Housecleaning For Springtime (Or how busy, overextended but effective parents can prepare for IEP season)

By Bonnie Yates, Esq

Ah, yes, I know it is only February. But there is something in the air already: our clients are telling us that the outside psychologists they are contacting for educational testing are already booked until May 15th. “But my IEP is in April and I need the testing and school observation done before then!”

Hmmm. I guess the crazy busyness of Spring IEP season is just around the corner. For the newly initiated members of our special ed family, what this means is that the District has 3.5 months to finish all of its annual IEPs that it didn’t get to in earlier months. Not too surprisingly, this results in calendar logjam and lots of rushing to complete assessments and to compress complex meetings into short amounts of time. If you are a parent and you are preparing for an IEP at this time of year, here are some things that I hope will help a lot.

Start Early

Write the school district and tell them when you want your IEP meeting to take place. Give them a meeting length estimate that you think you will need so that you don’t run out of time half way through, have to stop and then reschedule for a month later.

District must honor your written request for the IEP meeting no later than 30 days after the District receives it. If the meeting is not scheduled and held by that date, the District is late which may have legal ramifications. BTW, make sure that you keep your proof of your request receipt.

If you have an issue that needs to be resolved before the end of the school year or by early summer, start in early January. Find out what kind of information you need to present at your IEP (e.g. reports by out of district clinicians who are working with your child), how to get that information and when it will become available. Be sure to allow enough time for the psychologist or other professional to both assess your child, see him in his school setting and document his or her findings in a written report. Have the outside evaluator provide you with proposed goals based on his or her findings. Check dates with your evaluator and coordinate with the District so he or she can attend the IEP and present findings.

Get your reports to the District in a timely fashion. Many districts would prefer not to have to consider outside assessments and will not do so if they get them the morning of the meeting or even the day before. A prudent rule of thumb is to make sure that you give your outside assessment to the District at least a week prior to the IEP meeting.

Document, Document, Document

The District has done hundreds of IEP meetings before and you have done none or a few. This means that significant things may happen but you won’t appreciate their legal significance until later on. You can protect yourself in advance by doing all communication in writing rather than picking up the phone. Email is great. Having a paper trail means that someone else can look at your case later on and give you an objective assessment.

The tone of your documents (and all of your communications with the District) is also important. Polite but firm is a good rule of thumb. Remember, someday you might be in a hearing in which case the hearing officer will be trying to decide if you acted reasonably. He will look to the tone of your documents for clues.

Record, Record, Record

Over the years, parents have frequently expressed hesitation about whether they should tape their IEP. My rule is hard and fast and I never deviate. Always tape. The reason is simple: you cannot know whether someone will say or do something that might give you a material advantage in a case until after it is said. If you do not tape, it will be difficult after the fact to be show what actually happened. In my experience, what is said at meetings is never fully reflected in the written IEP document.

For example, I have had IEP meetings where District came in and offered a placement prior to having any discussion about the student’s unique needs or present levels of performance (“PLPs”). This was illegal but was not reflected in the IEP write up; On the write up, they filled out all the forms as if we had proceeded in proper, sequential order. On a similar note, I have had school staff recommend a placement and then later, when questioned, admit that no one at the meeting knew anything about the placement. This is a clear violation of IDEA. In both cases, these significant errors were preserved on tape. This allowed me to show it to District higher ups later on to obtain a substantial settlement.

I know that it is uncomfortable for parents to write the District (which you must do at least 24 hours before the scheduled IEP meeting) and indicate that you intend to tape; And it is probably even harder to go into the meeting and hit the button. My advice is to get through these feelings in the interest of getting the best results for your child. There is no need to be apologetic. After all, the U.S. Congress developed the rule and so they must have thought it would be valuable for both District and parents!

When I tape meetings, I have a mental list of things that I am on the look out for but am also tape recording in case I need to go back later and review the meeting because my notes or recollections are incomplete.

I also bring extra batteries and check often to make sure that the tape is running! If my batteries run out, I ask District to break from talking while I change the batteries. I also try hard not to interrupt and encourage others to talk one at a time in the interests of an audible recording.

I have made taping easier for myself by using a digital recording device with a numeric counter. This allows me to break out in my notes where certain parts of the discussion occurred: e.g. “2:35-discussion re speech and language assessment.” I can also easily burn a copy of the CD should I need to do so.

Write, Write, Write.

While the tape recorder is my fail safe, it is always important to try to take good notes. I say try because it is hard to talk, listen and write semi-concurrently. That said, here are some things that work for me:

At the beginning of the meeting, I organize my thoughts by obtaining a clear understanding of who the participants are. On the top of my legal pad, I make a seating chart with the name of the discipline represented. That way, I can listen to the comments and make sure that I can remember that this is say, a PT who is commenting about behavior problems or a speech therapist who is lecturing my neuropsychologist about brain processes. It often happens that people speak beyond the level of their specific expertise but to appreciate this one must be able to remember what expertise they possess.

If there is a lot going on as the meeting starts and I miss the name or discipline of a participant during the introductions portion of the meeting, I ask to see the sign in sheet. I also do not hesitate to ask someone to speak up if I (or my tape recorder) cannot hear him or her.

In order to make sure that I do not forget to discuss things that need follow up, I will make a note with a checkmark on the left margin of my legal pad. After I have come back to the question and gotten it answered, I put a slash line through it.

Another important thing to remember about the IEP meeting is that it is not like court. There is no judge here. Everyone has equal authority and no one can throw you in jail. Therefore, it is reasonable to pause the meeting if you want to take a break to confer or even just to get a drink of water. (Or something else.) If I leave for any length of time, I take all confidential materials with me.

Similarly, although the District usually comes into the meeting with an agenda and is supposed to conduct the IEP in accordance with IDEA requirements, the law strongly protects your right to participate and to make your concerns known. Thus, at the beginning of the meeting, I usually ask the District if there are any time constraints and how much time I will need (and expect them to give me) to discuss my client’s concerns. If we get to a point where valuable discussion is being rushed or cut off, I will definitely say that my client’s right to participate and give input is being infringed. When they hear those magic words, the “dialogue space” usually expands.

A Word About Agenda

A word about agenda: I know that parents express that they sit for 2 hours waiting to get to the part that they care about: services. In fact, though, IDEA requires that the District has to proceed in a particular order and address several topics. These are: eligibility, assessments, unique needs (a.k.a strengths and weaknesses), present levels of performance (“PLPs”), progress on past goals, proposed goals and objectives and finally, placement and services. Once parents have heard the District’s offer, then it is time for parent concerns.

It is not your imagination if you think that these meetings are overwhelming and difficult. They are frequently plagued by unintelligible acronyms and rushing through materials such as test results that are quite sophisticated. It is not really possible to attend these meetings as an objective observer when you don’t know the rules and your child is the subject of discussion. Nonetheless, you have every right to ask that the District take as much time as is necessary to make you understand this most important subject matter. And do not let someone bowl you over with non-stop words.

I never agree to review or sign anything at the IEP.

For me, there is also the phenomenon of “museum legs” after a certain point in the IEP meeting. What I mean by this is that after the 4th or 5th hour, it is time to leave, get some food, go home and then debrief. I never agree to review or sign anything at the IEP. As long as I have my tape recorder and it is working, there is no danger in doing this. I find that I make better decisions after I have an opportunity to reflect.

By the way, there is no legal requirement that you have to sign the IEP at the end of the meeting, although the District would like you to. The why of that is that if you sign it on the spot, they are home free, meaning, you will not later be able to appeal the placement offer.

When I review the IEP in the cold clear light of later on, I almost universally find that the IEP is written from the perspective of the District and that there are significant omissions in the document. Even when there is agreement as to services, read carefully to make sure that amounts and number of weeks of service are correctly delineated.

I tell parents that District is entitled to their written IEP response within a reasonable time. I interpret reasonable to be no more than 30 days.

It is not a good idea to offer no response to an IEP you disagree with. This is because many districts feel that this legally obligates them to file for hearing to get a determination as to whether their offer is appropriate. They can do this anyway even if you do sign, indicating your areas of disagreement, but then you have told them what your concerns are so they can follow up and you will be more sympathetic to a hearing officer if you make you concerns known in writing at the earliest stage.

Obviously, the above comments presuppose that the District has not offered what parent thinks is necessary and appropriate.

In California, you can still agree to those services that you want and not accept the rest.

Usually, when you do so the District will agree to partially implement the IEP it offered. Be aware, however, that if you do not fully consent to the IEP and the District thinks failure to do so deprives student of a FAPE, it is possible that the District will file for due process in order to obtain a determination that its offer is FAPE.

Drafting a partial consent to an IEP is complicated and you may want to do so after getting outside review of your IEP by a knowledgeable person. To give some examples, you could consent to all of part of an IEP as follows: eligibility, goals, placement, related services, transportation.

Tonight I am wrapping up after a long afternoon in an IEP meeting with clients. At the previous meeting, which started in December 2009, District speech, OT and PT therapists told my clients he had not met many of his prior goals because he was not a motivated student; they proposed repeating goals from the last year. When I hear a team say that a student lacks motivation, I listen carefully as I believe good teaching creates motivated students. As a result of these comments, we decided that an infusion of outside ideas would be good so my client obtained private speech, OT and PT evaluations.

When I got the reports I reviewed them and saw, not surprisingly, that the private evaluators had found previously unidentified areas of need and recommended additional goals and more hours of service.

I spoke with the evaluators after reviewing the reports and made sure that I understood their impressions.

I then sent the reports to the District so they could consider them in advance of the IEP meeting.

In light of what I have recommended to you in this blog, it is interesting to think back to the meeting dynamics and whether anything I had recommended here would be helpful to parents. Today’s take aways are that bringing in outside assessments made the team members defensive and they brought an attorney to the meeting. Even though I tried as hard as I could to be polite and firm, some cross-examination was required as staff contradicted each other and then changed positions. They also claimed to have written new goals between meetings, totally unrelated to having reviewed the outside assessments. Interestingly, their new goals strongly resembled those from the outside providers.

Meetings like this serve to illustrate how hard it is to present differing opinions, even when one is well armed and familiar with the process.

Now, however, because of the outside information we presented, the client is set up to press forward for private speech, OT and PT services and if the District refuses, to bring a case for reimbursement,

For More Help With IEP Preparation

For more help with IEP preparation, please come to our In-office IEP Preparation Clinic, March 24, 2010 from 2-6 p.m.

Your Comments and Questions are Welcome