Who is on the IEP Team?

Perhaps one of the most confusing parts of special education law for parents (and some schools) is who is on the IEP team.  There are both “mandatory” members of the IEP team as well as “permissive” members.  IDEA makes this very clear.

Mandatory Members of the IEP Team

There are five (5) mandatory members of the IEP team set forth in IDEA.  They are (in order as the statute lists them):

  1. The parent(s);
  2. At least one regular education teacher who interacts with the child in a general education setting;
  3. At least one special education teacher or provider who interacts with the child;
  4. A representative of the school district (“local educational agency”) who meets certain requirements (see below); and
  5. “an individual who can interpret the instructional implications of evaluation results” (who may be also #2-4).

20 U.S.C. §1414(d)(1)(B); 34 C.F.R. §300.321(a).

Before moving on to the permissive members, let me clarify some things about the mandatory members.  The word “and” is underlined above, because that means ALL five are required.  If Congress meant that only 3 or 4 of those persons were necessary, they would have used the term “or”.  Remember Conjunction Junction from School Kids Rock?

The Parent(s)

At least one parent must be present at an IEP meeting. If there are two parents, both are not required to be there – one can act for both.  But, notice the parent(s) are listed first.

One of the key Procedural Safeguards is “an opportunity for the parents of a child with a disability . . . to participate in meetings with respect to the identification, evaluation, and educational placement of the child.” 20 U.S.C. §1415(b)(1); 34 C.F.R. §300.501(b)(1) . The parents of a child with a disability are mandatory members of the IEP Team. 20 U.S.C. §1414(d)(1)(B)(i); 34 C.F.R. §300.321(a)(1) (emphasis added.)

Indeed, “the concerns of the parents for enhancing the education of their child” is critical in developing the child’s IEP. 20 U.S.C. §1414(d)(3)(A)(ii); 34 C.F.R. §300.324(a)(1)(ii); see also Honig v. Doe, 484 U.S. 305 (1988); Schaffer v. Weast, 546 U.S. 49, 53, 126 S.Ct. 528, 163 L.Ed.2d 387 (2005) (Parents play “a significant role” in the development of each child’s IEP.)

Parental participation in an IEP meeting is so vital, it is set forth twice in the IDEA regulations. 34 C.F.R. §§300.322(a), (c) and (d) ; 34 C.F.R. §300.501(b)(1).

The LEA Representative

The representative of the school district can’t be just anyone.  Often the school will send a case manager or principal or other administration staff member as the representative, but such person might not meet the requirements of IDEA.

The LEA representative must be:

  • qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of children with disabilities;
  • knowledgeable about the general education curriculum; and
  • knowledgeable about the availability of resources of the local educational agency (school district).

20 U.S.C. §1414(d)(1)(B)(iv); 34 C.F.R. §300.321(a)(4).

In other words, this person must have supervisory capabilities over special education curriculum and services, know the general education curriculum, and know the services available as well as placement options within the district.  If the person the school district sends to the IEP meeting is constantly having to check with someone else about whether the school district can provide such services, the wrong person is in the meeting.

The Evaluation Interpreter

While the fifth mandatory member is only stated as “an individual who can interpret the instructional implications of evaluation results”, IDEA is no more specific and doesn’t define who this is.

Typically, this person is the school psychologist because that person’s role is to translate evaluation reports into special education and services to be provided to meet the needs of the child.  Most parents don’t know how to interpret evaluation reports.  Heck, even some highly skilled teachers don’t know how either.

Make sure someone is in the meeting who can put testing results into actions and services for your child.

Permissive Members of the IEP Team

IDEA allows other persons to be on the IEP Team.  Specifically,

  • “at the discretion of the parent or the agency, other individuals who have knowledge or special expertise regarding the child, including related services personnel as appropriate”
  • “whenever appropriate, the child with a disability.”

These are “permissive” members because they are not required to be there and are only there if the other IEP team members think it is appropriate or necessary.

The first of these options has been interpreted to include “education advocates” for parents; social workers or therapists contracted by the school district; or, anyone else who might have valuable input into the formation of an IEP.  There is no restriction on the number of these individuals so long as they have the requisite knowledge about the child or services and it doesn’t bog down development of the IEP.

The second option is at the discretion of the parent(s).  Whether you bring your child to an IEP meeting is up to you and most agree that the child should only attend if (a) he/she is emotionally capable of hearing about areas where the boy or girl is struggling; and (b) he/she has valuable input to offer, such as when or where he/she is having difficulties (e.g. “I struggle in math class because of the classroom noise.”)

Is it a properly assembled IEP meeting?

The most important lesson of this article is for both parents and school districts to understand when an IEP meeting is properly constituted.  As stated above, all of the mandatory members must be present [especially the parent(s)].  Without all of the mandatory members present, the proposed IEP may either be improperly designed (because not all of the necessary input was received) or not implemented (because the district does not have the necessary resources) or both.  If there are no permissive members, the meeting can still go forward.

Parents have the motivation to make sure that an IEP meeting is properly assembled so their child receives a FAPE.  School districts have the motivation to ensure that the IEP cannot be challenged on these grounds.  All of this is intended to benefit the child with a disability.

So, if the law is followed on the IEP team, it is a win-win-win.

 

 

 

Evaluations vs. IEP Meetings – A Very Important Distinction

A client recently told me they received a notice for an “evaluation meeting”.  Huh?  I asked, do you mean an IEP meeting?  The client wasn’t sure because the notice said just that – evaluation meeting.

THERE IS NO SUCH THING AS AN EVALUATION MEETING!

Since I figured school districts are trying to confuse parents by using the terms “evaluation” and “IEP meeting” interchangeably, let me clarify the difference between the two for everybody.

What the law says

IDEA is very specific about what an “evaluation” is and what an “IEP meeting” is.  And they are in separate sections of the statute.  Here is what that law says:

Evaluation, 20 U.S.C. §1414(a), (b), and (c)

Initial evaluation: “A State educational agency, other State agency, or local educational agency shall conduct a full and individual initial evaluation . . . before the initial provision of special education and related services to a child with a disability under this subchapter.”  20 U.S.C. §1414(a)(1).

In other words, before a student can receive special education and related services for the first time, the school must conduct an initial evaluation of the child.  This is part of their “Child Find” responsibility if someone suspects that the child has a disability that impacts their education.

The next few subsections discuss the procedures used and the purpose of an initial evaluation (“to determine [eligibility]  within 60 days of receiving parental consent for the evaluation”) and parental consent.

Reevaluation: “A local educational agency shall ensure that a reevaluation of each child with a disability is conducted . . . if the local educational agency determines that the educational or related services needs, including improved academic achievement and functional performance, of the child warrant a reevaluation; or if the child’s parents or teacher requests a reevaluation.” 20 U.S.C. §1414(a)(2).

Thus, re-evaluation of a child must occur if the school believes a change in services is necessary or if a parent or teacher requests it.  Here is a very important part:

Reevaluation MUST occur at least every three (3) years, but not more than once a year, unless the parents and school agree that reevaluation is not necessary.

20 U.S.C. §1414(a)(2)(B).

What does an evaluation involve? “In conducting the evaluation, the local educational agency shall use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information, including information provided by the parent (to determine if there is a disability and what will be necessary in an IEP); shall not use any single measure or assessment as the sole criterion for determining (disability or the education program); and use technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors.”  20 U.S.C. §1414(b)(2).

What the heck does all that mean?

It means that the school must use valid testing methods and get input from the parents and others who know the child in performing the evaluation.  The school can’t simply rely on what the teachers say.

This is where the trouble starts, because schools think that they can conduct an “evaluation” or “reevaluation” by simply having a meeting.  They can’t.

Let’s continue.

IEP Meeting, 20 U.S.C. §1414(d)

IEP Meeting:  The IEP Team (parents, at least 1 gen ed teacher who knows the child, at least 1 special ed teacher who knows the child, a representative of the school district who knows the resources available, a person who can interpret evaluation results, and possibly others) must assemble to develop an IEP for the child.  20 U.S.C. §1414(d)(1)(B) and (C).  This is an IEP meeting.

The Team must meet to ensure that an IEP is in effect for each child with a disability in the school district by the beginning of the school year in the Fall.  20 U.S.C. §1414(d)(2)(A).    The IEP meeting must occur “periodically, but not less frequently than annually, to determine whether the annual goals for the child are being achieved.”  20 U.S.C. §1414(d)(4)(A).

So, hopefully you’re still with me.  And you can see that the law is crystal clear that an evaluation is something different than an IEP meeting.

So why are schools getting this mixed up (maybe on purpose)?

One sentence in IDEA may be the culprit:

“To the extent possible, the local educational agency shall encourage the consolidation of reevaluation meetings for the child and other IEP Team meetings for the child.”  20 U.S.C. §1414(d)(3)(E).

The statute doesn’t explain what a “reevaluation meeting” is, but I think it refers back to the section quoted in Reevaluation above, namely a meeting to determine if a reevaluation is needed.  It is not a meeting where an evaluation takes place, but rather to decide if one is necessary.

Nevertheless, ASK the school what they mean by an “evaluation meeting”.  Ask them if they mean a meeting to decide whether reevaluation is necessary or if they mean an IEP meeting or a combined meeting.  And, as always, DO IT IN WRITING!

If you want further information on this, get our book SchoolKidsLawyer’s Step-By-Step Guide to Special Education Law or contact us for a consultation.

 

 

Put Communications Between Teachers and Parents in the IEP

A new tactic being used by schools against parents of children with disabilities is to require / funnel all communications with the school through one person, usually the case manager.  We’ve seen numerous questions by parents if this is illegal or whether parents can request two-way communication be listed as an accommodation in the IEP.

Yes it is, yes it can and it should be.

But you won’t find the requirement in IDEA.  You’ll find it in ESSA.  Read on.

Not in IDEA

IDEA does not have a requirement or regulation that says that there should be ongoing communication between teachers and parents of children with disabilities.  Probably because Congress felt that such communication was basic common sense and they wouldn’t need to actually write it into a law.

What IS in IDEA is the following:

IDEA guarantees parents and their child with a disability numerous legal rights identified as “Procedural Safeguards”.  See 20 U.S.C. §1415; 34 C.F.R. §§300.500-520.  The U.S. Supreme Court has held that it is not only the child with the disability that has legal rights under IDEA, but the parents are also entitled to assert legal rights on their own behalf under IDEA.  Winkelman v. Parma City School Dist., 550 U.S. 516, 127 S.Ct. 1994, 1996 (2007).

One of the key Procedural Safeguards is “an opportunity for the parents of a child with a disability . . . to participate in meetings with respect to the identification, evaluation, and educational placement of the child.”  20 U.S.C. §1415(b)(1); 34 C.F.R. §300.501(b)(1) (emphasis added.)  The parents of a child with a disability are mandatory members of the IEP Team.  20 U.S.C. §1414(d)(1)(B)(i); 34 C.F.R. §300.321(a)(1).  Indeed, “the concerns of the parents for enhancing the education of their child” is critical in developing the child’s IEP.  20 U.S.C. §1414(d)(3)(A)(ii); 34 C.F.R. §300.324(a)(1)(ii); see also Honig v. Doe, 484 U.S. 305 (1988); Schaffer v. Weast, 546 U.S. 49, 53, 126 S.Ct. 528, 163 L.Ed.2d 387 (2005) (Parents play “a significant role” in the development of each child’s IEP.)

Parental participation in an IEP meeting is so vital, it is set forth twice in the IDEA regulations.  34 C.F.R. §§300.322(a), (c) and (d) (emphasis added); 34 C.F.R. §300.501(b)(1).

But that is all concerning parental participation in the development of an IEP.  These provisions don’t discuss the daily, ongoing communication with the school.

Now, we look at ESSA . . .

ESSA

In 2017, Congress passed and President Trump signed the Every Student Succeeds Act, 20 U.S.C. §6301 et seq. (2017) (“ESSA”).  This was an amendment of the prior No Child Left Behind Act (“NCLB”).

The ESSA guarantees parents of a child with a disability to participate “in regular, two-way, and meaningful communication involving student academic learning and other school activities” and “play an integral role in assisting their child’s learning.” To accomplish that goal, parents are “encouraged to be actively involved in their child’s education at school . . . [and carry] out of other activities, such as those described in section 1116.” 20 U.S.C. §7801(39) (emphasis added.)

The activities referenced in “section 1116” state that parents may engage in to participate in their child’s education include, inter alia, ongoing communications between teachers and parents and classroom observation. 20 U.S.C. §6318(d) (emphasis added.)

Put Two-Way Ongoing Communication in Your Child’s IEP

Thus, since Congress deemed this so important that they wrote it into law, it is important enough to make it part of your child’s IEP.  Show them the law quoted above.  (Maybe even print out this article and bring it to the IEP meeting.)  Tell them that you want this accommodation written into the IEP, especially if the school is trying to deny this right of access.

I’m quite sure that even teachers would welcome such ongoing dialogue.  The key is not to abuse this right – don’t contact the teachers several times every day.  Be reasonable as teachers have other students and their parents to meet this obligation.  But, if you do so reasonably, there is no legal basis for a school to block such regular and common sense communication.

It’s no longer just common sense – it’s now the law.

 

Public Schools Have Made Your Child the Enemy and You, the Taxpayer, Are Funding Their Battle

You pay federal taxes.  You have schools in your town.  Those schools have special education programs.  If you’re reading this blog, you’re probably a parent of a child with special needs.

Well, guess what?  If you have a dispute with your school about your child’s IEP or otherwise not meeting your child’s special education needs, YOU are paying for the school to fight against you and your child.

Guess what else? Even if you don’t have a child with special needs or don’t even have a child in the school district, YOU are still paying to have the school fight against the child with a disability and his/her family.

Yes, you heard that right.  YOU are paying to fight against children with disabilities in your community – maybe your own child.

Let me explain this in greater detail and why the system should change.

Federal Funding For Schools

The federal law known as the Individuals with Disabilities Education Act, 20 U.S.C. §§1400 et seq. or “IDEA” protects students with disabilities and guarantees they receive an appopriate education from their local schools.  This is accomplished and enforced through a federal funding mechanism within IDEA.  If a state receives federal funding for its schools, it must provide special education and related services to children with disabilities in its public schools.  20 U.S.C. § 1412.

In other words, some of the federal taxes you pay goes to fund special education and related services for students with disabilities.  You probably don’t object to ensuring a wheelchair-bound child can access the school via ramps or a child with diabetes having access to the school nurse to administer insulin shots.  You also likely don’t object to a chid with a learning disability receiving extra help in the classroom so they can achieve with their non-disabled peers.

YOU don’t object . . . but the schools are.

Where Does the Funding Go?

Those federal funds for special education – your tax dollars – are supposed to be used to assess if children have disabilities and evaluate their needs, prepare Individualized Education Programs or “IEPs” with special education adn related services to meet those needs, and decide the best location to provide those services for the child.  20 U.S.C. §1414.  Just as non-disabled children can get their education at their local public school for free, the goal of IDEA is to provide the same for children with disabilities, called a Free Appropriate Public Education or “FAPE”.  20 U.S.C. §1401(9).

Still sounds pretty reasonable, right?

How Does A School Make Sure It Provides a FAPE?

Schools are supposed to ensure a child with a disability provides a FAPE via two main mechanisms: (1) assembling an IEP team; and (2) ensuring that the rights of the child are protected and the parents are active participants in enforcement of those rights.  Tax dollars pay for schools to assemble an IEP team, which consists of the child’s parents (and the child if appropriate) and several key school personnel, to discuss how best to provide FAPE for the child with a disability.  20 U.S.C. §1414(d)(1).  States and schools must also put procedures in place to secure the legal rights of the child with a disability and his/her parents.  20 U.S.C. §1415.

This is where the system usually breaks down.  Because the parents and the school staff don’t alawys agree on how the IEP is developed or what services are provided to the child with a disability.  Thereby, a dispute arises.

How IDEA Addresses Special Education Disputes – The Problem

IDEA provides mechanisms to address these special education disputes between parents and schools.  If a school wants to do something with which the parents don’t agree or if the school doesn’t want to do something the parents have suggested, the school can issue a Prior Written Notice or “PWN”.  20 U.S.C. §1415(b)(3) and (c)(1).  Parents can review their child’s education records kept by the school as a check on whether the school is providing a FAPE.  20 U.S.C. §1415(b)(1).

There are other “Procedural Safeguards” in IDEA, but none that causes as many problem as a party’s right to file a complaint challenging the “identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child” a/k/a a “Due Process Complaint.”  20 U.S.C. §1415(b)(6) and (f).

Why is this a problem?  Well, anytime lawyers get involved, there’s a problem, right? [He says half-jokingly, half-seriously.]  Each party to a Due Process case has “the right to be accompanied and advised by counsel.”  20 U.S.C. §1415(h)(1).

Still not a bad thing until you realize who is paying the school district’s lawyer’s bill.  The answer is . . . you probably guessed it . . . YOU ARE!

Paying For The School District’s Lawyer

That’s correct.  Whether attorney’s fees are paid directly by the school district’s Board of Education or through insurance (which is purchased using school budget money), the source of the money paid to the lawyers fight against your child with a disability is tax dollars.  YOUR tax dollars.

Schools are misdirecting funds intended to provide education to children with disabilities by spending it on legal bills or insurance to fight special education cases.

So what does that mean?  It means YOU, the taxpayer, are paying for the attorney sitting across the table from you and representing the school district.  The harder the school district lawyer fights, the more YOU are paying him/her.  The school district never has the incentive to resolve the dispute because they’re not truly paying the bill.

Now, I don’t know if you have ever been in a lawsuit before, but if you have, you know what a financial burden it is to pay a lawyer.  You have the incentive to get it over as quickly as possible because, in all likelihood, you are not Bank of America (or Citibank or Goldman Sachs or some other big bank).  But if you didn’t have to pay for your lawyer, you’d fight to the ends of the Earth, right?  That’s how the school district views it.

Not What IDEA Was Designed To Do

IDEA was not set up to favor the school districts.  In fact, IDEA was designed by Congress to “level the playing field” so that parents had a stronger role in the education of their child with a disability.  Specifically, Congress stated: “The purposes of [IDEA] are to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; to ensure that the rights of children with disabilities and parents of such children are protected; and to assist States, localities, educational service agencies, and Federal agencies to provide for the education of all children with disabilities” among other goals.  20 U.S.C. §1400(d)(1).

IDEA was meant to improve collaboration and cooperation between schools and parents to help children with disabilities receive better education.  Certainly, Congress did not intend for states and schools to use federal funds to wage bitter lawsuit wars against parents and their children with disabilities.

But that is what it has become.  Ask any of my colleagues at COPAA.

So What Can You Do About It? – TAKE ACTION!

If you are like me and fed up with this system of injustice and abuse of taxpayer money, you can take action.  What school districts and their attorneys don’t want you to know is that because the source of funds paying the lawyer fees is public tax money, they MUST disclose such payments to the public who are paying those taxes.

In other words, if you live in a school district that is waging a special education war against a child with a disability, you have the RIGHT to know how much the school is paying its lawyers.

How do you find this out?  You make a Freedom of Information Act or “FOIA” request (or your state’s version of FOIA; for example, in New Jersey it is called the Open Public Records Act or OPRA).

Each state has a website for FOIA requests (I’ve listed a few below as examples) and usually a form to fill out.  On the form ask to see “All fees and costs paid to lawyers by XYZ Schooll District for special education disputes or legal disputes under IDEA for the last 5 years” or something similar.  Prepare for a fight, but you have the lawful right to that information as long as you live in XYZ School District.

New Jersey OPRA Records Request Website and Form

Florida Public Records Act Website and Forms

Texas Open Records Requests Website and Forms

Pennsylvania Open Records Request Website and Forms

For those not listed here, Google “[Your state] FOIA request” and look for an official state website URL.

Go get ’em!

Websites for Parents of Twice Exceptional (2e) Kids

 

 

 

 

 

 

 

Audio Recording IEP Meetings – Is It Allowed?

Having an audio recording of what happens in an IEP meeting is powerful evidence, especially when school districts deny what was said or fail to put a service in writing into the IEP.   For example, an audio recording can prove or disprove what was actually discussed during the meeting, whether the parents were given proper opportunity to participate, and what decisions or objections were made.   For those reasons, parents often wonder if they are permitted to record an IEP meeting.

So, can you do it?

Federal Law

There is no federal law prohibiting a parent or school official from recording IEP meetings.  IDEA and the other special education laws are silent on that specific issue.

However, IDEA does say a few things that are relevant to the discussion:

  • Parents are critical members of the IEP team
  • Parental participation in IEP meetings is vital and if a school blocks such participation, it is a denial of FAPE
  • Parents have the legal right to understand the IEP and, if necessary, have it explained to them

Audio recording an IEP Meeting, when the IEP Team is aware and consents to it, is not a violation of federal privacy law.

So that means you can do it, right? Not so fast.

The U.S. Department of Education (USDOE) Office of Special Education Programs (OSEP) has issued a letter opinion and Policy Memorandum on this subject in June 4, 2003 (PDF file).  The bottom line of the analysis is that it is a local policy issue and depends on several factors.

When a federal law is silent on an issue, the individual states can decide or legislate on the issue.

State Privacy Laws

The next hurdle to overcome is what state law says on privacy and audio recordings.  Each state has its own laws regarding the consent required to audio record events, even if they are ‘public’ events.

Some states are known as ‘dual consent’, which means both parties must know about and agree to the recording.  Some states are ‘single consent’ which means that only one of the interested parties (usually the parent who wishes to record the IEP meeting) has to agree to it.

While not exhaustive of every state’s law, the Digital Media Law Project collected links to some state’s laws on this issue.  This site is not being kept up to date, so make sure you check your own state’s law on recording or consult with a local attorney.

School District Policies

It is therefore left to the State Educational Agency (SEA) or Local Educational Agency (LEA) to determine the policy on audio recording these sessions.

The SEA or LEA (local school district) may issue a policy requiring, prohibiting, limiting or in any other way regulating audio recording of IEP Meetings.  If the public agency has a policy that prohibits or limits the use of recording devices at IEP meetings, the policy must have exceptions necessary to protect parental rights, such as the ability to understand the IEP or the IEP process. Any such policy on tape recording IEP meetings must be uniformly applied.

Protecting Access to Recordings

Any recording of an IEP meeting maintained by a public agency is an “education record,” within the meaning of the Family Educational Rights and Privacy Act (FERPA)[1] and would be obtainable by the parents through a written request.  It would also be subject to the protections of FERPA prohibiting its release to anyone not authorized under that law.

So what do you do?

Parents wishing to use audio or video recording devices at IEP meetings should consult state laws or local school policies for further guidance or consult with a local education attorney.

——————–

[1] 20 USC §§1232g and 1232h; Regulations 34 CFR §99.1 et seq.

Special Education Law and Child Custody

According to the American Psychological Association, 40-50% of marriages in the United States end in divorce.  Of all children born to married parents this year, 50% will experience the divorce of their parents before they reach their 18th birthday. (Patrick F. Fagan and Robert Rector, “The Effects of Divorce on America,” Heritage Foundation Backgrounder, May 2000.)

So, the question arises: What happens to kids with special education needs who come from broken homes?

It is important to recognize that special education law is, for the most part, federal law and the same in all 50 states, but family law is state law and may differ from state to state.  Thus, the following are just a few issues facing divorced parents and the education of their children with disabilities.  You should check with your own state’s family law or hire a local attorney to get answers to your specific situation.

Which parent makes the special education decisions?

Education decisions fall under the category of “Legal Custody” of the children.  This is different from “Physical Custody and Visitation”.  Usually both divorced parents share legal custody of the children born during the marriage.  This means that unless a court Order or divorce agreement says otherwise, both parents of a child with a disability share the education decision-making ability and rights.

However, the divorced parents might not always agree on the education choices for the child.  For example, one parent might not feel the child has a disability or is eligible for special education; or one parent might not agree with the other parent on what the school is offering for services.  There are a number of provisions in the special education law which require parental consent.  Who has the ability or right to give such consent?

If there is (or might be) a dispute between the divorced parents, the parties should work out an agreement or have the Court decide to alter the general rule.

What happens when there is an agreement or Court Order?

A divorce agreement (sometimes called a Joint Parenting Agreement) or Court Order controls how education decisions are made for a child.  Again, if the agreement or Order simply says “joint legal custody” (which is typical) or is otherwise silent, both parents have equal rights to making education decisions and should cooperate for the best interests of the child.

As stated above, sometimes one divorced parent allows his/her emotions towards the other ex-spouse interfere with the decisions for the child.  In these situations, the agreement or Order should be very specific about who makes the special education decisions for the child or how a dispute can be resolved.  Even if there is “joint legal custody” on other issues (religion, morals, etc.), education decisions may be separated out and either one parent has the exclusive right to make these decisions or the power to override the other parent.

The Court always has the power to enforce such agreement or Order or to modify it so as to protect the child.

How does physical custody or visitation impact this situation?

Although “joint physical custody” is a possibility (usually meaning the child spends equal amounts of time in each divorced parent’s home), it is not as common as granting one parent physical custody and the other parent visitation rights.  This means one of the parents’ homes will be the ‘primary residence’ of the child and the other parent gets to see the child on a regular schedule.

This has a number of effects on the education of a child, particularly one with special needs.  First, ‘primary residence’ of the child will determine the public school responsible for the child’s special education (who manages the IEP or 504 plan).  If that school district is not particularly helpful to children with disabilities or has a track record of violating special education laws, it will impact both the Court’s and the parents’ positions on physical custody.  Careful thought should be given to where the parent having physical custody resides and the ‘home school district’ (not to be confused with homeschooling).  This is also a challenge if there is joint physical custody and the divorced parents live in two different school districts; it may be unclear to which school district the child is assigned.

Another issue that can arise is which parent has the right to attend IEP meetings.  IDEA says that parental participation is critical, but the law does not say if that means one or both parents.  What if the parent who doesn’t have legal custody wants to attend an IEP meeting just to make sure that everything is being done right for his/her child?  Can the school bar him/her from the meeting?  Also, is the non-custodial parent allowed to pick the child up from school?  What if one of the parents has a restraining order against the other parent, but the order doesn’t discuss whether the restrained parent can visit with the child?  Or attend school events?

The school may be caught in the middle.

If the joint parenting agreement or court Order spells out these issues, then the school should be provided with a copy of that document so there is no question.  However, if the document doesn’t explicitly say what happens in these situations, the school might demand that the parents sign a document that clarifies the issues.

What if the child is not doing his/her homework?

Suppose either the custodial parent is not making the child complete homework assignments or it is the parent who has overnight visitation not enforcing homework because such parent doesn’t want to reduce their limited time with the child.  What happens when the other parent learns that the child’s performance in school is deteriorating because of the homework issue?  What can that parent do?

Again, the school’s special education services will likely be blamed when it may not be its fault at all.  The school should not be caught in the middle on this issue either, but also the school should not be allowed to rely on this as an excuse for inadequate services.  In this situation, it may be necessary to bring in a family law mediator or the judge to figure out a solution to this problem.

Who has the right to file a dispute with the school district?

It is not clear that even if one parent has sole legal custody on education decisions that such parent is the only one who can file a dispute against the school district.  For example, if the custodial parent is not enforcing the special education rights of the child against the school, can the non-custodial parent file the lawsuit against the school?

In most states, non-custodial parents do not relinquish all of their legal rights over the child.  For example, a custodial parent usually cannot leave the state without notifying the other parent and obtaining court approval to do so.

Thus, the non-custodial parent may retain the right to file a lawsuit on behalf of the child for violation of the special education laws by the school district.  What is not clear is the role of the custodial parent in this situation.

These are unresolved issues at this point and I won’t propose to resolve them here.  The purpose of this is to give you some food for thought on concerns you might face when parents of a child with a disability divorce.

As always, for specific legal advice consult with a lawyer in your locality.  You may wish to consult with both a family law lawyer and a special education lawyer if one lawyer does not handle both areas.

 

 

What documents should be in your child’s special education binder?

If you are a parent of a special education student or advocating for one, do yourself a favor and . . .

PRINT OUT THIS ARTICLE (or at least the plan below).

Not only will this article save you time and lots of money, it will help you understand how best to help your child with a disability.

When clients contact me, most are armed with a box (or seven) of documents about their child’s special education.  It is wonderful that they are documenting their child’s path and what the school district is doing (or not doing) for their child.  It should be the mantra of every parent of a child with a disability: DOCUMENT EVERYTHING!

But . . .

Usually, the documents clients provide me are overkill and disorganized.  Inside the box(es) is a pile of papers, often not in order. I doubt highly that a client wants me to bill them at $375.00/hour to go through those papers to organize them and figure out what I need.  Thus, before you meet with a lawyer or advocate, you should organize your child’s special education documents first.  You should do this even if you are advocating for your own child.

Here is a plan to explain which documents you need, which documents you don’t need, and how to organize them.

THE PLAN

1. Get a 2″ 3-ring binder with dividers.  Label the dividers as follows: MEDICAL, FAMILY BACKGROUND, EVALUATIONS, IEPs / 504 PLANS, and SCHOOL DOCS.

2. Under MEDICAL, include any papers from the original diagnosis of your child.  Also include any changes to that diagnosis (e.g. ADHD -> Autism Spectrum Disorder).  Also include a list of any major medical events, such as surgeries, hospital in-patient stays, broken bones, major or chronic illnesses, and allergies (don’t forget dental events, such as tonsillectomies, baby teeth extractions, etc.)  As best you can, document the dates and locations of these medical events, as well as treatments received.  Finally, if there are any related medical or psychological disorders in the immediate family, note those here as well (e.g. grandfather diagnosed with Alzheimer’s, uncle diagnosed with ADHD, etc.)  Finally, in the front of this section, place a list of all current physicians and medical providers seen by your child – primary care physician, occupational therapist, physical therapist, psychiatrist, psychologist, speech therapist, etc.  Make sure you have their name, the service they provide, and contact information (phone number, email address, website).

3. In the FAMILY BACKGROUND section, include notes of milestones in your child’s development (e.g. date first crawled, date first walked, date first spoke, first spoken words, etc.), especially any noted delays in such development.  Also provide a narrative of your family makeup and any major changes, such as number of living grandparents, parents, child’s siblings, aunts, uncles, etc.  It is critical to be honest about family events, such as divorces or separations, geographic relocations, domestic violence, financial or other stress, etc.  Place in this section other matters of importance in your family culture, such as religious beliefs, school history including any changes in school, ethnic celebrations, etc.  If you are in a divorced family, you should include anything that changes the name of the child and also any court order regarding physical custody, visitation, and especially legal custody or who has the right to make educational decisions for the child.

4. Do not include every evaluation of the child ever performed.  In EVALUATIONS, place only the most recent evaluations of the child.  These evaluations should be no more than 3 years old.  If the evaluations occurred more than 3 years ago, do not include them.  Thus, if this section is empty, one of the things you will be requesting is a new comprehensive educational evaluation of your child.

5. Like EVALUATIONS, within the IEPs/504 PLANS section do not include every IEP or 504 Plan since your child’s birth.  (That’s supposed to be humorous.)  My recommendation is to only include the current approved IEP or 504 Plan and all approved ones going back two school years.  You should only include a draft IEP or 504 Plan if it is related to the current approved IEP or 504 Plan (to show how the school changed or omitted certain information) or it is a current proposed IEP or 504 Plan with which you disagree.  Old drafts should be discarded because approved IEPs and 504 Plans overrule those drafts. Thus, this section should be at a maximum, 3-5 documents, especially since these are typically very long documents (you may consider only including pages from prior plans or drafts that conflict with the one currently at issue.)

6. The SCHOOL DOCS section is the trickiest of all.  My rule of thumb is when in doubt, include it.  First, if you haven’t done so already, send a FERPA request to the school for your child’s records.  (Click on the link to the left to read more about FERPA requests.)  At the beginning of this section, provide a list of all contact points at the school with names, phone numbers and email addresses of the superintendent, principal, assistant principal, all teachers that see your child, all service providers that see your child, all persons involved in lunch and/or playground monitoring, and any other person that your child may encounter in school.  Also include anyone on the IEP Team (Child Study Team) that is not included in the prior list, such as school psychologist.  [Why do this? First, it will assist your attorney or advocate into knowing who the players are.  Second, it will show the IEP Team that you are more than prepared when you show up at an IEP Team meeting with the list.  Can you imagine the fear on the faces of the IEP Team members when they see their names and contact information on a list in your notebook? Make sure you turn to that page in your binder when you first sit down.]  You should include here results from your child’s standardized tests, report cards, any disciplinary reports, absent/tardy reports, progress reports (triggered by the current IEP or otherwise), and any other key documents that discuss your child’s current levels of academic achievement and functioning in the school environment (sometimes emails from teachers or among teachers and administrators provide the true story).

Your binder may be huge, but volume is not the problem.  Disorganization is the problem which the binder resolves.  You, your attorney, or your advocate will appreciate this effort.  And, as stated previously, it will help zero in on the real issues your child with a disability is facing in the school environment.

[This article and other helpful tips for your child’s IEP are in our FREE report 5 Easy Steps for a Successful IEP MeetingDownload your copy here.]

For more on this and related topics, consider purchasing the book SchoolKidsLawyer’s Step-By-Step Guide to Special Education Law: Workbook for Parents, Advocates and Lawyers available now from Amazon.com or direct from SchoolKidsLawyer.com.

 

 

Are Special Education Advocates Performing UPL (Unauthorized Practice of Law)?

The answer to the question posed in the title is, typically, lawyerly – it depends.

What is the “practice of law”? “Unauthorized practice of law (UPL)”?

First, let’s discuss what is the “practice of law” and “UPL”.  Virtually every licensed occupation is regulated by the State.  For example, in Pennsylvania, the Bureau of Professional and Occupational Affairs regulates almost every licensed occupation, such as accountants, nurses, barbers, funeral directors, dentists, etc.  However, lawyers are regulated exclusively by the highest court of the state – in Pennsylvania, it is the PA Supreme Court.  This regulation includes the power to define what constitutes the practice of law.  See PA. Constitution Article V, Section 10(c).

That is not as easy as it sounds. Courts don’t face this issue very frequently. Generally, there are three categories of activities / services reserved to those who are admitted to the bar: (1) advising clients as to what the law is to enable them to act and pursue their affairs; (2) preparation of documents that require familiarity with legal principles an ordinary person wouldn’t know (such as preparing a court document); and (3) appearing before a public tribunal, such as a court or administrative hearing.  Put another way, a person who doesn’t have a license to practice law should not tell someone what the law is and advise them to act accordingly, prepare a legal document, or show up in court on behalf of anyone but him/herself.  Doing so would be the unauthorized practice of law, or “UPL”.

A person can get in serious trouble for UPL.  In fact, in most states it is a crime.  In Pennsylvania, for example, it is a misdemeanor of the 3rd degree for a first time offender; misdemeanor of the 1st degree for a repeat offender.  See 42 Pa.C.S. Section 2524(a).  It may also be a violation of a state’s Unfair Trade Practices and Consumer Protection Law, which would subject them to civil (money) penalties.

Special Ed Advocates and UPL

So how does this apply to Special Education Advocates?  Again, it depends.  A description of the typical special education law case timeline is helpful.

Briefly, the first event is that a child is diagnosed with a disability that triggers the right to have special education in school.  The next event is that a team of school personnel, physicians, and the parents decide what should be in the special education program for that child (this is called an Individualized Education Plan or “IEP”).  Sometimes there is disagreement over what should be in the IEP or how the school is implementing it.  What comes next may be a due process complaint and hearing.  This is a semi-formal process where the school and the parents put on a case before a hearing officer (not always even a lawyer).  The hearing officer decides whether the services are appropriate or not.  If either the school or the parent disagrees, they can then appeal that hearing officer decision to a court.

The laws and regulations make it clear that parents are entitled to have “other individuals who have knowledge or special expertise regarding the child, including related services personnel as appropriate” with them at IEP meetings.  See 20 U.S.C. §1414(d)(1)(B) and 34 CFR §300.321(a)(6).

As a result of this language in the laws, a cottage industry of advocates, mostly made up of parents of disabled children themselves who are veterans of the battles with schools over special education, has developed and flourished.

Do not misunderstand me – I think advocates are wonderful and perform great services to parents, especially since most parents of special needs kids are heavily burdened with medical and other expenses making lawyers unaffordable at almost every level.  Well-trained advocates offer objective, yet passionate assistance to parents so that they can make informed decisions without the emotions getting in the way.

However, there are limits to this participation.  The portion of the law quoted above comes under the definition of an “IEP team”.  Matching that with the description above of what is the practice of law, an advocate should stick to helping a parent to prepare for and make it through the IEP meeting in an informed manner.  The advocate should be careful not to suggest a path for a parent based on an interpretation of the law – this is acting like a legal advisor and is likely UPL.  However, an advocate can certainly tell a parent, “the law states that an IEP should include . . .” or that the law requires certain procedures to be followed.

So what CAN’T an advocate do?  This depends a great deal on state law.  While some states permit advocates to act as lawyers in due process hearings, most states still do not.  To be safe, an advocate should not prepare a due process complaint, represent a parent at a due process hearing, or draft an appeal of the hearing officer decision in a court pleading.  These are all the practice of law and if an advocate, not licensed to practice law in that state, provides one of those services, it is UPL.  Of course, there are licensed attorneys who provide advocacy services, so they are entitled to provide any and all of these services.

Why is UPL a bad thing?

The reason why the above-described tasks are UPL may not be so obvious.  Many people might think, “I represented myself in my own divorce case, so why can’t someone help me with my special ed case?”  And therein is the answer – you can represent YOURSELF in any legal proceeding (that is called acting “pro se” or for yourself), but someone else cannot represent you.  Why?  Lawyers are trained to understand, not just the law, but legal procedure.  For example, it is important in a due process complaint to make sure you plead every option available to you; failure to do so might give up a right or two or seven.  In some states, you may have a civil rights case under Section 504 or the ADA, but many advocates don’t know this or even if they do, they don’t know you MUST include those allegations in your due process complaint.

Two other critical examples are the Rules of Evidence and Appellate Procedure.  Most advocates don’t know the rules of how documents or testimony get “into evidence” so that a judge can consider them.  Further, if you have to appeal an administrative decision to court, it is like an appeal and sometimes only the record that is made at the due process hearing is considered by the court and if you don’t get the information in at the due process level, you might have to fight a battle at the appeal level to get it in – and you might lose.  Many well-trained advocates don’t know these rules because they aren’t licensed lawyers.

To conclude, Advocates are a necessary and crucial part of the special education process.  There is no better (and more affordable) help with making sense of this maze of special education law, especially when you are simply trying to get services for your child at school, than a well-trained advocate.  However, remember that they are limited in what they can do and when it comes to advising you on a legal path or preparing your complaints or representing you at a hearing, only licensed attorneys can help you in those situations.


Recommended reading: “Guidelines for Choosing an Advocate” from COPAA.

 

I love teachers! . . . (really, I do!)

There is a bad reputation out there for special education lawyers, advocates and parents of special education kids.  The reputation is that we hate all school teachers and those who work in the schools and we are simply out for vengeance.

I’m going to focus this post on the misrepresentation that I must hate teachers because I’m a special education lawyer.  Absolutely – 180 degrees – the opposite.  I LOVE teachers.  Let me explain why and how we all fit as perfectly aligned spokes in the wheel of special education.

Teachers have thankless jobs.  Often they aren’t paid very well, but are teachers because they love kids and they love education.  Big plus in my opinion.  After all, that is what we all want; people in the field of education who love to teach kids.

Most teachers are also sensitive to the needs of disabled / special education kids.  They understand the challenges that these kids face and try their best to accommodate them so that they, too, receive a good education along with the “neuro-typical” or otherwise non-disabled kids.

Some teachers even go out of their way (bless their hearts) to go above and beyond their job requirements to help these kids.  Some even violate rules or the directions of the administrators in order to assist special ed kids.

So, often, my beef is not with the teachers.  In fact, almost never is my argument with the teachers.  My argument is with the school district who handcuffs the teacher or who misinforms the teacher as to what he/she should do for the special education child.  I have seen the school districts actually incorrectly state the law to teachers.  Whether that is intentional or not, I don’t know.

Granted, there are some teachers that are not altruistic and just want their paycheck.  But like any occupation, there are a few bad apples in every bunch.  Of course the really bad ones make the news, which is unfortunate because the overwhelming majority of teachers are fantastic.  And I love them for that.  It is no different than lawyers and having to deal with the ones that make the news leaving a bad impression on people that all lawyers have heinous or monetary objectives.  Similarly, there are doctors who don’t really care about their patients and may even commit fraud in order to make money.  But these bad apples do NOT represent the bunch.

Where I, as a special education lawyer, fit in to this mix is just to make sure the disabled child (and his/her parents) have a voice and to assure that school districts are meeting the requirements to provide the child with a Free Appropriate Public Education (“FAPE”).  My job, as I see it, is to level the playing field.  Sometimes that simply means legally justifying or backing up what the well-intentioned teacher is already trying to do, but for whatever reason the school administration is not permitting.  Frequently, I work with and speak with teachers (the old line, ‘Some of my best friends are teachers’ ha ha – but it’s true) as a team.  We work together to find solutions for the children.

If you walk away after reading this blog post with ANYTHING, please keep the idea that special education lawyers, advocates and parents do not hate teachers.  We love them.  We love them just as much as the disabled children we are trying to help.

So let’s work together in this area of law.  Do not generate stereotypes that only serve to interfere with cooperation and progress in the field of special education law.  Our children deserve better.