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

happy woman carrying stack of books It'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

(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 folderr. 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.

To-Do List

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 your child's progress on a regular, periodic basis. Report your concerns early to the teacher and your Child Study Team Case Manager. Don't assume your child is making progress during the year. And, don’t wait until the annual IEP meeting to find out.

Check up by Private Specialists Have your your child periodically examined/treated by your own team of therapists and specialists. If you have concerns about the upcoming school year, it is 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 to a specialist who is brought in to give a report for the purpose of litigation.

Catch up on new legal developments in special education

Overall, it's been a good year. Here are a few recent noteworthy cases and legal developments.

Fry v. Napoleon Comm. Sch. District - Fry began as a case about a school's refusal to allow a child's service dog to accompany her in school. The child's parents sued for damages under Section 504 and the ADAA. A federal appeals court held that the parents' claim for damages was barred because they failed to exhaust their administrative remedies under the IDEA, although damages are not an allowed remedy under IDEA. The Supreme Court agreed to hear this case during their 2016-2017 term.

Endrew F. v. Douglas County School District RE-1 - Appealed to Supreme Court. The parents argued that their child with autism did not make measurable progress on his IEP goals and that his school failed to address his worsening behavior problems. The parents advocated for a "meaningful educational benefit" standard, not "some educational benefit." After an adverse decision from a federal appeals court, the parents asked Supreme Court to resolve the educational benefit question. In May 2016, the Supreme Court asked the Solicitor General to file a brief and express the views of the United States so this case is pending.

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.

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.

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.

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.”

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.

Policy and Guidance from the U.S. Department of Education

Section 504 and Civil Rights of Students with ADHD - The Office for Civil Rights (OCR) issued guidance on the Civil Rights of Students with ADHD and a manual, "Students with ADHD and Section 504: A Resource Guide." This manual clarifies the obligations of schools to provide evaluations at no cost to parents and provide equal educational opportunities under Section 504 to students with ADHD. This manual contains useful info for anyone who wants to learn more about rights and responsibilities under Section 504. (July 2016)s

FGuidance on FAPE: IEP Goals Must Be Aligned with Grade Level State Academic Content Standards - If a child is performing below grade level, s/he needs to receive specialized instruction; IEP team needs to develop annual goals to "close the gap." (Policy Guidance from OSERS, November 2015)

Guidance on Educating Students with Dyslexia, Dyscalculia and Dysgraphia - federal education agency issued guidance affirming that schools need to address the "unique educational needs of children with dyslexia, dysgraphia and dyscalculia" and the legal requirements for ensuring that these students receive a "high-quality education." (November 2015)

Keeping Children Safe from Bullying - Guidance from US Dept of Ed about bullying; that bullying can be found to deprive a special needs child of an appropriate education. (2013)

Response to Intervention Cannot Be Used to Delay or Deny Evaluation for Eligibility Under IDEA - Some schools are keeping children in RTI, refusing to evaluate children to determine if children are eligible for special ed services under IDEA. (January 2011)

© 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.

Last revised: 08/18/2016