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Record Keeping

(Note: The following is written by special education attorney Brice Palmer, who does not practice law in Indiana or Texas but who offers the following to parents in terms of record keeping. It is being used with his permission. The opinions expressed herein are those of the author.)

WARNING. The following sounds like a lot of work and a bunch of time - and it is. If you can do this you might be able to prove your claims without a lot of expense. If you do need to hire an attorney later, you will have saved yourself a wad of money because organizing documents correctly is a major part of pre-hearing expense. If you do it, you might get hooked on document peeping and volunteer to help other parents prepare their records.

The primary reason for going through all of this at the beginning is not because some of us are type A personalities. The reason is because if you set your documents up in proper order in the beginning, you will never worry about keeping everything straight later. You will always be prepared.

Insist that the school provide you with a room with privacy for your record review. You do not want someone looking over your shoulder to intimidate or frustrate your review. Have the following tools: plenty of sticky notes for marking pages you want to copy, plenty of paper to make personal notes on, patience, and a brown paper bag containing snacks (a visual prompt that signals that you are going to be there for a while). It is important to keep the school's file in the same order that it is given to you. Go through it page by page. You can get copies of everything so it is not really important to read every word on every document while you are at the school. What is important is to make an inventory of every document (piece of paper) in the file. That way, when the school provides you with copies, you will know if the file has been vacuumed. A polite way of putting it is "the school's creative paper recycling policy.” Over the last several years we have also carried along a lap top computer and a small portable scanner. Even if you do not use them the school folks are less likely to alter the records when they do make copies for you later because they aren't sure what documents you scanned.

Look at everything in the file. Often, school people make their own notes on stickys and leave them attached to documents. Make a note of the document any sticky note is attached to and make you own notes about what the sticky note said. Any highlighted portions of a documents will not be picked up in the copy machine so make yourself a note of documents that have highlighted portions. Be sure to define the name of the document, the date on the document, the author, and the general subject of the document. That way you will be able to locate it in the pile of stuff you get from the school district.

Look at the file folder itself. Often notes are written on the front, back or inside covers of the file. Make a note of everything written on the folder. You never know when an obscure telephone number or comment will later correlate with an obscure piece of evidence.

Education records also contain what some schools call a contact log. That is a record of incoming and out going telephone calls, letter, etc. that relate to the student. You can find all kinds of stuff in these logs. Not ...the least of which is "tone." For instance, you might find an entry that reads something like "Ms. Gripealot called AGAIN and was told you were NOT available."

Do not over look the log that is supposed to record the name and date that has had access to the file. You might find, for example, when the district's attorney, paralegal, school board member, etc. reviewed the file. This sort of information can be beneficial.

Look for letters written to or from the schools attorney. If you can find them you can do what you wish, but I put flags on them and ask that they not be copied for our use. The information contained in these letters or other written communications could be protected by privilege. Unless you are a lawyer, you might not know how to make that determination. Anyway, by following this practice you will at least show the opposing attorney that you are honest.

Do not assume you have been given the entire record. You might find files in the office of the 504 coordinator, the school nurse, the special education director, the OT's files, etc., etc. These files often contain documents that are not in the "main" file. Sometimes the "main" file is called the "cume," or cumulative file, or the special education file. And,
by the way, some schools keep the general curriculum records in a completely separate folder. Make certain that the school folks give you every file, every scrap of paper, every record that relates in any way to your child's education - special or otherwise.

While you are in the school offices look around and determine who of the support staff seems to be the most cheerful and helpful. Before you leave, ask that person if you could have a copy of the school's 504 policy, attendance policy or any other policy that you can think of. These kinds of documents are the stuff of which due process dreams are made of. Also look at your school's web site. You will just love the way some school describe the way they want every student to succeed in life and get a top quality education at Old Overshoe School. Great stuff for toys (see discussion about Toys below).

When you do get copies of your documents: FIRST RULE - make a second set of
copies as your working set. Do not mark, write on, spindle, mutilate or otherwise disturb your first set of copies. Put a rubber band around the first set and attach a note that tells you the date you received the copies and from whom you received them. These are the documents you will use later if you have to prepare for hearing. Now, arrange your SECOND, or working set of copied documents, in chronological order: Oldest date on the bottom - newest date on top. (NOTE: Some people put the oldest on top and the newest on the bottom) SECOND RULE: Put the copies you received from the school in a box. Use a black magic marker and write ORIGINAL COPIES FROM THE SCHOOL on the outside of the box. Put the box away and do not disturb the contents until you need them to prepare for the unthinkable.

Next, number each page of paper in the pile. Pete Wright has a wonderful method for doing this. He suggests using a pencil, not a pen, to write the date and the number in the lower right hand corner of each document. This method saves gazillions of hours later as you try to find a specific document in your pile of stuff. It also is a lifesaver if a gale force wind whips through your work area and scatters pages of stuff. The dates and numbers will help you put the pile back in order quickly. Use a consistent numbering system. For example, we start with the top page in the pile and number it 0001, the next page 0002, and so forth.

Next, make yourself a time-line based on the documents. Then, make yourself an index of the documents listing the document number, date, author, and a brief description of the subject matter of the document. Some people use a data base spreadsheet program to do this. A yellow pad and pencil will do the same job. Here is the trick: Do not try to capture every word in a document for your time line and index. A brief description such as "Letter from Ms. Muffet to Mr. Tuffit about January '03 evaluation planning meeting"
is adequate. This chore will save you bunches of hours and headaches later when you are trying to dig around in a pile of papers looking for the "smoking gun" document you thought you saw months ago. If you use a word processing program to do your time line and index you can later term search them. Saves wads of precious time.

A good time line will also put the entire story of your child's special education experience in perspective. You will easily be able to see it unfold in exactly the way it happened. Too, any date sequences that show the school did not follow mandatory times will just pop right into view. For example, it is not unusual to find notices of meetings dated the same day of the meeting. OOPS.

After you have done all of the above, look at each document carefully. Look at the dates. Are there any discrepancies? Does the sequence of dates follow the rules? For example, if a document showing a placement decision is dated before the date on an evaluation report or IEP, then BINGO. Is the date on the IEP before or after the date of notice of meeting? Check everything and take nothing for granted. We all fall into the trap of reading documents with an uncritical or assuming way. We assume evaluators are qualified, we assume the dates are correct, we assume people write stuff honestly and correctly. ASSUME NOTHING. Pick the fly-specks out of the pepper. Compare similar looking documents critically. Hold them up to the light: See any tell tale little dark lines that suggest a bit of white out was used? Look carefully for these sorts of cut and paste creations. I've seen whole documents made of parts of other documents. We have even found instances of signatures being cut from one document, taped onto another
document - and then copied for the file.

We call the "smoking gun" documents Toys. These are the toys we set aside to play with at an appropriate time such as negotiations, settlement at conferences, and cross examination hearings. Here is what to do with the Toys:

Each document you find that goes to the very heart of proving your case, or is good impeachment material, make a copy of it from the documents that you previously put into chronological order. Put a sticky note on each of these extra copies. The sticky note should tell you where you found the document. For example, you should keep your own documents separate from the documents you receive from the school. Make a separate file folder for your toys. This will save you from scrambling around later trying to remember where you put THE document. Life Saver: If you do not have sticky notes handy - and you need to copy a document from your stack of stuff, put a piece of colored paper in the exact place in the stack of stuff where you removed the document. On that piece of colored paper write a description of the removed document, the date you removed the document, why you removed the document, and where the removed document is.

Finally, sometimes one's eyes begin to cross going through these exercises. Sometimes, after the eyes cross, nothing makes any sense. This piece of evidence eludes us, that piece of evidence is out of context, the time line becomes blurred. Suggestion: Take your working copies and throw the whole stack in the air. Let the stuff fall allover the floor. Then, get down on your hands and knees and begin putting it all back together again (your pages were carefully numbered, so the process is easier). As you rummage
through the scattered stuff you are likely to see information recorded on documents in an entirely different way. I learned this little trick several years ago when my pet Otis decided that a neatly piled stack of education records made an ideal wallowing spot.

-- Brice Palmer, attorney at law

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