Tag Archives: consent

What’s All the Hubbub About California’s Special Ed Consent Decree?

There appears to be a lot of confusion and misunderstanding about the recent 9th Circuit Court of Appeals decision regarding the State of California and its poor enforcement of special education law. Today’s post seeks to provide clarity as to what the 9th Circuit determined and what it means for families of students with special needs in California.

While it is the function of the media to serve as an intermediary between sources of news and the public to sum things up in an unbiased manner, because our world is so full of fake news and biased reporting, these days, we believe the first place to start is to put the actual decision and related consent decree before you first so you can see the actual outcomes rather than just our interpretations of them, so here they are:

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When Are Teachers Supposed to Get Their Students’ IEP Copies?

Once in awhile, I’ll run across something familiar, the language of which just hadn’t resonated with me until that moment. I was doing some legal research recently and experienced one of those times.

EC 56347 provides the legal requirement that the public schools in California must give Individualized Education Program (IEP) copies to a special education student’s educators before the student arrives in their instructional settings. I can’t tell you how many kids I’ve served whose teachers still hadn’t seen their IEPs after school had been in session for 30, 45, or 60 days.

Sometimes it was that they didn’t know the kids were on IEPs because no one told them or gave them IEP copies. Other times, they knew some of their kids were in special education, but no one was ever given IEP copies, so they didn’t know they were supposed to expect them. Other times, they got the IEPs, but didn’t have time to deal with them, threw them in a drawer, and forgot about them. By the time the first report cards of the school year came out, these kids were train wrecks.

Moreover, this section of the regulations requires that staffs always have access to IEPs, know and understand their content, and know which parts of the IEP they are responsible for implementing, as well as how to implement those parts. Specifically, it reads:

A local educational agency, prior to the placement of the individual with exceptional needs, shall ensure that the regular teacher or teachers, the special education teacher or teachers, and other persons who provide special education, related services, or both to the individual with exceptional needs have access to the pupil’s individualized education program, shall be knowledgeable of the content of the individualized education program, and shall be informed of his or her specific responsibilities related to implementing a pupil’s individualized education program and the specific accommodations, modifications and supports that shall be provided for the pupil in accordance with the individualized education program, pursuant to Section 300.323(d) of Title 34 of the Code of Federal Regulations. A copy of each individualized education program shall be maintained at each schoolsite where the pupil is enrolled. Service providers from other agencies who provide instruction or a related service to the individual off the schoolsite shall be provided a copy of the individualized education program. All individualized education programs shall be maintained in accordance with state and federal pupil record confidentiality laws.
(Amended by Stats. 2007, Ch. 56, Sec. 51. Effective January 1, 2008.)

This State regulation provides procedural accountability for situations such as when an IEP sits in a special education department filing cabinet without a special education student’s general education teachers knowing anything about it or the accommodations they are supposed to be providing in their classrooms to that child. The federal regulations are not as exactly precise.

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Preventing SpEd Jargon from Impeding Agreements

Click here to listen to the podcast version of this post.

Source: Bob Cotter via Flickr

All too often in special education, those of us who have been working at it professionally for more than a few years have increased our vocabularies to include terms of art, acronyms, and legally significant phrases that mean a whole lot to us, but not a whole lot to professionals new to the field and parents. I find that a lot of my job as a lay advocate is translating SpEd-Speak into plain language.

It was actually during a case I’ve been working with a family that moved to the U.S. from Thailand that brought this point home for me. I found that by simplifying my language for the benefit of the translator, who knew nothing of special education, I made it lot easier for everyone else in the room to follow the logic of what I was saying. The meeting was also attended by the school district’s lawyer, who was actually pretty awesome once she realized what was going on. It was one of the most amicable and constructive IEP meetings in which I’ve participated in a while.

What I found worked best was to use simple language to communicate with most of the IEP team members, then sum up my point to counsel for the district in language she would appreciate in light of the regulations and the applicable science, if needed. In the end, what we figured out was that our 9th grade client qualified for special education as having autistic-like behaviors pursuant to 5 CCR Sec. 3030(g) and that his speech-language impairments for which he had originally been found eligible were features of his autistic-like tendencies as well as bilingualism coming from an Eastern tonal language to English.

I already knew from experience that throwing a bunch of jargon at people during a meeting where you’re trying to make things happen is not particularly constructive if any of them are unfamiliar with the lingo. Having non-English speaking clients only made the point more vivid. But, then I ran across an article in an old issue of Entrepreneur magazine that drove the point home even more, and, combined with my prior knowledge, inspired this blog post and corresponding podcast.

Click to Tweet: Throwing jargon around in IEP meetings is not constructive if the other people are unfamiliar with the lingo. #kps4parents

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Additional Assessments, IEE Assessors, & Parental Consent

As I’d mentioned in our earlier article, Topics Picked from Readers’ Search Terms, I’ve been going through our web stats and have selected search terms that put people on our site but didn’t necessarily answer their questions.  Our hope is to provide the answers they’ve been seeking now that we know these are things for which people need information about special education.
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Legal Loophole in the IEP Process

We had a case that began last school year and carried forward into this school year in which a legally interesting, but damnably frustrating, situation arose that exposed a legal loophole in the special education process. There’s no way to give a short and easy descriptive name, so I just going to describe the circumstances to you and discuss the implications.

The situation involved a school district that has made a practice, thanks to the micro-managerial style of the district’s special education director, to fail to provide a finished copy of an IEP to the parents at the end of each IEP meeting. This is a district-wide policy issue, not something that only happened to our client. As a policy, the director of special education attends the IEP meetings and brings his secretary who takes the IEP meeting notes (which he refers to as “minutes”) on an AlphaSmart.

For those of you not in the know, an AlphaSmart is a portable keyboard/word processor that can be connected to a computer to print out what has been typed on it. They are often used in special education to give to students who keyboard better than they hand write to take notes in class, produce written work, etc. They’re small and portable but they don’t have all the functionality of a laptop computer. While they were cutting edge back in the day, these days, there’s nothing that says “I’m in special ed!” like taking an AlphaSmart to class, so most kids won’t have anything to do with them, leaving a surplus in the special ed department in those districts that bought them.

This school district I’m talking about – let’s call it L District – has the secretary type the IEP meeting notes as the IEP meeting is taking place, which is actually more efficient than having someone who has to also participate in the meeting doing double duty by taking the notes as well (participating and taking notes at the same time is very, very challenging and usually the quality of the person’s participation and the notes are sacrificed to a certain extent) using an AlphaSmart. The problem is that L District does not provide the means to print out the meeting notes at the end of the IEP meeting from the AlphaSmart.

Instead, the AlphaSmart is taken back to the district offices where the notes are eventually printed out days, weeks, or even months later. And, before the notes are provided to the parents, they are “reviewed” by the district’s director of special education. More to the point, they are edited by the district’s director of special education, as is the rest of the IEP. Because the notes aren’t available at the end of the IEP meeting, the whole IEP document is held up. Or, at least that’s the excuse that is given by the district. The reality is that the director of special education takes it upon himself to go through every IEP document and edit it after the IEP team has already determined what it will say. The edited document is what the parents ultimately receive days, weeks, or months later.

To make matters worse, the parents have often already signed consent to the IEPs on the signature pages that were presented to them during their IEP meetings based on what was discussed, which the special education director subsequently changes when he edits the IEPs. Because the parents were never given a copy of what they thought they were consenting to immediately following the IEP meeting, they have nothing to compare against the special ed director’s edits. On top of that, half the time, what they get is the IEP less the meeting notes, which are provided some time later. Even if they were in agreement with the parts of the IEP they got, the meeting notes are provided after they sign and their signatures are construed by the district to apply to the meeting notes, even though the notes were not available at the time they were asked to sign their consent and thus, were not actually consented to.

This isn’t clear from the record. If you request student records from this school district, what you’ll get are the whole IEPs put together well after the fact and there is no documentation to reflect that they were done piecemeal and that consent was sought to only portions of the documents though applied to the entire document once the outstanding components were actually produced. In reality, portions of the documents may not be consented-to, but you have no way of knowing that just by looking at them. Unless you have dated written correspondence from the parents that say, “Hey! When are you going to give me the IEP” and “Hey! You only gave me part of the document!” you have no way to prove the procedural violations.

More important than just the violations of the proper procedure is the impediment these procedural violations create with respect to meaningful parent participation in the IEP process, which is a right guaranteed to parents under federal law and part of the definition of what amounts to a FAPE. That’s the bigger concern for me.

There are no federal regulations that spell out how long a school district has after an IEP meeting has been held to produce the IEP document for the parents to consider and to which they can give consent. The law only requires that the IEP be implemented as soon as possible once the parents have consented to it.

Some parents know enough to not sign agreement to anything the day of the meeting and to only sign that they were in attendance. They then take a copy of the IEP home so they can go over it and think about it before signing their consent. I advise that parents do this pretty much all the time unless we’ve been through several IEP meetings and the current one is the last in a series that finally results in a clean document worth signing. At that point, the document isn’t new to us; it’s been through several revisions and we’ve finally gotten all the bugs worked out. If it is a new IEP, I definitely advise parents not to sign right then or to only indicate agreement to the no-brainer parts with which they have no problems (like eligibility, for example).

But, what happens when the district doesn’t make a copy of the IEP immediately available? Sometimes, the IEP meeting doesn’t get done until 5pm (or later) and all the printer and copier equipment has been shut down for the day and the school personnel need to get home. Sometimes a piece of equipment is broken and the document is going to have to be printed and copied at another location. These things happen. I have no problem with a district faxing or scanning/emailing me the IEP the next day or even the day after that.

What I have a problem with is waiting for over a month for the IEP document to be forthcoming while the child fails to receive the services the IEP describes and to which the parents would have consented had they been provided with the IEP more timely, particularly when those services are desperately needed and the child is suffering harm in the absence of them. Or, when the staff work off of “verbal agreement” to what they remember the IEP team discussing but without a document that explains exactly what they’re supposed to be doing such that they’re all doing what they think the IEP probably says rather than what it actually says, undermining everything with their own individual subjective interpretations of what is supposed to be going on.

There is no such thing as “verbal agreement” in special education. Nothing can be implemented without the parents’ written consent. Consent cannot be given if the parents have no IEP to sign. A FAPE is denied when the education rendered fails to comport with the IEP. If what the staff is doing is what they think is on the IEP that hasn’t been signed by the parents yet, and it isn’t identically described in the student’s previous IEP (which is the one still in force until the new one is signed), then the staff is rendering an education that fails to comport with the student’s current, in-force IEP.

A FAPE is denied on the basis of a failure to allow meaningful parent participation in the IEP process, as well, because the parents cannot meaningfully participate if they are prevented from giving consent to the new IEP. And, what if they don’t agree with the new IEP or at least parts of it. How can they express that disagreement and work with the district to see the dispute resolved if they have no document to work from.

Parents have a right to a copy of their child’s IEP. The regulations are clear on that. However, this usually is taken to mean a copy of the signed IEP after consent has been given. It doesn’t specifically state that, so that leaves some leeway to file a compliance complaint on the basis that the parents have been denied a copy of the IEP, but there is no timeline by which it has to be provided other than the general rules that apply to the general provision of copies of student records to parents upon written request. That’s usually the regulations you turn to when you want a copy of a kid’s entire file. You shouldn’t have to file a records request as a parent just to get a copy of the most recent IEP offer for your consideration and consent.

The district has an obligation to offer and render a FAPE. It can’t do that without parental consent to an appropriate IEP offer. Parental consent can’t be obtained without giving the parents the IEP to sign. It seems so logical to me, yet, procedurally, L District continues to sit on IEPs for weeks to months and provide them to parents piecemeal, construing consent to parts of the document to apply to other parts provided to the parents well after they have already signed.

Ideally, districts would have no more than two or three business days after the IEP meeting to get an IEP copy to parents for their consideration. But, we don’t have any laws that require that – at least not at the federal level. Some states may have regulations to that effect, but I’m in California – one of, if not the most regulated states on the planet – and we don’t have anything like that. Generally speaking, the other states have less stringent requirements than California, so it wouldn’t surprise me at all to learn that none of the other states have timelines specific to providing IEPs to parents for their consideration and signature following the IEP meeting. Please comment if there are such regulations that you’re aware of in your state.

I can’t fathom why a school district would want to exploit a legal loophole like this. There’s no good faith reason to take so long to get full, intact IEP copies as they were written during the IEP meetings to parents following the IEP meetings. I’m pressed to come up with a bad faith reason that makes any sense. In the instance of L District, it’s the inadvertent outcome of a controlling administrator and his deliberate use of a tool for taking the notes that prevents the immediate production of intact IEP copies at the end of the meetings to buy himself time to edit the IEP documents after the meetings have already been held without the input of the rest of the IEP team.

As it stands, the only real way to contend with this is due process, which we pursued on our client’s behalf in this district. But, the outcome we achieved only impacts this student. It’s still business as usual for every other special ed student in the district and that bothers me a lot. Were there regulations that specified a timeline for this situation, a simple compliance compliant would take care of it. Unfortunately, under the circumstances, all we have left in our tool bag for this type of situation is litigation.

Click here to download the podcast version of this article.

Podcast: Implementing Partially Consented-To Assessment Plans & IEPs

On January 12, 2009, we originally published “Implementing Partially Consented-To Assessment Plans and IEPs”. Throughout this school year, KPS4Parents is recording many of our past text-only articles as podcasts so that busy parents, educators, and interested taxpayers can download them and listen to them at their convenience.

As always, feel free to comment on our content. We appreciate the input of our readers and listeners to bring you the information you seek. You can either comment below or email us at info@kps4parents.org.

Click here to download the podcast “Implementing Partially Consented-To Assessment Plans and IEPs.”

Podcast: Partial Parental Consent on IEPs & Assessment Plans

On January 5, 2009, we originally published “Partial Parental Consent on IEPs and Assessment Plans”. Throughout this school year, KPS4Parents is recording many of our past text-only articles as podcasts so that busy parents, educators, and interested taxpayers can download them and listen to them at their convenience.

As always, feel free to comment on our content. We appreciate the input of our readers and listeners to bring you the information you seek. You can either comment below or email us at info@kps4parents.org.

Click here to listen to the podcast, “Partial Parental Consent on IEPs and Assessment Plans.”