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How can I minimize conflicts while working with a school to develop a good IEP for my child -- while protecting my child's rights?
How do we know what the child really needs?
How do I best use an expert as an effective resource?
Who is an "expert"?
Why Do Parents Need Experts?
How will a Hearing Officer decide if the child is legally entitled to an aide?
How Should Parents Choose their Experts?
What are IEP progress reports -- and why are they necessary?
Why are measurable goals and objectives important?


How can I minimize conflicts while working with a school to develop a good IEP for my child -- while protecting my child's rights?

1. Try your best to sustain relationships.

Whether or not we personally like our child's teachers, school psychologist, school social worker, principal or other administrative personnel, we are stuck with them unless we move. If we move, we will be stuck with new school officials with whom we have conflict. Or new, difficult people will be promoted into established positions.

In any event, we have to learn to work with people we do not understand, agree with or get along with. They are there, and will be there all year, year after year. Getting personally angry with them, even if they deserve it, leads to hostility down the line.

Now hostility can have its place, as in a lawsuit or a Due Process Hearing. However, if parties get that far, any chance for a working relationship is dead. Because it is in the best interests of our children to have a cohesive team working toward a common goal, parents must take a leadership role in sustaining the team atmosphere.

It is not enough to come into a meeting periodically and make demands, even legitimate, legal demands. You must model the behavior we want to draw out in our children's IEP team.

  • If we want the other team members to be patient, prepared, and educated about the child's needs, we must set the standard. Therefore you must:

  • Attempt to understand them and the demands on their time.

  • Be patient with them as they learn our child's method of learning.

  • Be prepared and secure helpful test results on our child's development, articles or other related materials, and then share them.

  • Be as educated or more educated about the objective realities of the child's disability so that you can talk to other team members as peers.



2. Keep the focus on the child's needs, not the district's resources or the parents' expectations.

Under the Individuals with Disabilities in Education Act (IDEA), Congress set forth certain protections for children with special needs. At its core, IDEA is designed to make sure that disabled children have access to a "free and appropriate public education" in the "least restrictive environment".

The United States Supreme Court has been relentless in its insistence that IDEA may not be used to force a school district to "maximize" a child's "potential". If a child is getting a "meaningful educational benefit" and making progress that can be objectively measured, then most courts will conclude that IDEA has done its job -even if most parents would consider the results basic or minimal.


How do we know what the child really needs?

Get Independent Evaluations

Parents must obtain independent medical and/or developmental assessments for their disabled children! Without clinical data, there is no reliable starting point for the journey.

I emphasize the need to have independent clinical medical, psychological, and /or educational or evaluations done - not evaluations through the school district or by a practitioner selected by the district.

Because IDEA has provisions, which, under certain circumstances, require school districts to pay for evaluations (ostensibly to make the field more level for low-income families), many parents who can afford an independent evaluation fail to get one.

Yes, these tests are often burdensome and expensive. Do them anyway.

These evaluations help parents to understand the precise nature of their child's disability, and in so doing, obtain the necessary information to formulate a cohesive strategy for dealing with it. This is especially true if the nature of the disability has a hidden educational impact.

IDEA requires only that school districts pay for special services like speech, occupational or physical therapy if doing so gives an educational benefit, not just a medical one. In other words, the disability has to effect learning.

However, school district evaluations are still school district material. If there is a hearing or lawsuit, these tests are crucial evidence. Parents will have more faith in the truth of these tests when they choose the professionals who administer them. In the event that a test does not accurately reflect a child's abilities, parents who get these evaluations independently have a choice about whether to share this information with the district - something they could not control if the tests were done by the district.

These outside evaluations have another benefit in that they relieve the parties from subjective disagreements. The results speak for themselves. No one is to blame for this information. In fact, third-party reports give a willing school administrator a way to justify a difficult or politically unpopular decision to grant services.

For instance, if a child is going into kindergarten and the parents wanted her to have a full-day program with kindergarten in the morning and Early Childhood in the afternoon but the school district had a "policy" (read "budget issue") against this.

If the parents took the child to her yearly reevaluation by professionals, and those professionals determined that the child needed a full-day program and prepared a report citing this recommendation, this report could be useful when presented to the school, in terms of the education and services offered by the school.

Specific, Measurable, Realistic IEP Goals

The IEP is designed to list specific educational goals for the child. Make sure the goals are realistic, specifically stated, and penned in layman's terms. As the school year unfolds, the team can look at these goals to objectively assess the child's progress. To this end, IDEA requires that the goals as they appear on the IEP form must be something that can be objectively measured.

Avoid generalized goals, as "Johnny will be able to attend in the classroom with increasing frequency." This phrase leaves Johnny's progress open to subjective evaluation. Disagreements about subjective evaluations lead to bluffing and defensive postures on all sides. Where does this leave Johnny?

If the goal read: "Johnny will be able to complete grade-appropriate class work during class time, up to 75% accuracy" the parties can evaluate what Johnny is doing in class and objectively measure this against the goal. If Johnny cannot finish a spelling test with his class with 75% accuracy, the team can agree on his inability to meet the goal.

This keeps the focus on Johnny and away from the other team members. When everyone can agree on the problem, it is much easier to brainstorm about new interventions that can help him learn, or whether the goal should be modified (e.g.: "...up to 50% accuracy", etc.).

Also, ask for some kind of mechanism to be placed in the IEP for records of Johnny's successes and failures.

At due process, the school will always say that Johnny is making progress toward his goals and objectives. Make them prove it with objective data.



3. Build your record.

What if you are right? What if school personnel are flatly incompetent? Do not say it. Show it!

Be reasonable and calm while you admit that you are concerned about how a situation is developing. Be prepared to show, objectively, how your child is not meeting his goals. Produce reports, articles or test results that will persuade an objective listener (like a due process hearing officer or a judge) why your suggestions are reasonable.

If you can lay out a "court ready" case at this level, everyone will quickly read the handwriting on the wall. Threats and accusations are unnecessary. The facts speak for themselves. Of course, this assumes that you have some facts on your side.

Do not shy away from the damning evidence. Develop a strategy to deal with it. A good lawyer knows all the strengths and weaknesses of her case. We know where we expect to have trouble and prepare for this as best as we can. Again, objective data from non-school district personnel is the best place to start.

Independent medical, developmental and psychologist's evaluations and private therapists' reports and evaluations are crucial to setting up the facts. So are third-party advocates or therapists who come to the school and observe your child in his school environment. You have to listen to what these reports and third parties tell you.

Parents must be willing to face the reality of their child's abilities

If your child has tantrums when frustrated, do not demand that his day be frustration-free. Provide and document solutions how the frustrations and tantrums should be handled.

You are not being disloyal to your child by admitting his problem areas. You are being disloyal to your child if you do not prepare for them. Get the facts in writing. Do not rely on your own opinions and feelings.

This is not to say that parental opinions and feelings are bad. In fact, they are wonderful. No one knows your child better than you do. In addition to what we may think or feel in our guts, we need to understand of what we can reasonably expect for our child in the classroom environment in a given timeframe.

We will fall flat on our faces if we indulge in the belief that our opinions, by themselves, will persuade an objective hearing officer or judge that we are right in any contested issue. Courts sympathize with parents but do not defer to parents.

Parents are expected to be many things for our children but "objective" is not one of these things. They are, by Nature's design, the least objective persons in the room. Cull and collect objective evidence to buttress any argument you have.

If you get caught off-guard on an issue in an IEP meeting and believe you need written back-up for your position, adjourn the meeting and reconvene when you have a chance to have your child assessed by a qualified professional. IDEA does not require the parents to be rushed into anything.



4. Have a little faith.

In the field of education, it makes sense to be optimistic. Think about it: No one becomes a teacher, an aide, an administrator or a facilitator because of the money, the hours or the fame. They do this because they want to make a difference to children.

Of course, intelligent people will disagree about the proper way to make that difference. Those persons closest to the children will have a different perspective than administrators.

Very few, if any, of the people you will meet in your child's school is out to hurt anyone.

Be alert for the occasional bad apple. Generally, give your child's team some credit for acting in good faith. If they need education, supply it. If you disagree, try to work it out without getting personal. Do not demonize well-intentioned people. Utilize them. Even if they have priorities that you cannot share, they can turn out to be of great help to your child.


How do I best use an expert as an effective resource?

Expert opinions are necessary in special education. No matter how knowledgeable they are about their disabled children, parents should rely on the opinions of trained professionals to help them make informed decisions about therapeutic and educational interventions. School districts will also rely on these professionals to help them design and deliver specialized education. All parties must recognize the important roles played by these professionals.


Who is an "expert"?

Legally an expert is any person who "by knowledge, skill, experience, training or education" possesses "scientific, technical, or other specialized knowledge [that] will assist the trier of fact to understand the evidence or to determine a fact in issue . . ." Fed.R.Evid. 702. The Individuals with Disabilities Education Act (hereinafter "IDEA"), 20 U.S.C §§1414 (d)(1)(B)(vi) allows parents to consult with experts and include experts on their child's Individualized Education Program (hereinafter "IEP") team: The term 'individualized education program team' or 'IEP team; means a group of individuals composed of -- . . . at the discretion of the parent or the agency, other individuals who have knowledge or special expertise regarding the child, including related services personnel. . .

Experts can offer opinions based upon their personal observations and/or testing of the child, as well as opinions they may have based solely upon their review of the child's records. The most common experts at IEP meetings are nurses, physicians, psychologists, social workers, and therapists.

Experts may work for the parents or the school district. While the IEP team must consider the opinions of any expert procured by the parents (20 U.S.C §§1414 (d)(3)(A)(i)), the team is not bound by these opinions.

If a district decides on a course of action that is at odds with the recommendations of the expert retained by the parents, the parents are entitled to "prior written notice," a written explanation from the district that specifically states:

  • a description of the action proposed or refused by the agency;

  • an explanation of why the agency proposes or refuses to take the action;

  • a description of any other options that the agency considered and the reasons why those options were rejected;

  • a description of each evaluation procedure, test, record, or report the agency used as a basis for the proposed or refused action;

  • a description of any other factors that are relevant to the agency's proposal or refusal;

  • a statement that the parents of a child with a disability have protection under the procedural safeguards of this part and, if this notice is not an initial referral for evaluation, the means by which a copy of a description of the procedural safeguards can be obtained; and

  • sources for parents to contact to obtain assistance in understanding the provisions of this part. 20 U.S.C. §§1415 (b)(3) and (c).

Parents may request a Due Process Hearing and ask an impartial Hearing Officer to determine whether the district was correct in disregarding their expert's advice. An articulate, well-reasoned expert opinion that is supported by objective data is extraordinarily beneficial to an advocate who is attempting to obtain a particular action or prevent an action by a school district on behalf of an eligible child.



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Why Do Parents Need Experts?

Reason I: To obtain a clear medical diagnosis of the child

The main reason parents turn to experts is for an accurate diagnosis of their child's disability. Parents cannot get appropriate help for their disabled child unless they fully understand the nature and extent of the child's disability.

Some individuals refer to this diagnosis as a "label." This phrase is inaccurate. A medical diagnosis must be reached according to best medical practice, including accepted clinical tests and observations by a licensed medical professional. IDEA allows for a multitude of medical diagnoses to obtain eligibility. A solid medical diagnosis of the child by a qualified professional is a necessary starting place for parents.

As a rule, school districts are not qualified to make medical diagnoses of disabled children. School districts may perform educational testing to evaluate the child's skills, learning style and other characteristics that make the child eligible for special education services. However, even if an IEP team uses educational testing and observation to determine that a particular child is autistic, this is not the same as a medical diagnosis of autism.

Parents will naturally have concerns about their child's disability that go beyond the school environment and will turn to experts for guidance about these issues. This leads to another reason why parents turn to experts - for advice about available treatments.

Reason II: To obtain advice for medical or therapeutic treatment of the disability

Once the parents understand that their child has a particular disability, they naturally want to do whatever they can to help the child learn and adapt to this condition. From a medical perspective, it is accepted best practice for experts to advise parents about the best medical and/or therapeutic remedies to help the disabled child. Acceptable ways to treat a child's disability may include medications, surgeries, and therapies.

The express goal of this advice is to maximize the child's health, development and general welfare.

The parents and experts will select therapies or interventions that are designed to bring the child as close as possible to the development and skills the child would have if not disabled. These may include consideration of or work towards:

  • an actual cure of the child's condition - that is, any and all available treatments which will actually reverse the condition or treatment so the child no longer meets the medical diagnostic requirements for that condition or disability; or,

  • a drastic improvement in the child's condition - that is, any and all treatments which will so improve the condition or disability that the effects on the child's life are practically neutralized, even though the child may still technically meet the medical diagnostic requirements for the condition or disability.

In addition, parents will request advice from experts about support and education for themselves and other family members affected by the child's disability. In other words, parents need information and support from experts to help them cope with the practical realities of their child's disability. One of these practical realities are the experiences the disabled child and the parents have with the school district.

Reason III: To help develop an appropriate educational plan for the child

When considering how a child with a disability relates in the school environment, parents need to understand the impact of the disability on learning or negotiating the school premises. As members of the IEP team, parents want to participate meaningfully in planning their child's education. They will rely on their experts and the school's experts to do so.

No parent wants to underestimate their child's abilities and no parent wants to see their child struggle needlessly. Finding that sweet spot of challenged independence is crucial for parents - and usually their own experiences with their child's disability are insufficient for them to fully understand what is appropriate in school.

Please note the differences between what is appropriate and what is best.

In all areas of the child's life outside of school, parents will legitimately pursue the best remedies for their child. This is the "therapeutic benefit" standard, and is a natural and expected part of good parenting.

However, in the school environment, the school district must only consider what is appropriate for the child. This is the lesser "educational benefit" standard required by IDEA. Generally, appropriate educational interventions and services will provide the student with meaningful educational benefit, but will not maximize the student's potential.

Congress and the courts are steadfast in their refusal to require schools to do what is therapeutically or educationally best for disabled children. Best is the clear domain of families, not the legislatively mandated standard for schools.

There is a legal difference between services and interventions that provide a disabled student with educational benefit, and those that provide therapeutic benefit.

Schools must only provide services and interventions designed to improve the student's ability to learn at school. Schools are not legally required to provide any intervention or service solely to improve the child's medical or therapeutic welfare.

This is a subtle distinction: a legal hair that parents and school districts frequently must split. Common sense dictates that educational benefits will have therapeutic windfalls, and that therapeutic benefits will improve a child's performance at school.

The time that all children - disabled and not disabled - spend in school is crucial for them to reconcile who they are within their communities. This is especially true for disabled children who must reconcile the impact of their disabilities with the expectations of modern communal life.

Nevertheless, the law is clear that schools must accommodate only those disabilities that affect the child's ability to function in and learn at school. Any impact that reaches beyond the school experience is outside the scope of the school's responsibilities.

Experts are key in determining the nature and extent of the disability's impact on learning or functioning in school. However, experts must provide this input only to the extent that it allows the child to participate in school as a disabled child.

Unlike the standard in a medical or therapeutic setting, there is no requirement that experts provide advice about how to cure or drastically reduce the effects of the child's disability in school. A child with autism must only have those accommodations that will allow him to function meaningfully in school as a child with autism. No matter how tempting it is to utilize therapeutic resources at school for the purpose of improving the autism so it no longer medically exists, or is so reduced as to appear non-existent, this is a clear overreaching of the IEP process.

Yet, there is no express prohibition of a child obtaining a therapeutic windfall from an educational benefit. If a particular autistic child requires a particular educational program (for example, Applied Behavior Analysis or ABA) in order to receive an appropriate education, and that educational program has the added benefit of removing that child from the autistic spectrum, Congress and the courts will certainly have no objection.

One common problem that arises when parents consult with experts to plan an educational program is that the parents or the expert or both forget to apply the "educational benefit" standard.

Assume parents take their child to a child psychologist for an evaluation. The psychologist diagnoses the child with Attention Deficit Hyperactivity Disorder (ADHD) and tells the parents that the child "needs an aide" in school. When the parents advise the school that the child needs an aide, the school refuses to provide one.


How will a Hearing Officer decide if the child is legally entitled to an aide?

The decision will depend on many factors but one is most important: is the child able to learn without an aide? If the expert, when recommending the aide, believes that the child likely would be able to learn without an aide, but likely will learn more with an aide (the "therapeutic benefit" standard), it is unlikely that the Hearing Officer will award the aide.

If the expert testifies that the child will not receive meaningful educational benefit without an aide (the "educational benefit" standard) and has objective data to support this opinion (the "educational benefit" standard), the Hearing Officer is far more likely to award the aide.

Therefore, parents and the experts they hire must remember that for educational purposes, the expert's opinion should address:

  • how the disability affects the child at school; and,

  • how services and interventions can be delivered in the school environment to enable the child to receive an appropriate education.



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How Should Parents Choose their Experts?

I. Be clear about why you retained the expert

The most important factor for parents to keep in mind is why they are consulting with an expert. This is more easily accomplished if the expert is a school district employee. All reports, tests and opinions completed by school district experts will be for educational purposes.

Parents should never look to school district experts for opinions about the ultimate medical or therapeutic conditions of their disabled children. Not only are districts not required by law to give medical or therapeutic advice: depending on state requirements for practicing medicine, school district employees may be legally prohibited from giving medical or therapeutic opinions.

Therefore, if an IEP team - based upon school testing - determines that a child can receive the educational label of autism as a qualifying condition under IDEA, this does not mean that the district employees have medically diagnosed the child with autism. In fact, it is more likely that without a medical diagnosis of autism, a school team would be uncomfortable finding a child eligible under the label of autism. To avoid the quagmire of practicing medicine without a license, the team may find the child eligible under "speech/language" or "other health impairment."

If parents do not have a solid medical understanding of their child's disability, they are best served by finding an appropriately licensed person to give current medical tests and evaluations for this purpose. The parents should ask their pediatrician or family doctor for references for such an opinion. These clinical evaluations - whether physical or psychological - will comply with the "therapeutic standard" explained above: that is, the practitioner and parent will determine what cause of action is in the best interest of the child.

If the parents already have a medical or therapeutic diagnosis and need further testing and opinions about how the disability will affect the child's performance in school, they should secure an educational evaluation of the child. IDEA requires school districts to conduct these evaluations, and in some circumstances, even pay for outside evaluators to administer tests. The results of this evaluation will be used to develop an appropriate educational program for the child.

If parents have concerns about the methodology or validity of tests conducted by school district personnel or clinical professionals paid by the district, they are free under IDEA to obtain independent evaluations at their own expense. Reports by independent evaluators will become a part of their child's file and must be considered by the IEP team.

When choosing an expert outside the district, the parents should strive to find a professional who is truly objective. In other words, it is crucial that the expert not have a personal interest in the outcome of the evaluation. This is especially true if the parents anticipate that the IEP team will view the evaluation results unfavorably. Therefore, while it is expected that the expert will fundamentally support the priorities identified by the parents, it is not fatal if the expert disagrees with the parents on minor points. In fact, this demonstrates that the expert is truthful, and is not just acting as a "hired gun".

The expert's opinions and recommendations should be written into a report that is easily understood by a layman (in addition to conversations that the expert may have with IEP team members), and should be supported by objective data about the child. The report must be unambiguous about:

  • the expert's diagnosis of the child's disabilities;

  • the child's need for special education services;

  • specific services recommended by the expert recommends, and,

  • why.

If the expert believes that the child will not be able to learn without specific interventions, the expert must state this in plain language. If the parents are not sure about the strength of their expert's opinion, or whether this opinion relates to a "therapeutic standard" or an "educational standard" they should ask the expert to clarify the opinion.

In cases where the parents or advocate expects the school district to contest the expert's opinion, all parties must keep in mind that the expert is a potential witness and may be expected to testify to their opinion under oath.

II. Keep the expert's qualifications in mind

Although all properly licensed experts are deemed competent to offer advice in their area of expertise, some experts are "more qualified" than others. In other words, certain licensing standards are more persuasive for educational or IEP purposes.

If the expert's opinions and report will be used for educational purposes (that is, to determine an appropriate educational program for the child), an expert who has a background in education, in addition to professional licensing, will usually make a good witness.

For example, licensed clinical psychologists can administer and score psychological tests on disabled children. Licensed clinical psychologists can provide competent advice about how the test results reflect the child's performance in school. If the clinical psychologist is also a licensed school psychologist, this individual may be especially persuasive when explaining to district personnel how the test results should translate into an appropriate educational program for the child. It will also be more difficult for the district to characterize this expert's opinions as "therapeutic" advice, not "educational" advice.


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What are IEP progress reports -- and why are they necessary?

The new 20 U.S.C. 1414(d)(1)(A)(viii) requires that an IEP must include "a statement of

(I) how the child's progress toward the annual goals described in clause

(ii) will be measured; and

(II) how the child's parents will be regularly informed (by such means as

periodic report cards), at least as often as parents are informed of their nondisabled children's progress, of

(aa) their child's progress toward the annual goals described in clause

(ii); and

(bb) the extent to which that progress is sufficient to enable the child to

achieve the goals by the end of the year."

The information that must be contained in the notice, referred to above as "in clause (ii)" is: "a statement of measurable annual goals, including benchmarks or short-term objectives, related to

(I) meeting the child's needs that result from the child's disability to enable the child to be involved in and progress in the general curriculum;

and

(II) meeting each of the child's other educational needs that result from

the child's disability

THE PURPOSE IS TO TELL US IMMEDIATELY WHAT IS NOT WORKING AND A NEW IEP MEETING CAN BE HELD IMMEDIATELY TO CORRECT THIS PROBLEM.

If you were not given report cards on the goals and objectives of your child's IEP, file a state complaint on this issue!


Why are measurable goals and objectives important?

Here are some thoughts about the questions that you need to ask yourself as you prepare to write IEP goals and objectives.

Measurable annual goals:

  1. What do you want the student to know or be able to do in 12 months as a result of this IEP?

  2. Is this information measurable / observable? What will you observe?
    (The annual goal - "Increase study skills for academic success" is not measurable. However, the statement "The student will demonstrate the following study skills: skimming written material and the use of reference materials in the social studies class" is measurable and observable.)

  3. Does the goal have meaning for the parents? For other IEP members who will be working with this student? If you used jargon, do you provide additional information somewhere else? For example, some of you state that the goal will be achieved by reaching a Standard Score of 85, or increase expressive communication by greater or equal to .5 Standard deviation. If you use this terminology, either your goal or your objectives need to describe what the student will accomplish when he/she reaches that standard score or standard deviation.

Present Level of Educational Performance:

  1. What do you want the student to know or be able to do in 12 months, and why can't he /she do it now? In other words, how does the disability affect the student's progress?

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