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When IEP Services are NOT Delivered
by Robert K. Crabtree, Esq.

Question:

What should parents do when services in their child's IEP are not being provided?

Answer:

When services are not delivered under an Individualized Educational Plan (IEP), there are steps parents can take both to enforce the IEP and to obtain compensatory services to make up for the lost services.

As always, you should approach this kind of situation with respect for your child's teachers and a sense of proportion. A day or two without a service may warrant only a comment or note to the teacher. Ask if there is likely to be a long-term or recurring problem that the TEAM should address before it gets out of hand. Continuous or repeated loss of a service for several weeks may call for more formal action.

Once you accept an IEP, the school system must provide all the services described in that plan right away, unless the IEP states that some services are to commence at a later time. Unfortunately, parents cannot always assume that this will happen. They cannot even assume that the school will tell them if services are not being delivered.

Check on Service Delivery

You need to find ways to check on service delivery and keep a journal to record days when services are not delivered. Depending on her cognitive and communication abilities, your child's own reports of his/her school day provide one source of information.

Other ways to check on services include:

  • regularly asking the teacher or other service provider how things are going;
  • personally observing your child's program from time to time;
  • using a notebook to communicate back and forth with the teacher and/or other service providers; and
  • talking regularly with the parents of other children in your child's program.

In the more formal discovery procedures that apply when a dispute is in litigation, parents can obtain specific documentary and other information to determine exactly how much service the school has not delivered.

What Can You Do?

If you believe that a service is not being delivered, you should first see if the school agrees with you. School personnel may believe that the service is being delivered because they have a different concept of what the IEP requires.

Determine What the IEP Requires

For example, if the IEP states, ambiguously, that a student will receive speech/language therapy in "individual/small group settings" the school might think that a therapist's occasional visits to the classroom fulfill that requirement even if she never directly works with the child.

If you don't agree with the school system's interpretation, and the issue is important enough, you may want to formally challenge both the school system's interpretation of the IEP and its position that the service they are delivering is sufficient. In some cases you will need an educator or other professional who will state that the services being delivered are not consistent with the IEP.

State Complaint or Due Process Hearing

In cases that warrant formal action, you will need to find out where and how to bring a complaint about noncompliance in your state. You may be able to have the situation investigated by a state-level office responsible for handling such complaints, or you may have to ask for a due process hearing.

You should be able to find the appropriate route by calling your state's Department of Education, a local parent advocacy agency, or an attorney who concentrates in special education law. Families often find that asking for a due process hearing is the most effective way to resolve issues of noncompliance.

Replacing Lost Services

If the school agrees that the service has not been delivered, then the only question is how to make up for the lost service effectively.

If you can agree on how many hours of services have been lost, they could be made up in any way that fits with the student's needs and learning style by, for example, doubling weekly services temporarily or providing services during vacation periods.

If you have "covered" the missing services by hiring a private service provider until the school begins to deliver the service, you can seek reimbursement from the school system for that expense.

In some cases you need to be more creative. For example, if a child's time and learning capacity are already "maxed out," simply adding more hours of service in her ordinary school schedule probably won't work. In such cases, perhaps, you could agree to "bank" the lost services to use at a later time when there might be disagreement about the need for ongoing services.

In cases involving larger issues, such as when a child is provided no services at all for a significant period, you may consider having the school agree to continue providing special education services for a period after she reaches the maximum age of eligibility for special education in your state.

An argument can also be made in some cases for an award of damages (the law is just developing in this area).

Be sure to monitor implementation of your child's IEP. The longer a child goes without a service, the harder it is to correct the situation effectively. It's easier to prevent non-compliance at the beginning than to fix it months later.

 


More Articles by Bob Crabtree

The Paper Chase: Managing Your Child's Documents. "If you have kids with special educational needs, you can be overwhelmed with paperwork in no time at all . . ."

Discipline: Suspension, Expulsions and IEPs. Read this article by parent attorney Robert Crabtree to learn about functional behavioral assessments, behavior intervention plans, long-term suspensions and expulsions, the child's rights, and what parents can do to protect these rights. Learn how to request a behavior assessment, an expedited hearing, and how to invoke "stay put."

What You Should Know About Evaluations. As a parent, you must make sure that all areas of possible need are assessed as quickly as possible. While some parents would rather not allow their school system to evaluate their child, a refusal to cooperate at this stage of the process can backfire . . . " Read article

Mistakes People Make: Parents. Because the stakes are so high, it is difficult for parents of children with special educational needs to advocate calmly and objectively for the educational and related services their children need. To learn about mistakes parents make, read this article.

Mistakes People Make: School Districts. What makes parents angry? Parents are angry when school personnel take actions that undermine trust, create a negative climate that destroys peace of mind, and deliver inadequate services to the child. Want to learn more? Read article

Mistakes People Make: Independent Evaluators. To make their case for services or a specific program for their child, parents usually need a competent, credible independent evaluator. Serious mistakes by evaluators can make undermine their credibility or render their opinions powerless. To learn about mistakes independent evaluators should try to avoid, read this article.

Mistakes People Make: Advocates. Because the non-lawyer advocate plays an extremely important role in the special education process, advocates must be mindful of the power of their role and the trust parents place in them. The more serious mistakes advocates may make are generally ones of excess . . . Read article


Meet Robert Crabtree

Bob Crabtree is a partner at Kotin, Crabtree, and Strong, LLP, a general practice law firm in Boston, MA. Among other areas of practice, Bob concentrates in special education and disability law. This article was originally published by the Family Education site at www.familyeducation.com.

Copyright © 2012 Kotin, Crabtree, and Strong, LLP

Contact Info
Robert K. Crabtree
Kotin, Crabtree & Strong, LLP
One Bowdoin Square
Boston, MA 02114-2925

Phone: 617/227-7031
Facsimile: 617/367-2988
Email: rcrabtree@kcslegal.com
Website: www.kcslegal.com

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