Transcript Making it work for the student - Special Education Law and

Special
Education Law
and Advocacy
Mark S. Kamleiter, Esquire and
Claudia Roberts, J.D.- Senior Educational Advocate
Special Education Law and Advocacy
2509 First Avenue S.
St. Petersburg, FL 33712
Tel: (727) 323-2555
Fax: (727) 323-2599
www.flspedlaw.com

Mark Kamleiter, Esq.
Mark Kamleiter is the founder of Special
Education Law and Advocacy, a Florida
law firm offering mixed legal and
professional advocacy services. As a
former special education teacher and
behavior specialist, Mark is able to bring a
unique combination of educational and
legal knowledge to bear in his
representation of children with disabilities.
The law firm has grown to include three
attorneys, three professional advocates, a
paralegal, a law clerk, an accountant,
and a file clerk. Today the firm offers
services throughout the state
As a long-time advocate for the rights of
children with disabilities, Mark serves on
the board of the Council of Parent
Attorneys and Advocates, Inc. (COPAA).
In Florida, Mark helped to found and
provides some leadership in the Florida
Association
of
Special
Education
Attorneys. A frequent state and national
speaker and presenter on issues related
to the education of children with
disabilities, Mark represents children with
disabilities in school meetings, formal
complaints, due process and in Federal
Court, where he advocates for their
appropriate education in public school
systems.
Claudia Roberts, J.D.
Claudia
advocates professionally for
students with disabilities across nine
Florida counties. She works as a senior
educational advocate with the firm of
Special Education Law and Advocacy.
Claudia also is the Lead Instructor and
Program Manager for the Special
Education Advocacy Program (SEAT)
offered by The Council of Parent
Attorneys and Advocates (COPAA).
Claudia is a graduate of the Partners in
Policymaking program. She serves as
Vice-President
for
the
Hillsborough
Superintendent’s Exceptional Education
Advisory Committee.
Claudia has a BBA from the University of
Texas at El Paso and a J.D. with honors
from the University of Texas School of Law.
Prior to moving to Florida, Claudia
practiced law in Texas and New Mexico
but is not currently engaged in the
practice of law at this time in any
jurisdiction.
She frequently provides
training on issues relating to special
education advocacy.
Special Education Law
Some thoughts about the law – and why we
study it.
We need to understand our purpose and objective in studying
special education law. Too often advocates want to use the law
as a weapon to force open educational resources and to
compel school districts to yield to our demands. They want to
“out cite” school personnel, dazzle them with the depth of their
legal knowledge.
There is a more effective purpose in our study of this law. The
law provides the framework upon which special education is
built. Our challenge is to understand how the structure of the law
protects our children’s education. It is important to understand
the perimeters and scope of our children’s rights and understand
how those rights can serve to effectively open educational doors.
It is not a debating tool.
Three Branches of
Government
 Legislative
Branch – Congress – makes the
laws
 Executive Branch – President – enforces
laws
 Judicial – Supreme Court – explains,
interprets, settles disputes and ensures the
rights of the people are protected
The Judiciary Branch –
The Court System
Federal Court Jurisdiction
Federal Question
 Constitution
 Laws
of the United
States
Diversity
 Arises
between
citizens of different
states
Hierarchy of Courts
Court of Last Resort
Appellate or Intermediate Court
Trial Court
Yell / The Law and Special Education, Second Edition
Copyright © 2006 by Pearson Education, Inc. All rights reserved
11
Federal Court System
United States Supreme
Court
United States Courts of
Appeals
United States District
Courts
Yell / The Law and Special Education, Second Edition
Copyright © 2006 by Pearson Education, Inc. All rights reserved
12
Federal Courts
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District Court: Trial Court.
Circuit Court of Appeals: Hears
appeals from the district courts.
Supreme Court: The highest court in
the land. Decisions take precedence over
all other courts.
Case Law
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Published opinions of judges that arise from court
cases.
Stare Decisis – precedence
A decision by a higher court controls the
decision of the lower courts in the same
jurisdiction.
Persuasive authority comes from a court that is
not controlling.
Only published cases can be used for
precedence.
All of the decisions of the U.S. Supreme Court are
published.
Important Court Cases
Brown v. Board of Education, 347 U.S. 483, 74
S.Ct. 686 (1954)
“We conclude that in the field of public
education the doctrine of “separate but
equal” has no place.
Separate
educational facilities are inherently
unequal.”
 Mills
(1972) – District not allowed to
exclude students due to learning and
behavior problems
 PARC (1972) Right to public education for
students with intellectual
 Goss (1975) – Right to due process before
suspension
 Rowley (1982) – Floor of educational
opportunity
 Tatro (1984) Catheterization services must
be provided to keep student in school.
 Honing(1988)
– Children with disabilities
cannot be excluded for disability related
behavior
 Burlington (1985) – Private school
reimbursement
 Carter (1993) – Reimbursement for not
certified public school
 Garrett F. (1997)- Cost not a factor for
related services
 Weast (2005) – burden of proof on party
that files due process
 Murphy
(2006) – No award of expert fees
 Winkelman (2007) – Parents can
prosecute IDEA cases on their own behalf
 Forest Grove (2009) – Reimbursement
where student did not previously attend
public school
Florida State Courts
 Florida
Supreme Court
 District Courts of Appeal
 Circuit Courts
State Court System
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Administrative Hearings: Conducted by
Administrative Law Judges or Hearing
Officers
Trial Courts: Trial courts found in the
numerous judicial circuits.
Courts of Appeal: Hears appeals from the
Circuit Courts.
Supreme Court: The highest state court of
appeal
The Legislative Branch
The US Constitution
10th Amendment

The powers not delegated to the United
States by the Constitution, nor prohibited by it
to the States, are reserved to the States
respectively, or to the people.

Federal government has only the powers
granted to it in the Constitution

The states have all powers not granted to the
federal government
14th Amendment
All persons born or naturalized in the United
States, and subject to the jurisdiction thereof,
are citizens of the United States and of the state
wherein they reside. No state shall make or
enforce any law which shall abridge the
privileges or immunities of citizens of the United
States; nor shall any state deprive any person of
life, liberty, or property, without due process of
law; nor deny to any person within its jurisdiction
the equal protection of the laws.
Statutory Law
Statutes, Regulations, & Rules
Hierarchy of authority
Federal Statutes
Federal Regulations
State Statutes
State Rules
Special Education Law
Individuals with Disabilities Education Act
Federal Regulations
Florida Education Code
State Board of Education Rules
State Law
 States
cannot limit the educational rights
provided by IDEA but can expand those
rights.
 Advocates will have to know and will
mostly employ their state law in this area.
 Regulations
have the same force of law
as the statute so long as they are a
“reasonable interpretation” of the statute
(Chevron U.S.A.,Inc. V. Natural Resources
Defense Council, Inc. )
 Regulations
are promulgated through a
public rulemaking process.
 Federal
regulations are codified in the
Code of Federal Regulations.
Opinion letters and guidance
documents
 Department
of Education – OCR and
OSEP
 Are not precedent
 May be persuasive
 Can be very persuasive with school
districts and state education agencies
Florida Department of Education –
Exceptional Education and Student
Services
 Technical
Assistance Papers TAPS
 Publications – many free to parents
 Program specialists
IDEA and 504
Congressional Action:
Due to a history and pattern of discrimination and ineffective
education for children with disabilities, the federal
governments had to enact statutes to assure an
appropriate education for children with disabilities.
Rehabilitation Act of 1973 – Section 504
“No otherwise qualified individual with a disability …, shall be,
solely by reason of her or his disability; be excluded from
the participation in, be denied the benefits of, or be
subjected to discrimination under any program or activity
receiving federal assistance …”
This is an anti-discrimination law and applies to only those
institutions which receive federal funds. The language
reads very much like the Americans with Disabilities Act
(ADA)
Think “access” when thinking about Sec. 504.
Education of all Handicapped Children’s Act of 1975:
Purpose: The needs of children with disabilities are
not being met and the act is intended to “assure
equal protection of the law” and that child with
disabilities have available “special education and
related services designed to meet their unique
needs.” 20 U.S.C. § 1400
Individuals with Disabilities Education Improvement
Act of 2004:
Updated Purpose: “… [T]o meet their unique needs
and prepare them for further education,
employment and independent living.” 20 U.S.C. §
1400
Have we advanced in the provision of special
education in the last 30 years?
Findings of Congress is passing IDEA 2004
“… implementation of this title has been impeded by low
expectations, and an insufficient focus on applying
replicable research on proven methods of teaching an
learning for children with disabilities.” 20 U.S.C. § 1400 (c)(4)
“[O]ver 30 years of research and experience”
demonstrates that special education would be more
effective by … “having high expectations for such children
and ensuring their access to the general education
curriculum in regular classrooms, to the maximum extent
possible … to meet the challenging expectations that have
been established for all children; and be prepared to lead
productive and independent adult lives.” 20 U.S.C. § 1400
(c)(5) Wrightslaw 2004, p. 14
IDEA
 guarantees
students with disabilities a free
appropriate public education (FAPE) for
students three through 21
 Part C -- serves birth through two
 To receive federal money, state and local
agencies must agree to comply with
federal law
“Special Education”
The term special education means specially
designed instruction, at no cost to parents,
to meet the unique needs of a child with a
disability, including:
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Instruction conducted in the classroom, in
the home, in hospitals and institutions and in
other settings; and
Instruction in physical education
Related Services
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Related services are also provided at no cost to the
parent.
To assist a child with a disability to benefit from
special education
These
include:
transportation,
and
such
developmental, corrective, and other supportive
services, including speech-language pathology and
audiology services, psychological services, physical
and occupational therapy, recreation, including
therapeutic recreation, social work services,
counseling
services,
including
rehabilitation
counseling, orientation and mobility services, and
medical services, except that such medical services
shall be for diagnostic and evaluation purposes only.
The Six Principles of
Special Education
SIX PRINCIPLES OF SPECIAL
EDUCATION
1.
2.
3.
4.
5.
6.
Zero reject
Nondiscriminatory evaluation
Appropriate education
Least restrictive environment
Parent and student participation
Procedural due process
1. Zero Reject
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The Zero Reject principle ensures that all children
receive a free and appropriate public education,
no matter how severe their disability.
A child may not be excluded because a school
district feels they are too disabled to learn, has
inappropriate behavior caused by their disability,
or has a contagious disease unless there is a high
risk that the student will infect other students.
Timothy W. Case – rejects benefit from education
as a prerequisite to enrollment
Students with contagious diseases must be served
SD cannot require medication as a condition of
enrollment
2. Non-discriminatory
evaluation – Child Find
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IDEA 20 USC 1412 – Requires each state to identify,
locate and evaluate children with disabilities residing
in the state
Includes homeless, wards of the state, private school
students, highly mobile (migrant) children
Birth to age 21
Includes children who receive passing grades and
are advancing from grade to grade (34 CFR
300.111(c))
Must be evaluated within a reasonable time after SD
is on notice of possible disability (includes private
school students)
Parent’s failure to request does not relieve obligation
Evaluation and Assessment – 20 USC
1414
 Purpose
of an evaluation – to determine
whether the student has a disability and
the educational needs of the student
 Full individual evaluation required before
eligibility
a. full – comprehensive
b. individual – not just associated with
the disability
Evaluation Procedures 34 CFR 300.304
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Notice describing any proposed evaluation
Use a variety of assessment tools and strategies to
gather relevant functional, developmental, and
academic information
Cannot use any single measurement
Technically sound instruments
Selected and administered not to be racially or
culturally biased
Native language or form of communication
In the form most likely to yield accurate information on
what the child knows and can do academically,
developmentally and functionally
Used for purpose for which assessment is valid and
reliable
Administered by trained and knowledgeable
personnel
Administered in accordance with instructions of the
producer of the instrument
IEE at SD Expense
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Right to an IEE at SD expense if parent “disagrees” with SD
evaluation unless SD files DP and proves
a. SD evaluation was appropriate, or
b. Parent evaluation did not meet SD criteria
Must act “without unreasonable delay” to grant the request or file
due process – SD bears the burden
May establish criteria – not required to choose from SD list
Parent not required to give basis for request –
Request for IEE must be timely
OSEP – districts must give the parent the opportunity to prove
extraordinary circumstances warranting an IEE that does not meet
SD criteria – Letter to Anonymous, 56 IDELR 175 (OSEP 2010) and
Letter to Anonymous, 20 IDELR 1219 (OSEP 1993)
If SD allows their evaluators to observe they must give this
opportunity to independent providers
3. Appropriate Education FAPE
 Free
– at no cost to the parent
 Individually tailored education for each
student based on the evaluation and
augmented by related or supplementary
services
 IEP must be reviewed periodically, but not
less than annually, to determine whether
the annual goals for the child are being
met
Individual Education Plan
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Present levels of educational performance,
including how the disability affects the child’s
involvement and progress in the general
curriculum
A statement of measurable annual goals,
including benchmarks or short-term objectives,
related to meeting the child’s needs that result
from the child’s disability to enable the child to be
involved in and progress in the general curriculum

Statement of special education and related
services and supplementary services to be
provided to the child
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Explanation of the extent, if any, to which
the child will not participate with
nondisabled children in the regular class
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Statement of modifications in the
administration of State or district-wide
assessments of student achievement
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Statement of the program modifications or
supports that will be provided for the child
to advance appropriately toward attaining
the annual goals, to be involved in and
progress in the general curriculum and
extracurricular and other nonacademic
activities and to be educated and
participate with other children with
disabilities and nondisabled children
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If the IEP team determines that the child will
not participate in a State or district-wide
assessment, there must be a statement of
why that assessment is not appropriate and
how the child will be assessed
Projected date for beginning of the
services and modifications
The anticipated frequency, location and
duration of services and modifications
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Statement of how child’s progress toward
annual goals will be measured
Statement of how parents will be regularly
informed at least as often as parents are
informed of their nondisabled children’s
progress toward annual goals and extent to
which progress is sufficient to enable the
child to achieve the goals by the end of
the year
Supreme Court decisions – re
appropriate education

Amy Rowley was entitled to an education
that benefits her, not to one that develops
her to the maximum potential
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Ambur Tatro was entitled to clean
intermittent catheterization as a related
service
4. Least Restrictive Environment

To the maximum extent appropriate, children
with disabilities … are educated with children
who are not disabled, and special classes,
separate school, or other removal of children
with disabilities from the regular educational
environment occurs only when the nature or
severity of the disability of the child is such
that education in regular classes with the use
of supplementary aids and services cannot be
achieved satisfactorily.”
20 USC 1412
(a)(5)(A)
Reasons for LRE

Supreme Court created the principle as a
matter of constitutional law
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There is a long history of segregation
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There is evidence that many students with
disabilities can be educated effectively in
general education classes
What does LRE mean?
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In early years, courts generally concluded
that the greater or more extensive the
student’s disability and the need for
academic or rehabilitative services, the
more separate and less inclusive the
student’s education should be
More recent cases have taken into
account social and physical inclusion
Continuum of Alternative
Placements
 SD
required to offer a continuum of
alternative placements 34 CFR 300.115(b)
 Regular class, special class on school
campus, special school, home instruction,
instruction in hospital or institution
 Continuum must provide for
supplementary aides and services to be
provided in conjunction with regular class
placement
Neighborhood School
IDEA regulations require a student’s
placement to be “as close as possible to
the child’s home.”
 Unless the IEP of a child with a disability
requires some other arrangement, the child
is educated in the school that he or she
would attend if nondisabled.
34 CFR 300.116 (b)(3) and (c)
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Breathing the Same Air
Inclusion – a form of
segregation
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Mainstreaming for art, lunch, music and PE
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Remember Inclusion is not the law – LRE is
the law
SB 1108
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To the extent appropriate, students with
disabilities, including those students in public
or private institutions or other facilities, shall be
educated with students who are not disabled
Once every three years, each SD and school
shall complete a Best Practices in Inclusive
Education (BPIE) assessment with a FIN
facilitator and include the results in the
improvements in the SD’s ESE policies and
procedures.
Path from segregation
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All students attend school where they would
attend if they did not have a disability
Proportion of students with and without disabilities
in general classroom is the same as in the school
district
Age and grade appropriate placement
Zero reject philosophy for general classroom
Intensive support services available for general
education
Cooperative learning and peer tutoring
emphasized
Goal -- student is a member of the class -- not a
visitor
Essentials for desegregated
schools
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Curriculum adaptation
Instructional strategies like cooperative
learning and peer instruction
Redeployment of staff
Collaboration among teachers
Professional development
Use of trained paraprofessionals
5. PARENT AND STUDENT
PARTICIPATION
 Parents
must be members of any group
that makes decisions concerning the
identification, evaluation and
educational placement and provision of
FAPE to the child (20 USD 1414 (e))
 Parent
is a member of the IEP team
 Parent must be given notice of
Procedural Safeguards(at least one time
per year; request for evaluation;
complaint, on request)
 Informed Consent – evaluations,
placement, change in placement
 Prior Written Notice and other notices –
when LEA proposes to, or refuses to
initiate or change the identification,
evaluation, or educational placement or
provision of FAPE, parent must be notified
 Rights transfer to student at age 18
 Meetings
should be scheduled when
parents can attend
 Interpreters should be provided when
needed
 Parents are members of the manifestation
determination team (20 USD 1415 (k)(1)(E)
 LEA must respond to parent request for
initial evaluation, re-evaluation, and
request to convene an IEP team meeting
Parental Consent
 Initial
consent for assessment
 Initial provision of services
 Re-evaluation
 Waiver of a three year evaluation
 Excusal of an IEP team member
 Changes to IEP without a meeting
 Alternate means of holding a meeting
SB 1108 – Florida
 School
board required to provide each
parent with information regarding the
amount the SD receives from the state
appropriation at the initial meeting of a
student’s IEP team.
Parent Consent under 1108
required for:
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Administration of an alternative assessment
Provision of instruction according to the
access points
Place the student in an ESE center school
Form must state parent is a participant of the
IEP team has has the right to consent or refuse
to consent and if parent does not consent SD
cannot move forward without filing due
process
Support at Meetings - 1108
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Parents of public school students may be
accompanied by another adult of their
choice at any meeting with SD personnel
SD may not object or attempt to discourage
Requires a document to be signed at the end
of the meeting stating whether any SD
personnel discouraged or attempted to
discourage parents from inviting a person of
their choice to the meeting.
Definition of Parent
Includes
a.
b.
c.
d.
Natural, adoptive or foster parent
Guardian (but not the state as guardian)
Individual acting in the place of a natural
or adoptive parent (includes
grandparent, stepparent or relative) if
the child lives with them or person legally
responsible for the child’s welfare
Surrogate parents
Consent vs. Agreement
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“[W]henever consent is used in these
regulation, it means that the consent is both
informed and in writing. The meaning of the
terms ‘agree’ or ‘agreement’ is not the same
as consent. ‘Agree’ or ‘agreement’ refers to
an understanding between the parent and
the public agency about a particular
question or issue, which may be in writing,
depending on the context.
71 Fed. Reg. 46551 and 46629 (Aug. 14, 2006)
OSEP – “Informed Consent”
“Informed consent” means parents “have a
general understanding of the activity for
which he or she is providing consent.” Letter
to Johnson, 56 IDELR 51 (OSEP 2010.
Parents must be fully informed of all relevant
information but parents do not have to
have an “in-depth understanding” of every
aspect of the proposed actions. ID
Native Language
The information must be presented in the
parent’s “native language” – “the language
normally used by that individual”
 For a person with deafness or blindness, or
with no written language – native language
means “the mode of communication that is
normally used by the individual (such as sign
language, Braille, or oral communication).”
34 CFR Section 300.29
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Override of Consent
School may (but is not required) to seek
evaluation if parent refuses consent or fails to
respond
 By using procedural safeguards ( mediation or
due process)
 Also applies to reevaluations
 No override for private or home-school
students
 If the school does not override – no child find
violation
34 CFR Section 300.300
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SB 1108- Collaboration
 Requires
SD to collaborate with private
therapists (OT, SLP, Psychologist, Social
Worker)
 Does not relieve SD of the provision of
appropriate services
 Right of private providers to observe,
collaborate and provide services in
school setting
 Principal must consent to time and place
6. PROCEDURAL DUE PROCESS
 Provides
safeguards for students against
schools’ actions, including a right to sue
in court
 Key aspects of due process
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Opportunity to examine records
Participation in meetings
Parent involvement in placement decisions
Independent educational evaluation
PROCEDURAL DUE PROCESS
CONT.
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Prior notice
Parent consent
Mediation
Impartial due process hearing
Surrogate parent
Procedural safeguards notice
State complaint procedure
Procedural safeguards for discipline
Educational
Advocacy
The Least Dangerous Assumption :
 “…in
the absence of conclusive data,
educational decisions ought to be based
on assumptions which, if incorrect, will
have the least dangerous effect on the
likelihood that students will be able to
function
independently
as
adults.
Furthermore, we should assume that poor
performance is due to instructional
inadequacy rather than to student
deficits.”

(Anne Donnellan, 1984, as quoted by Cheryl Jorgensen, 2005)
What is an Advocate?
The relational role of the parent advocate
Advocate: “a person who pleads on behalf of another, ... a
person who speaks or writes in support of some cause,
argument or proposal.” Dictionary

Greek Understanding of “Advocate:” From “para,” the
Greek for “beside,” and “kalein,” for “to call,” the Greeks created
the word, “Paraclete.” This word was then used to describe “one
who is called along side to help or comfort.” In the Bible this
word was used powerfully to describe the Holy Spirit or the
Comforter, as One who comes alongside to help.
What is an Advocate?
The relational role of the parent advocate
“Paraclete’ evokes the image of one who in a time of need, comes
alongside another, offering support, encouragement, direction, and
comfort. Seen that from this perspective, the concept of an advocate is
more relational than functional. The relationship drives the function.
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Alongside – not in front or behind
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Maintains spirit of confidence, lends strength, courage, determination,
knowledge and wisdom, without dominating or controlling.
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Acts through the individual he is helping, not in place of that person
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Equipping the person so they can act effectively.
The Law and the Advocate
What gives the Advocate a seat at the IEP table?
20 U.S.C. 1414 (d)(1)(B)(vi)
(vi) 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;
20 U.S.C. 1415 (h) Safeguards
(1) the right to be accompanied and advised by counsel
and by individuals with special knowledge or training
with respect to the problems of children with disabilities;
Enforceable by a State Complaint
How to Prepare
for an IEP
Meeting
Records
 Obtain
and review student’s records?
 Organize
all records- from the most recent
to the older material in a three ring binder,
organized by date and category
(evaluations, IEPs, Communications, etc.)
Evaluations

Have all necessary evaluations been completed? Do
available evaluations including classroom data and
assessments, provide sufficient empirical data to write
effective PLOPs?
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Have you obtained private evaluations or
recommendations from therapists & physicians?
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Have private therapists or experts made specific
recommendations as to discipline, eligibility, specific
goals, inclusions and placement?
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Have you reviewed all evaluations done by the school?
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Does parent have corrections to district’s evaluation?
Have you requested an amendment?
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If the parent has issues or concerns with the results of
the evaluations, have you prepared a written
request for an independent education evaluation?
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Have you or the parent had an opportunity to talk
with the evaluators?

Have you highlighted and tabbed the information
you will need to refer to in the meeting?

Have you provided the school with all parent
documents, evaluations, information, which may be
necessary for the IEP team’s consideration?
Research

Have you familiarized yourself with the child’s disability?

Consider doing on-line research, obtaining literature from parents, check your
state’s Department of Education and even the local school district for
literature.

Have you familiarized yourself with recommended supports,
accommodations, modifications, and educational programs for a child with
similar disabilities?

Are you familiar yourself with educational terms - understand their meaning?

Have you reviewed relevant procedural safeguards, statutes and regulations?

Obtained a blank copy of the forms (IEP, Prior Notice, Evaluation Consent,
etc.). Organize your notes and plan for the meeting according to the IEP
form. Schools will almost never vary from the order of their forms.
Eligibility Issues
 Have
you participated in the eligibility process or is
the meeting for this also?
 Do
you know the result of the eligibility
recommendations?
Persons Attending

Who’s the school district bringing and why?

Are parents’ invitees available for meeting?

Will the child attend the meeting or some part of it?

Does the building administrator so district supervisor
need to be at the meeting?

Has the parent talked with the teachers, who will
attend?
Objectives

Advocate and parents need to establish and prioritize
objectives (Include child in discussions, where
appropriate) include:
 List
of academic, social, and behavioral needs
 List
of supplemental aids & services (i.e. assistive
technology, social work, direct instruction, related
services.
 Note all supporting data, evaluations, staff input,
which is relative to and supports the needed
services.

Make a thorough list of the student’s strengths. This is
vital to keeping the process focused upon using
student’s strengths to overcome weaknesses.
 Develop





a draft:
PLOP? Include academics, social, emotional & behavioral
Goals and Objectives (benchmarks)?
Accommodations?
Related Services (expectations)?
Placement Issues?
 Make
short, clear, concise notes regarding the
points you wish to make
 Establish
a plan B or fall back position with the
family, for each of the above
Misc. Issues
Is there enough time scheduled to complete the
meeting?
Is the meeting at a convenient time for the parents?
Do you wish to record? Have you notified school?
If you are having an attorney attend the meeting,
have you notified the school?
IEP Meeting Tips

Most heavy work is done before the meeting.

Tab & highlight docs, with notes for reference

Insert yourself into the discussion w/ polite
questions

Collaboration is the key word
General Concerns at the IEP meeting

Who is taking notes? Important - Wise to verify at the
beginning of the meeting.

Was the parent given copies of all documents, to be used
during the meeting.

Is school’s position on the child’s “PLOP” consistent with the
parent’s position?

Does the discussion concerning the evaluations accurately
reflect the abilities and disabilities of the child?

Are the child’s strengths at the fore of the discussions & are
they being considered in the educational planning?
Present Levels of Performance

The PLOP is intended to be a clear, concise
statement of the child’s educational needs and
the child’s current functioning level in all areas of
need.

The rest of the IEP is intended to address how those
needs are going to be met. Every PLOP should:
1. Describe effect of disability on child’s educational
performance , including not only academic areas
(reading, math, writing, etc.), but also nonacademic areas (social, emotional, behavioral, gross
and fine motor skills, and self-help skills).
2. Be written in objective and measurable terms. The
PLOP provides a baseline against which progress can
be measured. An effective PLOP requires objective,
empirical data from class performance and
evaluations. (consider this need when requesting
further evaluation or when determining how IEP
goals will be measured).
3. Be absolutely integrated into the entire IEP. Any
issues, disabilities, or weaknesses described in the
PLOP should be addressed in the goals, objectives
(benchmarks), special educational services, related
services, accommodations, modifications, assistive
technology, etc.
The Low Ball Game

Schools too often prefer to keep the PLOP unmeasureable & vague or they will low-ball the PLOP
measures - by keeping the child’s current PLOP low they
can show “progress” with minimal effort & services.

The only counter to this ploy is to have verifiable data.

Parents often argue their child functions on a higher level
based upon home observations, but the school argues they
can only measure performance in the school setting. Even
private assessments are often discounted by schools on the
basis that they are “clinical” in nature.
Stand Firm
 It
is important to stand firm on this . If the
district low balls the PLOP, they will hold down
expectations for goals and objectives & will
provide a lower level of supports and services.
 The
IEP meeting may become a stand-off The school insisting they cannot agree to a
PLOP not representative of child’s
performance in school.
There is a way out of this argument. Allow the school to
make its PLOP based upon its evaluations and data. Insist
that the parents to add their own PLOP based upon their
own observations or private evaluations. If the IEP team
questions the validity of the parent’s information, insist that
they verify the reliability of the parent’s evaluations.
This distinction is important when are drafted. Insist that
any goals & objectives drafted based upon the school’s
PLOP are designated “generalization” goals & objectives.
The school cannot take credit for “teaching” knowledge or
skills, which have already been “acquired,” at home. This
puts the school’s offered supports and services into sharper,
more accurate perspective.

This struggle is stressful, but it eventually pushes the school
into a corner. As data mounts up, the school will have to
provide the resources & supports so the child can make
actual educational progress . A tight, measurably
verifiable PLOP, will have a lot greater leverage when
going after supports and services.
Drafting
Meaningful
Goals
Preliminary Concepts

Goals are the “targeting” function of the IEP.

There is a direct, but often overlooked relationship between the
PLOP and the Goals.

Goals must address each area of need identified in the PLOP.
Often arranged according to domains (e.g. Communication,
Social/Emotional, Independent Functioning, and Academic).

It may be necessary to prioritize goals, Where the child a multiple,
complex educational needs.

Generally, there should be a distribution of goals across the
relevant domains. The school should not limit goals as a way to
reduce the need for educational services.
Keep Your Eye on the Ball

Too often advocates come to the IEP meeting with a fixed
determination to obtain certain services or supports, and they slight the
work on the PLOP & goals.

Schools are only obligated to provide the level of services, necessary to
obtain the results projected in the goals and objectives.

If the school drafts weak or vague PLOPS & softball goals, the school can
refuse a demand for more intensive services. They say, “we can
achieve the goals, with the level of supports and services offered.

Remember – the school comes to the IEP meeting with an idea of the
services they intend to off. They attempt to write goals which match
those services.

The Advocate must function in the same way. Be ready to argue for
stronger, more ambitious goals, as well as more goals. Conform your
proposed goals to the services you feel are necessary.
Goal Drafting Principles
Drafting goals is not too difficult, but it does require some
precision and practice. Consider the following principles:
1. Targeting the student’s needs: The subject of each goal,
must relate directly to the student’s needs identified in the
PLOP.
2. Goals should address every domain (academic, social
and emotional, independent functioning, and
communications) where the student has needs. It is
important that the IEP is drafted to insure reasonable
progress across all domains.
3. Effective measurement- Criteria for Mastery –: The IEP
must also contain criteria for measuring progress and
mastery. Consider the following points:
a. Simply stating that “the student will accomplish _____
with 80% accuracy,” does not make the objective
measurable.
b. One must measure from a known point in order to
measure progress. A student’s PLOP may indicate that
Mary reads at a 3.5 reading level on the SRA. The
objective might state: Mary will read at a 5 reading
level on the SRA. This is clear, objective a& very
measurable.
c. A proposed goal may say, “Mary will write a paragraph
with 80% accuracy.” What does that mean?

Mary is in the 5th grade. Could she write a 2nd Grade
paragraph with 80% accuracy? What is being
expected of her and how will we know when she gets
there? This does not mean that we have to burden
the objective down with a lot of information.

One could say, “Mary will be able to write a
paragraph which meets 80% of the requirements for
paragraph writing on the 4th grade paragraph writing
standards, as defined by __________.” Although the
entire standard is not written into the objective,
anyone could measure Mary’s success by referring to
the 4th grade paragraph writing standards.
4. Differentiating acquisition, generalization and
maintenance goals and objectives:
Sometimes it is important to measure a child’s progress in
terms of the child’s “acquisition” of new skills and knowledge,
then the child’s “generalization” of those skills and
knowledge to new settings or environments, and finally, the
child’s “maintenance” of those skills & knowledge.
This is particularly important with children with severe autism
or disabilities which make learning very laborious. The child
must be taught new skills & knowledge (acquisition). Once
learning has occurred the child must be learn to use what
has been learned in new environments (generalization).
Then there must be an effort to practice and maintain what
has been learned.
5. Stretching the student’s objectives: It’s a difficult
judgment determining what goals will allow the
student to make maximum progress, without over
burdening the child. Some consideration must be
given to the teacher’s opinion on the appropriate
learning load for the child, but:
a. The teacher is considering the group program he/she will use .
The teacher has a sense of how much she/he is going to teach
to the class in the next year.
b. The teacher is also basing his/her judgment upon what can
be achieved with the level of support and services generally
available to students.
c. It is the responsibility of the advocate to assure that the
student has an IEP, with goals, reasonably calculated to help
the child make the progress the student is capable of making
with appropriate supports & services.
6. Levels of prompting and assistance

Another factoring in measuring progress is the level of
prompting or assistance the student requires to make
progress. This is particularly true with very severely disabled
children, but also relates to any student receiving supports
or assistance. Very often parents are so focused upon
obtaining supports, that they can lose sight of the need to
move the child toward independence.

School staff often resists supports on the grounds that
supports may prevent independence. This is a
misunderstanding of the role of supports and services. The
child is not independent and requires supports & services.

The key is to provide sufficient support for the student to
make progress and then work to reduce (fade) the child’s
dependence upon the supports.
7. Method of Evaluation


Every goal should have an indicated method of
evaluation. Schools like “teacher observation” and
“student work product.”

Lacks the objectivity for measuring student progress.

Puts the teacher and thus the school in control of the question
of student progress.
The preferred methods are data collection sheets,
objective teacher measures (evaluations) and
standardized evaluations. These are more accurate
and independently verifiable.
8. Requests for Data / Progress Reporting
The IEP should provide for reporting progress to the parent.
Unless stated differently the school will report on the normal
school report schedule.
Schools will report with a subjective, vague system like:
Student making (excellent, good, satisfactory, poor)
progress
The IEP should require progress reporting with a frequency
that is adequate for monitoring the child’s progress. The
report should be an objective, empirical report of the
student’s progress to each objective.
Where data sheets are being used, ask for copies or
graphic representations. This regular progress reporting
keeps the IEP moving forward . It allows one to more
quickly spot any problems or lack of progress.
Services, Placement, Supports
– Frequency, Scope and Duration
1. Building an IEP to justify appropriate placement
and related services.

The law requires that goals and objectives be
drafted and then used as a basis any decisions
about placement and related services.

It is vital that the advocate & parents do
considerable pre-IEP planning in order to draft an
IEP, which supports the placement & related
services, necessary for the student. Consider the
following areas which require special attention:
Consider the following areas:

a. Present Levels of Performance: The argument for services
must be supported by the PLOP. The advocate must obtain the
evaluative and other educational, functional data, which
demonstrates the child’s need for services. One must have
data for all domains, where services are going to be requested

Example: A student needs the support of a one-on-one aide. This
need must be documented in the present levels of performance.





Does the child require redirection? If so, how often?
Is proximity control or support required? Why? When?
Does the child require restatement of instructions?
Does the child need work to be reorganized, made more concrete,
etc.
Does written material need to given in an oral format? It is
important that these needs be documented with objective,
empirical data in the present levels of performance.
 b.
Goals and objectives: Again goals
should be written in order to provide the
basis for the services.

The amount (duration) of related services
provided will depend very much on the
expectations raised by the goals and
objectives. It is important that sufficient
goals and objectives be written so as to
require the dedication of reasonable
educational time to the child’s needs.
Practice Note: Related Services and Sufficient Time

Obtaining sufficient related services time is one of the
thorny IEP issues.

Often the therapist determines the time necessary for
the particular related service by considering his/her
service schedule.

This is, of course, improper.

To obligate appropriate levels of service, it is helpful to
have strong time and frequency of therapy
recommendations from private experts. These private
experts may also suggest a regime of goals and
objectives, which would require sufficient services.
“Inclusion”

Goals and objectives can be written in a way that
requires the provision of educational services in the
mainstream.

By including language such as “with non-disabled or
typically developing peers.”

This is often resisted by schools. They argue that it is
inappropriate to put “inclusion language” in an
objective. They are wrong. It is very appropriate to draft
objectives, which provide for a student to achieve
across educational environments. Requiring the student
to perform in class of typically developing peers is no
different.
Placement vs. Location


Do not to confuse location with placement.

The parent has a lot of say about placement, while the district has
the stronger ground in determining location.

The parent has a lot of leverage in requiring the district to educate
the child in the least restrictive environment (placement).

A school district, however, is permitted, within reason to group
students of low prevalence for administrative convenience.
Decisions about school assignment are generally considered
administrative in nature. The same is true about class, teacher and
staff assignments.
Relative to school assignments the law does provide a certain right to be
educated in a school as close to the regular neighborhood school as
possible. This right is stronger the closer the child is to a regular
educational setting and weaker where the child is segregated into
special classes.
Understanding the actual placement


It is getting difficult to know what placement
one is getting. Districts use vague “varying
exceptionalities” or other similar categories.

This concept does get schools away from
grouping student’s purely by their exceptionality.

It makes it near impossible to know with certainty
exactly what type of class the student is being
placed in. Often questions about the composition
of the class are turned aside in order to protect
the confidentiality of the other students.

The advocate must work toward an IEP, which will
require an individualized program, specifically
geared toward the child’s learning style.

Where the parent can afford it, the only sure way
to make sure that an offered placement is
appropriate for a child is to send an experienced
educational consultant into the class to observe
the class dynamic, teaching style, and
educational levels. Just knowing that their
placement will be professional examined, often
encourages schools to at least attempt to offer an
appropriate placement.
When they
say “No”
1. Prioritize your demands: You need to have a
good understanding as to where each issue falls
on a continuum from:
(a) Services, accommodations, goals and
objectives, the parent would like to have, but not
prepared to dispute.
(b) Important services, accommodations, goals
and objectives that are worth carrying forward as
hard and as far as you can, but in the final analysis
are not matters the parent would take to due
process.
(c) Essential services, accommodations, goals and
objectives supported by legal grounds and for
which the parent is prepared to litigate.
2. Know your district’s “case review”
policy Many school districts will offer a
second IEP or case review if the school
level IEP fails to achieve consensus.
3. Know that you can request mediation
of the issues, before filing due process.
3. Informed Notice of Refusal: When the school district refuses to
agree to a specific request, they must provide an “Informed
Notice of Refusal.” 20 U.S.C. § 1415 (b)(3). This is an official
response to a parent’s request.

20 U.S.C. § 1415 (b)(3)(B) the school must provide a “written prior
notice to the parents of the child whenever such agency …
refused to initiate or change; the identification, evaluation, or
educational placement of the child …” 20 U.S.C. § 1415 (c)
provides that this notice should contain the following information:
1. A description of the action proposed or refused by the agency;
2. An explanation of why the agency proposes or refuses to take
the action;
3. A description of any other options that the agency considered
and the reasons why those options were rejected;
4. A description of each evaluation procedure, test,
record, or report the agency used as a basis for the
proposed or refused action;
5. A description of any other factors that is relevant
to the agency’s proposal or refusal;
6. A statement that the parents of a child with a
disability have protection under the procedural
safeguards of this part and, if this notice is not an
initial referral for evaluation, the means by which a
copy of a description of the procedural safeguards
can be obtained; and
7. Sources for parents to contact to obtain
assistance in understanding the provisions of this part.
Practice Note: Use of Informed Notices of Refusal: Requiring
an informed notice can be a useful tool in moving a school
toward resolution of issues. Consider the following:
1. Schools do not like issuing refusals:
2. Clarifying Issues: Makes it clear to all concerned that the
issue is in contention and the parents have not accepted the
school’s arguments. This is valuable both in getting the district
to move off of a “no” position and to making the outstanding
issues clearer.
3. Make sure issues are stated correctly: Schools love to
misstate the parent’s issues, so as to make the parent seem in
the wrong. It is vital to correct such misstatements in writing.
4. Rationale for refusal: When issues go to due process, schools
hire experts to justify their actions. Insisting on a notice of
refusal helps to lock the district into its initial, usually less well
articulated rationale.
Letters of Dissent: This letter should be unemotional and should
simply state in clear terms the following:
(1) The service, accommodations, modifications, goals and
objectives, or placement requested.
(2) The rationale for the request, including any expert reports,
evaluations, etc.
(3) The reason that the school’s offered resolution is not
appropriate.
(4) The response or actions that the parent wants the district to
now take.
(a) New or independent evaluations
(b) Case review (a new IEP meeting)
(c) Issuance of a formal, written Notice of Refusal
(d) Suggest a compromise resolution
(e) Often, the school district will write a very vague
Informed Notice or will misstate the parents’ position.
Practice Note: When to contact an attorney? A judgment call. Most
attorneys want to be involved before the issues have progressed to the
point where litigation is all that there is left to do.
When it is obvious that the school is taking a position adverse to the
parents’ position and is prepared to refuse the parent, it maybe
appropriate to advise the parent to contact an attorney. This is
particularly true if the parent is seriously considering due process.
Sometimes the entrance of an attorney moves the issues onto a different
level. It infuriates parents, because it is patently unfair, but many times
districts will become much more open to seeking mutually agreeable
resolution, when the likelihood of litigation appears.
Furthermore, the preparation of a case for litigation needs to be done
by the attorney who will try the case. Experienced attorneys know what
elements must be proven & they must be able to develop those
elements. It is never as easy as it seems.
This is not to say that the attorney must “take over” the case. Many
attorneys work w/ advocates. The advocate still has an important role
to play and may be able to help in the case preparation. Some
attorneys use advocates in document management, attending
meetings, witness interviewing, and hearing management.
“Know when to hold ‘em and know when to fold ‘em.”
Compromise: It is always good to have some issues to give in
on. This is not about pride or “showing them.” Focus on the big
picture and those issues which are essential and cannot be
compromised.
A part of compromise is the ability to recognize what motivates
the district. If you understand their motivation, you might find
ways to meet their concerns and still get most of what you
want for your student.
Mediation
The Mediation process brings a new element into
the discussions between the school district and the
parents – that of a neutral facilitator and problemsolver.
This is essential a problem-solving process. It allows
the parties to sit down at the same table to discuss
their issues. Instead of the school district being at
the head of the table and dictating the process,
the mediator plays that role.




This does not mean that the mediator will act
like a judge.
He/She has no authority to make decisions or
to even determine the truth.
No presentation of evidence.
Mediator provides a safe, non-threatening
environment for discussion/negotiation Uses
conflict resolution skills in helping parties find a
resolution to their issues. Everything is
confidential. This allows the parties to be very
frank, without fear that their words would be
used against them later.
Opening/Introduction: The mediator will explain the process 7 ask
the parties to sign a confidentiality agreement.
Issues Statements: Each party make s an opening statement.
These should be planned in advance and focused upon the
essential issues. Mediation is for reaching agreement, so emotional,
personal issues are best left aside.
Clarification: The mediator will often ask clarifying questions from
the parties.
Discussion: The mediator may invite the parties to openly discuss
the issues. This will only happen if the parties are capable of facing
off in such a discussion without feeling intimidated, angry, etc.
Such open discussion generally comes later in the mediation, after
some of the thorny issues have been resolved.
Caucus: Usually the mediator will invite the parties to
private caucuses. Each party is in a different room and the
mediator talks privately with the party. Mediator might
clarify the party’s position and issues. The mediator is
looking for a way to bring the parties closer together .
He/she will be probe for willingness to compromise. The
parties may be frank with the mediator, because he/she
cannot divulge the content of the caucus discussion,
without permission.
The mediator will move back and forth between the parties
(in caucus) carrying offers, suggestions, etc. back and
forth. She/he will work hard at getting both sides to yield
some ground. The mediator will be looking for ways to
meet the needs of each party so that a mutual agreement
can be arrived at.

Agreement/Impasse: The mediation will terminate in
one of two ways, in agreement or impasse. Where
the parties are able to come to agreement, it will be
put in writing. This writing if signed will not be
confidential. It is very important that the agreement
is carefully drafted to accurately represent the
resolution between the parties. Schools work hard to
include vague, non-measurable or non-verifiable
language, so it is important to craft language which
will hold the district to specific, concrete terms. Since
mediation cannot dictate IEP terms, it is a good idea
to get the district representatives in the mediation to
agree to endorse any items which must be ratified by
the IEP team.