demystifying the iep process: how to successfully identify...
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Demystifying the IEP Process: How to Successfully Identify and Refer Students for Special Education Services Presented by: Sarah M. Gross, Esq.
Rivers Law, Inc., A Professional Corp.
Disclaimer: This presentation does not constitute and should not be construed as legal advice. It is intended only to provide general information regarding special education law. Each case is different and you should consult an attorney regarding any specific case.
What is special education and how is a student eligible? • Individuals with Disabilities Education Act (20 U.S.C. §1400)
• Specialized instruction and related services required for a student with a disability to access their education
• Documented in an Individualized Education Plan (IEP) • Related services – includes speech and language therapy,
occupational therapy, aide support, etc. (34 C.F.R. 300.34(a)) • In California: Applies to ages 3 – 22
• Regardless of California’s mandatory attendance law which begins at 6!
• California law exists alongside and adds to the IDEA, but never supersedes it.
• Eligibility: A Two Prong Test • 1. Must have one of the 13 categories of disability AND • 2. As a result, requires special education and related services to
access their education
Categories of Eligibility:
• 1. Autism
• 2. Deaf-blindness
• 3. Deafness
• 4. Emotional Disturbance
• 5. Hearing Impairment
• 6. Intellectual Disability
• 7. Multiple Disabilities
• 8. Orthopedic Impairment
• 9. Other Health Impairment (includes ADD/ADHD)
• 10. Specific Learning Disability
• 11. Speech or Language Impairment
• 12. Traumatic Brain Injury
• 13. Visual Impairment, Including Blindness
Definitions of each can be found at 34 C.F.R. §300.8
What is the Difference Between IDEA (IEPs) and Section 504 (504 Plans)?
• Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. §794)
• Also a federal law, but very different from IDEA’s requirements.
• Requires public schools that receive federal money to provide students with disabilities accommodations that allow them to access school programs through a 504 Plan.
• Key Difference – a student is eligible for a 504 Plan but not an IEP if they have a disability, but do NOT require specialized instruction and related services to access their education.
• If a student DOES require specialized instruction or related services to make educational progress, a 504 Plan would NOT be appropriate.
• Example: A student who has severe allergies and requires accommodations to take medication or have access to nursing services while at school, but who has no academic difficulties as a result of her disability, would qualify for a 504 Plan, but not necessarily an IEP.
What is the difference between an IEP and an SST Meeting? • Student Study Team (SST) Meetings
• A general education intervention including meeting with school staff to develop ways to assist a struggling student in general education.
• Appropriate for a student who does not qualify for special education.
• Many students who have SST meetings should be referred for special education, since many students who struggle enough to merit an SST meeting may have a disability that impedes their progress.
• If there is enough evidence to refer for special education, the SST process MAY NOT interfere with or delay a referral for special education services.
When and how does a student need to referred for special education? • The Child Find Obligation (20 U.S.C. §1412(a)(3))
• The obligation to systematically identify, locate, and assess all children with disabilities who require special education and related services.
• Includes children “who are suspected of being a child with a disability… and in need of special education, even though they are advancing from grade to grade.” 34 C.F.R. §300.111(c)(1).
• The threshold for “suspicion” is relatively low. The question is not whether the student actually qualifies for services, but whether he should be referred for evaluation. Dep’t of Educ., State of Hawaii v. Carl Rae S., 158 F. Supp. 2d 1190, 1195 (D. Haw. 2001).
For example:
• A student who routinely receives poor grades.
• A student who is constantly reported to have behavior issues to the extent they are too distracted to learn.
• A student who has greater difficulty with academics or social interaction compared with same age peers.
• The IDEA and related regulations do not require the parent to take any action to request an assessment in order for the school district to have the obligation to refer the student.
• The law treats the school district as the experts. The District has the legal obligation to identify and refer students for assessments when needed.
• Parents are not required to understand the law or understand how to refer their child for assessment for their child to have the right to be assessed.
• However, if a parent does request an assessment, the District usually has very little cause to deny the request, based on the low threshold for referrals for assessment.
The obligation to refer for assessment does not fall on the parent.
When a Parent Requests an Assessment: • If a parent wants to request an assessment, she should always do so in
writing, including the date on which the request was submitted, and keep a copy. She can submit it to the school office, or to the District special education department. • A written request provides proof that the request was made and when, and
also gives a better chance of the District keeping track of and responding to the request.
• If a parent makes a verbal request for assessment of a District staff member, California law requires District staff to advise the parent to put her request in writing and to assist the parent in writing the request if needed. 5 C.C.R. §3021(a).
• The parent should specify each assessment she is requesting and every area of need she is concerned about and be as specific as possible. • For example, generally requesting an assessment for special education will
probably lead to the District conducting only a psychoeducational assessment. If the parent also wants their child assessed for speech and language services, for instance, she would specifically request that assessment as well.
Timeline for Responding to Requests for Assessment • Once the District receives a request for assessment, it has 15
calendar days to respond to the request, either agreeing to conduct the assessment requested and providing an assessment plan for parent consent, or denying the request and providing reasons why. Cal. Ed. Code §56043(a), §56321(a).
• Once the parent signs and returns the assessment plan, the District has 60 calendar days to conduct the assessments AND convene an IEP meeting to review them. Cal Ed. Code §56043(c), §56302.1.
• The timelines do not include school breaks of more than 5 school days, which includes summer break.
What assessments do Districts need to conduct? • IDEA requires the District to conduct assessments in all areas of
suspected disability. 20 U.S.C. 1414(a). • A low threshold for the requirement to assess. The student does not
need to have a proven disability in a particular area, but only enough evidence that it is a suspected area of need.
• Again, the parent does not have the obligation to request all assessments for the District to be obligated to do them. However, the parent can request assessments to be proactive and make sure they are done.
• The assessments in all areas of suspected disability must be conducted prior to the initial placement of the student and prior to any significant change in placement. • Example: A student with speech or language delays could not be
given an IEP and placed in a classroom without first being assessed in speech and language. That assessment, in a suspected area of need, would have to be done prior to the initial IEP, to be able to develop an appropriate IEP.
Requirements for Conducting Assessments
• IDEA requires Districts to comply with certain requirements in conducting assessments to ensure thoroughness and validity.
• Use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information, including gathering information from the parent or others who know the child, and observing the child in instructional and social situations. 20 U.S.C. §1414(b)(2).
• For students with sensory or communication impairments (including vision or hearing impairment), the assessments must be modified to accommodate those deficits to capture the student’s actual ability.
Preparing for the IEP Meeting
• Can a parent request copies of the assessment reports prior to the meeting?
• Yes, and she should. There is no legal timeline regarding when the District must provide the reports prior to the meeting, but a parent is entitled to receive and review her child’s records prior to any IEP meeting. Cal Ed. Code §56504.
• Put the request in writing, and submit several days prior to the meeting, just in case.
• Can a parent record the IEP meeting?
• Yes, but she must provide notice to the District at least 24 hours prior to the meeting start time. Recording only includes audiotape, not a video of the IEP meeting.
• In California, it is illegal to record someone, either audio or video, without their knowledge, so always notify.
• If the parent records, the District will almost always record as well.
• Who can the parent bring with her to an IEP meeting?
• Anyone who knows the student and is able to participate in developing the IEP or sharing information regarding the student can be a part of the IEP team. 20 U.S.C. §1414(d)(1)(B)(vi).
• A family member, a friend, Regional Center case coordinator, outside service providers, etc.
• The parent can also bring an advocate or an attorney for any reason. • However, if the parent wants to bring an advocate, or especially an
attorney, she should notify the District prior to the meeting. If the parent has an attorney present, the District also has the right to bring counsel.
• Should the parent bring any documents with her? • If there are any documents that may be relevant to developing
the IEP or that include relevant information about the child’s needs that the District may not have, yes. The parent can ask the District to make copies to include in the student’s file.
• The parent should also always bring paper and pen to take notes! • Many times parents cannot remember details about what
happened at an IEP meeting and wish they could. A lot happens at IEP meetings and a lot of information is shared. It is essential to take notes since it is almost impossible to remember all of it, or remember correctly, after the meeting ends. Even if the meeting is recorded, it may be difficult to find an exact moment later.
What Happens During the IEP Meeting? • Introductions
• Explanation of Parent Rights
• Opportunity to share parent concerns
• Review of present levels of performance and reports of progress (if not an initial IEP)
• Review of assessments
• Develop goals in all areas of need
• Discuss placement
• Discuss related services
• Discuss any accommodations, specialized equipment, assistive technology needed
• Throughout any of these steps, the parent can ask questions, add information, or disagree with what the District says!
District Makes its Offer of FAPE
• FAPE = Free and Appropriate Public Education
• A FAPE is what IDEA requires the District to offer in an IEP. A FAPE must be designed to allow the student to make meaningful progress and must be provided at no cost to the parents. 20 U.S.C. §1400(d).
• The offer of FAPE is a summary of all the placement, services, accommodations, equipment, etc. included in the student’s IEP.
• The District is saying, their offer is what they believe the student needs to make meaningful progress in school.
What Can the Parent Do If She Disagrees with the District’s Offer?
• The parent does not have to notify the District whether she consents to the offer immediately. She has every right to take the offered IEP home and think about it.
• If she does not agree, she should not consent to the IEP! Parents should not automatically sign consent, but need to read the document offered.
• Three options for consent: • Consent to all contents of the IEP
• Consent to parts of the IEP, but not others
• Consent to none of the IEP
• Even though Districts use standard IEP forms, the parent can always write a note or attach an explanation of what she does or does not agree with, including anything that is written in the IEP notes.
The Significance of Consent
• Without parental consent, the District is not allowed to implement the IEP. • This is especially important for initial IEPs. Since there is nothing
already in place for the student, the District provide any services or placement without consent to them.
• If the parent consents to some of the IEP, but not all, the District can implement those things the parent agreed to, but not the others. • Example: If the parent agrees to the District’s offer of placement,
but does not agree to the speech and language services offered, the student can begin attending the placement, but the District cannot begin providing speech services. • This is where consent can be specific. The parent can agree to
implement a service, but inform the District that she does not agree that what is offered is enough. This documents her objection to the District’s offer, but still allows the student to begin receiving services.
What Can the Parent Do to Resolve a Disagreement with the District?
• Often, Districts will not offer to change their offer of FAPE just based on the parent’s disagreement with the IEP. The parent usually must take some action requesting changes to achieve them.
• There are multiple avenues the parent can take to request changes to the IEP:
• Write to the District regarding requested changes
• Request Independent Educational Evaluations (IEEs)
• File a complaint with the California Department of Education (CDE)
• Request an Alternative Dispute Resolution (ADR) Process
• File a Due Process Complaint
Write to the District
• Success with this strategy depends greatly on the District and its administration.
• It is best to write directly to the administration in the District’s Special Education Department, including to the Director of Special Education.
• The District may be motivated to address issues early to avoid further conflict or expense.
• IDEA requires the District to provide prior written notice in response to parent requests within a “reasonable time.” The District must either grant the request or explain why it is denying it. 34 C.F.R. §300.503(a)-(b).
Request IEEs • IEEs = Independent Educational Evaluations
• An IEE may be requested when the District has not complied with its obligation to conduct an assessment appropriately. The District may be obligated to pay for an independent assessor (someone who does not work for the school district) to conduct another assessment for the IEP team to review and consider. • Because the District has not complied with the law, the parent
now has the opportunity to get an independent opinion.
• Example: if the District failed to conduct an appropriate occupational therapy assessment, the parent can request an IEE in occupational therapy, to be conducted by an independent occupational therapist.
• Important Note – if the parent requests the District to fund an IEE, the District can either grant the request OR defend its assessment through a due process complaint against the student.
File a CDE Complaint • Complaints can be submitted to the California Department of
Education Special Education Division.
• CDE will investigate the complaint made by contacting the parent and the District to gather additional information.
• If CDE finds that the District has violated the law, it can order the District to take corrective action.
• Other than the information included in the parent’s complaint and information provided during the investigation, there is not much opportunity to present evidence and make arguments. Therefore, CDE complaints tend to be more effective in obvious situations such as failure to provide a service or conduct an assessment.
• CDE usually does not want to make decisions regarding more complex issues, such as what services a student needs.
Alternative Dispute Resolution
• Some districts offer alternative dispute resolution (ADR) procedures when disputes arise regarding special education.
• These allow parents to bring disputes to the District to discuss resolution without filing any complaints with outside agencies.
• Often, however, a department within the District oversees ADR, so the process may not be entirely objective.
• Often, Districts will not agree to ADR if the parent is represented by an attorney in the matter. ADR is usually only between the parent and District.
File a Due Process Complaint
• Can be either a formal legal complaint or an informal complaint as long as it includes enough information to notify the District of the issues the parent wants resolved and the facts leading up to them. 20 U.S.C. §1415.
• Due process complaints are filed with the Office of Administrative Hearings (OAH), a state agency that provides judges to hear cases involving questions of special education law.
• The parent also has to serve a copy of the complaint to the District.
• Once the complaint is filed, OAH issues a scheduling order that gives a date for a mediation and a date for the hearing.
• Within 15 days of receiving the complaint, the school district is obligated to invite the parent to an early resolution session to discuss possible resolution of the issues in the complaint. 20 U.S.C. §1415(f)(1)(B).
• Next, OAH will hold a mediation to again discuss resolution of the issues. Mediation is more formal, and OAH provides a judge who is familiar with special education law to mediate between the parties to help achieve a resolution.
• Once a case has been filed and a hearing is pending, Districts are usually motivated to settle cases, especially if the student has a strong case.
• As opposed to other methods of dispute resolution, filing a case and putting dates on the calendar is usually the best way to motivate the District to agree to the parent’s requests without further delay.
• According to OAH, approximately 96% of special education cases filed with OAH are resolved without the need for a hearing.
• If a case is unable to be resolved, the case will proceed to a due process hearing, unless the complaint is withdrawn.
• Even though they are not held in courtrooms, the due process hearing is very much like a trial, but without a jury. Evidence is introduced, witnesses are called, and the judge ultimately makes a decision regarding the issues.
• About 45 days after the hearing ends, the judge issues a decision saying who prevailed on which issues, and what she orders the District to do, if anything.
Does a Parent Need a Lawyer to File a Due Process Complaint? • The parent is allowed to file a complaint on behalf of her child
without a lawyer. But, being represented by a lawyer who specializes in special education law may be a very good idea.
• Like any other area of law, special education law is complex and can be difficult to navigate. Special education law is no different in terms of the expertise needed to analyze the issues in a case.
• Keep in mind – when a due process complaint is filed and a hearing is pending, the vast majority of Districts will be represented by an attorney. This makes many parents uneasy and puts them at a disadvantage if they are not also represented.
• As the hearing approaches, there are many deadlines and requirements to keep track of. If the case proceeds to hearing, the parent would need to question witnesses, introduce evidence, and complete other tasks that lawyers are trained to do.
What is the Difference Between an Attorney and an Advocate?
• Many parents know of educational advocates who are available to assist parents with educational matters, but are not clear on the difference between special education advocates and special education attorneys. In fact, many parents do not know that there are attorneys who specialize in this area of law!
• It is important to keep in mind the difference between advocates and attorneys to provide appropriate referrals to meet the parent’s needs. There are tasks that advocates may be unable to do for parents, and reasons why a parent might be better suited to an advocate for a particular need.
Advocates: • No particular training or credentials required. Advocates
usually have personal experience with the IEP process. • Advocates may be more available to assist with more routine,
non-litigation needs, including attending IEPs or assisting with correspondence with the District.
• In California, advocates may represent the student in due process proceedings, but there is simultaneously a competing prohibition on practicing law without a license. Certain training and expertise is usually needed to successfully represent a client in a trial-like proceeding.
• IDEA allows only licensed attorneys to be reimbursed their fees by the District when settling a case or prevailing at hearing. 20 U.S.C. §1415(i)(3)(B). Therefore, advocates usually must charge parents an hourly rate for their work, where attorneys may be able to provide the same services for no charge to the parent.
Attorneys: • Must have graduated law school, passed the bar exam, and
continue to be licensed. Have training in interpreting law, negotiating, rules of evidence, etc.
• Attorneys may focus more on filing and resolving due process complaints and be less available for assisting with more routine needs, such as attending IEP meetings. However, it depends on the attorney, as some are available to attend IEPs.
• Because the IDEA allows the parent’s attorneys fees to be paid by the District when the student prevails or the case settles, attorneys may be able to charge the parent nothing to handle the case, or reimburse the parent any fees paid.
• System of accountability to the State Bar for ethical rules.
• Consider this: if a school district is represented, no school district is represented by an advocate, always an attorney.
• Always be sure to check the background and expertise of either an advocate or attorney prior to retaining them.
• Contrary to what many people think, retaining an attorney for special education issues may be far less expensive or cost the parent nothing, because the IDEA allows reimbursement of attorneys fees. Additionally, the prospect of having to pay attorneys fees can help to motivate a District to resolve issues.
• If the parent is dealing with complex or severe issues or has been attempting to resolve issues with no results for some time, a referral to an attorney is likely more appropriate. Unfortunately, Districts may not be as responsive to a parent represented by an advocate because Districts are aware of advocates’ limitations. Often, once a parent is represented by an attorney and files a case, Districts are willing to resolve issues on which they were never before willing to budge.
• If a parent has general questions or wants support in attending IEPs or corresponding with the District, but does not necessarily have a case to file, an advocate can be a good fit. If any legal issues arise, advocates can then refer a parent to an attorney.
Key Takeaways: • The threshold for referring for initial assessments is low and
does not require proof of that the child actually qualifies for services.
• The obligation to identify and refer for assessment (Child Find) is on the District, not the parent, although the parent can always make a request.
• The parent’s request should be in writing, be specific regarding the assessments requested, and include the date on which the request is submitted.
• Assessments in ALL areas of suspected need are required prior to the initial IEP meeting in order to develop an appropriate IEP.
• The parent is not required to consent to the IEP, and can disagree in part or in whole, although consent is needed to implement any part of the IEP.
Key Takeaways:
• Every District’s actions MUST comply with the law, without exception!
• When the District makes a statement that does not seem right or doesn’t make sense, you must verify what the law says. Do not rely on, trust, or accept what a District says if it seems wrong or contrary to the law.
• The law applies equally to all students and all Districts regardless of staffing, funding, or a school district’s desires or opinions. When Districts violate the law, students have the right to file for due process to remedy the violation.
Key Takeaways: • The parent has many options to resolve disputes with the District.
Usually, disputes will not be resolved unless the parent takes some action.
• Often parents need advice, counseling, and encouragement to take those steps by those who they trust and who are familiar with the process.
• Clinicians and others who work with parents of children with disabilities are crucial to identifying when a student should be referred for assessment, and assisting parents in taking steps to request assessments and following through with the IEP process.
• When disputes arise, and it is clear that parents need assistance in advocating for their children, it is crucial that they receive appropriate referrals. With assistance from lawyers and others knowledgeable about special education law, issues that might otherwise last for years, ultimately resulting in great detriment to the child and family, can be resolved.
Questions?
• Contact information:
• Sarah M. Gross
Special Education Attorney, Rivers Law, Inc.
Office: (818) 330-7012
Cell: (323) 972-8430