Winning Your Case Before Going to Hearing

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The surest way to get what you want for your child’s special education is to make a compelling, winning case in writing, before you ever go to hearing.

This is why I treat every communication with a school district as an opportunity to document my client’s case. Letters and emails to administrators are written from the perspective that they will be read by a hearing officer.

Here in Connecticut, parents must present their case first before a hearing officer. So, even though, in CT the burden of proof (that an IEP is appropriate for a child) supposedly rests on the school district, in reality, parents present their entire case first. This puts the district at an advantage as they can prepare their side of the story to directly oppose and overcome each parent concerns presented at the hearing first.

So, I force school district to present their case before even filing a due process demand. It is easy. When the district opposes a parent’s request, I make the district give us an answer in writing. This is supposed to be done on the “Prior Written Notice” pages on the IEP, but the information they document is always scant. I will ask them to clarify – giving them ample opportunity to “make their case.”

For instance, if a parent formally requests additional speech and language therapy and the district refuses the request, I will, after I have gotten a copy of the IEP, ask them to clarify their reason and expand on the negligible PWN supplied in the IEP. Usually the reason they give is something pithy and virtually meaningless like “student performance does not support additional services”. Once I have it in writing, I save it.

When and if the parents go to due process, I will dispute the districts written reasons directly, and present our own case refuting every reason the school gives. When it is their turn to present their side, I will not allow them to expand on their PWN and give additional reasons. I will object to anything the school tries to add outside of the reasons they provided because they were never presented to parents prior to the hearing. They don’t get a second bite of the apple.

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Always Make it Formal

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So many parents are utterly frustrated that their child’s school district won’t listen to their requests for changes in the child’s IEP, or for additional services, or for outplacement, etc. The school doesn’t come out and say “no,” they just deflect the request with “he is making good progress with his current IEP” or “she is making excellent progress on her goals and objectives, so we see no need for additional services” or “the program here at the public school is working so well for your child, I would hate to see him outplaced”.

Here is how you get your request truly addressed: You make it a “formal request”. Instead of saying “I think my son needs to go to a different school where they know how to meet his needs” you must say “I am making a formal request that my son be outplaced at a school that is appropriate to meet his needs.”  Then be sure to get an answer. It will be a “no” or a ‘yes” or something in between like “lets put in place the recommendations in this IEP and see how he does.” The latter is still a “no” and you must call them out on it. “So you are refusing my request at this time.”

Here is why that is important. The school is obliged to give “Prior Written Notice” whenever they propose a change in the IEP or refuse a request for a !change in the IEP.  Most schools try to avoid this by ignoring requests. Some simply don’t do it because they know the parents don’t know any better.

Prior written notice is an important safeguard for parents. Schools aren’t supposed to just be able to say “no” without giving a reason. They often do, but they do so in violation of the IDEA.

When I make an important request; one that I am willing to fight for, I make it formal. The school usually gives a pathetic reason on the prior written notice page like: “educational performance supports proposed action”. I refuse to accept that as an answer. So, I will ask the highest administrator in attendance to elaborate fully. They usually come back with more pathetic answers.

In the event of a due process hearing, I will object to any further elaboration on the subject as having been withheld from the parents prior to the due process.

This is how to use the law to win.

Keeping Schools Transparent

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Transparency and communication. It is a necessity in Special Education. I keep in frequent contact with my client’s school districts. If a parent is denied a request, I will ask for the legal authority by which they made the decision.

As I have said in a previous post, I never take the school’s word for anything that is not explicitly addressed in the IDEA. I will write them emails and challenge their veracity. This is the only way I know to keep districts from taking advantage of parent’s naivete of the law.

Usually, by the time I am called in by parents, the school has already been brazenly lying and bending the truth beyond recognition to parents. So when I ask for verification of their claims, they get very upset and start doing some serious back peddling.
Often, they will say that my questions and requests for information are too many to respond to. They imply that I am trying to intimidate them by persistently asking questions (usually of their unreasonable statements to parents) until I get a REAL answer. I remind the school that parents of children with special needs have every right to communicate with their child’s district. And that by asking me to stop asking questions, the district diminishes parents ability to be full and equal members of the child’s PPT. That usually stops them from complaining more.

One time, a silly administrator thought she was being clever by turning this tactic around on me. She asked where I have the authority to “intimidate” her by asking so many questions. I told her that my obligation is to assure that my client is being treated as a full and equal member of her child’s PPT. The district has the obligation and responsibility to the parent. Not vice versa.

I don’t care how annoying or obnoxious they think I am. I refuse to let districts mislead parents about their child’s rights.

Behavior Problems?

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Behavior problems with special needs kids are especially tricky for parents. Schools are quick to blame family, home life and known issues families have (like divorce, addiction, or financial issues) as the cause of a child’s difficult behavior.

While home life can and does have an effect on a child, his school needs to determine how to help the child cope in school and avoid difficult behavior. Part of his IEP should specifically adress behavior issues.

An FBA (Functional Behavior Assessment) is almost always necessary when children have bahavioral difficulties. A good FBA will help develop a hypothesis about the underlying issues that make a child behave the way they do. Many times a child’s learning disability will cause behavior issues as he struggles to keep up with his peers and realizes he is falling short. Or he doesn’t like his paraprofessional. Or he does not know how to express himself due to an underlying language deficit.

Unfortunately, parents are often told, flat-out, or subtly, that the problem is the child’s fault. The school may imply the behavior stems from problems in the home, so the onus is on the parents to get the child therapy and keep him home from school when he has been suspended for the seventh time that year.

Do not let the school railroad you into accepting the entire blame for his behavior. Remember, if a child is not learning, and is becoming frustrated, it is the school’s responsibility to adequately educate him. As soon as you realize your child is having behavior issues, request an FBA. If the school performs it, and you don’t feel it is adequate to meet his needs (which will be obvious if the behavior continues afterwards) request an Independent Educational Evaluation FBA. Do your homework and find the best behaviorist you can who will accurately assess your child and then help advocate for an appropriate program for him.

Most parents don’t realize that if their child misses several days of school because of behavior issues, the school is still obliged to provide an education! That means home bound instruction or some kind of private tutoring. Don’t let them off the hook and allow your child to be short-changed an education if he is struggling with behavior.

Too many parents are embarrassed by their childs behavior, and will accept the the suspensions quietly as part and parcel with his disability. Your child deserves an education regardless, so demand compensatory educating.

A School District’s Hostility Can Have Tragic Effects.

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Just over five years ago, a horrific tragedy happened in Newtown, CT.  This happened twenty minutes away from where I live. My son was in first grade as were the children shot on that fateful day, so I easily related to the extreme grief the parents must have felt.

I invite you to consider some interesting, but not surprising, facts regarding Special Education Services in Newtown, CT.

In 2011, one year prior to the tragedy, about 30 to 40 parents contacted state representatives about their dissatisfaction with the district’s special education services. Some parents complained of being  treated disrespectfully and hostilly.  Some described that school officials refused to recognize the recommendations of experts outside the district. Some described planning and placement team meetings, or PPTs, were not running properly – but in a way that diminishes parent’s ability to be full and equal members. Also, some special education services were being denied to their children.

The situation was significant enough that two state representatives, one from each political party,  attempted to intervene on the parent’s behalf. But, the state department of education did not find sufficient evidence of noncompliance with IDEA laws, although they admitted that some of the reports, if true, described hostile and unprofessional behavior on the part of the school district.

Part of Adam Lanza’s history is that his mother pulled him out of school because she was tired of battling the Newtown Schools. According to her sister  “she didn’t feel they knew what to do with him. She really BATTLED with the district to get help for him.”  So, not only did the district NOT adequately address Adam Lanza’s disabilities according to Nancy Lanza, but they were legally allowed to treat parents, like Nancy Lanza, with hostility. So much so that she gave up on the Newtown school’s ability to give her son the help he obviously needed.

Was the school district’s apathy and hostility a contributing factor in the tragic events of December 14, 2012? I think it was.

Transition Evaluations

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I have been working with a student in a district who has its own, post secondary program. The program has about ten students, all with varying levels of Intellectual Disabilities, and they spend about seven hours a day doing Activities of Daily living, like shopping, laudry etc. and going out into the community to work at a job – like the library, Walmart, a nearby store, etc.

Sounds like a nice program. The only problem is that the student I am representing doesn’t want to go to there. She wants to try college and wants to be around a whole variety of people her age, in a college environment. She has the desire and probably the ability – if she were given the opportunity to give college a try.

Her district does not see her as going to college. It never mentions in on the transition pages of her IEP. She is deeply frustrated.  I have learned from experts in the field of Transition, that the student needs an Independent Educational Evaluation that provides a comprehensive transition assessment and functional vocational evaluation. These will help us gain information to determine the most appropriate fit for the student and her hopes and dreams.

I do not know what these evaluations look like yet, but I will be sharing what I learn in this blog as I discover it.

Disability “Label”

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Mostly, I don’t pay much attention to labels of people. Labels like “she’s a ‘bitch’ – yes, I am to unprofessional and heartless special ed administrators”; “He is “autistic” – is that all he is? Maybe he just has autism and many other interesting qualities?; This child is “Intellectually Disabled” what does that mean? Can the child learn? Is there a limit to his/her learning abilities, or will it just possibly take her/him longer to learn grade-level concepts?

I don’t like that last label, because it implies a limit to one’s ability to learn. I have (too often) seen school districts have low expectations of student’s with an “Intellectual Disability” and, sadly, the student is under-stimulated and shuts down.  I have also seen students labeled with “ID” achieve much more than the school had expected. That is usually because of very involved, strong parents who fight for the child’s future by insisting on a robust educational program for them.

When I work with parents of children with that label, I inevitably aggravate the school because I insist that the child’s full potential be explored so that instead of reading writing and doing math on a second grade level on their twenty-first birthday, he or she is on a high school level.

That is not too much to ask, is it?