Creating an IEP Strategy

I’ve been writing off and on about the sessions I attended at the recent Autism One conference, so many of which are applicable for tons of people, not just those with autism or other special needs.  Some of my favorites were those about GMO foods and organic gardening, and I’ve also written about getting an outside evaluation instead of having the school district conduct your child’s evaluation.

Today it’s about IEP strategies, and this comes at a great time for me because Mister Man’s IEP has expired.   He needs a complete assessment before we can even write the IEP, which will happen when we get back to school in the fall.  Because he’s been in Catholic school for the past three years, he doesn’t have an IEP and I’m a little out of practice, so this came at the right time for me, especially as I’m a little leery of the changing autism diagnosis in the new DSM-V.

Timothy Adams, Esq. and Lynne Arnold presented a great panel on putting together the IEP strategy.  My notes from the session don’t capture it all, but the amount of information presented was amazing.

This is not about fighting your district; it's about fighting for your child.  This isn't about battle or war.  You just want to have the right strategies in place to get the outcome needed.  Everyone sitting around the table wants what is best for the child - it's not just about money or resources, but this is also about getting the district into compliance with state and federal laws and getting what the individual child needs. 

Any parent who wants to break out of the norm is likely to meets resistance.  95% of parents don't know the children's legal rights.  When talking about programs for your child, it isn't just the programs available in district because they don't necessarily meet the child's needs, so we need to look outside the district.

Why use an attorney in the process?
Most parents are afraid of the costs and complications.  Many districts say they want to work with you but won't work with you if you bring a lawyer.  Districts act differently when there is an attorney on board.  The district knows that someday there is a potential for reimbursement where they will have to pay back the hours you've put in.  They often will work to resolve issues more quickly if there is a lawyer involved so they don't have to reimburse lawyer fees.  They do not have to reimburse advocate fees, however. 

There is no standard for what is a qualified advocate, so watch what they are experienced with.  If you want to improve an IEP, use an advocate.  This may make you feel better about the process. The attorney is useful for getting what the district rarely or never offers for your child - that they need.  You let them know that you will go to a due process hearing if needed or filing a claim in court.

If you use an advocate or a lawyer, find out what their qualifications or experience is.  Get references and ask people why they liked working with someone.  This is a new field, so you have to be careful to get someone worth your money.

Deconstructing the IEP Process
If you have no idea how this works, you will lose a lot of time and help for your child, potentially.  One analogy is the idea of a cafeteria line - you will be in this with your child typically.  You either take what's there or you don't.  You don't go in and tell the lunch lady you want creme brulee.  The cook doesn't know what you're talking about, and it's not what they're offering, so either take it or don't. 
Many IEP meetings are telling you this is what we have, so take it or don't.  Federal law says you have to do what is appropriate for your child, regardless of what is available in district.  This is more like cooking from scratch.  This is where an independent evaluation comes in handy.  They will provide a recommendation that is best for your child and what they need, regardless of what is available in the district. 

The district still needs to provide what is necessary for your child and make it happen.  This is based on what is appropriate for your child in an independent evaluation.  This also keeps them cooking from scratch so you aren't getting generic recommendations.  Use what your child learns - which you learn by what a qualified neurologist has determined.

It's hard sometimes because of what little district staff know.  Sometimes it's intentional, sometimes they don't know about what they educate parents on.  So many districts create procedures to keep your IEP on a predetermined path, which is confusing for parents.  They are waiting and waiting for the reports hoping there is something good and then a special day class is recommended.  When a parents asks, “Where is the ABA component or another behavioral component?” the district responds with, “Oh, well, you should have recommended that you need a behavioral component, so we can't even start doing this until you sign off an IEP.”  However, the district is on notice that there should be a behavioral component to the assessment the moment that there is a suspected autism. 

If they tell you that program X is full, this is not your problem.  They still need to solve it and find the best solution for your child.  If something is full, they need to get a solution anyway - even if that's writing a check to do something in home or at a private school, etc.  If they throw up the "we have union issues around this" - that's still not your problem.  They still need to find a solution.

When you get an IEP goal, find out what it means.  The strategies need to be specific.  The only way to know what it means is to ask.  What does it meant to be exposed to the general education curriculum?  If my child is being exposed to this, will he know these things by the end of the year?  If it states "to develop positive peer interaction"  who are Johnny's peers?  What do those interactions looks like?  What is positive peer interactions? When it talks about "improve social skills" or "gain academic competence"  - what does this mean?  Why are there no goals around this in the IEP?  How do you measure this?  If the IEP states that your child "will not receive any grades"  - question it.  Why are there no grades in 3rd grade already? 

Mark up the IEP and ask all those questions.  Keep asking, because they may give you words that still don't explain what it means.  Ask what it looks like.  If some of the words or lingo doesn't make sense, ask!  Have a visual reference of how things are being taught and what is happening.

District's Top 15 common and unlawful IEP responses #3
We are done hearing from you now.  We are never done with the process of discussion until all questions are answered and the progress on goals, placement and services, new goals, etc.  You can set a reasonable time limit on a day, but the IEP creation may be a several day process.  It is imperative that your concerns and questions are addressed and that you are actively involved and that your concerns are also addressed and that the time for convening the meeting is not limited.  This may have to be reconvened on a different day.

Playing the blame game - this has to be turned around.  For every deficit, there should be a subsequent goal.  If you have a five year old and are told that they have speech of a two year old, there is a shame and blame going on – “we could do a good job if you could just send a normal kid to school,” but that's not who our children are.  How do we turn this around when our children's behaviors are so out of whack that they can't do something because of our child's limitations? 

Know everything bad that the school wants to say about your child.  I would love to know every challenge - every challenge you tell me, I want to know more.  When you tell me about something that has happened at school - when did it last happen?  How often does it happen?  Then I want to know - what did you do when this occurred?  Next, I want to know how did the child respond?  So often what teachers are going to describe to you is that they are continually doing something that does not work or makes it worse for your child.  Often this is used as an excuse to put the child in a more restrictive environment, which isn't necessary but caused because they're making it worse. 

Once you know all the issues, get a goal for every SINGLE issue.  For every problem, there will be a remediation.  Goals drive placement and services.  Don't let the district say that there are too many goals.  Learn to be a parent who is eager to learn the problems because you can't solve the problems until you know what they all are.

The district has an obligation to take the child as he comes.  You cannot be required to medicate, etc. before the district has to take the child and make meaningful progress.

Overcome the fear factor. 
What will happen if...  the parent rejects a school placement.  You as a parent have a right to choose to some extent how a child is educated.  You still have the right to make choices regarding appropriate education for your child.  Districts often use the Student Attendance Review Board to try to force your child into a program that you don't want in.  You have the right to supplement the education as you wish.  The district may take you to due process for this.  You may take an assessment from a district or go into a program to start out and then then be able to get into the "right" program. 

Districts often tell us that we have to sign something by a certain date, etc.  Don't feel pressured.  They have things they are required to do by law.  Parents don't.  Don't let them pressure you into doing things because of what they are legally required to do.

It is not our policy to assess a child first without conducting a student study team.
There are a gamut of policies that a district might put in front of you.  It has to not conflict with state or federal law with regards to what they have to do.  Federal law is going to control, although it won't cover every area.  If a policy sounds a bit fishy or is not clear what a policy is based in, ask about it.  The district will have to provide you a copy of the policy if you ask and have to explain how a policy is consistent with the law.

What are you doing and why? 
Learn to be a minimalist.  In the beginning, you tend to do what they ask you to do.  Think about if you want to do it now, if you want to do it in a different way.  You can decline things or provide minimal information.  Provide information on a need-to-know basis.  The amount of information or sign off you have to provide sometimes depends on what state you live in.  In California, if they give you an IEP offer, you can say yes to the speech but declining the offer to reduce the ABA.  If you do so, the old IEP continues until the child ages out.  In some states, the burden is on the parent to file for due process if you disagree.  Sometimes this dispute has to take place in the midst of due process, but it depends on what state you live in.

Two avenues for recourse - sometimes you and the district won't agree and you need to know what to do next.  You can either file a  compliance complaint through the CRP which is more for procedure issues.  For example, your child is supposed to receive 3 hours per week, and the therapist is on maternity leave and so we'll make it up at the end of the year.  This can be enforced with the hours mandated by a compliance report.  Explain the compliance violation with a copy of the IEP and that the district has communicated that the services won't be provided. 

Federal law requires that you go through an administrative hearing before you can go to court as part of a due process hearing.  They will hear the claims like a trial - usually an attorney on the district's side, an advocate or attorney on the parent's side and the issues have to be proved by the party with the burden of proof (varies by state).  Once you get a decision back, if either party doesn't like the decision, it can be appealed to a federal district or a state court, then you  can move up to an appeals court and keep moving through the process. 

When it comes to due process, it's important to note why you'd want a due process complaint v a compliance complaint filed.  If you have a right to complete an assessment within 60 days and hold an IEP, it's a pretty clear cut procedural violation.  If it's more subjective like you feel your child requires a behavior intervention program and there is a dispute over the level or type of service, then that is a more subjective decision that should go through a due process complaint.  This could not go to a compliance complaint, although the violations could go through due process - but that's more costly.

Concerns over labeling your child
If we determine eligibility under autism or autistic like characteristics, you child will be labeled for life.  Do you want this?  In most cases, no one looks at your child's educational file because no one has the time.  So many teachers never even look at a child's IEP.  If this is relevant to any college in the future, then they need an appropriate designation on the IEP with the hope that it is all remediated.  If the kids don't get this label, the other kids in school will label him with something else.  There is an emotional appeal for your child to get nothing instead of what's appropriate. 

It is not meaningful to worry about labeling your child.  you don't need a medical diagnosis to get a label.  You  could have zero diagnosis and get a label, as there is a legal definition that the districts can use based on federal and state law without having a diagnosis to use to get an IEP or services.

Getting Support
Know your district.  Talk to other parents.  If there is a parent support group that you can join, network a little in the community.  Try to understand what other parents and families have had to go through.  Find out about the quality of services offered.  When trying to choose a school district, get involved first and ask questions. 

Volunteer at school.  If you want to know what's going on at your child's school, volunteer.  This is different from observing; the district will frequently put on a show for you with another aide brought in or something else.  They can’t keep up the dog and pony show on a regular basis, so volunteering helps you see what the school is like on a typical basis.  Also, a district cannot have a policy for what parents can do for regular education vs special education students, so find out what schools require to volunteer.

Privacy v Confidentiality
Districts often don't know the difference between privacy and confidentiality.  Students at public schools are not entitled to privacy  There is a court case on this - you see pictures in the newspaper because of awards, there is the annual class photo, etc. However, students are entitled to confidentiality.  The IEP, his eligibility category, etc. is all confidential.  The fact that he is in a certain classroom is not private. 

Districts struggle with understanding privacy versus confidentiality.  There was a district that posted every special ed student in a classroom with the diagnosis – that is a violation.  You cannot take every child with a label and put them in a yearbook with identifying information about their disability or label in the yearbook.  This is a violation of FERPA.

Getting What Your Child Needs
You need to make a list of what you have to have.  What services, programs and placements are required to benefit your child.  Once you have this list down, you can start the negotiations.  Tell the district what you want and expect in services.  Don't negotiate in an IEP itself - I'll give up this to get that.  Figure out what your bottom line is and what you hope to achieve as part of the IEP and what you're willing to discuss and negotiate outside the IEP. 

If you anticipate filing a due process, you are required to have a resolution meeting.  Ensure that this is confidential.  Know that what you discuss in an IEP and what you discuss outside an IEP should be different.

Districts are watchful of what they are willing to offer outside the IEP process that they don't want in the IEP because it becomes the default and stay put if you decline to change an IEP in the future and they are required to provide it and pay for it in years to come.

“You do not need to take notes.” 
That is not the case.  The district's notes generally won't include when the parents has disagreed with something and instead shows just that the parents declined things.  Parents can send in an amendment to the record, or an parental addendum.  If you find something that is inaccurate or that you disagree with, then you need to put this into the record by writing a letter with the details why of something is not appropriate for your child. 

Ask for a separate page for the IEP notes or minutes that you can add to reflect what was discussed that day, e.g., if you are going to place privately.  To do a private placement, you can give notice 10 days before you place or you can do it in an IEP.  If you give it verbally, it may not be accurately reflected, so you put it in with your own notes.

For me, the big thing to remember is to ask more questions - the what does this look like and how will you do this types of things so that the IEP is measurable and, I hope, effective.  What else helps you during an IEP meeting?