Special education law explicitly requires school districts to meet the unique learning needs of students with disabilities to prepare them to succeed as adults in further education, employment and independent living. This is particularly important as students reach transition planning age, beginning at age 14 in MA. Parents and advocates often face challenges when trying to ensure that school districts address students’ individual academic, social, emotional, and behavioral needs.
Parents seeking assistance from a lawyer often come too late and with too little documentation. A lawyer’s ability to help is only as good as the proof parents give us. Unavoidably, disputes about services or placements sometimes do not resolve at the TEAM meeting stage. When that happens, it is important to remember the very key difference between what you know personally, and what you are required to prove in a formal hearing at the Bureau of Special Education Appeals (BSEA). The following tips will strengthen your arguments at TEAM meetings and, if necessary, your case at administrative hearings.
Tip #1: Keep track of and organize important documents
From the time your child starts school to when s/he leaves, you will accumulate hundreds of documents. If eligible, your child is entitled to special education services from age 3 to when s/he either graduates or turns 22. That means you may have documents that span the course of two decades. They will include the following (and possibly many others):
- Individual Education Plans (IEPs);
- Evaluations (school district and independent evaluations);
- Progress Reports;
- Standardized test results (e.g. MCAS) and report cards;
- Correspondence, including e-mails (e.g. between you and your child’s teachers/administrators/TEAM chairperson);
- Notes (e.g. from meetings and telephone calls);
- Forms and informal materials (this might include information about new programs, changes in programs or services, school system policies, or budget issues);
- Samples of your child’s work; and/or
- Health and medical records.
Keep copies of everything. Keep one clean hard copy master set of documents in chronological order. You should also get in the practice of scanning and saving important documents electronically. It is best to name the document by type, author, and with a six digit date (e.g., “Neuropsychological Evaluation, Smith, 061112). You might be tempted to throw things out, but even the oldest documents in your child’s history might be needed at some point to support your claim for more appropriate special education services.
Tip #2: Put all requests, concerns, and objections in writing
A basic reality for successful special education advocacy is that if you do not write it down, it did not happen. If you have concerns about your child’s special education services or placement, promptly communicate them to the school in writing.
- Carefully review all notes and minutes from meetings, and correct any inaccuracies or the failure to include important points raised at the TEAM. Do this by delivering a letter to the school.
- Carefully check the attendance sheet from the TEAM meeting to make certain it correctly lists everyone who was there.
- It can help to prepare for a meeting by listing your objectives in order of priority in a column on the left side of a page. Next to your objectives column, have a column to record the team’s response with a “Yes”, “No”, or “Maybe”. Then use a third column to record who said what (with the name of the team member listed) and what their reasons were for their response.
- Keep notes or a record of all objections. Voice any concerns you have at the TEAM meeting, and make sure someone records those concerns. If not, write a letter after the meeting to follow up. State your understanding of what was agreed upon at the meeting and why you disagree. This will help you later if you want to challenge portions of the IEP with which you disagree.
If you reject the education plan, in whole or in part, deliver a letter to the school and explain why. Hand-deliver your letter to the appropriate school personnel and get delivery confirmation (a time-stamped copy). Merely making a phone call is not enough, because there is no reliable record of the conversation.
Tip #3: Know what you are signing
Your child’s IEP is a written agreement between you and the school district. It is important to review the terms carefully and understand what you are agreeing to before signing. Although you need to complete your part of the paperwork within a reasonable time, never feel pressured to sign an IEP without having carefully considered it.
Regularly review your child’s progress and identify areas where s/he is excelling or struggling. Don’t just accept IEPs in full from year to year without paying attention to changes (or lack thereof) in goals, objectives, and measures of demonstrated effective progress. Parents cannot rely only on a student’s lack of progress during the prior school year when trying a case at the BSEA. You must be prepared to produce evidence and expert testimony about every disputed point in every disputed IEP.
Tip #4: Don’t go it alone
Knowledgeable, credentialed, and credible experts can make or break a case. Share private evaluations or assessments with the TEAM. Consider bringing private evaluators to the TEAM meeting or have them participate via speaker phone to present their report and recommendations. If you go to a BSEA hearing, it is critical that the expert evaluator:
- Be available to testify;
- Have direct knowledge about your child and his/her disability; and
- Know the school’s program, preferably after having directly observed it and met with the staff.
Submitting a report is not enough. Experts who have personally both evaluated your child and observed a program are far more credible than those who have only interpreted another evaluator’s reports and have not observed the program themselves. You may also want to seek an educational advocate or attorney to guide and support you through this often confusing and stressful process.
Practice note: The parent also bears the burden of proof. Placing the burden on the moving party means that parents who initiate a due process hearing have to present their case in the first instance and present evidence sufficient to prove that the school district’s program is inadequate. They must convince the Hearing Officer that the school’s IEP cannot, even with modification, enable to student to make effective progress. The party who bears the burden must present enough evidence to convince the Hearing Officer that their position should prevail in a case where the evidence is closely balanced. Hearing officers and courts often give deference to school districts and proper proof helps to push past this presumption.
Tip #5: The law does not mandate a perfect IEP
Current law is very clear that an IEP need not provide maximum benefit to a student; it need only be reasonably calculated to enable a student to make meaningful effective progress within the general education program, including social/emotional development. What that means will vary from one student to another. A “Free and Appropriate Public Education” (FAPE) is intended to require special education services that provide a “basic floor of opportunity” to allow the student meaningful access to public education. These five tips should be the basic building blocks of advocating for appropriate special education services for your child.
Janine Solomon is Of Counsel in the Special Education & Disability Rights practice group at Kotin, Crabtree & Strong, LLP in Boston, Massachusetts.
An earlier version of this article appeared in the Asperger’s Association of New England Fall 2011 newsletter.