Advocate's Corner

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Tips On Advocating For Your Child

We're getting ready for our first IFSP meeting. What can we expect regarding getting the services we need?

They won't OFFER anything.  It still amazes me that professionals who know what kinds of things would benefit your child won't open their mouths unless you ask for services.

-Angie

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How can I be sure the things I think are important are covered at my child's IEP meeting?

Write an agenda, hand it to all the team members and do not leave, before all the points on the agenda are discussed. Keep it short and precise, what the needs of the child are.

- A Parent Advocate

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I  feel that the minutes of our IEP meetings often miss a lot of what we talk about. How can I better document the meetings?

They have their own documentation, so why shouldn't you??  You could try tape recording the meeting (you have to give them advance notice that you intend to do this.) I  know from firsthand experience (as a parent of a disable child that has had to fight for rights) that sometimes a tape recorder is not enough.  Try taking a legal pad, writing down the major "points" to the meeting, and then pass the pad around and have them sign it!  Calling it "taking minutes" is a great way to handle this delicate area.  They shouldn't get too bent out of shape. Make sure you list ALL members present at the beginning of your paper. Ask them to repeat spelling if necessary. Ask for clarification of important points - "Just to make sure I understand you, you stated..............., is this correct?" At the end of the meeting, re-read it back to them and then request they sign it for your documentation. The state (should you need to go further) will not accept it as an official document without the signatures. If they don't cooperate, make sure you tell them that you will make note of this on the pad.   

- A Parent Advocate

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How much weight does an OSEP policy statement have?

In the past, an OSEP policy statement was almost as good as case law.  In some respect, it was better, because case law is only binding within the federal circuit in which it was generated; it merely advisory in the others.  However, technically, an OSEP policy statement is NOT law, thought it has been viewed as such.  Not only does it have the advantage of being applicable nation-wide, but school administrators routinely abide by such policy statements, and keep abreast of them, as opposed to case law, which is a virtual mystery to them (just like the rest of us <grin>.)  I have seen school administrators carry around a binder filled with OSEP policy rulings.   I have never seen anyone carry around case law.

HOWEVER, IDEA97 attempts to put the kibosh on the weight placed on OSEP policy statements.   That is why the USDOE Policy Guidance on the Placement of Children Who are Deaf is specifically mentioned in IDEA97- and thus virtually takes the force of statute.  It remains to be seen how the courts will view policy
statements/guidance, in light of IDEA 97.  In terms of school districts, I don't see that anything will change.  Hand them a policy statement from OSEP, and an
immediate attitude adjustment occurs.  They righfully feel that OSEP does the monitoring and holds the purse strings. 

-Celeste Johnson

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I believe my child would benefit from the use of assistive listening technology but the School District doesn't agree. What now?

If the School District's response is they don't use FM systems, you need to know that OSEP (Office of Special Education Programs) has issued a policy guidance letter Presumptively Denying Assistive Technology where they say:

In brief, it is impermissible under EHA-B for public agencies (including school districts) "to presumptively deny assistive technology" to a child with handicaps before a determination is made as to whether such technology is an element of a free appropriate public education (FAPE) for that child. Thus, consideration of a child's need for assistive technology must occur on a case-by-case basis in connection with the development of a child's individualized education program (IEP).

The IDEA tells us (emphasis added):

Consideration of Special Factors. The IEP Team shall --
          (i) in the case of a child whose behavior impedes his or her learning or that of others, consider, when appropriate, strategies, including positive behavioral interventions, strategies, and supports to address that behavior;
          (ii) in the case of a child with limited English proficiency, consider the language needs of the child as such needs relate to the child's IEP;
          (iii) in the case of a child who is blind or visually impaired, provide for instruction in Braille and the use of Braille unless the IEP Team determines, after an evaluation of the child's reading and writing skills, needs, and appropriate reading and writing media (including an evaluation of the child's future needs for instruction in Braille or the use of Braille), that instruction in Braille or the use of Braille is not appropriate for the child;
          (iv) consider the communication needs of the child, and in the case of a child who is deaf or hard of hearing, consider the child's language and communication needs, opportunities for direct communications with peers and professional personnel in the child's language and communication mode, academic level, and full range of needs, including opportunities for direct instruction in the child's language and communication mode; and
          (v) consider whether the child requires assistive technology devices and services.

 Your child's evaluation should include an evaluation to see if they would benefit from assistive technology.

If the School District's response is they feel your child does not require assistive technology ask your child's audiologist to test speech reception threshold (SRT) levels in the absence and presence of background noise. In my son's case, his SRT level dropped from 90% in the absence of background noise to 40% in the presence of background noise clearly showing that he required an FM system if he was to benefit from his educational placement. You may also need to prove that there is significant background noise in the classroom. To do this find a sound meter and test the background noise level in the classroom. Be sure to place the sound meter where your child would be sitting.

- Kay

Classroom Amplification: Not Just for the Hearing Impaired Anymore

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How do I go about requesting an Independent Educational Evaluation?

Federal regulations pursuant to IDEA (34 CFR Sec. 300 et seq.) describe only very general minimum rules re: IEEs (Independent Educational Evaluation). Each state must have its own special education rules which further expand on the IDEA regulations. However, in order to make a legitimate request for an IEE, IDEA regs require that

1) the request be made in writing

2) the parent(s) state that they disagree with the school's evaluation (you do not have to explain why)

3) that the letter be signed and dated.

The school district has 7 days from receipt of the written request to respond, in Michigan. Check your state rules for special ed for the time guidelines in your state.

The response may only be one of two: The request will be granted OR the district finds its own evaluation to be appropriate and therefore will implement an administrative due process hearing (pursuant to IDEA) to dispute the parent's disagreement. Generally, however, if the school knows you know what you are doing, they will grant the request - It's cheaper than a hearing. If the district does not respond within the time line, or its response is not one of the two above described, you may file a formal complaint pursuant to your state's special education rules. Contact your state dept. of ed if you do not have them.

As an advocate, I deal with this issue frequently (I also work for an attorney who specializes in disability civil rights.) The operating school district is responsible for implementing the IEE. They pay for it, but may bill back the district of residence. States may have established regulations regarding payment limits, geographic limits, etc., allowable for an IEE. However, remember that state rules are subordinate to federal rules, (most of the time) so the district MAY agree to something outside the state rule's limits. The parents and the district must agree on the evaluators.

Once evaluators are agreed upon, the district may have the evaluators come to the school, transport the child to the evaluators, or ask the parents to do it. If the parents accept, the district must reimburse the parents for mileage (at the current federal mileage allowance) and any expenses they may incur (e.g. meals, lodging, if overnight.)

Advocacy agencies (like Protection & Advocacy) and independent advocates should be knowledgeable about the IEE process and where evaluations may be obtained. IEEs do not necessarily have to be done by employees of other school districts, but they they may be. For example, I am currently working on a case in which the parents have requested an IEE, after having requested due process when the school refused to grant their request to place their child at the school for the deaf. I am arranging the IEE with the district's attorney (I am working for the child's attorney) and we have agreed that a university clinic will do the audiological, speech and language component. We are still negotiating about a social worker and psychologist. I am pushing for clinicians in private practice and the school's attorney is pushing for clinicians employed by a school district in another part of the state. We will work it out.

Before agreeing to any clinician, I always require a copy of their vita. I also call around to other professionals in the field whom I trust, and get their feedback. Sometimes it is impossible to get a clinician who signs. Then we have to agree on who will interpret. We require the vitae of any candidates before we decide. Members of your state or local chapter of NAD, ASDC, AGBELL, etc., may be able to give you input on good clinicians.

If the parents obtain an evaluation at their own expense, it is very difficult for them to obtain re-payment from the district. (I did it, went out of state for it, but it was part of a larger issue for which we were going to due process hearing. As part of the settlement agreement, the district paid half.) If you go this route, you will definitely need a lawyer. Regardless of being paid for by the parents, federal regs require that the school take into consideration the evaluation when making any program, service or placement recommendations.

It isn't always that complicated. If this is not part of a due process hearing request, most of the time the schools will agree to the IEE without a fuss, and the parents and school will be able to agree on the evaluators without a problem.

© Celeste Johnson.  The presence of this tip on this web page is with permission and does not place it in the public domain.  Celeste Johnson retains all rights to this tip.  Feel free to use the information but please do not redistribute it or include it in any published material without first obtaining her permission.

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Why should I follow up each school meeting or phone conversation with a letter?

When push comes to shove, it doesn't matter what was "said". If it wasn't written down, it wasn't said.

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How do we know, as parents, that our kids are really getting the number of hours specified in the IEP?

If you believe that your child is not getting speech or terp or OT or whatever services as scheduled, first you ask the school to provide you with the schedule (as per the IEP.)  If your child cannot confirm that s/he got the service when s/he was supposed to, you can do several things.  Re: terps, you can request a copy of their time sheets under FERPA and/or your state Freedom of Information Act. With the therapists, they are required to keep progress notes on every single session.  You can request to see them or have copies of them, also pursuant to FERPA and/or FOIA.

 

This is pretty drastic stuff, so make sure you can't get the accurate info by asking your child or the service provider first, before you take this measure.  But if you have to, well, we all have to do what we have to do.

-Celeste Johnson

How do I request information from a federal agency?

To request a document from a federal agency, insert the following at the end of your request:

• "This request for information is made pursuant to the United States Freedom of Information Act, 5 U.S.C., §552, which requires you to respond in writing within ten (10) business days. If there is any cost involved for photocopying and/or postage, please indicate the total and I will remit the fee. Thank you very much for your attention to this matter."

-Celeste Johnson

Where do I file my next level complaint re OCR failure to find appropriately at the local level?  How many days do I have...60 days will be up if I get it in the mail tomorrow.  Do I have 30, 60 or 90 days?

Lordy, looks like it done happened again!!

In your letter of findings, there is *supposed* to be information about filing an appeal.   Fire up the word processing program and  ASAP send a certified letter to the person who sent you the letter of findings, and document that there is no information relative to the appeal process.  State that you wish to appeal, but have not been given the information on how to do so, or to whom it should be addressed.  Please send same forthwith.  Send copies with a cover letter demonstrating a controlled, but irate tone, to all your congresspersons, the highest high honcho in the Washington, DC office of the DOEOCR, Judy Heumann and Secy. Riley.

In the same envelope with the letter about your right to appeal, (save on the high cost of certified postage) send a FOIA (Freedom of Information Act) request for your entire file, indicating that you intend to appeal, but that the clock should not start until you receive all the documents requested.  Don't send copies of the FOIA request to the other folks.

Frankly, I don't know the timelines.  They were changed last year.  The person to whom you address your appeal varies by region.

Maybe persons who file OCR complaints should have a letter already composed to send to all the appropriate parties on the day the letter of findings arrives, about the failure to notify one of one's right to appeal, and how to do so.  The crap never ends.

-Celeste Johnson

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None of the panel of advocates for this page are lawyers. The information on this page is to be used to provide some thoughts and information. This information is not to be used as legal advice. For legal advice, I suggest you contact a lawyer who specializes in Special Education law.

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We invite your questions. Your questions will be submitted to a panel of advocates for comment.Not all questions will be answered, and we reserve the right to edit any questions that are approved for publication on our site. Names are only used on this site if you specify you wish them to be included.
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