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Starting a New IEP Advocacy Year: Back to School Tips
by Lisa Krizman, Esq.

Mom sending kids back to schoolIt's that time again! For parents of children with special needs, “back to school” means the start of a new IEP advocacy year. Here are some tips to keep in mind:

"Back to School" Supplies for Parents 

(1) New spiral book.   Get a new spiral notebook to document incidents concerning your child at home and at school, and conversations with the school and professionals. Start by documenting how your child did over the summer, which is important if you plan to ask for an Extended School Year. Keep this book handy (in the kitchen, for example).

(2) New very large folder. Get a folder in which you can toss ALL school work and notes your child brings home for that year. This can be very important for you to evaluate and monitor and document the child’s progress during that year, and from year to year.

(3) New loose-leaf book: Use this to file IEPs, the latest Parental Rights book from your state Department of Education, notices, emails, official reports to and from school and doctors/therapists. Remember that your requests to the Child Study Team MUST be in writing in order to initiate certain procedural protections.

Update the School Nurse.  You may want to disclose medication status and changes.

Educate the New Staff.  Initiate friendly contact with your child’s new teacher, aide and therapists to describe how to best handle your child.

Monitor. Watch the progress of your child on a regular, periodic basis and report your concerns early to the teacher and your Child Study Team Case Manager. Don’t assume your child IS progressing during the year. And, don’t wait until the annual IEP meeting to find out.

Check up by Private Specialists. To whatever extent you can afford it, have your child periodically examined/treated by your own team of therapists and specialists. If you are concerned about the upcoming school year, it may be helpful to get a “baseline” picture of your child at the start of the year. Judges generally give much greater weight to an expert who has treated your child over time than a specialist who is brought in to give a report for the purpose of litigation.

Catch up on new legal developments in special education. It’s been a good summer for us.  Here are some recent noteworthy developments and some older useful cases:

(a) Doug C. v. Hawaii (9th Cir. 2013) - On June 13, 2013, the U.S. Court of Appeals for the Ninth Circuit issued an important decision about parental participation at IEP meetings. Pete says that "All special education staff who conduct IEP meetings should be familiar with this landmark ruling about IEP meetings and parental participation." The Doug C. Court found, as a matter of law, that the failure to include the parent at the IEP meeting violated the procedural requirement of IDEA and invalidated the IEP. Click here to read Pete's comprehensive analysis about the case. The original decision as issued by the Court is located here. The YouTube video link is at the beginning of this page.

(b) U.S. Department of Education guidelines regarding Bullying (2013). On August 20, 2013, the U.S. Department of Education issued a policy letter stating that bullying can be found to deprive a special needs child of an appropriate education. http://www.ed.gov/blog/2013/08/keeping-students-with-disabilities-safe-from-bullying/.  Be aware that certain states, like New Jersey, have instituted Anti- Bullying laws which sets forth certain procedural steps to report bullying of your child. So, in addition to calling IEP meetings, you may also need to initiate bullying complaints.

(c) D. V. v. Pennsauken Sch. District (D.N.J. 2013). It seems that more parents are facing allegations of child abuse by school districts in alleged retaliation for advocacy .On August 7, 2013, the District of New Jersey again ruled that a school district’s reporting a family for child abuse may indeed be actionable retaliation under Section 504 and other federal statutes. See also the R.K. v. Y.A.L.E. Schools case, where the New Jersey court would not dismiss the parent’s claim of civil conspiracy among teaching staff.  Then in April 2009, the Court issued a further opinion relating to the parents’ claim for intentional infliction of emotional distress.

(d) R.G.B. v. Ridgewood (June 2013). Children who are overweight may be protected from bullying, at least in New Jersey. In this case, the New Jersey Commissioner of Education affirmed that hurtful comments pertaining to student’s appearance and body type were verbal acts motivated by a “distinguishing characteristic” under the New Jersey Anti-Bullying Rights Act.

(e) Moorestown Township v. S.C. (D.N.J. 2011). The District Court of New Jersey ruled that, upon request of the parents, the School District is required to evaluate a child and formulate an IEP for a privately enrolled child whom it already found eligible for special education services and a resident of its district. This is a useful case for parents who are interested in returning their child to a public school program but do not want to remove the child from the private placement until they first see whether the offered IEP will be appropriate.

(f) D.S. v. Bayonne Bd. of Ed. (3rd Cir. 2010). In this successful tuition reimbursement case, the Court of Appeals for the Third Circuit commented that high grades in a self contained special education classroom should not be given the same weight as grades achieved in a mainstream classroom when determining the appropriateness of the IEP. This is useful case for parents of children in non-mainstream programs who want to argue that their child is not making meaningful educational progress.

(g) Forest Grove School District v. T. A. (U.S. 2009) The U.S. Supreme Court ruled that the Individuals with Disabilities Act (“IDEA”) authorized reimbursement to parents for the cost of private special education school when a school district fails to provide a free appropriate public education (“FAPE”) and the private school placement is appropriate, regardless of whether the child previously received special education services through the public school. In this case, the District had evaluated the child but found him not eligible for special education services, and the parents unilaterally placed the child in a private school. Most notably, the Court noted that the IDEA review process is “inadequate to ensure that a school’s failure to provide a FAPE is remedied with the speed necessary to avoid a detriment to the child’s education” and also that IDEA may be interpreted “permissively” to allow reimbursement awards.

(h) Arlington v. Murphy. In June, 2006, the U.S. Supreme Court held that parents can not recover the cost of experts who testify in due process hearings even if they prevail. However, in July 2009, the IDEA Fairness Restoration Act, H.R. 2740, was introduced to make it mandatory for districts to reimburse prevailing parents for expert fees in due process and further proceedings.

(i) Henrico School Board v. R.T. In June 2006, the Eastern District of Virginia issued a favorable decision regarding tuition reimbursement to parents for placing their autistic son into private school based on the school district’s knowing and repeated failure to provide an appropriate education. The Court criticized the School District for “inertia” and found the District’s attempt to avoid tuition reimbursement as “unconscionable.”

(j) Schaffer v. Weast. In November 2005, the U.S. Supreme Court held that the burden of proof is on the party bringing the litigation, but declined to address that a state could, by statute, place the burden exclusively on the school district. Since at least one state has already passed legislation to make this so, check your current state laws.

© 2009, 2013 Lisa Krizman Esq. LLC
1930 East Marlton Pike, Suite Q47
Cherry Hill, NJ 08003
Phone: (856) 751-4131
Email: lisakrizman@krizmanlaw.com

The content herein is provided for general informational purposes only and should not be construed as or acted upon legal advice.

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