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Learn How to Control the Outcome of a State Complaint

08/02/12
by Pete Wright

I filed a complaint with my state department of education. The school claimed that the Behavior Intervention Plan was not valid because they had not attached the BIP to my son’s IEP.

The DOE found “no violation” because the BIP was not “attached to” or mentioned in the IEP.

Questions:

  1. To be valid, does the law require the school to attach the BIP to the IEP?
  2. If the answer is “yes,” isn’t the IEP team responsible for ensuring that appropriate documents are in place?

Review the IEP statute (20 U.S.C. 1414(d); Wrightslaw: Special Education Law, 2nd Edition, p.99).

  • Does the law say that you must attach a Behavior Intervention Plan to an IEP?
  • Does the law say that you must incorporate it by reference into the IEP?

No, it does not.

Change one fact in this situation. The person with power (in this case, the state DOE employee) wants to rule in your favor. The school argued that the child’s IEP did not have the BIP attached.

As a good judge will do, this person in power would find a reason to rule in your favor.

The judge may find:

“The school district asserts that the BIP must be physically attached to the IEP as a matter of law. The law does not require that an IEP have the BIP attached to it. A BIP is clearly a part of the child’s educational plan as set forth in the IEP.

The parties relied on the BIP to be part of the child’s educational plan, so the BIP was clearly incorporated into the IEP by reference. Thus, the BIP is part of the IEP, even though it was not mechanically stapled to the IEP.

In the case above, the state DOE employee did not want to rule against the school district. If the BIP and IEP were attached by steel cables, the state DOE employee would find another reason to rule against the parent.

In our training programs, I explain that the facts and law do not control outcome. The decision-maker controls the outcome.

This happens all the time in litigation. The judge will find a way to rule for or against one party, regardless of the facts and the law.

You must make the decision-maker want to rule in your favor.

When parents write a compelling “Letter to the Stranger,” they can often accomplish this objective.

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3 responses so far ↓

  • 1 SHAREBEAR 09/09/12 at 6:53 pm

    We went to mediation this year to hash out the part of our state complaint that the DOE found to be in violation. Our mediator seemed to be impartial at first, then I noticed that start to change. He would not leave at the end of meetings (twice) and I waited outside in the parking lot to see when he would finally leave. Once he left one hour after the meeting and the other meeting I had to leave after waiting an hour and he was still there. We also observed him going to lunch with one of the teachers. He became openly hostile towards us in the last meeting as well. He and the Dir of Spec Ed. were always joking and laughing. I still cannot believe it! We ended up with very little in the end. Maybe I am just over-reacting, but I found his behavior unprofessional and he displayed partiality to the school district. Should I file a complaint?

  • 2 Lwhit 08/04/12 at 1:45 am

    Even if the BIP is not actually attached to the IEP. Shouldn’t there be an annual goal in the IEP referencing the BIP to determine the effectiveness of the BIP?

  • 3 Lynn 08/02/12 at 1:43 pm

    I’m confused. If IDEA has identified 13 categories of SpEd eligibility, why do individual states create their OWN list of categories, above and beyond those 13…???