Special Education » Due Process

5 IDEA Requirements for Independent Evaluations at Public Expense

admin — Sat, 16 Jan 2010 18:20:09 +0000

Are you the parent of a child with autism or a learning disability that needs an Independent Educational Evaluation (IEE), to determine their educational needs or services? Have you heard that parents can ask special education personnel in their school district to pay for an IEE at public expense? This article will discuss the 5 IDEA (the Individuals with Disabilities Education Act) requirements for an IEE at public expense.

1. IDEA 300.502 under (b) (1) states that parents “Have the right under this part to obtain an independent educational evaluation at public expense if the parent disagrees with the evaluation obtained by the public agency.”

2. Special education personnel may ask why you disagree with their evaluation, but they cannot require you to give an explanation of what you disagree with. In fact I recommend not telling them what you disagree with, because they may try and limit the IEE.

3. IDEA 300.502 (b) (2) states “that if a parent requests an independent educational evaluation at public expense, the public agency must without unnecessary delay either; 1. File for a due process hearing to show that its evaluation is appropriate, or 2. Ensure that an independent educational evaluation is provided at public expense. . .”

4. IDEA 300.502 (5) (e) states “If an IEE is at public expense, the criteria under which the evaluation is obtained, including the location of the evaluation and the qualifications of the examiner, must be the same as the criteria that the public agency uses when it initiates an evaluation, to the extent those criteria are consistent with the parent’s right to an IEE.” Many school districts try and put a lot of criteria on parents for IEE’s at public expense. For Example: geographic, cost, name of evaluator must be on a list etc.

5. Except for the criteria in 4 above, school districts may not impose other conditions or timelines on the IEE at public expense.

The Office of Special Education Programs (OSEP) has stated, that school districts may develop criteria for IEE’s at public expense; with these two exceptions.

a. The school district cannot make criteria, that prevent the parent from getting an IEE at public expense. For Example: If you live in a small town, with no available evaluators, and your district states that the evaluation must be done within 30 miles; it would be impossible for you to find an evaluator. Or the special education personnel make the cost so low that you cannot find anyone to evaluate your child. This may prevent you from getting the IEE at public expense, so stand up to special education personnel.

b. School districts must allow parents, to prove that their child’s circumstances are unique, and require a waiver of the criteria. For Example: If you feel that your child needs to be seen by a Clinical Psychologist, the cost is probably going to be more than a psychologist would charge. If you can prove unique circumstances, why your child needs to be evaluated by a Clinical Psychologist, then the school district is supposed to pay for the Clinical Psychologist. Whether a school district is willing to do that, without a due process hearing, depends on your school district.

Remember any criteria that a school district makes for an IEE at public expense must not prevent the parent from getting the IEE; and they must allow for waiver of criteria if the child’s circumstances require it. A good independent evaluation can benefit your child by determining their disabilities or educational and related service needs.

By: JoAnn Collins

3 Ways to Use Tape Recordings to Help Your Child in Special Education

admin — Tue, 29 Dec 2009 14:39:43 +0000

Are you the parent of a child with autism? Are you the parent of a
child receiving special education services? Would you like to learn
parenting tips that will help you become an equal participant in your
child’s Individual Education Plan (IEP) meeting? This article will
discuss 3 ways that tape recording can help you in advocating for an
appropriate education for your child with a disability

3 ways to use tape recording:

1. Tape recording can allow you to focus on what is happening during
the meeting, rather than focusing on taking notes. Listen to
everything that is going on, and do write down important things. Speak
up and give your opinion as often as you need to, for the benefit of
your child.

2. If an IEP meeting is tape recorded, you will be able to go over it
at a later time, and fill in your notes. It will also allow you to
remember things that may have happened that you missed. IEP meetings
can be adversarial. A tape recording allows you to listen to the
interactions in the privacy of your own home.

3. Tape recordings of IEP meetings can be used as evidence at a due
process hearing. In order to use a tape recording, as evidence, it
will have to be transcribed. Tape recorders should be digital, and
powerful enough to pick up several different people’s voices.

A lot of special education personnel become very resistant when
parents want to tape record IEP meetings. Below is an interpretation
of tape recording under IDEA, by the Office of Special Education
Programs (OSEP).

OSEP published its question #12 opinion in the Federal Register Volume
57, No. 183, Sept. 29, 1992 interpreting tape recording IEP meetings
and stated “that it is permissible to tape IEP meetings at the option
of either the parents or the agency.”

There have also been several law suits that have given parents the
right to tape record IEP meetings. One of these court cases in
Connecticut V.W. v. Favolise had the court reason that parents have a
statutory right, to attend and participate in IEP meetings, and the
district could not legally engage in an act to limit the parents
rights.

If special education personnel refuse to allow you to tape record,
because they say that they have a district policy, ask for a written
copy of the policy. OSEP in a memorandum 91-24 July 18, 1991 stated
“Thus any policy limiting or prohibiting a parent’s right to tape
record the proceedings at an IEP meeting must provide for exceptions
if they are necessary to ensure that the parent is able to understand
the proceedings at the IEP meeting. . .” Ask your school district for
an exception, so that you can understand the IEP meeting.

With the written policy in hand, cancel the IEP meeting, and send a
state complaint to your state department of education. Tell them that
you asked school personnel for an exception and they refused. The
state will have 60 days to resolve your complaint.

Tape recording can help you be an active participant in your child’s
IEP meeting. Your child is depending on your help, do not let them
down.

By: JoAnn Collins

4 Benefits Your Child In Special Education Can Receive From FERPA

admin — Mon, 30 Nov 2009 04:47:11 +0000

Do you wonder if your child’s right to privacy in their educational records, has been violated? Would you like to learn how FERPA can help your child? This article will discuss the Family Educational Rights and Privacy Act (FERPA), which applies to all educational institutions to which receives funds from the Department of Education. Also discussed are 4 benefits that your child can get from FERPA.

Benefit 1: Use FERPA to review your child’s school record to see if it is accurate, and if it contains items that you have not seen. It is amazing, what you can find in your child’s school record. Also look for items that may support your case.

For Example: If your child has behavior difficulties, that special education personnel want to suspend them for, look for evidence that the behavior has been happening for a while. School personnel are supposed to work to prevent the behavior, rather than continuously punishing the child for it.

Ask for a copy of any item that you have not seen, or supports your case. Special education personnel may charge a reasonable copying fee, though you should ask for the school policy on parents receiving free records.

Benefit 2: Use FERPA to have removed anything in your child’s school record that is inaccurate, misleading or violates your child’s right to privacy. Once again, it is amazing what you will find in your child’s school record. If something is written about your child or family that you disagree with, ask that it be taken out. If the school district refuses, they can file for a due process hearing, to prove to the hearing officer that the school’s records are accurate.

Benefit 3: Use FERPA to ask for items that you may not think about, as part of your child’s school record. You have the right to review everything that has your child’s name on it; permanent record, temporary record, e mails, internal memos, testing materials and protocols, audio recordings, video recordings, etc. If your child has difficulty on the bus, ask and see if your child’s bus contains a camera. If it does, ask for copies of any day that you are concerned about.

Benefit 4: If you feel that your child’s confidentiality has been breeched by special education personnel, file for a FERPA complaint. This complaint can be filed with the Family Policy Compliance Office (FPCO) at: U.S. Department of Education, 400 Maryland Ave SW, Washington DC 20202.

Your child has the right to confidentiality in their educational records. You have the right as their parent to access their school records. Good luck in your fight for an appropriate education for your child with a disability, the fight is worth it!

By: JoAnn Collins

Qualities to Avoid in Choosing a Special Education Advocate

admin — Mon, 30 Nov 2009 02:51:31 +0000

Are you the parent of a child with autism or other disability that is considering finding an advocate to help you with your child’s education? Would you like a short list of qualities to avoid when choosing a special education advocate?

This article will help you avoid certain negative qualities in a prospective advocate, so that you can help your child receive a free appropriate public education.

Quality 1: Stay away from an advocate who has not received formal training in federal and state laws, and case law. Good advocates will have a working knowledge of the Individuals with Disabilities Education Act (federal law), and your state laws governing special education. Effective advocates do not have to memorize the law, but should know where to find any information that they need. Advocates must also know what due process hearings and court cases have already occurred, so that they can use the information to benefit your child.

Quality 2: Stay away from an advocate, who has little to no experience helping parents navigate the special education system. Unfortunately there are people who call themselves advocates, who do not have the experience that they need, to be effective. You do not want the advocate learning at the expense of your child’s education. Try finding an advocate at a disability organization like a Parent Information and Training Center (PTIC).

Quality 3: Stay away from an advocate, who guarantees you a certain outcome. While most advocates work hard and do their best, there are no guarantees in special education. You would rather work with an advocate, that has a realistic view of what can be accomplished for your child.

Quality 4: Stay away from an angry advocate, who seems to have there own agenda. I have heard of advocates that target certain school districts, due to their own anger. Every person including parents in special education, become angry at some point. But the important thing is that the advocate can continue to be professional, even if the school personnel are not.

Quality 5: Stay away from an advocate, that is not willing to challenge special education personnel, when the need arrives. Advocates must be willing to stand up to school personnel, for the good of the child, in an assertively persistent manner. This is the reason why it is so important to understand Federal and State special education law; you have the information you need to effectively stand up for the child.

Quality 6: Stay away from an advocate that does not promise you complete confidentiality! Advocates must not share any information that they learn about parents and their children; and unfortunately this does happen on occasion. You want your advocate to keep things you tell them confidential, as well as any strategies that they will be using.

Quality 7: Stay away from an advocate, that appears to be a know it all! No advocate including myself knows everything. You need an advocate, who is willing to find out the information that will help your child, if they do not know.

Advocacy is an art and involves trying different strategies to help the child receive a free appropriate public education (FAPE). By knowing what characteristics to avoid in an advocate, will help you make an informed decision about any advocate that works with you to help your child. Good luck!

By: JoAnn Collins

9 Tips That Will Increase Your Chance Of Winning A Special Education Due Process Hearing

admin — Fri, 27 Nov 2009 05:12:36 +0000

Would you like to learn some due process tips? Would you like to increase your chances of winning, to benefit your child with autism? This article will give you 8 tips that will help increase your chance of prevailing at a due process hearing, for your child.

1. Use a form to make it easier to file for a due process hearing. Every state board of education is required to have a due process form available for parents to use. The form is not mandatory, but can make filing easier.

The Individuals with Disabilities Education Act (IDEA) of 2004 added a section where due process filings must be sufficient. What this means is that the due process request, must contain certain information. If the due process request does not contain this information, then the request can be denied by the hearing officer. To prevent this, you may want to use a form. Make the issues simple, and don’t forget to add specific resolutions (what you are asking the hearing officer to give your child).

2. If you have not filed for due process before, have another parent, advocate, or special education attorney, look at your due process request. Issues cannot be changed once the request is filed, unless special education personnel agree, or the hearing officer allows it.

3. Once you file for a due process hearing ask for a complete copy of your child’s school record. Most states have regulations that allow this. Ask for temporary, permanent, E mails, internal memos, audio and video recordings.

4. Due process hearings can be opened to the public or closed to the public.Some hearing officers will not allow sequestration of witnesses at an open hearing.

5. Insist on sequestration of witnesses for the due process hearing. This way special education witnesses cannot hear each other testify. It makes it easier to catch the lies and deceptions, during a due process hearing.

6. Ask the hearing officer to allow you to present your case first. This prevents special education personnel from bringing up irrelevant issues to muddy the waters. Some hearing officers will not allow a parent to go first, if the school district has the burden of proof; but try anyway.

7. Write your opening and closing, on the computer during your preparation time. This will allow you to change it as you see fit. Don’t forget to make references to IDEA and No Child Left Behind (NCLB) when appropriate. If the hearing goes over two days, do not print out your closing until the end of the first day. That way you can change the closing on the computer.

8. If you are conducting your child’s due process yourself, ask a friend or another parent to attend the hearing and take copious notes. The other person can watch body language, and can give you tips on things that you miss.

9. During the schools testimony you can make objections, to throw the school personnel off of track. The objections that I have heard are : irrelevancy, question already asked, objections to witnesses and documentation that hurts your case.

By using these 9 easy tips, you will well be on your way to prevailing at a due process hearing.

By: JoAnn Collins

Burden Of Proof In Special Education Due Process

admin — Sat, 21 Nov 2009 12:39:04 +0000

Are you the parent of a child with autism that has struggled to get them an appropriate education? Have you considered filing for due process for your child with a learning disability? Have you wondered who has the burden of proof, in a due process hearing? In 2005 The US Supreme Court heard a case on burden of proof in due process; the case was 546 US Schaffer v. Weast. This article will discuss burden of proof after the Supreme Court case Schaffer vs. Weast.

The question before the court on this case was At an administrative hearing (due process) assessing the appropriateness of a IEP, which party bears the burden of persuasion? The justices ruled that the burden of proof in a due process hearing challenging an IEP, is placed upon the party seeking relief, in other words the party that filed.

The reason this case made it all the way to the Supreme Court is because Maryland, where this case originated, did not have a regulation stating who had the burden of proof. 10 States place the burden of proof at a due process hearing on the school district. These states are: Alabama, Alaska, Connecticut, Washington DC, Delaware, Georgia, Illinois, Kentucky, Minnesota, and West Virginia. These states are not affected by this ruling

17 States place the burden of proof on the party that files for a due process hearings. These states are: Colorado, Indiana, Kansas, Louisiana, Maryland, Michigan, Mississippi, Oklahoma, New Mexico, North Carolina, Ohio, South Carolina, Tennessee, Texas, Utah, and Virginia. These states are not affected by this ruling

The states that are affected by Schaffer vs. Weast are: Arizona, Arkansas, California, Florida, Hawaii, Idaho, Iowa, Maine, Massachusetts, Missouri, Montana, Nebraska, Nevada, New Hampshire, New York, North Dakota, Oregon, Pennsylvania, Puerto Rico, Rhode Island, South Dakota, Vermont, Washington, and Wisconsin. Some states on this list may have passed laws, since this ruling that put the burden of proof back on the school district. Check with your state board of education to see if a law was passed in your state. If it was not, the burden of proof is on the party that filed.

Schaffer vs. Weast did have one positive section of the ruling. Justice Sandra Day Oconnor wrote: School districts may also seek such hearings, as Congress clarified in the 2004 amendments. They may do so for example, if they wish to change an existing IEP because the parents do not consent, or if parents refuse to allow their child to be evaluated.

What this means, is that school districts are required to file for a due process hearing, if they wish to change a child’s IEP. Before this, school districts were able to implement an IEP without a parents permission. The only way they could not, is if a parent filed for a due process hearing. Since the burden of proof has switched to the party that files in some states, this section is important.

For example: If you live in Idaho, a state that requires burden of proof on the party that files, and your school district wants to change your child’s IEP, without your consent; they are required by Schaffer vs. Weast to file for a due process hearing; and thus bear the burden of proof.

If the school district did not file for a due process hearing and the parent was forced to, they could ask a hearing officer to shift the burden of proof to the school district. This means that the school district, would have to prove that the changes that they want to make to your child’s IEP, are appropriate.

By understanding the burden of proof in a due process hearing, you will be able to make an informed decision about whether to file for a due process.

By: JoAnn Collins

6 Important Things to Know About Special Education – Independent Evaluations at Public Expense

admin — Sat, 21 Nov 2009 06:19:37 +0000

Are you the parent of a young child that you believe may have autism, but special education personnel disagree? Was your child recently tested, by school personnel and you disagree with the test results? Parents are entitled to an Independent Educational Evaluation (IEE’s) at Public expense, under certain circumstances. This article will discuss 6 things that you need to know about IEE’s at public expense.

An IEE is an Independent Educational Evaluation that is conducted by a qualified person who does not work for your school district.

Below are the 6 things that you must know about IEE’s at public Expense;

1. Parents are entitled to an IEE at public expense if they disagree with the school districts evaluation. You may disagree with the tests, how the tests were conducted, the results of the tests, or how the results of the tests were interpreted. If your child was tested and you believe that they have an undiagnosed disability, such as autism, then you would be entitled to an IEE at public expense.

Several areas of disagreement may be included in one IEE at public expense. For Example: If your child needs testing by a Neuro psychologist and an occupational therapy evaluation, these can be handled at the same time, though by different personnel.

2. School personnel may ask you what you disagree with, but they can not require you to answer.

3. If you ask for an IEE at public expense the school district has two choices; either pay for the evaluation, or file for a due process hearing to prove that their evaluation is correct. The problem is, that most states do not state how long special education personnel have to decide, which course they are going to take. If you feel that your school district is taking too much time making a decision, try filing a state complaint with your state special education department.

4. If special education personnel in your district, agree to pay for the IEE at public expense, they must pay for the entire evaluation.

5. In your request for an IEE at public expense include the qualifications that you want the evaluator to have. This is especially critical if you believe that your child needs to be seen by a Neuro psychologist; due to the cost of the evaluation.

Also include in the request the areas that you want tested. IDEA states that school personnel and parents must agree on areas to be tested, but does not state that they must agree on the tests. If the areas to be tested cannot be agreed upon, the school district should file for a due process hearing.

For Example: Because my child’s IQ dropped 40 points I am asking for a comprehensive independent evaluation conducted by a Neuro psychologist to include: testing for any undiagnosed disabilities or neurological problems, IQ testing, academic and functional level testing, adaptive behavior testing. I am also asking for an evaluation with a Registered Occupational Therapist because I disagree with the school’s evaluation.

6. School districts can make criteria for IEE’s at public expense but only under 2 circumstances. A. They must allow for parents to ask for a waiver of criteria if the situation warrants, and B. The criteria must not prevent the parent from getting an IEE at public expense.

An IEE at public expense can help diagnose undiagnosed disabilities, help you figure out what special education and related services your child needs, help you with placement recommendations etc. By knowing these important things about IEE’s at public expense, you will be able to help your child get the services that they need and deserve.

By: JoAnn Collins

3 Things To Do Before You File For A Special Education Due Process Hearing

admin — Thu, 12 Nov 2009 20:38:51 +0000

Are you considering filing for a due process hearing, to resolve a dispute between yourself and special education personnel, about your child with autism? Would you like to learn 3 things that need to be done before you file? This article will discuss 3 important things that you must do before you file for a due process hearing. This will help you be prepared for filing, and increase your chances of winning.

1. Make sure that you have been documenting everything that happens, to your child at school, especially anything that helps your case. Write as many letters as you need to, to document what you have asked for as well as any evidence that you have. If you have not included letters or other type of documentation in your child’s school record, you can start now.

Write a letter immediately to the special education person in your district. Put what you are asking for, what educational and related services that you think your child needs, the evidence for these services etc. Also put recollections of conversations with special education personnel that document your case.

2. Go to your district office and ask to see a complete copy of your child’s school record. Some districts require an appointment, call and ask. Ask for temporary, permanent, internal memos, e mails, audio and video recordings, anything with your child’s name on it. Ask for copies of anything you do not have, and anything that helps your case. Most states require that parents get a complete copy of their child’s records when they file for due process. But by looking at the records, you can ensure that something that helps your case, is not left out.

3. You must get an Independent Educational Evaluation (IEE), before you file for a due process hearing. This way, you will know what the specific issues are, and you will know what resolutions to ask the hearing officer for (in other words, what services your child needs). IDEA 2004 only allows changing of due process issues if the school and hearing officer agree.

By knowing what things you must do before you file for a due process hearing, you will be prepared, in case you decide to file. Good luck!

By: JoAnn Collins

Criteria For IEE’s at Public Expense – Can Special Education Personnel Do That?

admin — Wed, 04 Nov 2009 20:03:39 +0000

Are you a parent who is interested in what criteria special education personnel can use for an Independent Educational Evaluation at Public Expense? Have you been denied an IEE at public expense, because you refuse to go along with strict criteria set by your school district? This article will discuss what criteria special education personnel are allowed to set for IEE’s at public expense.

The Office of Special Education Programs does allow school districts to make criteria for IEE’s at public expense if:

a. Parents are allowed to ask for a waiver of the criteria if their child’s disability warrants it, or
b. The criteria do not prevent the parent from getting the IEE at public expense.

Below is a discussion of the criteria that school districts are allowed to set: (Just remember that the criteria cannot prevent the parent from getting the IEE at public expense)

1. Professional qualifications; An independent evaluator must be at least as qualified, as special education personnel, who do the testing in the school district. If you want an independent evaluator who is more qualified than school person, you must put that in your initial request for an IEE at public expense.

A lot of conflict often occurs because parents want their child tested by a Clinical psychologist not a School psychologist; which increases the cost.

If you can prove, that unique circumstances require a clinical psychologist, then your school district may agree. If they do not, they should file for a due process hearing.

2. Cost; A lot of school districts, place very low cost on independent educational evaluations at public expense. A good qualified independent evaluator is going to cost quite a bit, depending on the profession and location. If the evaluation that you want is going to cost more than the amount stated by your school district, tell them that you are asking for a cost waiver because of unique circumstances. They may ask you to list the unique circumstances, which is allowed.

Another issue is that school personnel cannot prevent you from getting an IEE at public expense. If they make the cost too low, then you will not be able to get the evaluation.

3. Geographical; Some school districts want you to stay within a certain geographic area. Again they can do it, if it does not prevent you from getting the evaluation.

Below is criteria school districts are not allowed to set:

1. Pick from this list of Evaluators: This is not allowed by the Office of Special Education Programs which is part of the Department of Education.

2. We will pay but we get to pick the evaluator: Also not allowed by OSEP. On February 20, 2004 OSEP published a policy letter regarding IEE’s at public expense. In this letter OSEP states: It is the parent, not the district, who has the right to choose which evaluator. . .will conduct the evaluation.

3. If you want an IEE at public expense you must file for a due process hearing. The Individuals with Disabilities Education Act (IDEA) is clear; either school districts pay for the evaluation of they file for a due process hearing to prove that their evaluation is correct. This is important because in some states the burden of proof at due process rests on the party that files.

4. We want to determine specifically what tests are done. IDEA states that parents and school districts must agree on areas to be tested, not on the tests themselves. If an agreement cannot be reached then special education personnel must file for a due process hearing.

By understanding what criteria special education personnel can make for an IEE at public expense, you will be in a better position to get an IEE at public expense for your child.

By: JoAnn Collins