The Wrightslaw Way

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HELPLINE Archives: Questions Asked & Answered on Topics L – Z

ARCHIVED Q & As on Topics N – Z

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ARCHIVED Q & As on Topics N – Z

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LRE / Inclusion:  REVERSE INCLUSION

Jill:  I have two wonderful differently abled girls, 5y, 7y old. We moved from NH to Mass in Nov. my oldest has always been in an regular class setting. However after only reading her iep the director of special Ed has decided she would fit best in a reverse inclusion. She is now in a resource room with seven boys, she only has a regular class time during gym art and music. My daughter has a hard time expressing herself and I read into her behavior. Since the change she has regressed, before this she was using words and behaving normally. She comes home from school and is destructive , pushing, hitting, hanging on me, whiny etc. I know she is not happy, this is the opposite of how she was . Can I force the school to follow her NH IEP, we haven’t met to do a new one for Mass yet? What are my options and what laws do I need to research?

Morning: I can only surmise from your post that several things are occurring. First, please document to the classroom teacher your concerns. Keep data at home about her behavior when she gets off the school bus. Outline what types of positive behaviors that you noted when she was with typical peers at her former school. The fact that she is in a room with all boys is problematic on many levels. Are the boys behavioral? She may be copying behavior. I have seen this over and over again where just 1-2 girls with needs like your daughter are dumped into classrooms with behavioral kids, mostly boys with severe behaviors. This may not be the case with your daughter but you should ask more questions, keep data and do more research. Have her draw a picture of the kids in her class. It will reveal a lot to you.

LRE / Inclusion:  INFORMAL EXCLUSION

Manuel:  Looking for guidance, federal or state, on informal exclusion of SPED students. Thank You.

Chuck:  Manuel, I suggest that you contact the Parent Training, & Information Center for New Mexico. It is Parents Reaching Out. While they are located in Albuquerque, they should have staff through out the state & they can also assist you by phone. Their # is 800-524-5176 They will be familiar with the state & federal law.

Wrightslaw:  Manuel, I agree with Chuck’s advice to you. I had another thought. Pete and I are scheduled to do a special education law and advocacy training program in Albuquerque on March 25, 2014. The program is sponsored by Education for Parents of Indian Children with Special Needs (EPICS). For information about the program, go to http://www.epicsproject.org/

Hope we see you there! Pam Wright

LRE / Inclusion:  ENVIRONMENT TOO RESTRICTIVE

Kristin:  My 10 year old daughter has Down syndrome. She is in an inclusive 5th grade classroom but pulled out for 2.75 hours with 8 other kids into the classroom next-door for reading and math daily. (1 hour with 2 additional kids) She is making good progress, is very social, does not need assistance outside of academics. She will be moving to middle school next year, where there is a community based program, of 6 kids, all of whom are significant delayed and lower functioning than my daughter. This is the program the district will place my daughter. Location of services on IEP at current school says sp.ed, but at new school, I do not want her in that sp. ed setting. They have said they will not change IEP end date to reflect only current year/building. If I sign IEP then she will be in a more restrictive environment next school year. Help.

Jennifer:  Kristin, if there were an argument for the least restrictive placement, you have it. This is clearly stated in the law—-the child must be placed in the least restrictive setting. When they plan your daughter’s school year at the end of the current year, take all of her grades and everything else to show her level of function. Let the school know your concerns up front, beforehand. I would suggest an official conference, requested by yourself, to discuss this up front.

LRE / Inclusion:  WHAT CONSTITUTES “REGULAR” CLASSROOM?

Ebony:  Does a classroom which contains all LD kids in a given grade (i.e. all third graders with LD in same class) constitute the “regular classroom”?

Morning:  Hi Ebony. My LD kid was put in such a classroom with other LD kids in the 6th grade. I only figured if out after she came home told me about the behavioral issues, reading problems, worksheets, etc. After a month of collecting data such as my child’s report, low level worksheets, etc,, I told the administration that the instructional mode was not allowing her to meet her IEP goals. She was pulled out and had a successful year. On the other hand, she has been in a classroom where it was mostly LD kids who needed intensive writing support and it worked because the teacher was trained, had an aide and had great behavioral management skills. She learned a lot that year. Her writing improved significantly.

LRE / Inclusion:  DATA NEEDED TO SHOW NEED FOR INCLUSION

June:  I am a teacher trying to advocate for students in my classroom. I am trying to advocate for more inclusion time and I am being told by my school that I need to present data that shows they can be in gen ed. Is this true?

Chuck:  Others can give you more information and resources on this, but since the beginning, the federal special ed law has been based on the concept that the general ed classroom is the “default” placement for students with disabilities. So, the school should be presenting data that general ed classes are not appropriate. In many cases it has been ruled that the child should be tried in general ed to show whether or not it can work with the required supports and services required.

LRE / Inclusion: SCHOOL SAYS AIDE IN GENERAL ED IS “MOST” RESTRICTIVE

Jane: Just wondering if this is a new trend that districts are using now to support self-contained placement? They seem to declare it so and it’s not open for discussion. But clearly that was not the intention of the law. What’s a good answer to this roadblock when it is meant to shut down the conversation of LRE?

Chuck: Jane, yes, this is a strategy that school attorneys have begun advising schools to use. Go to the Wrightslaw home page & type in “One to One Aides” to find several articles on this topic.

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Math: FAILING MATH – HELP!

Christy:  At the suggestion of the IEP team, my child was moved from special ed math to regular ed math this year, and now I am being informed she can’t keep up. She is about to finish 4th grade, and up until now her grades were good & everyone said she was doing fine. I already help my child daily, and I feel like it is totally my responsibility at this point to educate her in math! Any advice?

SharonL:  Christy , my son was put into regular math like yours but with a transition plan which included reduced items of the assignment, more time to complete assignments if needed & did not have to participate in word problems right away so as to “ease” him back into the math & allow him to have success. An example of reduced assignment is if the assignment is 50 math problems but the same practice/knowledge can be obtained by doing 25 that is what my son did. When he showed success & could do assignments faster we discussed adding more problems a few at a time. MY son was also able to rework errors on problems with 1/2 credit. We also spent many long nights with him helping with homework. The school is responsible to teach your child & you should not have to feel the way you do. Call an IEP meeting & come up with some items.

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NCLB: WILL WE LOSE SERVICES WHEN NCLB IS WAIVED?

KarenRZ:  In NJ, my 12 yr old son is in 6th grade w/ an IEP (1:1 aide), 1st yr of middle school. He has hi-functioning autism & ADHD. Mid. Sch. has been challenging w/ having to remember numerous things & changing classes. We had a couple of bumps in the road this yr, but may have straightened them out. What concerns us is that NCLB has been waived for NJ & although ADA will protect to some degree, we are wondering if this will affect our son & his IEP where he may lose services?

Sandy: The waivers do not apply to services provided to individual students under IDEA. Nor do they apply to antidiscrimination protections offered under 504/ADA. NCLB waivers apply to allow schools to avoid school-wide sanctions if students do not meet stated NCLB targets on state tests. So there is no direct threat to services under IDEA in this situation. However, it is possible that if NCLB is watered down (through waivers and/or legislative changes or repeal), then the focus on the achievement gap of subgroups (including students with disabilities) might be lessened and thus an indirect negative effect on services may emerge.

NCLB:  DOES NCLB LIMIT MODIFICATIONS FOR STUDENT WITH DISABILITIES?

Alyssa: a special ed student in a gen ed classroom needs modifications in order to gain access to the curriculum. This child is three years at least behind his peers. Ive been told that the team is only allowed to modify the curriculum to a certain level due to NCLB. But no one can tell me what are the curriculum limits. Is this written anywhere?

Wrightslaw: Alyssa, NCLB does not limit classroom modifications. NCLB required states to develop “alternate achievement standards” for students with significant cognitive disabilities. Schools could use “modified achievement standards” to assess students with significant cognitive disabilities. Your child’s IEP team is responsible for making decisions about the classroom modifications and accommodations your child needs to access the curriculum. These decisions should be based on his unique needs.

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Observation: PARENTS OBSERVING IN CLASSROOMS

Chuck:  When someone has time, I would like to see a blog item or article on this topic. I believe that the article on this topic on the website needs to be updated. In TX I am seeing & hearing of more schools putting policies & procedures in place to limit parent observations. These procedures include things like limiting the length & number of visits. Some require a request to the principal before a visit & then they confer with the teacher to determine a day & time. In some cases the school will not allow observations during instructional time & in one case it had to be after the students left. The rationale behind the policies is stated as the need to limit disruption to instructional time. Attorneys tell schools that this is easier to defend, since state regs address disruptions.

Wrightslaw:  Hi Chuck. You wrote, “I would like to see a blog item or article on this topic. I believe that the article on this topic on the website needs to be updated.” I agree but where would you start?

I think these “policies” are developed by administrators who want to limit parent contact and parental involvement. I’m not aware of any law that supports them. Parents report that they are not allowed to observe or visit their child’s classroom, or they must agree to stringent limits (e.g. 30 minutes once a month after notice xx weeks in advance). Parents are told that “the law” requires schools to deny parent requests to observe their child’s class because this would violate the rights of other students.

The only law that deals with confidentiality is FERPA. FERPA regulates education records, nothing more. Parents report that paper is taped over glass windows in doors of special ed classes to “protect student privacy.” Parents report that they are not allowed to attend school events (e.g. holiday parties, field trips) because this would violate the privacy rights of other students.

Are the parents of non-disabled kids having the same problems? I don’t think so, but don’t know so.

Bottom line: Courts have held that school children have very few “privacy rights.” Children with disabilities do not have greater privacy rights than nondisabled kids.

From my perspective, these policies are at odds with IDEA’s requirements re: parental participation – or the spirit of the law.

NCLB also includes requirements about increasing parental participation, not discouraging or forbidding it. Since there is no legal justification for these policies, where to start?

Chuck:  Thank you for your response here & in the e-newsletter. TX has a state law that says _ “Sec. 25.083. SCHOOL DAY Interruptions. The board of trustees of each school district
shall adopt and strictly enforce a policy limiting interruptions of classes during the school day for nonacademic activities such as announcements and sales promotions. At a minimum, the policy must limit announcements other than emergency announcements to once during the school day.” Schools use this to justify procedures that limit parent visits & observations.

Observation:  PARENT OBSERVATION

Miranda:  School says we must give 48 hours notice to observe. We can only observe for 60 minutes and it can only occur 1x per month. An administrator must accompany us on the observation. In addition, they say we must sign an observer agreement before we are taken to our child’s classroom. I’ve read http://www.wrightslaw.com/info/priv.confid.observe.htm Anyone have more advice?

Chuck:  Miranda, if you have not already done so, ask the school for a copy of the district & campus policy/procedures. It is not uncommon for staff to not know what their procedures actually say. If the policy/procedures does list what they have told you, it could be hard to fight this, unless it contradicts state law/regs. Schools argue that these policies are needed to reduce interruptions to instruction.

Miranda:  Thanks, Chuck. The district procedures do say what they told us, but many of the 10 limitations are not supported by state or federal law. Yes, they have argued that the observation limits are in place to reduce disruption and to protect student privacy. And it is not our desire to disrupt. Unfortunately, we have uncovered many violations recently and have significant reason to believe that our child is not being provided an education of any kind for 2/3 of the school day. That is why we need to get in there and observe and that is why they are blocking us.

Observation: BEHAVIORAL OBSERVATIONS – PROTOCOL NOT FOLLOWED

Patricia:  He has a BIP, and has had “behavioral observations” during assessments as well. I’ve noticed that observations “tampered with”, for instance the school will often fail to follow the plans just prior to or during the observations, and paraprofessionals will make no attempt to redirect the child as they should during observations. I’ve asked that they begin using an observational protocol, to show what the problems are during normal conditions. Must they?

Kasey:  I also have this same situation. My son is on a BIP and an FBA has been conducted. However, the school is not documenting in the incident reports that any of the intervention and PBS protocols were followed when the head administrator determines the consequences. My emails go unanswered. I am being ignored and shut out and my ability to effectively advocate is limited by the school’s refusal to communicate with me. I can’t find anything in the Procedural Safeguards that addresses what my rights are for this type of issue – he has not been suspended for more than 10 days. I am conscientious about keeping my emotions in check in my communications, but am running out of patience. What am I missing and how can I get past this roadblock?

Observation:  PARENT OBSERVATION IN CLASS

Angela:  Does a parent have the right if they have a special needs student, mainstreamed in public school, to go to the office and ask to go to their classroom, and they are denied. can they enter anyway? there are situations going on and concern that child isnt getting needs met.

SharonL:  Angela, we have gone in and observed our son’s different times through the school years however we could not just walk in to d that. WE always had to make an appointment so they would know about it. We always got to see what we wanted to see whether we go in announced or un-announced. Find out what your school’s policy for observing your children are and then you can observe them.

Observation:  I JUST WANT TO BE A PARENT OBSERVER 

Katherine:  I live in MN. & work at a church where I work wth the youth. My 7th grade child has an IEP at school. Recently she was allowed to go to an overnight lock-in. Because I work 20 hrs for the church & had completed my hours due a law that says I cannot volunteer where I work my church would not let me attend this event with my child even as a parent observer. I am about to be fired over this & wonder if I have recourse over this & what I do about it? I made arrangements for my friends to keep an eye on her but at the end of the lock in when all others were on the bus they did not see her & had to go look for her. She had fallen asleep waiting for everyone on a bench. while nothing terrible happened. She is a vulnerable child & I am very upset & angry by this. What am I able to do about this?

Morning:  First, I do emphasize with you as I have been in similar positions with my kids and with parents. But, if the adults sponsoring the event feels she can attend without observing her, trust them. If you don’t feel comfortable, keep her home with you. There is no need for you to attend if it is going to cause this much drama. This is not worth you losing your job over or forcing them into a position. Why should there be a recourse?

Morning:  This also may help. My child, through different agencies and schools, was lost for an hour at a vacation bible school at 3 years old, put on the wrong school bus at 5 years old at school and recently at 16 suffered an injury due to his horseplay. In each case, I was angry BUT I knew that the agencies were credible. I collaborated with them to review their risk management assessments, etc. In the end, there were many benefits in the collaboration. My child thrives when I am not around at each event and learns much more and is more relaxed and independent without “mommy” around as he sees me enough at home. If I am ever doubtful of an event or agency, I trust my intuition and my child stays home. There are no easy answers. Each child is unique.

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OT: NOT GETTING OT SERVICES

Dan:  Say a student has OT on thier IEP and they didn’t get services for that year. Would the teacher be to blame? And should that person get fired?

SharonL:  Dan, the teacher will probably not get fired however the school is completely out of compliance. YOu need to get an IEP meeting together to ask what is going on and how they will make up all of that lost time that your son will never get back. I don’t understand how your son was able to go an entire year without anyone knowing about this. There are supposed to be quarterly reports regarding progress that the parents get. Once you did not receive one of those a meeting needed to be put together. The school will need to make up that time either by offering extended school services in the summer with transportation provided.

OT:  OT IN IEP – CONTRACT EXPIRED – SCHOOL HAS NOT RENEWED

Cher:  I don’t know if anyone will have an answer for me, but I thought I would try. My child receives clinic based OT once a week as part of his IEP. My child has not yet met all of his goals for the OT. He started getting the therapy in Feb. School started last week and when I called to verify my child’s appt, the clinic told me that their contract with the district was up, and that they had been trying to find out if the district would continue to pay for my child’s therapy. He missed his session last week because of this. The clinic asked if we have ins. or if we will be paying for this out of pocket. As of this morning, the clinic still has no response from the district. They will not return my calls or answer e-mails. They also did the same thing during the summer as he had therapy for ESY. This is very frustrating. Can they do this?

SharonL:  Cher, the school must by law provide the services in the IEP. They don’t have to use the same people they are using now as long as they meet your child’s goals. They cannot just tell you that the OT expired. You need to schedule an IEP team meeting to find out what they will plan to do for you child. Remember they must make up any lost sessions including the sessions lost in the summer. If they refuse they must give you prior written notice so that you will have the official document you will need to take corrective action if necessary

OT:  LOSING OT SERVICES

Veronica:  My son has Down syndrome and is nearly 11, in fifth grade. At our last IEP, the OT announced he had “no goals” for my son as he would be losing direct OT services (30 minutes/week) and moving to consultation (on the IEP it says 15 minutes per month of indirect services). My son can barely write his name and scored below the 1% in every category of the Test of Handwriting Skills, Revised (THS-R). The school won’t budge on restoring his direct services. What recourse do I have? How can they deny direct services to someone who is so delayed? Any help or advice would be much appreciated?

Sandy:  Veronica, it sounds like your child SHOULD have OT goals and services. Does the school disagree with your opinion of how poorly he is doing in these skills? If they agree, then they need to draft goals and continue services. If they disagree, I’d suggest you get an outside evaluation and go from there. Hope this helps!

OT:  NEED OT & PT

Heather:  When doctors recommend OT and pt how do you get the school to add these?

Sandy:  Heather, you need to request that the school evaluate your child for OT and PT since you suspect these areas of need per your doctor. Your consent to evaluation (put it in writing!!) triggers the timeline the school must follow to evaluate and determine if your child is eligible. So get the ball rolling ASAP!

OT: OCCUPATIONAL THERAPIST AND OCCUPATIONAL THERAPIST ASSISTANT

Baoyi:  My daughter is 5 years old. She has been educated at home for two years. She has Special Ed. for one hour each day, and PT & OT services each week.

Recently, I found that her OT is provided by an Occupational Therapist Assistant, not by an Occupational Therapist.

I read the federal and state law book. Both defined Occupational Therapy as follows: “Occupational Therapy means services provided by a qualified Occupational Therapist.” Does this requirement mean that the district was not in compliance with the law over the past two years?

Several times, I requested that my daughter’s “OT” add a feeding goal to my daughter’s IEP. The OT refused because she said feeding is not an educational goal. Is this true? I really doubt it.

Chuck:  Typically state OT rules allow an OT assistant (COTA, Certified OT Assistant) to do certain activities under the direction of an OT. Review state rules to determine if the COTA did unapproved activities & how often the OT is to observe/work with a child.

Feeding can be considered a functional activity/skill that is covered by IDEA. The IEP team not one person is to make this decision. In my experience, it is not uncommon for school staff to work on feeding skills. I have dealt with consultants who did “feeding studies” & then gave staff a plan to follow for improving feeding skills.

Baoyi:  In California state law, Occupational Therapy services may be provided by Occupational Therapist or Occupational Therapy Assistant who must be under the supervision of a licensed OT.

In the past two years, there were not any licensed OT show up at my daughter’s OT instruction at home. And I never receive any progress report with the licensed OT’s signature. But I didn’t realize this until this year. I assumed the OT provider should be a qualified Occupational Therapist, but she does not. She is the OTA that I verified her license type on the website of California Board of Occupational Therapist.

In this case, does it mean the district provided the OT service in the past two years illegally? How should I do? The IEP will be held next month.

Chuck:  I suggest focusing on the lack of progress reports & supervision of the COTA. Also on all needs & services that you feel the OT & school should have been providing. The school also needs to justify why your child needs to be in one of the most restrictive environments. This should be addressed at least once a school year. It appears that there are violations in these areas that may make the school more willing to work with you.

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Parent Involvement: PARENT INVOLVEMENT

Lucinda:  I have triplets in 4th grade who have IEP’s. In class today, a classmate called two of them” Stupid Twins”. Upon arriving at the classroom to pick them up, my daughter informed me of the situation. I am aware of who this young man is and see his mother frequently while volunteering so I asked him “what made him call them stupid twins. The general ed teacher overheard this. She was aware of the situation and told me that it is illegal for me to reprimand a student. I explained I was only asking and not reprimanding. From now on, the teacher told me to pick up my daughter’s outside the classroom One daughter is crying and one thinks the teacher is mean. I want guidance on how I should have handled this (what I did wrong) and is this something that is illegal in Ohio?

Morning: Your concern is valid. However, you approached a 9-10 year old child to question his behavior on school property –that child cannot defend himself without an teacher or his parent present in my opinion. In this case, the teacher quickly became the young man’s advocate and the teacher acted correctly. I know many parents who would involve school authorities or the police if their child was approached by a parent like that. Sounds extreme? It was an innocent question on your part but out of place. Think carefully and advocate for your child using the resources in the school but not by approaching a student who may have felt “scared” and intimidated. I want you to see the bigger picture as some parents have gone “too far.” The teacher is also protecting you from accusations.

Wrightslaw:  Morning’s advice is good, especially about your need to see the big picture. Your goal is to develop positive relationships with the people who teach your children so they WANT to help your kids. If you have concerns about another child, it isn’t your role to investigate or discipline. Discuss the problem with the teacher – she is responsible for dealing with problems in the classroom.

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Parental Rights:  CAN PARENT WAIVE RIGHT TO IEP MTG?

Joe:  Can a parent waive her rights to attend a triennial meeting for her child? Can the meeting therefore continue without the presence of the parent?

SharonL:  Joe, Yes – on both accounts.

Parental Rights:  PARENT RIGHTS

Jane:  No wonder Pete needed to write Emotions to Advocacy. The emotional pain is so difficult when your rights and the rights of your child are so clearly violated. Parents and advocates , please don’t do what I did and wait until your student has lost years of educational opportunity. File a state complaint .If you are not satisfied you still have the right to pursue a due process. I lost my sons last one which took 7 8-11 hour days. But I learned tons from Pete’s books and wont be like a lamb in the slaughter this time.

Mari:  Dear Jane, Taxpayers pour so much money into sped programs and get very little return. But money aside, lack of services, from the very people we are counting on, is a national crisis. The main ideas that disabled students learn from schools is that life is tough and few people care. If I hear one more school employee say, “Everyone has a disadvantage they have to deal with. Sped students must cope with the real world,” I may have to kill him or her.

I am a reg ed teacher. I can’t get parents to fight like you do. Granted, parents should not have to fight. I would REALLY like to see Pete take up that cause. Parents put in hours to fight for their child. If they win a judgment, their child gets the services, but the parent is not compensated for all the hours they put in. They should win $$$ per hr.

Morning:  I am a parent of a child in special ed. I have heard the comments you mentioned. I used to spend a lot of time baffled by the behaviors of some staff. I see many frustrated staff members and the tide changed for me when I collaborated in a way that allowed the teachers/administrators to work with me to meet the needs of my child. Is this a perfect solution for all parents? It worked for me. We can do research, collaborate, present data, special ed. regulations, and even network with other parents to meet the needs of our kids. I changed from being frustrated to being an advocate for my child. My child loves school and is making progress. Teachers advocate for my child as I collaborate with them in a positive manner.

Parental Rights:  PARENT RIGHTS IN PLACEMENT

Debbie:  What are the parents rights over educational placement of a child?? my child is in kindergarten diagnosed with autism, the home school says they dont have enough resources (they DO have special ed where he spends 40 % of his time with 4:1) and so they want him to go to a different school where he will be going to a special class for autism. We dont want this to happen under any circumstances and the school is pressuring us in every way saying that the current setting is not working for him, he is getting tired,..the main reason being they dont have resources …what can we do?? can an advocate help??

Sandy:  Debbie, the concept you’re looking for is your child’s right to be educated (FAPE) in the “least restrictive environment” (LRE). Read up on this concept on Wrightslaw site and use it in your advocacy. And, yes, an attorney or advocate in your state can help, as might your state’s “parent training information center” or “protection & advocacy agency.” So investigate these resources – good luck!

Parental Rights:   PARENTS ARE/ARE NOT IEP/EDUCATIONAL TEAM MEMBERS?

Monica:  Why do school districts tell parents at back to school night that we are a critical part of our children’s educational team and strongly encourage us to participate in our children’s education but at the IEP meeting treat parents as outsiders and discourage our participation in our children’s education, especially when the parent tries to actively participate, by making goals, or doing research on the current academic methodologies etc.?

Miranda:  Monica, school districts tend to define terms like active parent participation unconventionally. When you 1st hear personnel speak of parent participation on back to school night, they are defining it unconventionally, but not telling you their definition. It is not until you get into the IEP drafting process that you begin to see that definitions differ. This has to do with money: the cost of service provision > minutes of service provision & that all affects goal drafting. Unfortunately, a district’s tendency to define terms unconventionally (& not to let the parents in on the unconventional defining) indicates that they do not want parents to be equal IEP members so that the district can determine services, hours, and goals unilaterally. They hope parents will believe they are equal IEP decision-makers cause they are according to IDEA.

Parental Rights:  WHO CAN PARENT BRING TO MEETINGS?

Sharon:  What are a parents rights to bring a friend or second set of ears to help them at a meeting with the child teacher, and team members. I was told no advocates, no friends, and was denied an educator who could be very helpful and knows my child. I was told the school has a right to make there own rules and would only allow parents to attend. Is this true? Where is it in the law? I found who you can take to a IEP, CSE but not any thing on informal meetings, team meeting progress reports, or parent conferences. Please help.

Jennifer:  I know of no such regulation that restricts a parent from bringing anyone they want to a meeting. Just make sure that the person you bring improves the process and helps bring about concensus between you and the school.

SharonL:  Sharon, there should be no issue to bringing a friend or advocate to the IEP meeting as long as you let them know in advance so they have that person’s name on the list. I have brought advocates, attornies, speech therapists, math tutors, language specialists & reading specialists at different times to the meetings depending on what the discussion was about. I even had some of them on a speaker phone which is allowed by the law. If they do not allow you to bring anyone again make them show you where it is written that you cannot & request that in writing. You can bring a digital recorder to the meeting,also again as long as you let them know. This way you do not have to take notes. Usually people act better when they know they are being taped.

Chuck: The school can develop their own rules about who can attend non-IEP meetings, unless their rules do not follow state rules. It is always good to ask for the school’s policy & procedures on any issue that you are concerned about. You can always ask for an IEP meeting & invite whoever you want.

Parental Rights:  PREK STUDENT NEEDS ECE PLACEMENT BUT PARENT WONT SIGN CONSENT

PreK:  I have worked with a student since the beginning of October who transitioned into my Pre-K class from early intervention. His recommendation at his transition meeting was to place him in Pre-K. His screening score was borderline and he showed many questionable behaviors. We needed to try the least restrictive environment and we were hoping his speech & language would improve b/c he would have the good language models in the Pre-K class. This has not been the case! He does receive speech and language services and I have had the psychologist observe on several occasions and her recommendation is to move this student to ECE b/c his speech is impeding his functioning in the Pre-K classroom. This would be my recommendation as well as I also teach the ECE class. However, mom & dad do not want him labeled as “special ed”. What do I do?

Chuck:  Do the parents understand that he is already labeled “special ed” since he is receiving speech therapy?

Parental Rights: SCHEDULING OF IEP MEETING – CONFLICT WITH PARENT SCHEDULE

Tracy: When scheduling our annual IEP meeting, we requested a 3:00 pm or later start to accommodate our (the parents) work day. The school indicated their latest availability was 2:30 pm. At our annual IEP meeting yesterday, we were told that the reason school personnel were unable to schedule an IEP meeting to start after 2:30 is because the contractual end of the teachers’ work day is 3:45 pm. If it were to be scheduled later, we would run the risk of having to have multiple meetings to finish the discussion. As I understand it, IEP meetings are to be scheduled at a mutually agreed upon time. If we refuse to meet until 3:00 pm, is the school legally able to convene an IEP meeting without us in attendance?

Francine: Tracy, IDEA 34 C.F.R. 300.322 indicates efforts must be made to find a *mutually agreeable* time. It also indicates they must make efforts for you to participate-meaning, they need to offer other options and can’t just hold the meeting without you unless they want to potentially violate IDEA code. My opinion: you’re asking for a time 45 minutes before the end of teacher contract time – reasonable. They won’t at least consider it – not reasonable. It’s a matter of convenience, not legality, to hold 1 vs 2 meetings, so that’s not an excuse. It’s also possible for members to stay a little late sometimes – I’ve had to.

Suggested reading: A gov’t (OSEP) decision regarding a very similar school policy at http://sped.dpi.wi.gov/ideacomplaint_01-019

Parental Rights: SCHOOL SAYS I CAN’T WALK MY CHILD TO CLASS

Jeff: I have a child with autism and as of this morning. .. we were told we can no longer walk him to class… he wont walk with just anyone… Do we have the right to walk him to class?

MORNING: This brings out a lot of discussion. I will say that in every situation like this that I have been in as a para, the experienced staff, therapist, etc. always asserted that parents do not walk the kids to class, regardless. With that being said, the wisest teachers always worked with parents on a transition plan as some students had come from programs very tolerant of allowing parents to walk their kids to class and sit in the classroom for long periods. However, the parents were given a harsh reality check as the kids transition from pre-school to kindergarden and older grades. I don’t know about your case. I do know that it is to the benefit of the child if parents and staff can work together. It does not benefit the child for a parent to walk the kid to class.

Parental Rights: LIMITS OF INFORMED CONSENT

Jenny: Thanks, Francine, for response to my question on timing of IEE.

Another issue with this evaluation process is that, AFTER I had signed consent (which I thought was just a consent for an educational evaluation), the District added a Social Worker to the process. Midway through the “data gathering” process, she said she is here to develop services for our family. I never signed anything asking for counseling services, a parenting assessment, family therapy, etc. With the hostile environment at school, I don’t want them providing services (or monitoring services from outside providers). How do I prevent family services from being forced into the process (I already have services)?

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PE and Adapted PE: HOW DO YOU QUALIFY FOR ADAPTIVE PE?

Melinda: My son has Mild Cerebral Palsy and is eligible for a OHI but according to the doctor he is not orthopedic impaired. Our son has a problem with activity keeping up with other children in PE. also we are concerned about his safety because he has been coming home with scraps ,cuts ,bruises do to falling when walking or running during PE. He is very clumsy when he runs and walks and also walks and runs on tip toes and needs to take breaks during PE because of his CHD. Would he qualify for adaptive PE services at school? If he does qualify what do I need to do to advocate services for him. Thank you

Chuck: Melinda, the definition of special ed in the IDEA regs includes physical ed (300.39). Your state may also have rules regarding the provision of adaptive PE. Check your state regulations or with your state parent training & information center. Then you can request an IEP meeting to discuss your concerns about PE.

Wrightslaw: Lots of information and resources on the PE and Adapted PE page. http://www.wrightslaw.com/info/pe.index.htm

Take a look at this Position Statement: Eligibility Criteria for Adapted Physical Education Services. Position statement (2010) from NASPE and AAPAR aims to help teachers, school administrators, local education agencies (LEA) and parents determine when it’s appropriate to deliver special education services to a child in physical education and to appreciate the continuum of placements and services to consider when providing this instruction. http://www.aahperd.org/naspe/standards/upload/Eligibility-Criteria-for-Adapted-PE.pdf
You may want to print a copy for members of the IEP Team. As Chuck advised, after you have your information together, request an IEP meeting to discuss your concerns and perhaps request an APE assessment. Your son may have unique needs that would qualify him for APE.

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Placement:  PULLED OUT OF CLASS – NOT WORKING

Kristie:  What kind of law protects my son from getting pulled out of class when he doesn’t want to go? The school psychologist really wants to pull him out in small groups to teach him social skills, but when she has done this these past few months, he misbehaves. He tells me he doesn’t want to leave his class. He doesn’t require curriculum modification; he gets terrific grades. He’s fully included in his classroom, but he gets so mad sometimes that he has to leave the classroom and calm down. I can’t quite talk the school psychologist into trying to deliver the information to him creatively. Can you help me figure it out?

SharonL:  Kristie, is there another alternative during the day for the social skills training like first thing in the morning, after school, 1/2 on the lunch hour or study hall so that your son does not have to get pulled out of class? This could be a start to compromise with the psychologist. You can also opt to request an IEP meeting to discuss this with the team to find a resolution.

Placement:  PLACEMENT and RE-EVALUATION

Jean:  When school agrees an outside placement is needed, don’t they have to provide at least 3 choices of where the student can go. Can the school only choose one site. (The cheapest school of course). Can a parent request testing before the 3 year evaluation time?

SharonL:  Jean, it is my understanding that you can request an evaluation once per year. If you want more the team has to approve.

Placement:  TESTING OUT OF PLACEMENT

Stan:  Can a placement be changed without rewriting the IEP yet? The school is moving my child to a less restrictive environment but an IEP has not been written. How long can he go without an IEP that reflects his placement?

SharonL:  Stan – Typically 30 days. Schedule a meeting if you don’t get one by then.

Placement:  PLACEMENT/IQ

Stan:  Is it acceptable to place a student from a different state in a special education program based on their previous records and IEP? Why are schools so dependent on IQ scores? Can they be the only assessment used in placement/eligibility?

SharonL:  Stan, if a child moves from one state to another the IEP that is being used will still hold until another one is written. The new school may want to do a re-evaluation but until then they must follow the existing IEP.

Chuck:  Stan, the IDEA regulations require that an evaluation be based on more than one test. Also the evaluators & tests used should vary based on the suspected disabilities (ED, vs, LD, vs OHI). Check the information on this website on evaluations. (On the home page see topics on the bottom left.)

Placement: SCHOOL CHANGES PLACEMENT

Michelle: I need guidance on a change of placement issue. My son has autism and is at a special school for special needs. The school placed him here a year and a half ago. He is doing great. He was restrained and ran away twice from the public school. The school drafted a new IEP and the transportation was changed and the placement. They wanted me to sign but I wrote not agreeing with change of placement. I filed due process. Now their attorneys for the school are emailing. We have spoke to a mediator. The schools PWN was all lies about the meeting that we were acting up in the meeting. That his provider was coaching me. Do I need a lawyer? They just want us to take the scholarship. He is too scared to return there.

K.Ball: Michele, if you filed for a due process hearing,you should have an attorney. Most states sponsor advocacy programs, you should look one up. In Texas you can use Disability Rights Texas, just search for them.

Melissa: Michelle, Can you explain better? Where do you NOT want him to go? Where is the proposed placement?

If the PWN was incorrect, write a letter stating your point of view.

Placement:  PARENTS DISAGREE WITH PLACEMENT

Rosa:  I need to know if the parents disagree with placement the school decides can the child be moved without parents consent. We have voiced our disagreement but attorney has not put stay orders in because just about the end of school confused

ASDmom:  Unfortunately the school system has the upper hand and can do what they want. Your only recourse is to exercise your rights under the Procedural Safeguards via Due Process to enforce stay put. Word of warning – not all Districts honor and/or DP Hearing Officers make them honor Stay Put. We had 2 seperate DP’s involving removal of an aide – DP filed to force Stay Put. With first DP school system honored stay put, with 2nd they did not (different district) and Hearing Officer didn’t make them. HO said that what constituted as Stay Put and if appropriate were all for him to decide at a hearing. Not right but….

Placement: CHANGING PLACEMENT – WHAT TO DO?

Jodi:  Our daughter has a classification of EBD. She has bipolar disorder and is 13. She has been in a point/level system for 5 years which basically has meant that she has to “earn” her way into regular ed classes and priveleges such as eating lunch with reg ed peers. She is placed in an alternative high school and spends half of her day with other EBD kids, all boys. We want to unilaterally remove her from this placement and place her in a nearby charter school. We will want our home district to pay for transportation. Besides giving 10 day notice, is there anything else we need to do? Thank you.

Morning:  Jodi, is the school district willing to work with you? It seems your daughter is making some progress and hopefully will not have to earn her way so much. Before you make that move–consult an advocate so you will understand her rights and what that may mean legally. Transition for a student in EBD must be carefully planned so then child does not fall apart. Some of my peers who work in EBD or similar programs question mixing boys and girls in such programs especially when they are young. Theynget more concerned about mixing them sexes when they get older. How has that worked out for your daughter over the years? I hope it all works out for you.

Nancy:  Jodi, if the charter school is part of the school district, it should provide the transportation. However the more important question is should you remove your child from a structured program to move into one with less structure? Students with EBD need structure and if it is going to be removed, it should be removed gradually. Make sure the receiving school has the appropriate set up for you child and can implement her behavior intervention plan or there could be problems. Traditionally, charter schools do not deal well with behavior. One reason is that the teachers may not have the training to do this adequately. Also, look at your school’s program and make sure she is getting FAPE, LRE and that her BIP is being implemented. In some states, special ed money is being used to keep class size down in regular ed.

Placement:  KINDERGARTEN and FIFTH GRADE

Melissa:  Is there anything in the law about having a kindergarten student in with all 2-5th graders in the special education classroom?

Chuck: IDEA regs do not address this. This may be discussed by your state’s education law and regulations. You may be able to find it on the website of the state education agency or check with your state’s Parent Training & Information Center.

Placement:  SCHOOL PLACEMENT

Debbie:  My son is 51/2 and evaluated by the school as having autism. He is in the special ed class 40% of his time and mainstreamed the rest of the time which we think is working well for him. He is very smart academically (reading 3rd grade) but now school says he is not answering in class . we dont have autism program in our school so we need to move him to another school where he will be with other kids on spectrum . We as parents want him to continue this and getting pressured by school as they change what they say to suit their needs. Can the school force us to do this ? they say they dont have resources to help him so can we request for aide for him in mainstream class?? please help me i am really desperate as he is on mild end of spectrum and I want him to be mainstreamed as much as possible ..

Sandy: Debbie, remind them of the law’s LRE (least restrictive environment) provisions. Your child has the right to go to his home school WITH appropriate supports unless that cannot be achieved. So if an aide would help, that is less restrictive than moving him to a different school. You can learn more about LRE at Wrightslaw, and you can also contact your state’s parent training information center (PTI) or protection & advocacy agency (P&A) for more info – good luck!

Placement:  CHANGING CONSENT FOR PLACEMENT

Kimberly: What is the law regarding a parent changing their mind after signing consent for a change of placement. the parent felt rushed into it without being given hardly any information regarding where the actual school was, and it is far enough away where they are not comfortable sending their child on the bus for that distance. The IEP was this past wednesday and the start date for the change is Tuesday of next week. It’s labor day weekend, so the parent feels they don’t have a choice but to keep their child home from school Tuesday because they were told if they send him on the bus, he WILL be going to the new placement…. even if the mother offers to drive him to his original placement. I thought by law a parent has the right to revoke consent any time and the school has to honor it? They will be holding another meeting Wednesday,

SharonL:  Kimberly, we accidentally signed a change of placement for our son being told he did not qualify for spec ed anymore 7 was essentially “cured” from learning disablity. Can you imagine a school psych telling us that? In order to revoke the IEP that we signed we had to go get an outside evaluation paid for by the school with recommendations from the tester that even though he did not technically meet the discrepency to be in spec ed it would be a great disservice to mainstream him. (the descrepency score was used at the time my son was in grade school). Since my son was still in school the new IEP did not go into effect until the next school year so we had time to do this & we did prove our case & the school change the placement back. Your school will be breaking the law if they don’t honor the new IEP so you will need to work fast.

Placement:  FINDING THE LAW

Anne:  I’ve been told that if a school is incapable of properly educating one of it’s students, then the district is responsible for placing that student in the nearest school with the proper capabilities at their cost, including transportation. Is this true and if so, where do I find the law?

Patricia:  Anne, you are right if a school district can not provide for the childs needs then you can send them to another school on the present schools dime. I would look at the IDEA Individuals with Disabilities Education Act. It might be where you can find this information.

Placement:  ADA REQUIREMENTS FOR CLASSROOM SIZE

Dennis:  My wife and I disagree with our son’s placement for the new school year. Our biggest issue is the room size (very small) and location. Our son is classified as SID and wheel chair bound. Can any one give us the ADA requirements for class room size in sq ft per student? Also it is a self contained class so would the restroom need to be handicapped accessible? Also in a special needs class does there have to be more than one emergency exit? This is a newly created class and the school used the old teachers lounge for the new special needs classroom. It is approximately 100′ to the nearest exit, with 4 wheel bound kids and one autistic child and 1 teacher and 3 aids this distance seems excessive?

Kaye:  Dennis, I do not have all the answers to your questions, but I did want to mention something that may help. We created a safety plan for our daughter (with autism) and as part of that safety plan, there is a paragraph that specifically assigns who will take care of her during emergency situations. She has a 1:1 para so that was fairly simple. However, in your case, I would ask what their plans are for moving several children outside and ask whether there is a time where aides are out of the classroom and unable to assist. I would ask that they put a fire/tornado/emergency safety plan IN WRITING and for you to receive a copy of it. Denis:  Thank you Kaye, we had not thought of that, but at our next IEP that will certainly be on the agenda! And, we have found out that in the state of Ga, the minimum classroom size is 38sq. ft. per child with other requirements…if this helps anyone!

Placement:  MAXIMUM CLASS SIZE IN VA?

John:  What is the maximum class size for self-contained mild and moderate ID students in Virginia? The Regulations state that “no more than 10 students shall be assigned to a single class period when there are varying achievement levels.” However, this falls under the caseload standard section. Are they talking about caseload or class size?

Wrightslaw:  John, it looks like you have already researched the VA regulations. Use this contact information found on the Wrightslaw Yellow Pages for Kids for VA. Email or call and ask for the clarification you need about caseload / class size. When you get an answer, please let us know – we will post it for others.

http://www.yellowpagesforkids.com/help/seas.htm

Virginia Department of Education
P. O. Box 2120
James Monroe Building
101 North 14th Street
Richmond, VA 23218-2120
Phone: (804) 786-9412 or (804) 786-8079
Toll-Free: (800) 292-3820
Toll-Free Restrictions: VA residents only
Fax: (804) 371-2455
Email: charlie.makela | at | doe.virginia.gov
Web: http://www.pen.k12.va.us/
Special Education
State Regs: 8VAC20-81 – Regulations Governing Special Education Programs

Placement:  DENYING MY SON A STEM SCHOOL

SuzyP:  My son has ADHD and has a 504 plan and in 5th grade at our local public elementary school. Next Fall he will begin middle school. We have 3 middle schools in town, 1 of them is a Stem middle school where all kids need to apply and are picked in a lottery. My understanding is that because my son is on a 504 plan, he has the right by law to receive a free, appropriate, public education. So why is it that the Board of Ed and the Stem principal tell me “You can’t pick and choose which middle school he will go to, he has to apply and be in the lottery like everyone else. The other 2 middle schools will accomodate his 504 plan as they do now with other adhd students”. I do not agree with this am I wrong?I told them my son would benefit from the Stem program because it’s hands on learning he is an A student, they are denying him stem education

Jennifer:  From the way I understand the law, it is there to give your son equal access and opportunity to education. If the school were to exempt your son from the lottery and automatically put him in the STEM school, that would be preferential treatment, not equal opportunity.

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Power of Attorney: POWER OF ATTORNEY FOR EDUCATIONAL DECISIONS

Linda:  I have a duly executed Limited Power of Attorney of Educational Decisions, which specifically list IEP evaluations, testing and reviews. I am an attorney (not education law) and thought that the initial evaluation would be conducted on 1/26/12. However, the school refused to do an initial evaluation w/o the parent present. The school stated that they could only go forward if the parent were present. The parent works on AMTRAK is often away. This is my God daughter who often lives with me (goes between both homes). Are there legal grounds to force the school to proceed with IEP evaluations/test w/o the mother being present?

Joe:  Linda, I am an attorney as well and know of no legal requirement under the IDEA for a parent to be present. But there is definitely a legal requirement that the evaluation be conducted. I would provide a ‘consent’ of some sort stating that the evaluation can be conducted without parents present and it might be good to even include some ‘present levels of performance’ (what the child can do now in certain areas). The school cannot delay evaluation – as it appears they are trying to do – because a parent is not in attendance. Sorry, I see that you already have authority via LPOA. Under the ‘child find’ provision of the IDEA, it includes “locating, identifying, AND evaluating” the child. All three are required to comply with ‘child find’ requirements.

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Preschool / Part C:  PART C SERVICES

Jessica:  My 2 year old son has Down Syndrome. He recieves SLP, OT, & PT all for 3x month for 30 minutes and EI 2x month for 30 minutes. At the IFSP meeting yesterday I was told that the therapists are seeing him together for thier services–for example, the SLP and PT are going together each week for 30 minutes. Is this legal? To my way of thinking, if therapists go together, they should spend 60 minutes with my son. What are the guidelines for services in the Part C Program?

Estelle:  Jessica, tell them no. They are abusing the system and double paying. Once In a while is ok but tell them no. They have separate goals that is not fair to the child. If they want to know what everyone is working on that is what the review is for.

Preschool / Part C:  IDEAS FOR QUALIFYING FOR DEVELOPMENTAL PRESCHOOL?

Stacy T:  The public developmental preschools in our area require that our son show deficiencies in at least two areas before he can attend. Our son has verbal apraxia and cannot speak, will require years of intensive therapy to learn. He also receives OT for sensory processing and regulatory issues, but the school district does not recognize these issues as disabilities. He does not have gross or fine motor skill issues or social issues, and he is extremely gifted cognitively, at 2 years old tests at a 5 year old level. The school district has programs for kids with apraxia but he can’t access them unless he has something else wrong with him that they “recognize.” Is this legal, and if it is, is there anything I can do or any diagnosis I can receive to circumvent it? Thank you!

Sandy:  In IL (and perhaps other states), speech therapy is considered “specialized education.” Here, a child with verbal apraxia and OT needs does qualify for Early Childhood preschool (my child was exactly like this and attended EC through the district). Sounds like your child should qualify under IDEA’s SLI (speech/language impaired) category – or whatever your state calls it – and then OT and all other needs would be included. Depends on specific state issues – which I can’t address – but this sounds bogus to me. Ask to see the laws/regs/policies IN WRITING that preclude your child from eligibility.

Preschool / Part C:  TRANSITION TO PRESCHOOL

Jennifer: My daughter is two and a half and has Down syndrome. We are about to graduate from Early On and the only preschool option our district provides is a segregated classroom. Currently our district has no public preschool classrooms into which we could request that she be placed. What can I do to insure that she will be in an inclusive environment during her preschool years?

Chuck: Jennifer, this is such a common situation that in 2012 the federal Dept of Education issued a letter to state education agencies & public schools giving them guidance on dealing with it. You can find info on this letter & issue at: https://www.specialeducationadvisor.com/dear-colleague-least-restrictive-environment-applies-to-preschool/

Preschool / Part C: EARLY INTERVENTION CASELAW

Discouraged: Can anyone point me in the direction of any case law regarding early intervention? The EI system in NJ is so poor and the professionals so grossly inept, they have cost us years in terms of our son’s development and, ultimately, have created an educational deficit by failing to follow the correct procedures regarding transition to Part B. They conducted an M-CHAT on our son during his initial evaluation and never told us! He failed! Subsequently, we did not know to ask for an autism diagnostic from our developmental pediatrician, so she didn’t do one, and we were delayed a year in getting the proper eval and diagnosis. Further, although all of our providers have subsequently admitted to having suspicions our son was on the spectrum, none told us, because they (EI) “are not a diagnostic model” and, thus, no one felt they needed to tell.

Take Action: Early Intervention Case Law is rare, but this website, http://www.apalnow.com/news/, has two findings relevant to this case. The State of NJ is hiding critical information about Autism from parents during the most critical years of development. Now there is proof.

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Prior Written Notice (PWN): PRIOR WRITTEN NOTICE

GGIrl: Does anyone know if there is a specific timeline (30 days, etc.) in providing parents with Prior Written Notice. We did not sign my child’s IEP due to a disagreement over ESY Services and it has been 30 days since the meeting. We have not received a final copy of the IEP the district has signed and implemented, and we have not received Prior Written Notice. All I have is an e-mail from Spec. Ed. Director stating they are compiling educational data and will meet with us again prior to the end of the school year. Based on report card just sent home and the IEP Progress Reports, they are stacking the deck against us and my daughter loses AGAIN! Does anyone know if there is a specific timeline. I have looked everywhere and cannot find the answer. Thank you!

Veronica:  GGirl, I don’t know if there is a timeline, I looked in my Wrightslaw sped law book and didn’t see one. Your state may have some requirements, so check your state spec ed regulations. But this article by Pete Wright says not to wait on the school to provide you with PWN. He explains how to write a sample letter documenting what you requested and the school refused to do. http://www.wrightslaw.com/info/pwn.throw.flag.htm Also check this article. We’ve learned never to go to an IEP meeting without this form, it has worked really well for us.
 http://www.wrightslaw.com/blog/?p=2157

SharonL:  GGirl, we usually received prior written notice within the week of the meeting. Your case sounds critical. YOu can always try one more meeting to get what your children need. If you still believe you are being stonewalled you may have to hire an attorney or advocate to help. Remember each day that goes by is a day lost. I fully understand how you feel. We prevailed in a due process case once and the school never treated us the same. It became impossible to fully get services for our children. We ended up moving to a new school district altogether. Sad but true.

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Progress:  QUESTIONABLE PROGRESS MONITORING

Tiffany:  I recently had a parent-teacher meeting with the gen. ed and co-teacher about my daughter’s IEP progress reports, accommodations, and modifications in the classroom. After being in class for a month and a half she was reported on a P3 which is a good progress and a step away from mastering the objective. I asked the gen. ed teacher how do you start at a P3 within the first six weeks of school and he replied he didn’t know what a P3 was because he doesn’t report for the IEP that is the SPED teacher job. My daughter hasn’t been receiving her services or modifications in this class. The teacher told me they just started doing small group administration a month and a half ago. They told me I can’t go back to the first 6wks because they weren’t modifying her work but reported a P3. I asked for data but didn’t receive it yet. What should I do?

SharonL:  Tiffany, put the request for data in writing. It sounds like they messed up & they need to get back on track. If you get no results request an IEP meeting to discuss. Bring a professional that may help clarify the situation.

Progress: MAKING PROGRESS – NOT ELIGIBLE?

Anne:  My child’s school says she’s not eligible for an IEP because she’s “making effective progress” making good grades. I’ve had an Independent evaluation done that recommends an IEP, direct specific instruction in several areas, yet the school will only work with a 504 and accommodations that are currently in place. We live in Massachusetts and this is her second school. Her previous school that she attended K-4 took the same position. Now, in 5th grade, at a new school, here we are again. What can I do now? I feel strongly that she may be not retaining information long-term and therefore not really learning.

Sharon:  Anne, it is so discouraging when the school does this. The school should take the outside evaluation into consideration. As children age the discrepency between intelligence and performance usually gets further apart and you are right to help her get services now so she does not continually fall behind. Even though the law no longer requires the use of the discrepency score ask the person who did the evaluation to go over the discrepency scores with you. If there is a descrepency between intelligence and performance you can use that to determine eligibility for services. The school will tell you they don’t have to use this anymore and they are right but they can use it. If they just don’t cooperate get a prior written notice from them as to why and you may have to consider legal action.

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PT:  CAN A PARENT CHOOSE A PT? NO PT SERVICES FOR 5 WEEKS

Anne:  My 18 year old son is quadriplegic with severe TBI, so school services are home based. Following a 4 year history of inconsistent PT services, I located my own within a contracted agency this summer. The district wants to place someone else who doesn’t meet my son’s needs. They will not communicate with me directly about this but to tell me who was already assigned. Meanwhile, this is now the 5th week without PT services, including vacation and I fear extreme regression. Has anyone encountered this issue? Do I have a choice? TIA!

Wrightslaw: Anne, Are your son’s PT services well defined in an IEP? If so, the school needs to make up any missed time on items required in your son’s IEP and/or provide a qualified substitute. Does the PT therapist the school chose have the qualifications to meet your son’s needs? Can you document why not? Interrupting or failing to make-up missed services could constitute a denial of FAPE. The school needs to follow the IEP. The school should follow the designated time stated in the IEP or make it up. Parent Advocate Sharon Lutz offers advice about Making Up Missed Therapy Sessions here: http://www.wrightslaw.com/blog/?p=5147

Read this article for information, tips, options about how to handle this issue.

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- Q

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- R

Reading:  SPECIFIC READING PROGRAM IN IEP

Kim:  Is there a NJ law that states that a specific reading program does not have to written into an IEP? School is offering Wilson but wants me to sign an amendment that only says Supplemental Reading Program. I was told by law they do not have to list program.

SharonL:  Kim, we had problems getting a specific reading program for our son. The school agreed to put the criteria of the specific program in the IEP. It was written so that the only program that would meet this criteria was the Wilson reading program so that worked. After the law changed, the school put the Wilson reading program or Alphabethic Phonics program in the IEP. The only thing they would not do is put a specific teacher’s name in the IEP.

Veronica:  Sharon, how did you get the school to agree to do this? I’m confused about whether or not they are required by law to name the program – but even so, they won’t always agree. We have had no success getting what we want written in the IEP – I think because the school doesn’t have the program we want. They want to use the program they already have.

SharonL:   Veronica, the law now allows for a specific reading program to be included in the IEP and you are right, they don’t have to agree. We used the testing to prove that my son did not receive FAPE. We requested a multifactored evaluation from the school. They performed the test in 60 days. AFter we got the results it was obvious that the reading program they were using was not working and he progressed in reading less than 6 months in the last two years. We had a multifactored evaluation done two years in a row which is allowable by law and it is a document that can be used in court and they know it because it is a standardized test. We found an outside tutor that did an evaluation on my son and after her test we requested that they put her program on the list and they agreed.

Melissa:  Kim and Sharon, I would think that if it is an Orton-Gillingham approach to reading then a specific program name such as Wilson is not necessary. Wilson is a great Orton based program so is Project Read and several others. Are you looking to have Wilson named because it has proven to work with your child? or should the IEP state that a multi-sensory approach based on Orton-Gillingham be listed on the IEP?

Reading:  7th GRADER AT 3rd GRADE READING AFTER 2 YRS

Lorie:  My son is in the seventh grade. He was diagnosed with Dyslexia last year. Before his diagnosis he had two years in a reading intervention class. He made very little progress. Last week I used an informal test that showed his reading to be at late third grade., while his teacher found that he is at the sixth grade level. Is there anything else I can do? We are in a rural area with few options.

Morning:  What assessments were used to diagnose him with dyslexia? What recommendations were made with that diagnoses? What assessments are the school using? This is where you do some research on Wrightslaw about reading assessments. Also, I know people who use the web based Lexia home program as they are in school districts with few resources. It is hard to believe that some districts cannot or will not fully service students. I would, after doing research, sit down with the teacher and have a long talk. If she is looking at lexile levels, be careful as other assessments should explored. Many well intentioned teachers mislead parents by only looking at lexile levels. Have they explored assistive technology? What are your son’s goals after high school? I hope this helps.

SharonL:  Lorie, request a copy of the testing that was used on your child so you can see what they are talking about. Have a meeting and get a copy and then take it to a professional who can help you decipher it. I usually do not understand the tests unless someone explains them to me. You can always request a formal reading evaluation in writing from the school. Be sure to sign their request form otherwise they are not required to get done in any amount of time. Once you sign their form they have 60 days. The school should go over the results. If you do not agree with the results you may request an outside evaluation at the school’s expense. The school must consider the outside evaluation. Once you request all of this they will probably become more cooperative.

Lorie:  Sharon L, thank you for your input. I watched the teacher give the test to my son. She reminded him to use his strategies and gave him lots of time to try to figure out the words he struggled with. I asked for and received a copy of the tests she administered. Am I allowed to request another test when it was just a test to check his improvement in a 6-week intervention class, that my husband and I insisted on? It wasn’t a full evaluation and I’m afraid they are going to use the results at his next IEP meeting to determine what he needs next. Thanks, Lorie

SharonL:  Lorie, you stated that the test was “informal”. Requesting a test now would be a “formal” standardized test. This will be the kind of test that could hold up in a court of law if you needed to do this later on. There is a certain protocol for a formal test, etc and yes you are well within your rights to request a test like this. If they ask why you can state that you want a standardized testing process. You also have the right to an outside evaluation by a professional at the school’s expense if you do not agree with their formal test when they do it. IF they refuse anything you need to request that it be put in writing. This is called “prior written notice”. Once you learn some of these terms and how to request tests, deal with the school, etc it will become easier.

Morning:  How can progress be demonstrated after only six weeks? What is the intervention program? I have contacted the publshers of the reading programs that were used with my child to better understand progress monitoring and fidelity checks. In one case, I was able to demonstrate at a PPT meeting that the district’s implementation of a SBRI was wrong for my child and they changed the way they implemented the program. I had called the publisher to inquire and get guidance. The publisher guided me to the consultants and the district had to make changes to insure that my child would make progress. They also use several assessments to monitor reading and fluency.

Reading: PROBLEMS OF CONVERGENCE

Susan:  My 8 yr old has been diagnosed with convergence insufficiency. This explains all our struggles with reading. Now I need to get her the needed therapy to correct the problem so she can process and read correctly. The public school in SC she attends has never heard of this disability. Does anyone have any experience with dealing with this problem and what can I expect from the school?

Sandy:  Usually treatment (vision therapy) is handled by a developmental optometrist. I believe there is some case law (out of Florida?) addressing the school’s obligation to provide VT. But it’s a new area of disability/treatment and I’d expect the school to balk at providing such treatment. You may want to consult your state’s parent training information center and/or protection & advocacy agency or hire an attorney/advocate for help. Good luck!

Reading:  WHAT ARE SOME GOOD READING PROGRAMS?

Becky:  My daughter is in the 9th grade, she is dyslexic, and on a 5th grade reading level. What are some good specific reading programs that I could request for her at her next iep meeting. I’ve heard of the Wilson Reading Program but I wasn’t sure if there was a more age appropreiate program available.

Morning:  Becky, you bring up a great point that centers on age approopriate readng programs. I have found that some older kids are very resistant to Wilosn as it seems laborious to them even by the most well trained teachers. In my opinion, monitoring progress is key with a program that is implemented with fidelity. For my child who is dyslexic, Read 180 works well. She is making progress. Wilson would be better, but she is older (high school) and only wanted Read 180 as she did not want to continue Wilson. She is happy and thrilled. She has gained confidence. She wanted something that was age appopriate and not 1-1. Each child is different and many factors must considered for the older child.

Reading:  HOW TO GET SCHOOL TO ACCEPT NEW READING METHOD TO TEACH MY CHILD

Julie: I have a son in 2nd grade with ADHD and Dyslexia who has been receiving spec educ for 1.4 years in reading. In the classroom, he is testing at first Q_1st grade for reading and last Q_Kindergarten for writing. We had a private assessment done which showed he is 1 to 3 SD below the mean for read/writ. They tell us that “he is making progress” and he is a “slow learner”. He has not moved a single reading level in the past 10 months. The school only uses reading mastery as their curric. and refuse to change. We hired a private tutor who uses the wilson method and he has shown a little progress in a short time. This proves to us that the curric is the problem. Any advice on how to get the school to accept they need a new method to teach our child?

SharonL: Julie, We got the school to accept paying for an outside tutor to teach our dyslexic son who was 6 years behind in reading. She used the Wilson method & the Alphabetic PHonics reading method & now he is reading at college level. He is 23 now. At 15 he was reading at first grade. We requested an evaluation from the school that showed that he did not progress in reading over a period of the entire school year with extensive help. Unfortunately my son had to show failure in order to prove he needed a different reading approach. I had the tutor that the school ended up paying for do an assessment & it showed that David could improve by the program. The school agreed to sending my son to her because no one in the school could provide the service & paid for transportation. I think it was cheaper for them to do this than to go to court.

Reading:  CAN’T GET READING INTERVENTION

Deanna: I asked for reading intervention through special ed in 4th grade, 6th, and 8th. I was denied and have had to struggle with 504 implementation for years. I filed a complaint with district last year and they did nothing. My son is now a sophomore and they have identified him as reading at a sixth grade level. Do I have an recourse whatsoever? My communications are in writing and i have kept detailed records.

Morning: Deanna, I would not wait for the school. I would pay to have an independent evaluation as well as an AT evaluation. Is this the best approach? My concern is focused on the child. If that was my son–my goal is to ensure that no more time is wasted on a school system that has failed him. You can call a local university to get more information on the latest technology for struggling readers. My child attended a transition fair and the local colleges have amazing support for students with disabilities. Hire an advocate and research your rights. The school district has failed but you need guidance through an advocate or an attorney. If your son wants to attend college or have skills after high school, you need to develop a strategy with transition planning. I would hire an advocate.

Reading:  HOW DO YOU KNOW IF IT’S DYSLEXIA?

Karen: Any one know any books about dyslexia? When writing or typing, my son tends to mix the last letters up. Not always, but often. How do you know if he has dyslexia?

Chuck: Karen, check the International Dyslexia Association’s website, http://www.interdys.org/ & the National Center for Learning Disabilities, http://www.ncld.org Also Decoding Dyslexia, http://www.decodingdyslexia.net Also look at the 10/10 & 10/14/13 blogs on dyslexia on Wrightslaw blog.

Reading: 14 YEAR OLD READING AT 4TH GRADE LEVEL – SCHOOL SAYS HE’S LAZY

Marcey: Is the school responsible or is my son “not utilizing the resources being given to him” regarding him being 14 year old and reading at a 4th grade level? My son has had an IEP since Kindergarten, was in 12:1:1 until the 7th, when he was thrown into “integrated” classrooms. His reading has not improved at all since he was last tested over 3 years ago. It was only after I begged that they re-evaluated him after 3 years. My son is to the point to where he feels it is “too late” to catch up. He has claimed the class clown role. this helps divert attention away from his below standard academic level. I have been told pretty much it is that my son is lazy and is not utilizing the resources that the IEP has put in place for him. I beg to differ. I felt we were bullied at the last IEP meeting, and now we have moved to try a different school ??

Chuck: Marcey, your son is not being provided FAPE (Free Appropriate Public Education). If the new school does not develop a program to address reading, you have the right to use the state’s “dispute resolution” options. You can also ask for an assistive technology evaluation. Computers can read material to struggling readers, to help them in learning the curriculum.

SharonL: Marcey, I am not sure what “resources” he has not been using & it is the school’s responsibility to teach him to read using whatever method works. My son was 14 before we (parents, not the school) found a tutor through a list from the International Dyslexia Assoc. (IDA). She tested & taught him to read using Wilson and Alphabetic Phonics. He thought he could never learn & that it was too late. We proved that the school did not give FAPE (I think this has happened to your son) & they paid for a 1:1 tutor 1 1/2 hours per day 5 days per week. My son read at 10th grade level when he was 20. He walked with grad class & went 1 additional year to school. He is now in college, a place he thought would be inaccessible. He uses a program that reads to him on computer.

MORNING: My dyslexic child who is now in high school went through a similar experience. I can say, without a doubt, that a motivated student with the appropriate reading intervention and invested teachers/tutors can learn to read. Older students can easily give up. When the adults/ teachers/ parents/tutors, etc. are willing to help, older students can make progress if they are motivated. Work through the process as Chuck suggested. My child is reading at a much higher level and also uses assistive technology. Get the AT eval. Know that smart phones and apps offer many levels of AT that teenagers can relate to. My child uses Kurzweil and some interesting apps when needed. The smart phones and tablets offer a lot of AT options. Apple products offer many options.

Reading: MISS SCHOOL FOR READING TIME

Josefina:  My daughter has been diagnosed with PDD-Nos, ADHD, apraxia and dyslexia. I have requested permission from our school district for her to miss a couple of hours a day (in the morning) to attend reading classes. The SD has indicated that this is not possible. We live in TX. Children with autism are allowed to be excused for ABA, OT, and speech services. What can I do in this case?

Catherine:  Josefina in TX, check your state DOE Regs. You can enroll your child for half day or partial day of school. Most states require that your child be engaged in academics for a certain number of hours… even home schooled kids. SO, reregister your child as attending partial day public school and take her to the reading tutoring. Best to write it all up and Petition your school BOARD, not the Principal at your local school. Also, before doing all that make sure the current school has given you a PWN( prior written notice) declining your request to have your daughter go to special reading tutoring. Make it clear whom you expect to be paying for the reading instruction. This may be why the current school is hesitant. They may think you are going to ask for reimbursement. are you?

Chuck:  Josefina, unfortunately as you note, the TX law only allows for excused absences for certain activities for students w/ autism. If the reading does not fall under any of the allowed categories, your basic option is to try to negotiate with the principal and the spec ed director. Schools take attendance for state funding purposes around 10-10:30 am. If you can avoid this time, then taking him out would not lose the school any funding which may be a concern to them. I work for the TX Parent Training & Information Center & we can try to assist you, if you want to contact me.

Chuck:  Catherine & Josefina, unfortunately TX rules only require dual enrollment for 3 and 4 year olds. However, the school could allow this, since they are allowed to develop their rules for excused and unexcused absences. Students come and go from medical visits frequently.

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Related Services: ABSENCES DUE TO THERAPY SERVICES

Danni:  Several parents have expressed to me that:

1. Their child has special needs and falls under the special needs umbrella, with an IEP in place.
2. They have doctors’ orders for speech therapy, OT, music therapy and/or other behavioral-related therapies.
3. While, many of them are on waiting lists to get therapy appointment slots for after school hours, others may be taking time off from work or having other family members pick up their child, take them to therapy and then return them to school.

*Many of these students also receive therapy services at school, in addition to receiving services outside of school, by third-party providers.

They were told that the excuses that they bring back to school are no longer counted as “excused absences” and with enough unexcused absences, they face being reported to social services.

Chuck:  It is important to know how the state education law & regs define excused & unexcused absences. Schools may have a little or a lot of ability to define excused/unexcused absences. TX schools have a lot of freedom. Parents of children with autism were concerned about the therapy issue. A law was passed here that that says if a child with autism goes to therapy during the day, but attends school that day, it is an excused absence.
Learn the state & local rules on absences. It is not uncommon for campus staff to not follow district procedures.

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Restraint & Seclusion: RESTRAINT IN SCHOOL

Ericka: My son has an iep. He’s been clinically diagnosed with adhd. He gets very aggressive. Sometimes he has to be restrained. The behavioral aid asigned to him was not cpi certified.my son was coming home with bruises. Can I bring suit against the school?

Chuck: Ericka, You would need to check with someone knowledgeable of your state laws. In some states it is very difficult to sue a school district. In some states schools will settle out of court, even though they are protected under state law to avoid the publicity. You could possibly file criminal charges with the police or abuse charges with the appropriate state agency. The staff of your state Parent Training & Information Project should be able to advise you. You can access a list of these in the topics listed on this website’s home page.

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Retaliation:  RETALIATION

Kaye:  Two years ago, we initiated mediation with the school and did quite well. Admin wanted to work with us. The case manager and teacher were upset by it. (They were also criticized by admin for their mis-management of my daughters education). Since then, my daughter’s teachers and those who teach my other kids are wonderful. After mediation, the case manager contacted the teachers/paras/therapists to warn them that I am difficult and my daughter uneducable. (They tell me this). Our kids no longer attend the same school, but she calls other schools to warn them about us. My daughter is bright and is doing great. I am really not difficult. Her bad-mouthing makes it difficult for me to advocate for my child. It also affects my daughter’s education. It takes about two months for everyone to relax each year. Suggestions?

Morning:  This could work to your advantage as it opens the door for you to have meaningful conversations with your child’s new team every school year. I am upfront and tell them to get to know my child and me beyond any rumors or the IEP? Truth wins out in these types of situations. I always ask teachers “what may I do to support their efforts with my child”. I do listen to them as their feedback is valuable, but I put my best foot forward each year any of the past rumors from disgruntled teachers are easily dismissed once the new staff gets to know my child and me. I have made mistakes in years past and did apologize to teachers, but I learned to collaborate and not bulldoze. The case manager will discredit herself in time, if not already.

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Retention:  REPEATING GRADES

Kate:  Can a student with an IEP repeat more than one grade level while in elementary school? North Carolina in particular?

SharonL:  Kate, repeating more than one grade would be degrading to the child in my opinion. We had the opportunity to have 2 of our children repeat a grade & never took it. Instead we opted for extended school year & tutoring to help them catch up. My husband was held back in kindergarten & remembers this to this very day. It is rough on a child to be held back. The goals should be measurable & be set up to be met. If the goals are not being met the school is failing the child.

Retention:  RETENTION LETTER

Janice:  I need help writing a protest letter for my daughter’s retention in 2nd grade. She is not immature and is one of the oldest in her class. She has been diagnosed with ADD and has just recently been put on meds. She has an IEP and is showing improvement but they want to retain her. I don’t feel this will help and no matter how I put a positive light on it, she is upset.

Wrightslaw:  Janice, we can’t provide a “protest” letter. A story-telling letter is the way to make your case. You’ll find a sample retention letter at this link. This letter describes the parents’ concerns about the proposal to retain their child. The tone of the letter is polite and businesslike. The letter does not blame school personnel or criticize. Instead, the parents describe their concerns about their child’s lack of progress, their concerns about the school’s proposal to retain her, and proposes a solution to the child’s problems. http://www.wrightslaw.com/info/retain.letter.htm

SharonL:  Janice, we had been asked to retain our sons different times during their school years. 2 of my son’s have ADD & dyslexia, 1 has ADHD & SLD. We never allowed the school to retain any of them. My husband had been retained & never forgot it his whole life. It is an upsetting thing to the child. All we had to do was tell the school we did not want them to retain our children & that was it. We never had to put anything in writing. We always felt like they wanted to retain our children to make it easier on them to reach the goals instead of doing the work required to have them progress. All of my sons are now grown up & doing well & thank me for not retaining them.

Retention: RETENTION OF SPECIAL ED STUDENTS

Connie: My school district has created “essential outcomes” for each grade level. The superintendant has determined that if a student doesn’t meet 50% of these outcomes, they should be retained in that grade. Our superintendant feels that this applies to Special Ed students also. If this is the case, I have several elementary SpEd students who could be retained because of this policy. Is this legal? He is requiring that any student that hasn’t met the 50% guideline attend summer school or be retained. Many of these kids are attending the SpEd extended school year. I am very frustrated and not sure how to handle this. Please give me some advice.

Chuck: Connie, unless this plan conflicts with state law or regulations, it is probably legal. The National School Psychologists’ Assoc. has taken the position that retention does not work. The idea of identifying students who are “behind” academically & providing additional instruction is a common & appropriate approach.

However, often the fact is that the initial & remedial instruction is not differentiated & individualized to be effective for the student.
In many states the IEP team decides if a student with a disability should be retained & what instructional strategies & techniques are needed for the summer & next school year. Perhaps the superintendent would be open to checking this approach with the state agency & “curriculum experts”.

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RTI:  APPROPRIATE USE OF RTI

Audrey:  I am an attorney representing a student who was receiving RTI for behavioral problems in the form of counseling. The student has since been expelled, notwithstanding my pointing out to the District that they needed to do a manifestation determination. Their attorney explained that the District give lots of kid RTI and many of them don’t go on to receive special education. Given the type of RTI in this case, I cry bullpucky. But I am left wondering- I know RTI used (a) to determine whether a student should be evaluated under IDEIA; and (b) to design specially designed instruction in the even that the student is evaluated and found eligible. Is it used for anything else!

Chuck:  Audrey, the primary purpose of RTI is to prevent the need for referrals to special ed by providing a child with appropriate instructional strategies & programs to address their needs. However, the federal Dept. of Education has clearly said that parents have the right to request a special ed evaluation, even if the school is trying or wants to try RTI. However, the school can give the parent prior written notice of refusal to do RTI, if they feel that RTI is working or might work.

RTI:  DIFFERENCE BETWEEN RTI AND 504 PLAN?

Jennifer:  What is the main difference between RTI vs 504 Plan. My 12 yr old ADHD son has a RTI plan and his school feels it would better suit him then 504 Plan. The school is trying to convice us that RTI plan is better.

Please clarify?

Sandy:  Jennifer, an RTI Plan is not legally enforceable the way a 504 Plan or an IEP is. If your child needs accommodations/modifications to state or college standardized testing, they college board will consider an IEP or a 504 Plan as evidence of such need (along with current evaluations) – not an RTI Plan. Legally, I don’t think there actually is such a thing as an “RTI Plan.” So stick with the 504 or even a IEP if your child needs SDS (“specially designed instruction”).

Chuck:  Jennifer, the federal Dept. of Education endorses RTI, because a good plan can benefit struggling learners. Schools are encouraged to try RTI before referral to sp ed. Whether the school’s plan for your child is appropriate is the question. You can get more information by typing “response to intervention” in the search box on the Wrightslaw home page.

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Section 504:  SCHOOL NEGLIGENCE IMPLEMENTING 504 PLAN

Fatima: My son is graduating GPA2.9759 this year (TX). He was diagnosed with ADHD/ gifted in 2nd grade. Our doctor mention about 504 plan and we asked elementry school counselor to put hm n 504. She said ok but didn’t talk much about help he can get. He struggled all his school life that affects him academically and socially . Because sometimes 504 was not implemented OR with couple of accommodations. He lost confidence in him and low self esteem. He is a bright and intellegent student, took all Pre AP/AP classes and did well even though 504 was not helpful. I came to know about 10 weeks ago that if we help him just a little he can graduate with Honors. Because of un cooperative behavior of school administrators we both lost confidence that he can graduate with Honors. His GPA was 2.93.. Needed 3.0 for Honors. I asked help from school but nobody would help. What can I do?

Debbie: My son is twelve yyears old currantly in 6th grade and failing. His school never informed us of a medical plan for him ,or a 504 plan for him ,until recently. in April they had me bring documentation from our doctor everything they signed all the paperwork on April 28,2013 .Now here’s my dilemma,they want to hold him back still in the sixth grade, Once theyve signed everything doesn’t become a binding contract and they have to abide by it? They tell me no and they can still hold him back. I’m very frustrated Dont know what to do. I had mtg yesterday which I was told it was supposed to be to discuss the 504 plan. they only had bits and pieces ready for him. they told me they didn’t know what to do. I couldn’t believe it. aren’t they the ones as the school that are supposed to know about these things? PLEASE HELP

ASDmom: 504 is not retroactive, If child meets criteria for holding back they can do that. You could use 504 now to show needs not met possibly but not much more.

Section 504:  SCHOOL WANTS TO SWITCH FROM IEP TO 504

Laura:  My 7th-grade son’s IEP committee would like to remove him from special education and accommodate him with a 504 plan.

He has overcome dyslexia, a profound hearing loss in both ears, severe astigmatism, and a milk allergy, and gets straight A’s!

He’s regular classes, except special ed tutoring. I want to keep his tutoring for at least 1-1/2 years, which the 504 won’t provide. Any suggestions?

Sandy:  Laura, ask them for DATA demonstrating that he is no longer eligible under IDEA. Have them show you DATA that he no longer needs the special ed tutoring. How do they know he is not getting A’s BECAUSE of the tutoring? Have them do a full evaluation before exiting him from special education. Hope this helps!

Section 504: SPECIAL NEEDS TRANSPORTATION AND A 504

Robin: My question is in regard to special needs transportation. My son is diagnosed with Autism, General Anxiety, Social Phobia and Depression. He is maintaining his grades in school but is emotionally and socially struggling. He has outbursts that include self harm and throwing things. He is on a 504 and has an ILI. The bus company is now saying that because he does not have an IEP he cannot get transported via the special needs bus, which he has had since Kindergarten. He is now in 7th grade. Can this be part of an accommodation on a 504? The special needs coordinator said that they could be fined significant amounts of money because of his lack of an IEP on the bus. Is this true? What can I do?

Chuck: I am not aware of any decisions, but believe this would be an acceptable 504 accommodation. It is possible that the school could be fined for students not on an IEP riding the bus. That would depend on state rules & the contract with the bus company, if there is one. Typically, this can be dealt with by the school revising the contract &/or paying with non-sp ed funds for such students.

Section 504: SICK CHILD NEEDS HEALTH PLAN AND EMERGENCY PLAN – SCHOOL BALKS

Melinda:  My child has documented heart condition and CP with ADHD. He has an IEP. The school is rejecting if not refusing giving my child an Individualized Health Plan (IHP) and Emergency Care Plan (ECP? Is my child protected under the federal disability laws?

Wrightslaw: Melinda, we’ve published several posts about health plans and medical plans on the Wrightslaw Way blog.

Read these posts – I think they will answer your questions:

“Can we include a Health Care Plan in My Child’s IEP?”

http://www.wrightslaw.com/blog/?p=7544

“Doing the Work Gets Results: How a parent got the services her child needs, including a medical management plan and treatment plan”

http://www.wrightslaw.com/blog/?p=9315

After you read these posts, please let us know if they / we answered your questions. ~ Pam

Section 504: TEMPORARY 504 – TRANSPORTATION DEPT REFUSES TO TRANSPORT

Alice: Our school district granted my son a temporary 504 because he is in a wheelchair following breaking his femur this summer (he’s not allowed any weight on his foot). The 504 calls for transportation to our house after school.

So in essence the district is saying that his need for accommodations is expected to last 6 months or more and the nature of the disability is not minor.

The transportation department is saying they don’t have to transport him because it’s a temporary disability. Do they have the ability to refuse an accommodation in an IEP?

helgrouponline: Alice, I have never heard of a “temporary” 504. Your son either has one or does not. If they are not following what is on it my guess is that your son may not really be on a 504 otherwise they are legally obligated to following it like an IEP.

Section 504: AMENDING A 504 PLAN

Cari: How long does a school have to respond to a parent’s request to amend a current 504 plan?

Is the school allowed to deny a parents request for a reasonable accomodation ex: use of an electronic planner for homework tracking and reminders, without meeting with the parent?

One last question- who has to be in attendance to a 504 meeting from the school, and do both parents have to attend?
I haven’t been able to find any documentation in IDEA or 504 to back it.

Wrightslaw: Cari – Section 504 does not require the school to invite the parents to 504 meetings. Section 504 does require schools to develop a system of procedural safeguards. Request in writing a copy of your school’s procedures. You need to learn more. Start here:

http://www.wrightslaw.com/howey/504.idea.htm

http://www.wrightslaw.com/info/sec504.summ.rights.htm

You will find more about Section 504 here. http://www.wrightslaw.com/info/sec504.index.htm

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Services:  TEACHER WANTS MORE SERVICES FOR ACADEMICS

Dawn: I have a student that I have been desperately trying to help. The student is extremely behind in Language Arts and struggles with math concepts as well. The student’s already on an IEP, but for speech only. I feel it isn’t just a speech problem it’s a learning disability.Am I correct that all we need to do is re-open the IEP and get an evaluation for academics?

Chuck: Dawn, yes you are. A school’s childfind responsibility includes identifing all disabilities/needs that a child has.

Services:  SERVICES NO LONGER NEEDED

Jen:  My daughter (9 years now) has been getting special services since she was three and is currently receiving services for Speech and Math. Her academics and progress have been excellent and she had another re-evaluation before Christmas. Just got back from a meeting to discuss the results of the re-evaluation and the ARD committee is recommending and stating that she no longer needs special services. If services are discontinued, does this mean she no longer has or needs an IEP and does she no longer fall under IDEA?? I have an annual ARD scheduled for tomorrow morning.

Wrightslaw:  Jen – I think the answer to your question is “yes.” It sounds like the school wants to discontinue your daughter’s services, her IEP, and her eligibility under IDEA. You should ask some questions before that happens. This article is about a child with a reading disability – but it advises what to consider before you agree to terminate services. http://www.wrightslaw.com/heath/elig.eval.read.htm Do you know what was tested? Did you understand the evaluation data/results? Did the evaluator provide clear recommendations for your daughter? Discontinuing services doesn’t necessarily mean your daughter “no longer needs an IEP.” Has she met all her IEP goals? Does her disability no longer impact her ability to learn and make progress in the general curriculum? Before you allow the school to terminate eligibility, you want to make sure that you are convinced she is functioning well, will continue to do so, and will be prepared for further education, employment, and independent living.

Services:  DAUGHTER FAILING – SCHOOLS SAYS DOESN’T QUALIFY FOR SERVICES ANYMORE

Donna:  Need help!! My 14 year old ADHD daughter classified as OHI. Her MD ? L D but the school said her acheivement & IQ are too high. “She does not qualify for anymore services” She has resource room 4 days a week co teacher in 2 classes ( math and english) My concern is that she has a very hard time with completing homework or making up low grades ( she does not see the need to ) She is in 9th grade but reading at 5th grade level. I feel this is a big portion of her problem if she cant understand how can she be expected to do it and get good grades. She is failing many classes, isnt there a reason she has this IEP? Shouldnt they be doing more? I am not looking for a easy way out for her but I dont want her to QUIT. Am I being unreasonable ??? I would appreciate any input/ideas from anyone

SharonL:  Donna, My ADHD son was on an OHI IEP & he had accommodations and modifications for educational goals as well as behavioral goals. I asked the dept of special ed in state of ohio where I live & was informed that an OHI IEP is an IEP & any goal that the IEP team believes the child needs can be put on the IEP. When was the last time your daughter was evaluated? Now may be a good time to have her re-evaluated. Be sure to sign the school’s consent form so that they do the eval in 60 days. If you do not agree with the results of the eval you may have one done by an outside professional at the school’s expense. You do not have to sign anything. If the school refuses anything for your daughter they must give prior written notice.

Services:  REFUSING SOME SERVICES IN THE IEP

EAyer: Can a parent refuse some of the services on an IEP. Can a district say “we don’t do a la carte service. Its all or none.?”

Wrightslaw: This article should help answer your questions. http://www.wrightslaw.com/blog/?p=11537

The school may not use your refusal to consent to one service to deny other services, benefits, or activities in your child’s IEP. (34 C.F.R. § 300.300(d)(3))

Services: SCHOOL ELIMINATING SERVICES

J: School has proposed decreasing and/or eliminating services on current IEP for the next academic year. If one parent accepts, and 1 parent rejects (both have legal rights, but divorce agreement states all educational decisions must be made collaboratively) does “Stay Put” still apply? Or can school go ahead and NOT provide thee services that 1 parent agrees to until a hearing takes place.
Thanks in advance.

Chuck:  J, I have heard school attorneys say that the position that the school is taking is the proper approach when one parent agrees with the school & one does not.

Services: SCHOOL SAYS CAN’T MISS CLASS TIME FOR ABA AT HOME

Kera:  I have been pulling my 4th grade daughter out of school twice a week for 90 minutes each day to receive ABA therapy at home. I was told we would have a 90-day trial period and evaluate to see if it affects her school performance. It has actually been really great and she has progressed academically more than ever before. However, the trial period is almost over, and they are telling me they will no longer excuse the time she misses for therapy at home because they have to go by FAPE and do the full day of school. Is it possible for the district to provide ABA therapy at school? I was told that they only did that for kids who are disruptive in class, and she is not. Or is it possible for her to continue missing the hours of school? I want to know who is telling the truth! Thanks.

Chuck: Kera, Yes a school can, & many do, provide ABA therapy at school. Services are to be provided based on a child’s needs, & determined on an individual basis, not on rules like “We only provide it in these situations”. If you can provide documentation from an Autism specialist that your child has made academic progress due to ABA training that can strengthen your case for ABA services at school.

Services: WHO DECIDES WHAT TRAINING FOR TEACHERS & PARENTS?

Brett: Who can decide the type of training a teacher or parent can receive under the “Supplemental Services and Accommodations” section of an IEP?

It is clear that one cannot request the “Cadilac” of training, but one would assume it needs to be based upon the unique needs of the student, teacher, school and parent.

Specific school staff, and the parent, need additional training on working with the specific, unique needs of a child and it would seem that the IEP team would make such decisions as to the type of training needed to support a student. Currently I am using the legal definition of who MUST be included in the IEP and how the IEP is developed, via the IEP team.

Chuck: Brett, the IEP team can and should do this. However, this is also an administrative issue that administrators should be staying on top of. There are draft letters to administrators on some websites that request specific training for teachers. I have at least one. I suggest checking with your state Parent Training & Information Center(PTI). A list of these can be found on this home page under Resources (State PTIs).

Services:  TAKING AWAY SERVICES

ms hope:  Can a school take away your child services off your child’s iep?

SharonL:  ms hope, they should have an IEP meeting to discuss progress and get input from the whole team before removing any services. If they do it without telling you they need to provide prior written notice. Changing services without proper notice or team approval is not allowed. If the school has done this you have every right to request an IEP meeting to discuss.

Services:  FUNDING SPECIAL EDUCATION

Erica:  Is Special Education money earmarked? In other words, are school systems allowed to take money from special education and put it in the general fund therefore CUTTING special education services?

Chuck: Federal & state funds typically come marked as special ed. However, state rules may allow the district to use some of the money for “over-head costs”, e.g., business office, custodial costs & utilities. Recently TX raised the % of funds that schools can use for these purposes. Federal rules allow schools, in some cases, to use federal funds for response to intervention type activities.

Services: STOPPING SERVICES BECAUSE OF NO PROGRESS

Stephanie: Can they stop speech services because they don’t feel a child is making progress?

Cali: Stephanie, the school can not stop services because the student isn’t making progress. No progress means they need to up the intensity or tweak the intervention to start seeing progress. Ideally, the adjustments in the intervention provided should be based on student data and scientific research. If the service is in the IEP they can’t just stop — have to have another IEP meeting to discuss the intensity and adjustment to intervention.

Chuck: Typically when a school says this they are taking the position that the service is not assisting the child to benefit from special education.

Services: PROBLEMS WITH SPEC. ED SERVICES

So Tired:  I have a significant problem. We have multiple children with IEPs in three different schools in the same district. The Dir. of Spec. Ed and the school staff for each school have all formed into a tight cohesive group and they all work together to ensure my kids do not get their services. They claim they get services, but I have proof they do not. We have multiple ongoing disagreements. I have tried everything. I am polite, bring cookies to meetings, send Thank You notes, but because I am not afraid to file complaints (and we win) now they are doing nothing and dragging everything out. IEPs are written, but services are not provided. I document everything. Nothing is working. My kids are the ones suffering. I am losing the will to keep fighting. Any advice?

SharonL:  So Tired, don’t give up. Instead find a way to get what you need even if you have to hire an attorney. If you have filed complaints and won this should help you win again if the school is out of compliance. I had 3 children on IEP’s throughout their school years and it was very difficult at times. Unfortunately we did have to hire attorneys on several occasions, we hired professionals (speech therapists, tutors, advocates) to come to meetings with us. We used standardized testing that the school provided to prove the things we needed. There were days when I wanted to give up but if you give up no one will help your children. Some day it will be over and you will be happy you did what you are doing.

Services:  PULLED OUT OF 1/2 DAY KINDERGARTEN FOR SPED SERVICES

Mary: My daughter attends half day kindergarten. I want them to use the “other half” of the day to provide her IEP specified services – speech, sped, etc. They are claiming “they do not have the time in their schedules” and therefore pull her out of her gen ed K class for an hour a day causing her to miss story time and math. Shes already behind in math concepts – how can I approach this and get them to readdress their schedules??

Sandy: In my school, they always offer the parents the choice of bringing their child in for sped services during the other 1/2 of the day. So this is odd to me. In any event, I would argue that this arrangement is inappropriate for your child because she is being pulled out and missing too much of the gen ed curriculum. I think if you push them, they will back down on this. Just my experience.

Services / Terminating Services:  SCHOOL SAYS NO “EDUCATIONAL NEED” TO KEEP DAUGHTER IN SCHOOL

Lori:  My daughter is 19 and a “senior”. She has an IEP and I would like to keep her in school until 21/22, but school district is telling me that there is no longer an “educational need” for her to there, that she has earned her credits to graduate, and since there will be a 5 yr age difference in the kids in the MH class next year it is time for her to graduate with her diploma. Can they do this? What can I do to keep her in the school system? I do believe she still has an educational need as she still has trouble with basic math (subtracting) and is only reading on a 6th grade level. Any help/advice would be greatly appreciated.

Chuck:  Lori, the IDEA regulations say that special ed is help prepare students “for further education, employment, and independent living”. So you can reply that she still has needs in the area of preparation for employment and independent living skills. Study your state’s rules and requirements for schools in regards to transition. You should be able to use these to build a case that she still has needs that need to be addressed.

Services / Terminating Services:  REVOKED IEP FOR MISREAD DATA

Alyson: My son’s school stopped his IEP last year after having it 5 years and I didn’t realize I had any rights!

Wrightslaw: Alyson, you need to get up to speed on your and your son’s rights. Here’s an easy self-study course from Wrightslaw. http://www.wrightslaw.com/nltr/14/ss.parent.rights.htm

Hundreds of pages of information on the Wrightslaw site. Start here:

http://www.wrightslaw.com/advoc/articles/advocacy.intro.htm

http://www.wrightslaw.com/info/iep.index.htm

http://www.wrightslaw.com/idea/index.htm

Get a copy of Wrightslaw: From Emotions to Advocacy and Wrightslaw: All About IEPs. If you want your own copy of the law, IDEA 2004, get a copy of Wrightsaw: Special Education Law, 2nd Edition. (Book returns in excellent condition are available at steep discounts if you call Harbor House Law Press, 877-529-4332).

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Settlement:  SPECIFIC MISREPRESENTATION AND SETTLEMENT AGREEMENTS

Mary:  What is “specific misrepresentation” as it applies to the due process timeline? A DP hearing request was withdrawn pursuant to a settlement agreement, then a breach of the agreement occured, the federal court dismissed the claim due to failure to exhaust administrative remedies. Now the district claims the statute of limitations has been exceeded. during the pendency of the federal case. Is the settlement agreement a “specific misrepresentation” which should result in an exception to the timeline?

Wrightslaw:  Terri, your questions require opinions by an attorney who is familiar with special ed law AND the facts in your case. Are you represented by an attorney? If so, you need to put these questions to him/her. I would be reluctant to give up your rights and your child’s rights in exchange for a private school placement that may or may not be appropriate. Public schools are responsible for ensuring that children with disabilities receive FAPE. This responsibility continues when the school district places a child in a private placement. If you give up your rights to bring action against the district, what can you do if the private school cannot or does not provide your child with FAPE? You have several important decisions to make. Please consult with an attorney who has expertise in special education law in your state and the issues in your child’s case.

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Speech:  NO STAFF AVAILABLE – NO ST

Tina:  My non-communicative autistic son will be going into high school next year and at his iep they are telling me that his speech therapy could be reduced because they do not have an onsite speech therapist at the school. He has been in te school system for 11 years and they have not yet taught him to communicate his needs. I have tried to push using an ipad with speech apps but have met much resistance. Now they tell me there is not enough staff and the therapist they have is only there 2 days a week with a lot of students to see during that time. I thought they had to provide related services based on the child’s unique needs rather than the services available. Please advise. Thanks!

Sandy:  Tina, you are correct about the school having to provide for your child’s unique needs, not what their staffing permits. They can hire additional therapists, can contract out, or can pay for your own private therapist. Ask them about those options. Otherwise, I’d provide them with a 10 business day written notice that you are planning to obtain private speech services to meet your child’s needs due to their failure to provide FAPE, and then present them with the bill. If they don’t pay, you could then pursue legal recourse (state complaint, mediation, due process). Good luck!

Speech:  CAN’T GET SPEECH UNLESS IT AFFECTS ACADEMICS

Michelle:  My son just mainstreamed this past school year. He is hearing impaired. He has been successful, but has worked really hard to be where he is at. In Dec. his IEP was changed to take away weekly group speech and move speech to consult only. Now we are at the end of the year and doing his IEP for the following school year. They want to take out speech completely and I absolutely DO NOT want to take away the consult speech away from his IEP. I feel he is doing well and doesn’t need speech weekly, but more for maintenance. Maybe speech once a month. I have noticed he is starting to be inconsistent with certain sounds, etc. Well, now they are telling me that even with consult only that they don’t have to give him speech unless it is affecting him academically. That is NOT what they impressed upon me during his last IEP meeting in Dec.

SharonL:  Michelle, don’t sign the IEP & if the school implements it anyway they must provide you with a document that is called “prior written notice” to explain why they are going against what you think is best. Remember you can request evidence from them to prove he no longer needs speech. The school cannot discontinue services for academic reasons only. You can always request a speech evaluation from the school and sign their consent form. They then have 60 days to perform the evaluation. You can then get the scores & discuss with a professional what they mean. If you don’t agree with the results you can get an outside evaluation & the school has to pay for it. YOu do NOT have to sign the IEP & it will stay in effect until the new IEP is signed no matter what they may try to tell you.

Speech: IEP FOR SPEECH

Kaye: The following wording is being written in my daughter’s IEP about her speech sessions:
“Student will receive speech/language therapy by a SLP (etc etc)…on these days with the exception of school cancellations, student/SLP absences, special classroom activities/field trips, state/district testing and/or screenings/registrations, SLP testing/meetings, and any other duty required by the district.” This past year, my daughter did not accomplish her speech goals and had 46% of the scheduled therapy sessions. Most sessions missed were not my daughter’s fault. I was told that the above statement was written and approved by our State Dept.
If the state dept has approved this, how do I dispute this? It’s a violation of FAPE for my daughter and (in my opinion) every child in our district.

SharonL:  Kaye, this happened to us. The only recourse we had was to see if these items were different from what the regular ed students were receiving. In other words, when there are field trips, etc, are regular ed students making up work? If so, you can make a statement about discrimination.
 The other thing you can do is wait to see if your daughter is consistently NOT meeting the goals, and you can request testing to see if she is making progress to determine if she is receiving FAPE. You can ask for outside testing at the school’s expense if you feel that their testing is inaccurate or incomplete. You can indicate on the IEP that you disagree with a service or how it is provided. This way the school can continue services, give you a prior written notice that states why they want to continue as is, or they can meet with you to negotiate a different solution.

Kaye:  Sharon, thanks. My daughter accomplished all of her goals this year, except for speech. She receives speech 4x a week, but has only been seen 6 times this month, and 3 times in March. The SLP is being pulled to help with testing (non-SLP required) because the school is short-staffed. The new wording allows these sessions to be missed and there is no obligation for the school to make them up.
The school is claiming the Rowley decision as the basis for this being allowed (along with the state dept approval – although the state hasn’t told me yet that they did approve it). I’m still disputing this as a denial of FAPE and “good faith” effort – I guess we’ll see what happens. Thanks again.

Follow Up –
Kaye:  I spoke with the state dept and they emphatically denied writing and approving the wording. So, it’s being pulled out of all the IEP’s in the district (which is good). I guess the lesson here is if a district says that the state has told them to do something, it never hurts to double-check.

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Sports: SPORTS – GRADE REQUIREMENTS FOR STUDENTS WITH IEPs?

Mary: My son was deemed ineligible to play for his highschool team due to an F on his report card. Has anyone had success including a provision in their child’s IEP that their grades should not affect their eligiblity for playing on a school team? Vicki: Most grade requirements (at least at the high school level) are set by the state. I don’t know if there’s an option to get a waiver, but every state I’ve lived/worked in (about 8 of them) requires a minimum of a C

Mindy: Hi Mary, this is my situation with the sports–..my child is a competitive athlete. He has made some teams and has not made others. If his grades are failing or does not meet standards–he does not play. I do not press for any accommodations on his IEP pertaining to sports as he has LD. Still, some of his sports clubs have autistic students and everyone, regardless of IEPS, are held accountable for their grades, etc. Grades should affect eligibility. I can only speak from my experience with my son and his LD as the. Coaches and the sports teams motivate him to maintain high grades but it come from within him. Also, the issues at FSU with athletes with 1st grade reading levels–instilled a passion in me that my child will not be giving preference to play sports. My child has to earn that right with had work and good grades.

Sports:  INELIGIBLE FOR SPORTS PER STATE (IL) BECAUSE OF GRADES

Dawn: If my son has been determined ineligible per IHSA rules for Football because of his grades, but his IEP allows him extra time to turn assignments in can I use that to make him eligible? He has the extra time but when he does turn them in the teachers are not updating the grades regularly so he was made ineligible 3 weeks ago and appears will be for the rest of the season because the assignments are marked as 0 points.

MORNING: I think there are some underlying issues that must be addressed. Is he having academic difficulty? Is the case manager as well as your son working with the teachers to ensure that his accommodations are clearly outlined? I think the “Ineligible for sports” may be a moot point. There should be proactive measures put in place so your son and his teachers understand the accommodations and expectations. I would not try to use my child’s IEP to make him eligible for sports. I would use the IEP to examine goals and progress monitor. Sports at the high school level and eligibility are serious matters but my son’s academic progress is more important than eligibility. However, participation in competitive high school sports do motivate my child to do well and stay eligible.

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Tape Recording / Video: NOT RECEIVING SERVICES, BULLYING, & HIDDEN RECORDING

Daisy:  My niece has an IEP. She gets all her tests read aloud,extended time and small-group setting. She took a test last week and had no accommodations. A student teacher administered the test. My niece overheard the regular teacher tell the student teacher to note in her log that my niece received the accommodations. The school district has not been providing services, but continue to tell parents that they are providing them. My niece has told the parents she is not receiving services. This comes down to he said, she said. My niece is also being verbally abused by teachers. The teachers talk openly to each other in front of students about my niece. I want to send my niece to school with a digital voice recorder or hidden camera to start recording these incidents. Is this legal?

GiGi: 
I would like to know what the law says about a student taking a digital recorder with them to school to record exchanges between the student and a bully. The bully is a teacher. No one from the district believes this is happening.  I have spoken to the principal, guidance counselor and special education director. They all say my child is lying. The teacher yells at my child, calls her lazy, says she is a liar after we complain. During a recent parent-teacher conference, the teacher was sarcastic and obviously angry. When my daughter tried to speak, the teacher cut her off in mid-sentence. I had to intervene three times so she could finish her thoughts. The situation is unacceptable. Does anyone know about recording devices and recording someone without consent?

Wrightslaw:  Gigi, please don’t send your child to school with a device to secretly record an abusive teacher.  You wrote: “I have spoken to the principal, guidance counselor and special education director. They all say my child is lying.” Have you put your concerns in writing? After you talk with people, you need to follow up with a letter that describes what happened, who said what, etc. If you write letters when incidents happen, they are evidence that the school knew about the teacher’s behavior, took no steps to protect your child. If you don’t write letters, it’s your word against another person’s word. You lose. Write a letter about the parent-tchr meeting. You’ll find sample letters here: http://www.wrightslaw.com/info/ltrs.index.htm

Mom from Texas:  Daisy, I think you need to rethink your role as advocate. How will this help your niece in the end? It won’t get her an education and it won’t make the teachers like you or want to help. I have had some very difficult times with school officials and let me tell you once I changed my approach and stepped up things got much better. First, have you/parents put all your concerns in writing to the principal and teachers? If not then you should look up letter to a stranger on this site. Your job is to not make enemies but to make these people want to help your niece. Sometimes we have to change how we react in order to get what we want for our children and letting the teachers and schools save face. Remember to keep copies of all emails and letters in the child’s school folder in case you need them later.

SharonL:  Daisy, having your niece take a hidden tape recorder would put a lot of stress on her. I think it would be better to schedule an IEP & ask your niece to come to the meeting with you and discuss the issues. It is difficult for people to lie when they are all facing each other. At that time you may inform the team that you will be bringing a digital recorder so you can have a record of the meeting. It allows you to focus and not have to worry about taking notes. You can also discuss the verbal abuse at that time. Please note that we have had a situation like this and have discovered that my son caused some of the issues as well. This allows everyone to come clean and come up with a resolution.

Morning:  You may want to consider getting training as well as the parents in IEPs, accomodations, etc. Call your state department of education. You are very concerned as you should be. The parents can call a team meeting or a PPT To discuss the concerns and discuss some changes, etc.. The parents must be fully aware and understand how to truly advocate for your niece and that takes knowledge, reading and researching. Hidden recorders are not the answer and can cause legal issues. You don’t want to put her in a situation like that with a hidden recording as she can get in a lot of legal trouble. Focus on learning the law, educating the parents and understanding how advocacy works. Kudos to you–your niece has someone who listens to her.

Tape Recording / Video: CAMERAS IN CLASSROOM – LEGAL?

Kathy:  Is it legal to have cameras in the classrooms in Tennessee

Wrightslaw: Kathy, the issue of cameras in the classroom is governed by state law. The federal special ed law does not address this issue.

Tape Recording / Video: VIDEOTAPING CHILDREN – GUIDELINES

Barbara: Does federal law prohibit photographing or videotaping students with special needs for a teacher’s professional portfolio? I’m a graduate student in education, and one of my spring courses focuses on portfolio development. Our text says we should be “sensitive” about children with SNs and not include them by name or photo; it also says federal law prohibits videotaping children with SNs. Is this true? If so, why? I understand we should obtain parents’ permission and should not identify kids by full names. But if teachers are supposed to demonstrate their ability to work with diverse populations, how can we show that without including these children in our portfolio?

Wrightslaw:  Barbara, Pete and I discussed your question. We are not aware of any law that prohibits videotaping children with special needs. The U. S. Supreme Court has ruled that public school students have very limited privacy rights. Public school students with disabilities do not have greater privacy rights. Perhaps you can ask your professor about this law – we’re interested in what you learn.

Rob: We want our district to grant us permission to videotape our daughter in class, on the playground and during therapy sessions. We know she is not making the progress they claim. We know this from her actions outside of school and from observing her in the classroom. The administration, district teacher and paraprofessionals attempt to discourage us from visiting our daughter at school. They claim we are a disruption and distraction when we do so (they do this to other special needs parents we know in the district). Is it possible to get permission to only videotape our child? What laws allow us to videotape her so we can work with her at home?

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Teacher Issues: PROOF OF TEACHER CERTIFICATION

Shawn:  I Live in Ma. And I’m wondering if we have the right to request proof of our son’s special education teachers certifications. The school claims she is Wilson and Orton Gillingham trained but will not provide any documentation to back this up. They are telling us their word is enough proof.

Wrightslaw:  Shawn – Of course you may request your son’s teacher’s qualifications. But this is no guarantee the school will provide them. Kind of makes you wonder – right?
Here are two articles that may be helpful. They address concerns similar to yours. Teacher Credentials: Can I Request Them Without Insulting a Teacher? http://www.wrightslaw.com/blog/?p=258 and
How Can I Know if My Child’s Teacher is Highly Qualified? http://www.wrightslaw.com/blog/?p=135

At the very least, put your polite request in writing to the school. If no response, follow up with a second request.

Teacher Issues:  SPECIAL CLASS-HIGHLY QUALIFIED TEACHER

Michele:  My son’s IEP states that he be placed in the resource room for math and lanquage arts. The school asked me to sign an amendment changing his IEP to read “Special Math” because the teacher is not special ed certified but is “highly qualified” in math. I haven’t agreed and had a meeting with the superivsor of special services to see what other options they woudl provide and none involved what his IEP states. There are 11 children in the math resource room with an aide. Do I have to go to mediation or is there another direction I can go?

Jennifer:  The first question I would ask is: Is your son making progress in math? If he is, go with the ‘highly qualified’ teacher and don’t sweat the certification issue.

Teacher Issues: CAN I MANAGE A CASELOAD OF HIGH SCHOOL STUDENTS IF I’M ONLY CERTIFIED IN ELEMENTARY AND MIDDLE SCHOOL?

Zack: School gave me a caseload of high school students to manage. I only have my certification in elementary/middle school. I was told that I would need an emergency license then SPED director told me that I didn’t and that she “would take care of it on her end.” Is this legal? If I get an emergency license, does the school have to pay for it?

Chuck: Zack, the answer to your first question depends on your state regulations. I suggest that you check that this is handled properly. The answer to the second question depends on district policy or procedures.

Teacher Issues: TRAINING REQUIRED FOR SCHOOL STAFF

Minotte: If I have a child with autism, is everyone at the school who comes into contact with my daughter such as their homeroom teacher, computer teacher, assistants, fill in assistants, office staff, counselors, occupational therapists, and so on required to have training in autism? What kind of training is considered sufficient? What is there was not training for people in the past, but may have been trained recently? What are my child’s rights if they do not have training in autism? what is considered a sufficient amount of training in autism, especially when a child has an educational diagnosis of autism? Thank you, I still have lots to learn to advocate for my child.

Chuck:  IDEA regulations require IEP teams to consider what “supports school personnel” need to provide the child with FAPE. This would include training. The team determines if any staff needs training & what training. It is always important to check your state sp ed regulations. The state may address training in more detail.

Wrightslaw:  Minotte, the need for training and support applies to all school personnel.

If you have not already read this article, read it now. http://www.wrightslaw.com/advoc/articles/support.bardet.htm

Some of these training solutions may be applicable for the school personnel you’ve listed. However, it may not be reasonable for everyone who “comes in contact” with your son to have training (or the same level of training). “How much training” would be based on your son’s individual needs. You may need to request an IEP meeting to discuss what/how supports and training for school staff will enable your son to progress toward his IEP goals and access the general curriculum.

If the team decides support and training for teachers and other school personnel is needed, this training must be written in your child’s IEP.

Be sure you document all your requests and concerns in writing to the school.

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Tests: REIMBURSEMENT FOR TESTING

Sylvia:  My daughter’s has an IEP for SLD and ADD is mentioned in her IEP.I looked into ESY and was told that this was not for her it was for kids who needed help with dressing, grooming, social skills. No mention of that in the application of ESY.I called the director of the ESY who confirmed it would be tailored to my child’s individual needs.Then I was hit with the need to show regression for her to qualify and she would not get any math help because it was not in the IEP. I insisted something else was going on with her disability, then I was told if they’re to test her she would likely no longer qualify for any services,adamant about that, but if I wanted them to they would test her it was my choice.I chose to get my own testing.$949.The meeting was postponed til my results come back.She still qualifies, shouldn’t they pay me back?

SharonL:  Sylvia, yes the school must pay for the outside testing. Call the director and ask who the bill should be sent to. I have done this with 2 of my children through the years when I did not agree with the test results of the school. They will pay you. It is a law.

Tests:  DON’T WANT MY SON IQ TESTED

Nadia:  Can someone please help. The school is forcing us to give our child an IQ test and they told us that he needs to take one in order to be on Portfolio, which is the year end testing for special needs students. If we don’t do it, he will have to have TCAP testing, we live in Tennessee. Can someone please help me. I don’t know the law. I’m not going to IQ test him. I don’t want him labeled intellectually disabled. He is not that. He has a seizure disorder. Please help me. Thank you very much.

Jennifer:  Nadia, for most disability categories in special education, an IQ test is part of the required battery to identify students and place them in the program. Check out the Tennessee Special Education website to verify this. If your son is having seizures and this truly is his handicapping condition, there is the possibility that the committee will decide he fits in the Other Health Impaired category. You say you ‘don’t know the law.’ The sooner you get to know the law, the better equipped you will be to make decisions about your son.

Tests:  EXIT EXAMS AND REMEDIATION

Becky:  Daughter is struggling with some of her high school exit exams in Writing, Math, and Social Studies. The school’s remediation plan is to put her in a Study Skills class with a Computer Teacher and have her sit and answer questions on a website. She is a Sp Ed student with an IEP. I think she needs to receive individualized instruction from a teacher instead of trying to remediate herself through a website that has already been shown to be ineffective for her. After countless hours on the website her scores actually declined. What does the law say about remediation?

Wendy: Becky, I would request an IEP Meeting to discuss your concerns with remediation. I would suggest making sure that when they ask for parent concerns that you address your issues and make sure they are added to the IEP document. I would have specifics and documentation of why the current remediation does not work for your child. I would also go in with a proposed plan that you think will work for your child. Make sure you schedule a follow up IEP meeting to re-evaluate the changes that are made and make sure the new plan is working. Remember a parent can request an IEP meeting at any time to discuss concerns. Yearly is just a minimum. Hope this helps.

Tests: GETTING ACCOMMODATIONS ON STANDARDIZED TESTS

Jo:  My child has in her IEP that she will get pulled out and have extended time on State and other Standardized testing, but the school and school district has refused to provide this. Based on the information that it’s not documented that she needs to have extended time on each and every assignment and test that she has taken and that it must be documeneted by th teacher in each case, since this is not the case,I did not know about this policy beforehand, and she has some tests and assignments that she needed extra time and others not, the school and the state refuses to provide the accomadations as written in her IEP. Any suggestions on how to fight this? Thanks in advance.

Sharon:  Jo, we had this problem and we requested an IEP meeting to put this accommodation on the IEP for all items our son needed. At the time we did IEP’s there was a specific place to put modifications & accommodations for standardized testing on the IEP. I agree with the school. If the accommodations are not specifically not spelled out in the IEP than the school does not legally have to provide it. I feel bad for parents who get talked into signing IEP’s that are very general & not specific because it gives the school greater leeway to not follow the law. If you need help with the IEP contact a local group of the learning disability association or some other advocate group. They may have someone to help you with how to get these items on the IEP.

Tests: TESTING ACCOMMODATIONS-NYS

Carrie:  I am a graduate student working with a parent concerning using the I-Pad on the NYS Regents Exams. Currently the district the child attends states that use of the I-Pad on NYS exams is prohibited. I am writing to see if there are any known instances/documentations in NYS where students have been allowed to use a tablet or I-Pad device as a word processor on these exams.

Sharon:  Carrie, my son attends college right now & was on an IEP in high school. He gets testing accommodations with the use of a computer & Kurzweil to read the test to him. They will not allow any student to use their own computer/Ipad, etc because they could have a file with the answers & cheat. If this child qualifies for accommodations/modifications then the school will need to provide accommodations like this college is doing. When my son was in high school he received a person who read the test to him & scribed the answers if they were long word answers. My son has dyslexia and disgraphia & it takes him time to read & write & even though he is allowed more time to complete the test these accommodations help him be on a level playing field like the regular ed students.

Tests:  IEP SAYS ACCOMMODATIONS ON TESTS – BUT NONE GIVEN

Jen:  My 2nd grader is supposed to have testing accommodations. His IEP says he can respond in the test booklet or have a scribe. He has had a scribe in the instructional setting as needed. I was stunned when he mentioned that he had no scribe for last week’s standardized testing (over multiple days) and completed a bubble answer sheet. Last week he was a disaster emotionally and behaviorally as a result of the stress of test taking. I had no idea that the stress was worsened by the lack of accommodations. They are in complete violation of his IEP and I feel his test scores are invalid. I’m trying to stay on positive terms with the school so I’d like to be non-confrontational when I bring it to their attention and give them a chance to fix the situation. However, how can they really fix it? Retesting would be stressful.

SharonL:  Jen, having accommodations for tests in the classroom on the IEP will not normally automatically mean the same for standardized tests. There is usually a separate sheet on the IEP for this. Check that first to see if you accidentally did allow for what they are doing. If so convene an IEP meeting to discuss to get this added. I don’t think you can go backward & have the test retaken but you can be sure it is done in the future. If the accommodation is on the IEP for standardized tests than it is your call on how they should correct the problem. You will have to bring it to their attention.

Tests:  MY SONS TEST SCORES ARE LOWER THAN LAST YEAR

Linda:  He made NO progress, actually dropped. Now he’s going into middle school with 4th grade math & reading. He is diagnosed with ADHD and Aspbergers. He is behind in most subjects but last year his school seemed to want him to succeed. Test scores all went up 10 points that year. This year he was moved to another school where they DONT follow the IEP. I’ve requested several IEP meetings and they claim they will do things like send him to resource daily, but don’t. At one point they took him off an individualized math program saying he’s “keeping up with his class”, yet his report card says he doesn’t understand the basics. I’ve tried to see they follow the IEP but its evident they don’t. I’m sick and angry, but what can I do now?

SharonL:  Linda , if you can prove that your son did not improve & in fact dropped you may have a case where the school is not providing FAPE( Free& appropriate education). You need to get standardized test scores for this year as soon as possible to compare with the test scores from his last evaluation. By law you can request an evaluation once a year. Do it. ONce you get the results you can compare & then meet with the school to discuss. Take a professional with you if you can to help.

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Training:  PARENT TRAINING IN WRIGHTSLAW: SPECIAL ED LAW

Bonnie:  where in Wright’s law 2nd edition will I find information about continuing training for parents, teachers and students, using their dynamic communication devices. My students are non-verbal autistic emerging communicators who will have a new teacher next year–she/he will need training, as well as the parents to address their child’s goals.

Wrightslaw:  Bonnie – In Wrightslaw: Special Education Law, 2nd edition, use the index for “parent training” or “parent counseling.” If you have the PDF format for your computer, you can search for any term in the text. http://www.wrightslaw.com/bks/selaw2/selaw2.htm#formats Another place to find answers: just enter a term in the search box on any Wrightslaw page. If you enter “parent training,” this article is the first result. Support for School Personnel and Parent Training. http://www.wrightslaw.com/advoc/articles/support.bardet.htm Don’t hesitate to use the Search box or category check on the Wrightslaw Way Blog when you are searching for information. In fact, I think the answer to this question is archived on the Community Helpline. http://www.wrightslaw.com/blog/?page_id=6763

Training:  HOW TO GET TRAINING FOR TEACHERS & PARENTS

Bonnie:  I am an EC teacher of non-verbal autistic students. This year my students have been able to get their own dynamic devices, and we , my students, parents, paraprofessionals and myself are learning together, However, there are many glitches in this process because I am not fluent with the devices. My need for myself and my students is to get on going training so as to maximize their success. How do I write it in an IEP? A parent did request more training–but it will be 2 hours total, not on an as need basis? Help

Wrightslaw:  Bonnie, use your Wrightslaw: Special Education Law, 2nd edition. Turn to p. 100, 201, 246. Read the sections in the statute and regulations about program modifications or supports for school personnel and parent counseling and training. http://www.wrightslaw.com/store/selaw2.html These subsections envision “services that are provided to the parents or teachers of a child with a disability to help them to more effectively work with the child.” I see nothing in these sections that requires this support and training to be restricted or limited to two hours or a one-time training rather than on-going training as needed. Rather than using “maximize” your students’ success, you might want to use the words from the Commentary about training: “it would normally be targeted directly on assisting the teacher to meet a unique and specific need of the child.” This article will help: Support for School Personnel and Parent Training: Often Overlooked Keys to Success by Susan Bardet. http://www.wrightslaw.com/advoc/articles/support.bardet.htm

Bonnie:  My parent was requesting that the training is on going for next year, and for the new teacher, as I am retiring this June.

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Transfers & Changing Schools: CHANGING DISTRICTS

Linda:  My house was sold, technically my district has changed. Does the first district I have been in continue to provide services? Move date May 30.

SharonL:  Linda, the new district will implement the IEP from the old district. When we moved I got a copy of the latest IEP and set up a meeting with the new director to introduce myself and go over the IEP.

Transfers & Changing Schools: MOVE OUT OF SCHOOL DISTRICT

guio: Our son is a special education student 9th grade. He has an IEP (OHI) I would like to write an effective letter to the school principal asking to allow him finish school year. Please help me

Chuck: Sometimes district procedures/policies address this situation. If you can find out if this is the case with your district, that can be the basis on which you build your letter. Otherwise, you can talk about the benefits to your son to stay now & make the transition at the beginning of next school year. Say how he will get to school. Since they are already serving him, this is not increasing their workload.

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Transportation:  BUS TRANSPORTATION ISSUES

Sue:  My daughter was denied her regular transportation today after having a seizure right before entering onto the bus. I called the superintendent and she wants me to put in writing that it is ok for her to still ride the bus is she has had a seizure. I find this offensive and unnecessary. I am unsure how to address the school administration about this though. My daughter should not be penalized for one of the many disabilities she has which happens to be a seizure disorder and will not harm anyone. Any suggestions?

Wrightslaw:  Sue, if my understanding is correct, your daughter had a seizure as she was about to board the school bus. The school wants your assurance that it’s safe for her to ride the bus. You are offended.  Change facts. Assume that I’m a school administrator. I am not a neurologist so my knowledge of seizures is limited. As a school administrator, I want a letter from her doctor about whether riding the bus is safe for her, what the bus driver should do/not do if she has a seizure on the bus, and the possible emotional impact on other students.

Transportation:  TRANSPORTATION OPTIONS

Lori:  My son is 20 years old and has Autism. He recently lost his license to drive. I asked the school for transportation, which will help him in his transition to adulthood. They offer the “yellow school bus”. I am asking for transportation that meets his individual needs, including his age. Normal 20 year olds do not use school buses, but other modes of transportation. This is the only thing they are offering. Does transportation have to meet his needs, and also meet the requirement for transition to adulthood services?

Renee:  Lori, is your 20 yo son going to school (as opposed to work site)? What other options are available in your community? Is there a city bus that has a route from your home to/near school or worksite? Would a paid city bus pass be appropriate for him in that case? Our area has small buses (not yellow) that can be used by anyone for door to door service, but are mostly used by the elderly or individuals with disabilities. They are expensive for repeated use, though. School buses in general are an efficient way to get a large group of students to school. (Sure they have problems, too!) Do other older students ride the bus? I can see how you might describe how your son is not with his peers on a school bus. In these type of cases, I make sure to present many ideas to the district, rather than wait for their one offer.

SharonL:  Lori, I think it is appalling that the school wants your 20 year old to take a yellow school bus however they legally can offer you that and nothing else if they want to. You offering alternatives is a good idea. One thing you can try is since your son was driving I am assuming that you were getting mileage reimbursement from the school in lieu of transporation services. When my son was seeing an outside tutor for specialized reading for his dyslexia the school paid for his mileage to and from the tutor since they were paying her to teach him. If they have not been doing this for your son they should have and technically owe you the money. Perhaps you can bargain with this for public transportation in your community rather than paying you back all of the money they owe you. It is worth a try.

Transportation:  TRANSPORTATION HARNESS

Jasmine: I have a 10 Yr old son with Autism. He occasional has an outburst where he will stand up on the bus, or yell. His school has agreed that he would do better with 1 on 1aide on the bus to help him through his anxiety issues, and outbursts. The bus trans dept, feel that they cannot hire someone for that. They are now refusing him transportation unless he is in a harness/vest. He is more high functioning, and his dad and I diagree. HELP

Sophie:  Jasmine, transportation is a special education service just like speech services or classroom services. The IEP determines If transportation is needed, it is FAPE. Sounds like the transportation system is separate from the school district. Bottom line, it is the district’s responsibility and they have the ultimate responsibility to provide it. If the company they contract with refuses to follow the IEP the district has to find an alternative method to meet the IEP.

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