Parental Rights in Special Education - Prior Written Notice

The Individuals with Disabilities Education Act's (IDEA) implementing regulations require that a school district give written notice to the parent of a child with a disability within a reasonable time before:

(1) the school plans to take (or refuses to take) actions proposed by either the parent or the school district related to the identification, evaluation, or educational placement of the child; or

(2) the school plans to take (or refuses to take) actions proposed by either the parent or the school district related to the provision of a free appropriate public education (FAPE) to the child. (34 CFR §300.503(a)).

Prior written notice must include:

• a description of the action proposed or refused by the school;
• an explanation of why the school proposes or refuses to take the action;
• a description of each evaluation procedure, assessment, record, or report the school used as a basis for its decision;
• a statement that the IDEA’s procedural safeguards provide the parents of the child with a disability with rights and procedures for resolving disputes related to the subject matter of the prior written notice, and how the parents can obtain a copy of them;
• resources for parents in order to obtain assistance in understanding these procedures;
• a description of other options that the IEP Team considered and the reasons why those options were rejected; and
• a description of other factors relevant to the school’s proposal or refusal. (§ 300.503(b))

For example, a parent must receive this notice:

1. when the school wants to conduct an initial evaluation of the child;
2. when the parent has asked for the child to be evaluated and the school denies the request;
3. when the school wants to initiate or change the child’s identification as a "child with a disability;"
4. when the school proposes or refuses to provide a particular educational placement for the child;
5. when the school wants to change the child’s educational placement;
6. when the school wants to change aspects of the special education or related services that the child is receiving; and
7. when the school refuses a parent’s request in regard to the educational services the child is receiving.

If a parent has made a request of the school, or the school has proposed or refused to take action, and the parent has not received the required prior written notice, the parent should ask the school to provide it.  I recommend that parents do this by email, and retain both that email and the school district's response in order to create a record.

Mediation and Special Education Dispute Resolution

"I’m calling to ask you about whether there is anything I can do about . . ."
 
Most of the parents who call about special education matters tell me that they’ve talked with their child’s school district and IEP team, and remain in disagreement in regard to one or more of the following:

1. The school district says my child isn’t eligible for special education.

2. The IEP team doesn’t think my child needs more or different special education and related services.

3. The school isn’t providing the assistance or services contained in my child’s current IEP. . . .

4. The IEP team wants to move my child to a different classroom.

5. The IEP team changed my child’s IEP in a manner that I don’t think is appropriate. . . .

6. The school won’t allow my child to participate in . . .

The good news is that many times there is something the parent can do, and it can often be done through the process of mediation.
 
When Congress enacted the Individuals with Disabilities Education Act (IDEA) it recognized that sometimes parents and school districts would disagree about the special education instruction, services and placements needed by each unique child in order to receive a free and appropriate public education (FAPE). As a result, the IDEA requires that each state department of education (DOE) have dispute resolution procedures, including special education mediation. (20 U.S.C. 1415(e); 34 CFR 300.506).

A special education mediation is a voluntary and confidential meeting that is facilitated at the DOE’s expense by a trained, impartial mediator. Discussions that occur during the special education mediation conference must be confidential and may not be used as evidence in any subsequent due process hearings or civil proceedings. However, the parties may conclude the mediation by placing written statements of their agreements into a formal mediation agreement that becomes legally enforceable after both parties have signed the document.

When a parent (or the parent’s attorney) files a request for mediation with the state DOE, the DOE and a mediator schedule a time, place and date for the mediation. Mediators, unlike administrative law judges or hearing officers in due process hearings, are not decision-makers. They don’t judge, give opinions, or take sides. Instead, they set out the structure and rules of the mediation, and help to keep it on track. One of Iowa’s experienced mediators always admonishes the parties to "be hard on the problems, and not on each other."

In 2010, CADRE, the National Center on Appropriate Dispute Resolution in Special Education, published the results of a six-year study that was performed in order to identify effective state special education dispute resolution systems and the components of those systems that contributed to their effectiveness. The states of Iowa, Oklahoma, Pennsylvania and Wisconsin were identified as having the most effective systems, and CADRE developed profiles of their procedures for use as models for other states. During the six-year period of CADRE’s study, Iowa, a state which incorporated mediation procedures into its state special education regulations in 1995, consistently had the lowest combined rates of written state complaint and due process complaint filings among all states. 

As an attorney who represents parents in a number of special education mediations each year, it has been my experience that a substantial majority of parent-school district disputes can be resolved by mediation in manner that is satisfactory to all the parties (parent, school district and area education agency).  I believe that Iowa's procedures and the preparation of its mediators are very important to the success of its system in resolving disputes that would otherwise have gone to due process.  However, experience has also demonstrated that no matter how effective the state's procedures or the quality of its mediators, mediation as a dispute resolution tool breaks down quickly when a school district is represented by legal counsel with a limited grasp of special education and special education law, who does not approach the mediation table as a problem-solver, but rather as defense counsel. Under those conditions, even "no-brainer" disputes can end up in due process litigation.  Perhaps a future CADRE study will find that school districts represented by such attorneys have higher rates of due process hearings.

Further Reflections on the Sandy Hook Elementary School Massacre

Two days have passed since I first posted my thoughts about the Sandy Hook Elementary School massacre.  I am becoming increasingly concerned that the news media and others investigating this disaster have not indicated that they will investigate whether there may be a connection between the manner in which the Newtown School District addressed Adam Lanza's special needs arising out of ASD and comorbid disorders, and the 20 year-old former student's horrific acts.

 

While official investigators do not appear to be acknowledging that this may be an elephant in the room, many parents, like Liza Long ("I am Adam Lanza's Mother"), are not only aware of it, but are on the verge of being crushed by it.  Even in the small state of Iowa, since Sunday, even I have received several calls from parents of children diagnosed with ASD and one or more co-morbid psychiatric disorder, who are expressing fears that their children may be demonstrating potential for violence.

Each of these parents began by saying that while they have been worried about their children's risk of suicide, since Sandy Hook, they have become worried that if someday their children were to have access to guns or explosives, they might strike back at the school system in which they have been miserable . . . failing . . . isolated . . . bullied . . . physically/emotionally uncomfortable . . . etc.  All of the parents indicated that they believe the inability of their public school districts to adequately understand and address their children's needs is driving increases in their children's levels of self injury, withdrawal and isolation, and verbal and physical aggression. 

In response to my questions, all of the parents indicated that their children are receiving private medical services and other outpatient treatment, and that some are covered by Iowa's Children's Mental Health Waiver, while others are on the waiting list for the waiver.  Despite their descriptions of some rather specatcular records of truancy, suspensions, physical and verbal aggression, property damage and academic failure, according to the parents, not one of their children's IEP teams have ever mentioned the possibility that in connection with the school's duty under state and federal law to provide a continuum of placements, the school might provide the child with placement in a school with intensive therapeutic services.

While it is unreasonable to consider children diagnosed ASD as potential mass murderers, those investigating the perfect storm that produced the Sandy Hook massacre cannot ignore the research has demonstrated that some individuals diagnosed with ASD and significant levels of co-morbid psychiatric and/or central nervous system disorders, are at risk for high levels of abberant behaviors. 

On the basis of all of the above, I would like to reiterate that while it may be difficult in the wake of the Sandy Hook disaster for investigators to probe the terribly wounded Newtown School District, no meaningful investigation into the factors that produced the massacre can avoid taking a good look at the manner in which, only a few short years ago, the Newton School District addressed Adam Lanza's special needs.

 

 

Reflections on the Sandy Hook Elementary School Massacre

During the past 48 hours of coverage of the Sandy Hook Elementary School massacre, several residents of Newtown, Connecticut have come forward to attest that the Newtown School District is a wonderful school district. Like many other public school districts, Newtown probably does provide a fine public education for many students. However, some of the "breaking news" indicates that this may not have been true in the case of its former student, Adam Lanza.

The developing facts of the school massacre are probably all too familiar to attorneys who, like me, represent parents of children with autism and other neurodevelopmental disabilities in special education matters.  About twice per year, in the course of representing parents in special education mediations, the facts compel me to tell the school district and area education agency involved, "This situation needs to change immediately – you’re incubating a school shooter."

Today I am thankful beyond words for the fact that on those occasions, the school districts involved have been represented by a prominent and insightful school attorney who is well-versed in both special education and special education law.  Each time she has recognized the risks involved, and has guided her clients to make the necessary changes.  As a result, while representing our clients zealously and with integrity, we have helped them solve problems before violence occurred or escalated. I should add here that I am thankful that many situations which hold potential for future violence are resolved through the work of insightful and highly skilled teachers. I count my own sister, who teaches in an out-of-state public school, among those bright stars.

There seems to be no doubt that Adam Lanza’s disabilities played a role in his violent acts. According to the networks, Tim Dalton, a neighbor and former classmate of Adam’s said, "Adam Lanza has been a weird kid since we were five years old." Adam’s paternal aunt, Marsha Lanza, explained that Adam had experienced school difficulties since middle school, and that his mother, Nancy, fought with the School District about his needs related to autism spectrum disorder until she gave up and pulled him out of high school in order to home school him.

While much of today’s media coverage seems to be focusing on the fact that Nancy Lanza apparently kept unsecured guns in her home, there’s more to this story than that lethal error of judgment. From my perspective, I am wondering what happened or didn’t happen in the course of Adam’s public school education that caused him to decide to massacre teachers and students in his home school district.  

While public figures are calling for "meaningful change" in order to prevent future school massacres, they seem to be limiting their discussion to issues involving access to guns and lack of access to mental health care.  I have heard no discussion of an investigation into how Adam’s experiences in the Newtown School District, which consumed nearly half of his waking hours, five days per week, 180 days per year, for more than ten years, may have laid a foundation for his violent retaliation against the school district on Friday.  Had the School District worked more effectively with Adam and his mother, might Friday's violence have been averted?

While it may be difficult for those who investigate the massacre to probe this terribly wounded school district in regard to its past conduct, any meaningful investigation into the factors that combined to produce this massacre cannot avoid considering that even in school districts located in nice communities, some school teachers and administrators can and do act in ways that contribute to the propensity of some children to harm themselves and others in terrible ways.

Office of Civil Rights Receives Record Number of Special Education Complaints

The United States Office for Civil Rights (OCR) at the U.S. Department of Education enforces civil rights laws that prohibit discrimination on the basis of race, national origin, sex, disability and age.  A new OCR report for the period 2009-2010 states that from 2009 to 2011, the agency received more complaints about disability issues than in any previous three-year period.  Of the nearly 11,700 complaints concerning disability issues, almost 4,700 involved the rights of children to receive a free and appropriate public education (FAPE).  The remaining 7,000 disability-related complaints concerned issues including school district violations of Child Find, denial of access to academic programs and extracurricular activities, access to assistive technology, denial of academic adjustments, and harassment and bullying.

The data used in the report covered 85% of U.S. public schools.  The data for 2011-2013 will include every public school in the nation.  Matters described in the OCR report include:

·         A school district that required parents to get medical documentation, at their own expense, supporting the existence of disabilities for their children. The district also required parents to show that their children were being discriminated against before it would conduct an evaluation for disabilities.

·         A charter school that failed to properly evaluate whether a 6th grade transfer student with a severe, potentially life-threatening peanut allergy to determine if she had a disability.

·         A school district that had not fully implemented an IEP for a child with a mood disorder.

·        Investigation of whether children who ride school buses specifically for children with disabilities receive less instructional time than children who do not have disabilities.

·         Data collected showing that students with disabilities are twice as likely to be suspended out of school in comparison to their peers without disabilities.

·         Cases involving the bullying and harassment of students with disabilities.

·         School denial of access to academic programs and extracurricular activities to students with disabilities.

The entire report is available at:  http://www2.ed.gov/documents/news/section-504.pdf

How to Register Your Objection to an Inappropriate IEP

I wish I had thought of this great tip myself.  But since I didn't, I want to give credit to and heartily thank Pete and Pam Wright, adjunct professors of law at the William and Mary Law School, and their excellent Wrightslaw website, http://www.wrightslaw.com/advoc/articles/strategy.disagree.htm#rules for the following tip on how a parent may register his or her objection to the IEP Team's decision to implement what s/he believes is an inappropriate IEP.  Although in Iowa and some other states, parents are not asked to sign the IEP, when provided with a copy of the finalized IEP that will be implemented, a parent may still take the following action:

"When the team asks you to sign consent to the IEP, pick up a ball point pen and put the IEP on a hard table top. Write this statement on the IEP:

I consent to this IEP being implemented but I object to it for the reasons stated during the meeting.
(Sign Your Name)

Do not be surprised if someone gets upset and claims that you are not allowed to write on the IEP because it is a legal document. This is not true - you can write on your child's IEP (although the person who objects may not know this). You are a member of the team and a participant in the IEP process. The law requires you to make your objections clear. The IEP is the best document to use when you need to make your objections clear.

If someone tries to stop you, continue to write. If someone tries to pull the IEP out of your hands, press down hard with your ballpoint pen and continue to write. If someone yanks the document away from you, continue to write as the IEP tears.

Stay calm. Take your copy of the IEP (whatever is left), stand, say 'Thank you. I guess this meeting is over.' Extend your hand to shake theirs. Pick up your tape recorder and leave.

The IEP team has a problem. You have advised them in writing that their proposed program is not appropriate for your child. You also consented to their implementing the program so they should implement it."

Special Education Time Frames Part 2

This is the second article about time frames under special education law.  While some federal and state special education regulations describe the timeframes in which a school district and area education agency must take certain actions.  While some of these regulations state a specific number of days, others indicate that actions should be taken in an unspecified but timely way.  In this post, I will begin setting out some of the time frames that apply to specific actions under the special education regulations contained in the Iowa Administrative Code.

Independent Educational Evaluation (IEE)                      See 281—41.502

An IEE is an evaluation conducted by a qualified examiner not employed by the AEA. After a school district/AEA have performed an evaluation, if the parents of a child with a disability disagree with the outcome of that evaluation, they have the right to obtain an independent educational evaluation (IEE) of the child at public expense, subject to the conditions set out in the Iowa Administrative Code. 

If a parent requests an IEE at public expense, the AEA must, without unnecessary delay, either:

(1) File a due process complaint to request a hearing to show that its evaluation is appropriate; or

(2) Ensure that an independent educational evaluation is provided at public expense, unless the AEA demonstrates in a hearing pursuant to these rules that the evaluation obtained by the parent did not meet agency criteria.

The school district and AEA may not unreasonably delay either providing the IEE at public expense or by delaying before filing a due process complaint to request a due process hearing to defend the public evaluation.

Determination of Eligibility for Special Education and/or Related Services  See 281– 41.306

Upon completion of the evaluation, a group of qualified professionals and the child’s parent shall determine whether the child is a child with a disability, as defined in accordance with subrule 41.306(3) and the educational needs of the child; and the school district/AEA shall provide a copy of the evaluation report and the documentation of determination of eligibility at no cost to the parent.

Initial Provision of Services          See 281--41.323(3)      See 281—41.103(3)

Within 30 days of the date the evaluation team determines that a child needs special education and related services, the school district and AEA must hold a meeting of the IEP team to develop an IEP for the child, and begin services.

There shall be no delay in implementing an eligible individual’s IEP, including any case in which the payment source for providing or paying for special education and related services to the child is being determined.