Special Education Q & A

Friday, December 29, 2017

Mom DayExceptional Mom’s Day was amazing—we learned, we shared, we laughed, we cried, we ate, and we walked around in our amazingly comfortably fuzzy pink socks while sipping hot cocoa! I’m so grateful for the opportunity to have met new people and reconnect with familiar faces, all of us going on a similar journey.

But there is only SO MUCH you can pack into one session and we had to end the day with some people’s questions being unanswered. Here, as promised, are the answers to those questions…

Q: For IEP review, should I get another neuro-psych evaluation? (I think you’re asking: Can I request an independent evaluation if I don’t agree with an IEP?)
A: The request for an IEE stems from disagreement with the ETR. You can only have one IEE per ETR. Sometimes, the request for an IEE will come after the IEP has been in place and the family sees a lack of progress. It’s ok to request an IEE at that time, but it would still be based on the ETR. Essentially what you’re saying is that the ETR must not have identified her needs/abilities appropriately and, therefore, this IEP isn’t right or isn’t working for her.

Q: At what point do I need to push for testing?
A: As soon as you suspect that your child has a disability, you should ask, in writing, for him to be evaluated at school. After a child qualifies for services and has an IEP in place, the school is required to reevaluate the child every three years, and upon commencement of school age services (before kindergarten). A parent can request more frequent reevaluations and/or an IEE if there is concern that there was a change in the child’s level of functioning, the child isn’t making progress, or the parent feels the ETR results were not accurate.

Q: What if my district did not provide me with a PR-01 after a heated IEP meeting?
A: When the district fails to provide a legally required PR-01 (prior written notice form), they have committed a procedural failure. The family has a recoverable claim only when the procedural failures amount to a substantive loss to the parent/child (they didn’t fill out the right form… did it deny the child access to a free appropriate public education? or did it deny the parents of meaningful participation?). Practically speaking, if a parent is concerned that certain words/actions/promises are not being appropriately documented by the district, the parent should put it in writing (an email is fine) and be as factual and unemotional as possible (names, dates). Ask that the email be put into the child’s file with the relative IEP. At least you have created a record.

Q: How do you determine if the school district is offering all the services a child needs?
A: Review the IEP progress reports, grades, notes from teachers, etc. and see if your child is making progress that you feel to be adequate in light of his particular strengths and needs. If the progress is there, you’re probably ok. Always keep your ears open when talking to other parents. The services that THEIR child is getting may not be appropriate for YOUR child, but it opens your mind to the possibilities of services/goals that are available. If you are concerned about a lack of progress, consult with an advocate, attorney, ODE (Ohio Department of Education), parent mentor, or private therapy provider to get some feedback on the goals and services your child is currently receiving.

Q: When does a public school pay for a private autism school that offers ABA therapy?
A: The district is legally obligated to provide each child a free appropriate public education in the child’s LEAST restrictive environment. A student's IEP, including his placement, is appropriate when it is “reasonably calculated to enable him to make progress that is appropriate in light of his circumstances”. If the team determines (through the ETR and other evaluation tools like IEEs and private reports) that the child cannot receive a FAPE in the public school environment (i.e. district placement is inappropriate), and that the private autism school would meet the child’s needs (i.e. private school placement is appropriate), then the school district can become obligated to pay for those necessary services. There has to be a need (a professional’s opinion that it is needed), and a determination that the district cannot accommodate that need through other means. It’s a team decision, which includes the parents. But if the parents and district don’t agree, the district documents its conclusion and the family can appeal it through Due Process/mediation/complaint to ODE/other means, and then it’s up to the hearing officer or judge. Keep in mind that the district makes its decisions based on progress data and identified needs. Note: When it comes to receiving ABA therapy in the public school setting, some districts are more inclined to describe the type of methodology on the IEP rather than naming it “ABA.”

Q: What is the difference between a 504 plan and an IEP, and why should we choose one over the other?
A: This is a question I see often. Please click here to see a full explanation of those differences. If a child qualifies for an IEP, the district must provide an IEP, rather than a 504. If the child does not qualify for an IEP (no need for individualized instruction or no negative impact seen in the school environment), then a parent should inquire about a 504 plan.

Q: What do you do if the school doesn’t follow the 504 plan/IEP plan in place, particularly when there are many teachers involved throughout the school day, as in middle school?
A: This is not a situation you can avoid 100%. In every facet of life, there are people who are good, hard workers, and others who are not so amazing.   That being said, you can implement some precautions to ensure the plan is being followed…

  1. Request a notebook exchange between teachers and home, where each teacher would write a brief summary for the day. If you’re concerned about a behavior plan or goal being implemented, for example, you could even make a quick template where the teacher needs to check off a prewritten form that will let you know that behavior was addressed that day by that teacher.
  2. Check your child’s progress regularly. You can request progress reports more frequently than every nine weeks, but be realistic. You don’t want them to spend more time taking data and writing reports than they spend working with your child!
  3. Ask for logs from therapy service providers if that is your concern—you’re asking them to report how your child did or what they worked on in a session, but it is also good documentation to see when and how long they’re meeting.
  4. Ask for a team meeting to discuss the plan and make sure that all members are present. Use that opportunity to make sure everyone understands the plan and the needs of the child. Some schools do this with teaching teams at the middle school level. It’s not a formal IEP meeting, but it is an opportunity to talk to all of the staff at once so they can exchange ideas and what is working for them. If they have those meetings, you can ask to join.
  5. Where the IEP isn’t being followed due to a lack of skills, you can ask that the district provide training for any staff members who are not following the IEP. This can be written into the IEP under “support for school personnel”.

Ultimately, a failure to implement an IEP can lead to a denial of FAPE, which would give you cause to file a claim against the district.

Q: At what point should you/do you need to involve an advocate?
A: Your gut will tell you. When you are emotionally stressed out by meetings and have exhausted much effort trying to communicate your concerns with the district to no avail, you should call someone in to help you. I always recommend bringing someone with you to EVERY IEP meeting—your neighbor, your spouse, another parent of a child with special needs—someone to help you stay on track and be a second set of ears. But when you’ve asked for what your child needs and feel you are not being heard, or the district disagrees with you, you should call in an advocate or attorney or parent mentor to help. Please do not go to Due Process without at least consulting with an attorney. You’re legally permitted to argue on behalf of your child in a Due Process hearing, but very, very few non-lawyer parents are successful in that arena. It’s hard to play in a game where you don’t know the rules.

Q: What are some good websites for information on 504/IEP and questions to ask?
A: You can start with Ohio Department of Education’s website.  This is very specific to Ohio law on special education.

You can also visit Wrightslaw for a general discussion about special education. Just keep in mind that the Federal laws people discuss and analyze aren’t necessarily the same laws Ohio has. State laws must give you all the rights afforded under federal law, but different states can add timelines and additional provisions or requirements.

Finally, check out local/national/international groups that support your child’s disability and follow their blogs. For example, if your child has autism, Milestones, Autism Speaks, Autism Society of Greater Cleveland, and many others may be helpful.

Don’t forget to check Hickman & Lowder’s website, as well as our Facebook page, for helpful articles about special education, as well.

Q: Should I disclose my child’s diagnosis prior to enrolling him in school?
A: Yes. In an ideal word there is a free flow of information about the child between parent and district. We make our best decisions, in the best interest of the child, when we have all of the relevant information. A diagnosis supports the request for an evaluation.

Q: Now that I have hired an advocate the school district has instructed the teachers to not share information with me. What recourse do I have?
A: This is an unfortunate circumstance of human nature where people are afraid to talk when they feel challenged. And no one wants to be sued or fired. First I would address it directly with the person who instructed the teachers not to share information. I would simply state that prior to X date, you had great communication with the teacher, as often as ?daily?, and now she no longer answers your emails. Explain how this is a disservice to your child because you are unable to carry through work assignments at home/ask about his day/give the teacher important information/etc.   Ask what he/she recommends you do to correct this communication problem. This presentation will yield much different results than a sharp tongued email that says, “Why did you order your staff not to talk to me after I hired the advocate?!”   You are entitled to reasonable communication with your child’s teachers. Perhaps you can reach a compromise on how the information is shared (by whom, over email instead of text or phone calls, etc.). As a side note, you should also find out what interactions, if any, your advocate is having with the staff outside of your presence, and what is the tenor of those communications. You want people who will advocate for your child without further damaging your relationship with the district.

Q: Can I change an IEP at any time or only once a year?
A: An IEP team meeting is required only once per calendar year and a new IEP must be written once a year. However, a parent or team member can request an IEP team meeting at any time, even multiple times, throughout the year when there are concerns or changes. If the team agrees that changes should be made to the IEP, they must amend the current IEP and pass it around again for signatures with the new amended date.

Q: Why would the public school system have me apply for the Autism Scholarship?
A: Districts are OBLIGATED by LAW to notify you that the Autism and Jon Peterson Scholarships are available to you. So do not take it as an attempt to get rid of you or your child personally! If you take either scholarship, the district is no longer obligated to provide your child with a free appropriate public education, and you are relying upon the private school you chose (from the list of approved providers) to give your child the education she needs. You have no recourse against the public school if the private school disappoints. Under the scholarship, the private scholarship provider gets a specified dollar amount toward your child’s education (as determined by your child’s IDEA disability category), and you pay the rest. It can be a good, quick solution where the district and family are butting heads on how the child should be educated, but keep in mind that you have to have an AGREED UPON IEP in place before you can accept the scholarships.

Q: If I decide to send a recording device to school with my child, what type would you recommend?
A: This one I can’t answer. I know the technology is out there, but I do not know specifically what makes/models are available.

Q: Under the Jon Peterson Scholarship the materials say, “The student is entitled to transportation to alternative program.” What, if any, are the limitations around transportation?
A: A student has no special rights to transportation under the Jon Peterson or Autism Scholarships just because they took the scholarship. Scholarship students stand in the same shoes as typical peers who elect to go to a parochial school outside of the city. Typically when you request transportation under the scholarship, a district will have their bus do a dry run, during school hours, to see how long the trip takes and how many miles away it would be according to the route their busses would follow. (Remember, a bus is slower than my minivan…. Traffic is slower in school rush hour… and the route listed on google may not be the route that a bus would need to take. ) There are limitations on mileage and transportation time. Even when the trip meets the mileage and transportation time limits, a district can refuse to transport if it would create an undue hardship. In that situation, the district would be obligated to reimburse the parent for her mileage. These transportation rules/allowances must be the same for disabled and typical peers.

Q: What are three ways to get ahead on waiver waiting lists?
A:

  1. Qualify for waiver as an emergency.
  2. Qualify for a priority category.
  3. Get an exit waiver, if in an ICF/IID.

Q: If private medical insurance is used to cover a child with special needs, would that be a disqualifier of the Level One waiver?  
A: No.

Q: If a child has to miss school due to an illness, how long before the school needs to begin providing itinerant services? Eg: missing two weeks due to pneumonia.
A: The school is required to allow a child with a disability access to the general curriculum and the ability to attain meaningful progress on her IEP goals, which would include itinerant services. Services should begin as soon as reasonably possible.  

That’s all of them!

We hope to see you at our next uber-informative, yet very fun, Exceptional Mom’s Day event!

- Posted by Attorney Linda Gorczynski

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