Why Won't The School Implement My Child's IEP Or 504 Plan?

By Michelle Ball, California Education Attorney for Students since 1995

Time and time again, I meet with parents who are baffled why their child's IEP (Individualized Educational Program) or 504 Plan (accommodations plan) is not being implemented at school.  Sometimes parents do not notice for years that although their IEP or 504 has many items which are supposed to be done, not all of them ARE being done.  This can be a heartbreaking discovery as lack of implementation may waste years of valuable time for a child.

Special education (both IEPs and 504 Plans fall under special education), is awash with issues like this.  There are always questions of qualification and what to include in the IEP or 504.  But, once the 504 or IEP is finally complete, most parents mistakenly put their minds on other things, trusting the school to follow through.  Not so fast.  A parent's job is NEVER EVER done when their child is in school, special education or otherwise.  Rather, parents have to babysit the school and their implementation of any IEP or 504.

So many parents trust school personnel to act like the parent would in life- responsibly.  Yes, teachers and staff are generally responsible adults and carry out their duties; however, there are a large portion of them who do not always do ALL that is required of them.  In other words, some things get left behind: perhaps 504 accommodations or IEP implementation in the classroom?

Teachers may also lack knowledge, either because no one followed up with them after an IEP/504 meeting, or the plan got buried in their in-basket.  Sometimes there is an attitude of "That is not my job," or "I am too busy with my other kids to work on this."  IEPs or 504s can be poorly written as well, or so vague as to be almost meaningless.  Maybe they are too dense to be easily digested by teachers, who remain confused so do not act.  Schools themselves can also be disorganized and/or constantly putting out fires, thereby dropping the "small stuff."  Once in a while there are staff who flat refuse to honor IEPs and 504 Plans.  In all of the above, only the squeaky wheel gets attention.

Parents must remain on top of the situation to ensure their child does not get overlooked.  Email to teachers and staff weekly can help ensure that items in the IEP are being implemented and can also alert a parent to problems.  If staff refuse to email back or communicate with a parent, this must be addressed immediately. The obligation for the teachers to respond can be written into an IEP or 504.

Speaking with the child to see if services are being done is also important.  For example, is the student being pulled out for services?  Is someone working with them in class?  Is the student able to go to the resource room to take tests?  What should be being done at school depends on the IEP or 504 Plan.  

A classroom inspection to see how things really are at school can often be illuminating.  School visitor policies should be followed.

Ultimately, our trust in the schools and their competence should be earned.  And it has to be earned yearly, depending on the staff involved.  I have far too many times met with parents who trusted for years, only to find out their child never received a service and has deficient skills.  It is very difficult to get those years back in education-land.

You make sure items are being done and implemented.  You ensure your child is getting the services he/she is entitled to, and which are agreed to in his/her IEP or 504 Plan.  Take an active, albeit respectful, role in your child's education so your child can win the education race, and not be left in the dust.

Best,

Michelle Ball

Education Law Attorney 

LAW OFFICE OF MICHELLE BALL 717 K Street, Suite 228 

Sacramento, CA 95814 

Phone: 916-444-9064 

Email:help@edlaw4students.com 

Fax: 916-444-1209

Website: http://www.edlaw4students.com/

Blog: http://edlaw4students.blogspot.com/

Twitter: http://twitter.com/michelleaball

Youtube: http://www.youtube.com/user/EdLaw4Students

Facebook: https://www.facebook.com/pages/Law-Office-of-Michelle-Ball/191273330901857

[please like my office on Facebook, subscribe via twitter and email, and check out my videos on Youtube!]

Please see my disclaimer on the bottom of my blog page. This is legal information, not legal advice and no attorney-client relationship is formed by this posting, etc. etc.!  This blog may not be reproduced without permission from the author and proper attribution of authorship.

READ MORE - Why Won't The School Implement My Child's IEP Or 504 Plan?

School Districts Must Revise IEP Annually Or They May Not Be Providing A Free And Appropriate Education

By Michelle Ball, California Education Attorney for Students since 1995

In the Ninth Circuit Court of Appeals decision Anchorage School District v. M.P. (July 19, 2012, No. 10-36065), the Court ruled that the lack of an updated annual IEP (Individualized Education Program) plan resulted in M.P. (student) not receiving a Free and Appropriate Education (FAPE).  The Court also ruled that the parents were to receive reimbursement for private tutoring and attorneys fees.

In Anchorage, Judge Paez stated that a school district has only two options if the annual IEP remains unsigned (e.g. a parent wants more changes, rejects it, etc.). The District must then either:

1)  Continue working with the parents to develop an IEP which is accepted by all, OR
2)  Revise the IEP on their own and file a due process hearing to seek administrative approval of the proposed IEP.

This is significant.  There are many times that parents have a signed IEP, e.g. from 2 years ago, but no signed IEP since that time due to disputes.  However, as explained in Anchorage, this would evidence a lack of FAPE.  A district cannot just continue relying on the old outdated IEP while the child "advances" from grade to grade.  Rather, as the Court explained, they have "an affirmative duty to review and to revise, at least annually, an eligible child''s IEP."  If they do not, the district can be attacked for a lack of FAPE and may have to pay for services (compensatory education) provided by the parents during the time there was no FAPE.

The Court also was not deterred by the argument that the parents were too litigious and somehow stopped the annual IEP from being finalized.  Instead, Judge Paez opined that regardless of the parents exercise of their right to object, the district must update the annual IEP to ensure a student receives appropriate services.

This is a wonderful opinion for parents which should ensure that students don't get stuck with outdated IEP documents with pointless goals from many years before.  If there is an impasse, the school district must work with the parents to finalize the IEP or go to hearing. 

This is not a long decision and is a good read.  I encourage all parents of special education students to review it!

Best,

Michelle Ball
Education Law Attorney
LAW OFFICE OF MICHELLE BALL
717 K Street, Suite 228
Sacramento, CA 95814
Phone: 916-444-9064
Fax: 916-444-1209
Website: http://www.edlaw4students.com/

Blog: http://edlaw4students.blogspot.com/

Twitter: http://twitter.com/michelleaball

Youtube: http://www.youtube.com/user/EdLaw4Students

Faceboook: https://www.facebook.com/pages/Law-Office-of-Michelle-Ball/191273330901857

[please like my office on Facebook, subscribe via twitter and email, and check out my videos on Youtube!]

READ MORE - School Districts Must Revise IEP Annually Or They May Not Be Providing A Free And Appropriate Education

Can IEP Teams Say "No" To Special Education Services Based on Money Woes? No, No and No!

By Michelle Ball, California Education Attorney for Students since 1995

Oftentimes parents attend an Individualized Education Program (IEP) meeting, and although their child needs additional services to meet his or her goals, can be denied needed services based on reasons such as: "no funding," or "we just don't have the resources," or "that is not available here as there are no staff."  Are these legitimate reasons to deny a student services that will meet their unique needs?  No!

The whole special education system can be very overwhelming for parents and they often "trust" the IEP team to guide them on what their child should or should not receive as far as services, placement, and education.  Parents may also simply accept an IEP team denial of services based on money woes of the school district.  However, regardless of the funding problems school districts seem to be having right now, they cannot deny special education services based on those issues.  If a student requires a service (e.g. resource class, speech therapy, or a one-on-one aide) to receive an appropriate education to meet their unique needs, the district should provide the service.

If a district wants to deny services, they have to do so legitimately.  In other words, do a thorough assessment to evaluate, and prove the service is not needed.  If they do this, they may be able to "legitimately" defend themselves on a decision to reduce or deny services.  However, the bottom line is that many districts still will flat out say that "we can't afford speech and language therapy," and tell the parent to take a hike.  Sorry to say, but that is not legitimate.

If the district does not have staff to provide a service such as speech and language therapy, and the special needs student requires that service, the district has to provide the service another way.  For example, the district can pay a private therapist to deliver the speech and language therapy off site and can also pay for transportation to and from the therapy.  The district can't just say the child won't receive the service as they don't have the staff.  If the child needs the service to meet their unique needs, it needs to be provided one way or another.

This is one reason why recording IEP meetings is so crucial.  Often parents can document denials based on lack of money simply by recording the meeting.  When a school/district representative says "we don't offer speech and language due to the budget crisis," or words to that effect, the parents have a valid argument which they can later raise in a due process hearing to overcome the denial.

If a school or district is denying services based on money, parents need to stand up and say that is an unacceptable reason for the denial and demand the service be provided.

Best,

Michelle Ball
Education Law Attorney
LAW OFFICE OF MICHELLE BALL
717 K Street, Suite 228
Sacramento, CA 95814
Phone: 916-444-9064
Fax: 916-444-1209
Email: help@edlaw4students.com

Website: http://www.edlaw4students.com/

Blog: http://edlaw4students.blogspot.com/

Twitter: http://twitter.com/michelleaball

Youtube: http://www.youtube.com/user/EdLaw4Students

Facebook: https://www.facebook.com/pages/Law-Office-of-Michelle-Ball/191273330901857

[please like my office on Facebook, subscribe via twitter and email, and check out my videos on Youtube!]

Please see my disclaimer on the bottom of my blog page. This is legal information, not legal advice and no attorney-client relationship is formed by this posting, etc. etc.!  This blog may not be reproduced without permission from the author and proper attribution of authorship.

READ MORE - Can IEP Teams Say "No" To Special Education Services Based on Money Woes? No, No and No!

IDEA Court Case: Berns v. Hamilton Southeastern Schools

By Michelle Ball, California Education Attorney for Students since 1995


The Seventh Circuit Court of Appeals recently upheld the denial of a parents request for reimbursement ($$$) for the cost of a private placement at Lindamood Bell.  This case illustrates how tricky it can be to obtain reimbursement from a school district for the unilateral placement (e.g. by parents alone) of a child in a private school.


In the case of Berns v. Hamilton Southeastern Schools, decided December 22, 2011, Judge Gottschall opined that the student in question had been provided a Free and Appropriate Public Education (FAPE), as the student made adequate progress toward his goals during his public school placement.  According to the case, the student in question suffered from a Traumatic Brain Injury (TBI) at age 4.  After that time, the school assessed him and placed him in a pre-kindergarten classroom for four weeks.  While in the placement the student met several of his goals and was allegedly making progress toward the others.  He was then recommended to move into kindergarten.


According to Judge Gottschall's opinion, the parents' private assessor had previously recommended that the "optimal" placement (see my blog on using words implying need for the "best" placement here) would be year round with an "all day" kindergarten.  The parents thereafter requested placement in both sessions of kindergarten (morning and afternoon), and were refused based on his progress toward his goals.  The family thereafter became at odds with the district and enrolled their son in Lindamood Bell.  


Although there were several procedural errors by the school alleged, the only question was whether the hearing officer's decision that the student received FAPE was proper.  The Seventh Circuit found that it was and denied the family's request for reimbursement for Lindamood Bell, for attorney fees, and otherwise.


Although this case was not in the California circuit (our court is the Ninth Circuit), it is illustrative of the importance of evidence and support when placing a child in a private school if the parents intend to later seek reimbursement from a school district.  If things are not supported well, or the school can show they DID offer FAPE, parents can be blocked and fail in their reimbursement claim.


Best,

Michelle Ball
Education Law Attorney
LAW OFFICE OF MICHELLE BALL
717 K Street, Suite 228
Sacramento, CA 95814
Phone: 916-444-9064
Fax: 916-444-1209
Website: http://www.edlaw4students.com/

Blog: http://edlaw4students.blogspot.com/

Twitter: http://twitter.com/michelleaball

Youtube: http://www.youtube.com/user/EdLaw4Students

Facebook: https://www.facebook.com/pages/Law-Office-of-Michelle-Ball/191273330901857

Please see my disclaimer on the bottom of my blog page. This is legal information, not legal advice and no attorney-client relationship is formed by this posting, etc. etc.!  This blog may not be reproduced without permission from the author and proper attribution of authorship.

READ MORE - IDEA Court Case: Berns v. Hamilton Southeastern Schools

Special Education Agencies With Acronyms Parents Should Remember - OAH, CDE, OCR, OSEP, Area Boards

By Michelle Ball, California Education Attorney for Students since 1995

There are so many special education resources for parents, I thought I would briefly explain just a few and provide links for parent use.

1)  OAH- Office of Administrative Hearings:  This is a very critical agency in California for parents.  OAH is where parents file due process hearing requests to attempt to resolve special education placement, service, FAPE (Free Appropriate Public Education), and other special education issues.  Information on how to proceed, and even a searchable opinion database can be accessed at their site.

2)  CDE - Procedural Safeguards Referral Service:  This is the branch of the CDE (California Department of Education) which takes complaints for failure to implement an IEP, procedural failures of districts and other district issues.

3)   OSEP- the Office of Special Education Programs:  OSEP is a branch of the United States Department of Education (USDOE).  OSEP is more of an advisory group to school districts and states.  However, they have many resources and do issue letters, summaries, and opinions from time to time.  These can be printed out and used as references for parents, or simply can be used to educate a parent on issues.

4)  OCR-  Office for Civil Rights:  This branch of the USDOE accepts complaints on disability (and other forms of) discrimination by schools and districts. OCR also has a huge library of information and issues OCR opinion letters interpreting the law which can be instructive.

5)  Area Boards:  Area Boards serve the developmentally disabled (DD) community as well as students with autism, epilepsy, cerebral palsy and other disabilities with manifestations similar to DD.  Area Boards provide services, education, and advocacy to qualified individuals and can fill in gaps missed by school districts.

These are just some of the myriad of acronym-wielding agencies which can be useful to parents in their special education fight for a free and appropriate education, aka FAPE.

Best,

Michelle Ball
Education Law Attorney
LAW OFFICE OF MICHELLE BALL
717 K Street, Suite 228
Sacramento, CA 95814
Phone: 916-444-9064
Fax: 916-444-1209
Website: http://www.edlaw4students.com/

Blog: http://edlaw4students.blogspot.com/

Twitter: http://twitter.com/michelleaball

Youtube: http://www.youtube.com/user/EdLaw4Students

Please see my disclaimer on the bottom of my blog page [http://edlaw4students.blogspot.com/]. This is legal information, not legal advice and no attorney-client relationship is formed by this posting, etc. etc.!  This blog may not be reproduced without permission from the author and proper attribution of authorship.

READ MORE - Special Education Agencies With Acronyms Parents Should Remember - OAH, CDE, OCR, OSEP, Area Boards