Wednesday, September 17, 2014

What Special Ed Directors Should Remind Their Teams

Key points:
· Acknowledge lack of parent trust, work to reestablish it
· Address student behaviors that impede learning
· Make individualized decisions based on evaluation data

Review these 5 fundamentals with IEP teams at start of new school year

By Jim Walsh, Esq.*

It's that time of year again where high school marching bands and football teams are getting ready to return to the field.

Band directors and football coaches likely are emphasizing the fundamentals during early school year practices. Band members need to watch the band director, read the music, march in time, and hit the right note. Football players need to block, tackle, hold on to the ball, and know the plays.

Just as bands and football teams gear up for a successful season, your IEP teams should gear up for a successful school year.

Now is a good time to remind your teams of the fundamentals. Work hard to foster meaningful parent participation, don't make promises you can't keep, address students' problematic behaviors, and make individualized decisions for students.

Review the following with your IEP teams:

1. Acknowledge lack of parent trust. It is important to identify when parents have lost trust and try to reestablish that trust. The entire special education system depends upon collaboration and cooperation. Trust is essential. As a school official, you are sure to encounter situations in which parents have lost trust in the school. Sometimes districts deserve this lack of trust; sometimes they don't. But regardless of why parents lost trust, school officials need to acknowledge the situation and do what they can to restore a healthy relationship.

2. Don't say "no" without providing a clearly articulated reason. The IDEA does not intend for the school to grant every parental request, but it does require the school to explain itself if and when it denies such a request. Review with your IEP teams the IDEA's procedural requirement to provide prior written notice. Prior written notice is required when a district acts to initiate or change the identification, evaluation, or educational placement of a child or the provision of FAPE to the child. Among other things, the prior written notice must include a description of the action proposed or refused by the district and an explanation of why the district proposes or refuses to take the action.

3. Address students' problematic behaviors. The law requires the IEP team to ask itself each year: "Does this student have behaviors that impede the learning of the student or of others?" And that's not just for students who are identified with behavioral disorders, such as emotional disturbance or autism. Rather, IEP teams must ask this question in every meeting, for every student.

For example, in Pennsbury School District v. C.E. by R.E. and J.E., 59 IDELR 13 (Pa. Commw. Ct. 2012), a grade schooler with a speech-language impairment and an SLD exhibited severe inattention and distractibility. The student's district conducted a reevaluation at the end of his second-grade year and found that these problems seriously impeded his ability to learn. But the student's third-grade IEP did not reflect these findings. The court held that the district's failure to conduct a functional behavioral assessment and develop a behavioral intervention plan resulted in a denial FAPE.

4. Don't make promises you don't keep. A failure to keep a promise brings you right back to mistake No. 1: A loss of trust. Thus, when an IEP team commits to something, it is important to identify a specific individual who will see to it that the promise is kept. Sometimes promises aren't kept because no one took ownership of them and everyone assumes that somebody else is following through.

5. Make decisions based on evaluation data. "We don't have that program." "We don't do that here." "Our budget will not cover that." "We don't have the staff to provide that service." All of these statements reflect legitimate administrative concerns and could constitute an appropriate response to any parent other than the parent of the student with a disability. In an IEP team meeting, remember that every decision must be based on the educational needs of the particular child you are serving, as reflected by the evaluation data.

For example, in S.C. by E.T. and R.C. v. Department of Education, State of Hawaii, 113 LRP 21091 (D. Hawaii 05/16/13), the District Court denied the parents' request for reimbursement for private placement and services. The court observed that the IEPs were based on evaluation data supplied by numerous specialists, including an occupational therapist, a psychologist, and a physical therapist, as well as information from the child's classroom teacher.

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