Learn Your Special Education Laws, Special Education Rights, and Share IEP Goal Ideas

Jan 26
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by Doug Goldberg

How often have you heard the School District blame the Parents for the failure of an IEP?  I’ve heard it more often than I would like and it’s more common than some would like to believe.  This very topic was at the heart of a recent appeals proceeding conducted by the 9th Circuit Court of Appeals in the case of Anchorage School District v. M.P..  The 9th Circuit was reviewing a ruling from a District Court that was “declining to consider whether M.P. received a FAPE (Free Appropriate Public Education) because his parents were equally or more at fault for the absence of an updated IEP.”  This ruling from the District Court, if upheld by the 9th Circuit, would have undermined the entire process established by Congress in IDEA and the rights afforded to parent’s to protect their child’s right to receive FAPE.  The 9th Circuit understood the enormity of what the District Court had ruled and agreed to a judicial review of the lower court’s decision.  During that review, “The school district argued that the parents were at fault because “they left the IEP meeting, did not file a dissenting report,” and did not adequately communicate their concerns to the school district.”  The 9th Circuit Court of appeals disagreed and wrote the following:

M.P.’s parents contend that the district court erred by declining to consider whether M.P. received a FAPE because his parents were equally or more at fault for the absence of an updated IEP. We agree that the district court improperly shifted the burden for substantive compliance with the IDEA from the ASD to M.P.’s parents.

In coming to this decision the 9th Circuit also wrote:

Here, it is beyond dispute that M.P.’s parents were zealous advocates for their son. Due to their ongoing concerns about the adequacy of the educational opportunities and services provided by the ASD, M.P.’s parents filed four administrative complaints in August and September 2008 and obtained a “stay put” order in connection with a then-pending administrative proceeding. Having reviewed the record, we are aware that this zealousness probably contributed to their strained relationship with the ASD. Yet it would be antithetical to the IDEA’s purposes to penalize parents—and consequently children with disabilities—for exercising the very rights afforded to them under the IDEA.

Therefore, when the ASD received M.P.’s parents’ extensive revisions to the ASD’s February 2008 draft IEP, the ASD had two options: (1) continue working with M.P.’s parents in order to develop a mutually acceptable IEP, or (2) unilaterally revise the IEP and then file an administrative complaint to obtain approval of the proposed IEP.  But the ASD could not simply ignore its affirmative duty under the IDEA by postponing its obligation to revise the outdated IEP. (Some case law citations have been removed for ease of reading)

Based on the 9th circuit court of appeals finding that the lower court erred in its decision and shifted compliance from ASD to M.P.’s parents they also found that M.P. WAS denied FAPE by the School District.  In determining that M.P. was denied FAPE the question of reimbursement of tutoring expenses that the parents incurred privately was also discussed.  While deciding whether M.P.’s parents could be reimbursed for privately incurred tutoring expenses the 9th Circuit wrote, “The IDEA permits a district court to grant such relief as the court determines is appropriate” and that the decision to grant reimbursement should be based on a two prong test that states:

1)      Did the school district’s placement violated the IDEA, and

2)      Was the alternative placement proper under the statute?

The 9th Circuit ruled that M.P’s parents did meet this two prong test for the time period between January 1, 2008 and December 31, 2008 and ordered reimbursement of the tutoring costs.

Since this is such an important decision I highly recommend everyone read it in its entirety.  The 19 page ruling took me approximately 20 minutes to read and is well worth your time.  For those that don’t have the time here is the opinion from the ruling in its entirety:

PAEZ, Circuit Judge:

M.P., through his parents, appeals the district court’s ruling that the Anchorage School District (“ASD”) did not deny M.P. a free and appropriate public education (“FAPE”) because the failure to develop an updated Individualized Education Program (“IEP”) was mostly attributable to his “parents’ litigious approach.” The Individuals with Disabilities Education Act (“IDEA”) mandates that public educational agencies review and revise annually an eligible child’s IEP.  20 U.S.C. § 1414(d)(2)(A), (4)(A); 34 C.F.R. §§ 300.323(a), 300.324(b)(1). Neither the IDEA nor its implementing regulations condition this—or any other—duty expressly imposed on a state or local educational agency upon parental cooperation or acquiescence in the agency’s preferred course of action. Penalizing M.P.’s parents—and consequently M.P.— for exercising the very rights conferred by the IDEA undermines the statute’s fundamental purposes.

Although the district court relied on an improper basis when it declined to consider whether the ASD complied with the IDEA’s substantive requirements, it is unnecessary to remand this issue. In light of the fully developed record, we conclude that the ASD deprived M.P. of a substantively adequate FAPE by relying on an outdated IEP to measure M.P.’s academic and functional performance and provide educational benefits to M.P. We further conclude that M.P.’s parents are entitled to reimbursement for private tutoring expenses incurred from January 1, 2008 to December 2008, and review of the propriety of private tutoring expenses incurred from January 1, 2009 through May 2009. Accordingly, we reverse in part and remand for further proceedings consistent with this opinion.

Epilogue

Quite frequently on Special Education Advisor we provide our readers various special education federal court rulings and guidance on special education law provided by the Office of Special Education Programs (OSEP).  We do this for one very important reason, it’s not enough to be able to recite special education law you need to understand it.  We are not attorneys but we have spent a lot of time reviewing and reading these court decisions and OSEP guidance so that we make sure we have an understanding of special education law.  The minute we stop doing this is when we will close Special Education Advisor because understanding is an ongoing process that never ends.  It is our hope that every parent and teacher joins us in this journey of understanding and it helps them become the best advocate possible for their children.

A special thanks to educate.advocate for pointing this ruling out to me.

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5 Responses to “It’s All the Parents Fault!”

  1. ASD has their own standards and requires certain books be read at each grade level by all students, regardless of IEPs. The school I was at got after teachers who tried to advocate for their students and, at my school, made teaching difficult and stressful for SPED teachers. The principal, who used to teach chorus, told me that I was teaching math resource classes wrong and using insufficient technology. They didn’t have any technology to give me. We were doing fractions and by the time we got done, the kids could all add, subtract, multiply and divide them. Not only did I feel like I was doing a good job, but parents refused to allow us to have their kids put into general ed classes and wanted them to stay in my class. Four of us left out of the 6 resource teachers, at the end of a year. Hopefully, my new district will allow me to do my job and work with the kids and help them learn.

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  2. What an excellent summation of this case! Thanks so much for sharing it – it’s a great way for parents and advocates to understand the due process, um, process *grin*

    My concern with what the school district did here? It’s a bullying tactic used by too many districts – and it really goes beyond the “it’s the parent’s fault” and into the “we just can’t deal with those parents” – and I think it’s indicative of some districts larger issues of just not wanting to work with parents who know their (and their child’s) rights.

    Something not specifically addressed here that I would be curious about, is how would you advise parents to proceed if they are at odds with a school district’s opinion but don’t want to become “those parents” if they can avoid it?

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    • It is important to keep communications open. When I get new students, the first thing I do is touch base with the parents. I try to give them some good info on the child and how he/she is doing in class. I then let the parent know they are free to call me if they think there is anything I should know or that they want passed on to another teacher. I try to be the intermediary.

      But you asked what you can do. If you don’t hear from the teacher contact them. The way to get in good is to find out when the teacher’s planning time is, or to call after the students are dismissed for the day. Tell them that you are interested in working together so your child can achieve and get the most out of school. Give the teacher some insight (after all, you are the child’s expert). Hopefully, this will open up the communication lines. That way, if you have a problem with the IEP or decisions of the panel, it will give you someone to talk to, instead of a group. Explain yourself, why you disagree, what you might suggest as an alternative, etc. I realize this is an emotional issue since it is your child (I had 3 of them myself), but this is something that the teacher needs to understand and emotions will definitely get in the way. I like a parent to talk to me, especially before the meeting so that we can iron out as much as possible on the recommended rough draft of the IEP as we can.

      If the SPED teacher is not responding, there should be a district representative (sometimes it is the principal) who can be talked to, but start with the teacher. I believe in keeping it civil and at the lowest level possible (not involving administration, or that just mucks things up on both sides) because it is the parent and SPED teacher who usually know more about the child than anyone else. But above all, remain calm. Getting upset will not help and it tends to mess up the communications.

      I have seen both, good and bad SPED teachers. But I believe there are more good ones than bad. Remember, most of us started off in a classroom and then went and got additional training and classes to become work in the area of Special Education. It was a choice! I hope this is helpful.

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  3. I want to add that a parent can be the best advocate a child will

    ever have. Never blame yourself. Sometimes you also need a

    small support team to help you get the services your child needs to

    succeeed. Reading the Special Education Law books and

    finding the right resources has made my experience a complete

    success. My daughter has just been approved for

    Theraputic School. Congratulation on your success on getting the

    district to reinburse you for private tutoring. The special education

    system worked for you too.

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  4. Parents and teachers are in a partnership together. I don’t know the situation with these parents, but I can assure you that both the parents and school must collaborate to conduct a legal ARD to instate newly updated IEPs. Without a parent or authorized representative of the child, schools have to go through a legal process to get an authorized representative for the child. Updated IEPs can occur while kids experience numerous absences, but they won’t be appropriate for lack of consistent demonstration of skills. Also, they are not approved and accepted without a legal ARD. Teachers update and document every grading period, but these updates still have to be viewed by parents and accepted at the ARD. IEPs are re-worked based on evaluation; not just testing, but everyday performance. If a child is absent frequently, he or she can not be evaluated for consistent demonstration of a skill as listed on current IEPs. It is a problem that comes up sometimes and should not be a reason for a law suit. Something can be worked out. That FAPE comes with responsibility for both parents and public schools. Schools can not conduct ARDs without parent permission to carry on without them. Without legal ARDs, there can be no legally updated IEP. It becomes mere documentation the teacher provided to demonstrate progress as the child went through the accepted IEP instruction. If for any reason, the child is frequently absent, or the parents do not attend ARDs and do not give permission for these meetings to take place without them, then yes…the child is not receiving a FAPE on an ethical level. Legally, it is a different story. To blame one party over the other is not the way to advocate for the child. So, there you have it. If a parent makes no plans for timely execution of ARD meetings pertinent to IEP development and acceptance or the school fails to make every attempt to have those meetings on schedule such that a parent has every opportunity to participate, there will be a period of time when the most recently accepted IEP will be in place and will continue to be the educational plan until which time a newly updated IEP has been accepted. Legally, the child is receiving FAPE. I hope this helps.

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