Booklist," where we share what's in our advoacy libraries and why.

Perhaps my favorite series is called "They Say, You Say," where we take comments that parents often hear from school districts, and provide suggested responses.

Already filmed and in the editing room is a series on Transition to adulthood; another series is on issues related to infants and toddlers; and yet another on home-schooling of kids with special education needs.  We are working on a series for gifted and talented students with disabilities, as we know these "twice exceptional" students' needs are often overlooked by our public schools.  Future series on independent evaluations, and how to understand testing in general, are in the works.

The list of possibilities is really endless!

It is Julie and my greatest wish that, by making the laws surrounding special education more understandable --by simplifying them--parents will learn how to EFFECTIVELY advocate for their children.

Check out the site, watch the previews, and hopefully, join our community.  Just imagine what a difference can be made.  What if MOST parents knew what to do and say in meetings with their child's special education team?  What if MOST parents understood how to get their children appropriate services and accommodations?  What if, instead of a few parents understanding the special education system, MOST did?

What if?

IEEs: Do You Have to Explain Why You Disagree?
February 14, 2011
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As I have covered on several occasions in the past, a parent's right to an Independent Education Evaluation (IEE) under the IDEA is, in my view, one of the strongest available under the special education laws.  This opportunity to get a "second opinion" on the school district's evaluations is, in many cases, the difference between positive outcomes and disaster.

The first step towards obtaining an IEE is to disagree with the school district's testing.

However, what if you disagree with the testing, but you're not quite sure why?  Or perhaps there are several things with which you disagree?  Or maybe you have a sense of what you disagree with, but you don't have the "proper" terminology to explain it.

Do you have to be able to articulate WHY you disagree with the school's evaluation in order to trigger your right to an IEE?  In a word, no.

The school district is legally permitted to ask you why you disagree, but they can not require an answer.  Nor can they delay a response if you don't provide a reason.  Please read this important provision of the statute.

I suggest you print that provision out and take it with you to the IEP meeting at which you intend to ask for an IEE.  Heck, maybe even laminate it!

DON’T THROW AWAY ANYTHING!!!
December 22, 2010
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Sometimes it's difficult to know what to to be happy about as an attorney who represents children with disabilities.

As you can imagine, the facts that support a "really great special education case" are, by definition, at best unpleasant, and at worst horrific.

It's an odd feeling, reviewing a child's special education records.  When I find procedural violations (sadly, this occurs more often than not), I get a little excited.  Why?  Because I know that these violations of IDEA have probably led to the very deprivation of appropriate special education programming which has brought the parents to my office.  It gives me the ability to verify my client's claims.  More importantly, I know that clear violations of the IDEA will give me the leverage I need to convince the school district's attorney that my client requires more, better, or different services.

But that doesn't mean I'm happy about it.

So, this all gets to the point of this piece, which is, quite simply this:

DO NOT throw out any paperwork that documents your communications with your school district.

You'd be very surprised at what you have that is remotely related to your child's education, special education, or the possibility of special education, which might prove useful one day.

I recognize this is antithetical to the current trends of accumulating and keeping fewer things.  I get it.  I watch Hoarders too.  But I'm not here to arbiter whether you should hold on to your uncle's crappy golf clubs, or your mother's coats.  I'm talking about documentation of the communications between you and your child's school district.

I have actually had cases which have been won on the evidence provided by just one piece of paper, saved by a parent, many years later.

So, if you're trying to free up space in the garage, perhaps it's time to part with the cocktail dress you swear you'll fit into again one day...but please don't toss the letter you wrote Sally's teacher in 2nd grade asking if maybe she should be tested.

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