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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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KPS4Parents Produces Free 45-Minute Parent Training Video

We’ve been working hard over the summer to bring you new tools for this upcoming new school year. To kick things off, we’re giving parents a free 45-minute training video titled, “3 Critical Errors that Even the Smartest Parents of Children with Special Needs Can Make in the IEP Process.” Watch it now and you’ll also get links to additional resources, including a free IEP goal-writing template that you can use to prepare for your IEP meetings, as well as during the meetings when IEP goals are being formulated by the IEP team.

Best of luck in the new school year to all students and their families! We hope this tool is useful for many of you struggling to understand the IEP process and that the tools that we will continue to add to our parent education resources will help you as you continue to learn, as well.

Wrightslaw Loves our Video!

Crash Course in IEP Goal-Writing

May 15, 2010 IEP Goal-Writing Workshop Flyer

KPS4Parents will be conducting a parent & educator training workshop on IEP Goal-Writing in Camarillo, California on May 15, 2010 from 9:30 to noon.  The event will be held at Channel Islands Social Services.

Space is limited, so please register early to save your seat. Registrations close after April 12, 2010.  Click here for more information and to register.

Independent Educational Evaluations (“IEEs”)


UPDATE (03/11/2011): Subsequent to posting this article, we became aware of a memorandum from the U.S. Department of Education Office of Special Education Programs (“OSEP”) of February 20, 2004, in which it states that parents determine which outsider assessor will conduct an IEE. Click here to download the OSEP letter. Please use this update to inform your decisions as you read through the content below.


I want to talk about Independent Educational Evaluations, or IEEs, in today’s posting and podcast because there seems to be a fair amount of confusion about what they are and when parents can ask for them to be provided at public expense – or even what it means for parents to ask for IEEs at public expense.  And the confusion is not just on the part of parents, which should be somewhat expected; it’s also on the part of special education professionals of varying ranks within public education agencies.

First, let’s define what an IEE is – it is an assessment that can inform the special education process that is conducted by a professional not employed by or acting on behalf of the public education agency responsible for educating a specific child.  An IEE can be obtained at private expense or at public expense.

An IEE is not, however, the same thing as a school district using an outside assessor to conduct an assessment on its behalf.  For example, many school districts do not have staff audiologists and will contract with third-party audiologists to conduct assessments for Auditory Processing Disorders (“APDs”) on their behalf, but this is still considered a district assessment since it is being done on the district’s behalf as a normal part of the assessment process when an APD is an area of suspected disability.

Many times, parents who do not understand the special education process will privately fund IEEs not realizing that assessment in all areas of suspected disability is the financial burden of the public education system.  I’ve had parents come to me after having paid for a private assessment such as this only to be surprised when I’ve informed them that the public schools have a mandated obligation to assess students who may be in need of special education.

These are often the parents who suspected their child had a learning problem and went out to the private practice community first to get answers to inform themselves.  Once they had information about their child’s unique learning needs, they subsequently found out that they could have gone straight to their child’s school for help.

Then there are parents who tried to get assessment from their child’s public school but were given misleading information regarding the school’s obligations with respect to assessment and were sent away empty-handed.  These parents then went out and paid for private assessment because they thought the school system couldn’t do anything to help identify why their child was failing to learn, only to find out afterward that they had been lied to and jerked around by the public schools or that whomever they had spoken to at the school had no idea what he/she was talking about and had provided them with poor guidance.

The thing to bear in mind is that if parents obtain an independent assessment at private expense and present it to the school district, and that outside assessment is used to find the child eligible for special education, the school district must reimburse the parents for the cost of the assessment.  This is because the financial burden of assessing for special education eligibility is that of the school district to bear.  This is why many districts will insist on doing their own assessments after receiving an outside assessment from a parent indicating that a student has special needs.  Outside assessments are often more costly than those done in-house by the district, so it’s less expensive to do its own assessment than reimburse the parent for the independent assessment that he/she had done at private expense.

The same rules for reimbursement can apply to an assessment that identifies needs that were not identified by the district that drive the content of a child’s IEP, even if the district found the child eligible as a result of its own assessments on the basis of some other need.  So, for example, let’s say we have a child with an APD in addition to Attention Deficit Hyperactivity Disorder (“ADHD”).  But, in this example, the district’s assessments only identified the ADHD and found the child eligible on the basis of that condition but failed to include assessment by an audiologist for an APD.  If the parents subsequently paid for an APD assessment by an audiologist and those finding were used to amend the child’s IEP to include auditory processing therapy, accommodations for auditory processing needs, adaptive technology for auditory processing issues, etc., then the district would owe reimbursement to the parents for the APD assessment.

Unfortunately, what often happens is that school districts do not want to admit that they failed to attend to their duties and will thus argue against the information brought in from the outside by parents.  They’ll argue all kinds of crazy things, not necessarily because they’re against the types of services that the independent assessments recommend, but more often because they don’t want to admit that they screwed up in the first place.  A lot of due process cases arise out of situations like these.  And, the child is the one caught in the middle failing to receive appropriate interventions while the adults involved argue over what is really going on and what should be done about it.

IEEs become particularly important when parents disagree with the assessments conducted by the public schools, and this is where things can become particularly tricky.  Some parents, completely unaware of their rights, will go out and pay for a private assessment after receiving an assessment from the public schools with which they disagree.  They will then submit the findings of the independent assessor to the school district to refute the district’s findings from its own assessment.

What these parents often don’t realize is that if they disagree with the school district’s assessment, they have a right under the Individuals with Disabilities Education Act (“IDEA”) to an IEE at public expense – that is, a second opinion by someone not employed by the public schools but at the expense of the public education system.  What these parents also often don’t realize is that just because they provide the school district with an independent assessment, the school district is not procedurally bound by what the independent assessment recommends.

School districts must consider outside assessments provided by the parents.  Considering something and being bound by something are two different things.  When the findings of an independent assessor, particularly one paid for by the parents, conflicts significantly with the findings of the school district’s assessment, the school district will often “consider” the IEE to be without merit.  What can then ensue is a “war of the experts” in due process.

The cleaner, much preferred way to go about IEEs in my experience is to let the school district perform its own assessments (presuming they don’t refuse to assess) and see what they say.  If the district’s assessment results are inadequate and/or inaccurate, then the parents should disagree in writing with the district’s assessment and ask for an IEE at public expense.  The only way a school district can lawfully deny funding an IEE under such circumstances is to file for due process to assert the appropriateness of its own assessments, and this is a critical procedural consideration that parents and educators alike often fail to understand.  (See 34 CFR Sec. 300.502(b).)

I have a number of refusal letters on file from school districts where they declined to honor parents’ requests for IEEs after the parents disagreed with the districts’ assessments but the districts never filed for due process to assert the appropriateness of their own assessments.  In some of the cases, all I had to do was file a compliance complaint over the procedural violation and the state education agency ordered the offending districts to fund the IEEs.  In other cases, there were other issues that made due process necessary and the failures to fund the IEEs were just more fuel for the fire, so they were dealt with as due process issues.  In those cases, the parents had usually gone out and funded the IEEs themselves after their requests for IEEs had been unlawfully declined and the districts owed them reimbursement at that point.

And, that brings up another critical consideration.  If a parent asks for an IEE at public expense and the district refuses to fund it but fails to file for due process to assert the appropriateness of its own assessments, and the parent goes out and pays for the IEE at private expense, then files for due process over the denial of a Free and Appropriate Public Education (“FAPE”), the school district is then given the opportunity to demonstrate in hearing that its own assessment was adequate.? Parents need to take this into account.

Just because the district failed to abide by the procedural requirements to file for due process upon declining to fund the IEE does not mean the parents will automatically prevail in due process.  It is possible that a hearing officer could determine that, procedural violation aside, the district’s assessment was nonetheless adequate and reimbursement is not due.

However, some school districts will attempt to argue that the parents should be procedurally barred from seeking reimbursement from the district for IEEs if the parents didn’t first give the district notice that they intended to fund the IEEs themselves and later seek reimbursement from the district.  This is a misrepresentation of the regulations by the school district.  Parents are not required to give notice of their intent to seek reimbursement for a private assessment from the public schools upon disagreeing with the public school’s assessment.

When school districts try to assert this argument, they are confusing the notice requirements for unilateral placement by parents of their children in private schools or private special education programs with the intent to seek reimbursement for IEEs.  These are two completely unrelated types of reimbursement requests that are bound by completely different regulations.

Under the IDEA, if a parent believes that the district’s offer of services and/or placement are not appropriate, and the parent decides to put his/her child in a private program and seek reimbursement from the district for the costs of that program, the parent must give notice to the district at the last IEP meeting held before the unilateral placement by the parent is made or give written notice at least 10 business days prior to making the unilateral placement.  This is to afford the school district one last chance of pulling its butt out of the sling before it’s on the hook for the costs of a private placement, presuming the parent is right and the placement offered by the district was inappropriate.

However, the same rule does not apply for IEEs.  Parents can go out and get IEEs at private expense then turn around and hit their school districts up for reimbursement without having given prior notice of their intent to do so.  I’m not saying I recommend taking this route, though there are situations that sometimes make it necessary.

Again, the only way the school district can refuse to pay for the IEE is to prove in due process that its own assessments were adequate.  If the district commits the procedural violation of failing to file for due process after declining to reimburse the family, then the family can file a compliance complaint or, if the failure to provide the IEE results in substantive harm to the student, the family can file for due process asserting a denial of FAPE and ask for reimbursement as one of the remedies being sought.

In any of these scenarios, the two most important things for parents and educators alike to understand is that 1) an IEE can only be provided at public expense when the parents disagree with the district’s assessment and 2) the parents’ request for an IEE or reimbursement for an IEE can only be declined by the district if the district proves in hearing that its own assessment was adequate.  This generally means that parents have to give districts the opportunity to do their own assessments first, or there’s nothing with which they can disagree.

The exception is if the district fails to assess when it should have, only for outside private assessment to reveal the presence of needs for which the child requires special education and/or related services.  In essence, the district’s findings are that the child has no special education need in that area and the independent assessment indicates otherwise.  A hearing officer can find that the district’s assessment was not adequate because it consisted of nothing at all and, therefore, the district owes the parents reimbursement for going out and doing the district’s job at their own expense.  As stated previously, the burden to assess in all areas of suspected disability is the district’s to bear, so if it fails to meet that burden by refusing to assess at all, it’s essentially the same outcome as assessing poorly.

This causes confusion for many because, generally speaking, an IEE at public expense is only warranted if a referral for assessment was made in the first place.  In such an event, either an assessment was conducted with which the parents disagreed or the referral to assess was declined by the school district and the parents then went out and got their own assessment by an outside assessor at private expense for which they subsequently sought reimbursement.

However, there is also the issue of “child find,” which is the federal mandate that all school districts actively seek out and identify those children within their attendance areas who are eligible for special education.  It can be successfully argued that if a school district fails to conduct child find, then when parents go out and get assessments done on their own dime only to later seek reimbursement for those assessments that reveal the child is in need of special education, and the record is clear that the child has not been successful at school for some time, then the school district can be found to owe reimbursement.

In essence, due to the district’s failure to conduct child find, the parents had reason to “disagree” with the school district’s “determination” that the student failed to qualify for special education and the district obliged itself to reimburse the parents for their costs to essentially conduct child find on the district’s behalf.  A failure to assess in an area of suspected disability is essentially the same thing as assessing poorly in an area of suspected disability, thereby preventing the district from successfully asserting the adequacy of its own assessments.  You can’t assert the adequacy of something that doesn’t exist.

All of this said, parents need to understand that they only get one IEE for every assessment by the district with which they disagree.  If they don’t agree with the findings of the IEE, they can still go out and get additional outside assessments and provide the reports to the district for its consideration, but they aren’t entitled to additional reimbursements.

I was at a training the other day for a surrogate parent program for incarcerated youth and the trainer was unclear on this issue.  She was under the mistaken impression that parents had the right to IEEs, but they had to pay for the IEEs themselves regardless of the circumstance.  And, this was a dedicated educator who regularly goes out on a limb for children who are, without a doubt, some of the most difficult-to-serve special education students in the world.  The rules about IEEs are confusing to a lot of people and our public schools have not done a particularly good job of training their people on how those rules work, which makes it that much harder on parents who understand special education procedure even less.

Click here to download the podcast version of this article.

US GAO Seclusions & Restraints Report

The United States Government Accountability Office (“GAO”) released its report Seclusions and Restraints: Selected Cases of Death and Abuse at Public and Private Schools and Treatment Centers in May 2009. As Congress contemplates new federal legislation to contend with this societal atrocity, we thought it was pertinent to review GAO’s findings and remind ourselves why this is so important.

Examples of Case Studies GAO Examined:

Victim Information School Case Details
Male, 14, diagnosed with post traumatic stress Texas public school – 230 lb. teacher placed 129 lb. child face down on floor and lay on top of him because he did not stay seated in class, causing his death.- Death ruled a homicide but grand jury did not indict teacher. Teacher currently teaches in Virginia.
Female, 4, born with cerebral palsy and diagnosed as autistic West Virginia public school – Child suffered bruising and post traumatic stress disorder after teachers restrained her in a wooden chair with leather straps described as resembling a miniature electric chair for being uncooperative.-School board found liable for negligent training and supervision; teachers were found not liable, and one still works at the school.
Five victims, gender not disclosed, aged 6 and 7 Florida public school – Volunteer teacher’s aide, on probation for burglary and cocaine possession, gagged and duct-taped children for misbehaving.- No records that school did background check or trained aide.

– Aide pled guilty to false imprisonment and battery.

Male, 9, diagnosed with a learning disability New York public school – Parents allowed school to use time out room only as a last resort,  but school put child in room repeatedly for hours at a time for offenses such as whistling, slouching, and hand waving.- Mother reported that the room smelled of urine and child’s hands became blistered while trying to escape.- Jury awarded family $1,000 for each time child was put in the room.

Just to be clear, these are not isolated incidents. GAO tracked hundreds of cases for the purposes of its report, which you can read in full by clicking here.

Back during the 2002-2003 school year, when our founder, Nyanza Cook, was researching how to start a non-profit advocacy organization, she received a phone call one night from her family in Texas.  They knew that she was looking to start what has since become KPS4Parents and wanted to let her know of something that had happened in their local community near Ft. Hood. As much as she had her own motivations for starting our organization based on what her own household here in California had been put through, the story from her family back in Texas pretty much clenched it.

Her nephew, who was a special education student placed in a special day class at the time, was put on the phone with her, clearly distraught. She asked him what was going on and his reply was, “They killed him, Auntie!  They killed him!”

After speaking with him and other family members, this is what she got:  another special education student in her nephew’s class had become non-compliant that day and unable to focus on his school work. In an effort to compel him to stay on task and comply with adult directives, school site staff withheld food from him, refusing to let him go to lunch until he completed a task he’d been requested to complete.

Somewhere around 2pm, he decided he was hungry and was going to find food whether the adults in the room liked it or not.  When he attempted to leave the room, he was tackled to the ground by staff who piled on top of him.  According to Nyanza’s nephew, he gasped a few times that he couldn’t breathe and then fell silent.

When he stopped struggling, staff climbed off of him only to find him limp and lifeless.  He wasn’t breathing.  Staff ended up calling 911 and attempted to resuscitate him.  His classmates looked on in horror throughout the entire incident, including Nyanza’s nephew.

A friend of Nyanza’s family was an emergency room doctor at the hospital where this young man was transported.  He later reported to her that the school district’s lawyer got to the hospital just before or at the same time the ambulance did and did everything he could to try and convince the hospital to call time of death subsequent to the young man’s body’s arrival at the hospital when, in truth, he’d died on school grounds and emergency personnel had not been able to revive him.  Nyanza’s emergency room doctor friend was indignant that the lawyer had even dared to ask.

None of this made it into the local news.  Nyanza’s family didn’t know this young man’s family personally and before too long, the whole thing had been swept under the rug.  It’s unknown if the District settled with the boy’s family or what became of the teachers involved in the incident. However, after reading Case #2 of the GAO report (the first case cited in the table above), the similarities are uncannily eerie and I have to wonder if it isn’t the same case.

Nyanza’s nephew was terrified to go back to school for fear that he would be killed, too.  He was understandably traumatized.  That is an aspect of the harm done when seclusions and restraints are used in the school setting:  the emotional impact on the children who witness take-downs and adults physically manhandling other children.  That’s probably worth a study in and of itself.

What the GAO report makes clear is that this was hardly an isolated incident.  But, the taxpaying public does not finance the public education system so that it can kill children; the public education system is supposed to be educating children.

At the time of the May 2009 report, there were no federal laws regulating the use of seclusions and restraints in public or private schools.? There are no such federal laws today, though legislation has been proposed. State laws were at the time of the report, and still are, highly divergent.

GAO reported that almost all of the hundreds of cases of the use of seclusion and restraint in school settings that its research uncovered involved children with disabilities.  GAO found that there was no national effort to specifically collect data and track the use of seclusions and restraints in the school setting, requiring it to conduct exhaustive research in order to identify cases of such.  It wasn’t that the cases hadn’t been reported, but the way that data was collected by the involved agencies resulted in the seclusion and restraint cases getting mixed in with many other different types of cases, requiring GAO investigators to go through each case to individually identify which ones involved seclusions and restraints in the school setting.

When I first got involved in special education advocacy, I was working with families of children with dyslexia who weren’t receiving adequate reading instruction and kids with ADHD who needed IEP supports to help them with their organizational skills.  Never in my wildest dreams did I ever think I’d end up working cases of where:

  • An 8-year-old nonverbal boy with autism who loved to play “chase” would do what the adults around him mistook for elopement but was actually his way of initiating a “chase” game, only to be tackled to the ground by his principal on a gravel driveway in an effort to prevent the child from leaving the campus (which he wasn’t actually trying to do), resulting in significant bruising to they boy’s chest.
  • A 14-year-old mostly nonverbal boy with autism who became non-compliant with staff directives when his teacher unexpectedly left early for the day (which had not been part of his visual schedule and, thus, he’d been unable to predict), resulting in an unlawful restraint in which a large male staff member twisted the boy’s arm behind his back and broke it, causing nerve damage and requiring surgery to repair.
  • A 15-year-0ld boy with bipolar disorder and post-traumatic stress disorder (from having witnessed his father’s suicide) who was directed into a time-out room alone with his male ESY teacher (an aide on a 30-day emergency teaching credential), who then compelled the student  to perform oral sex upon him behind a locked door.
  • An 8-year-old boy with autism and mild mental retardation who received special education transportation services on a large bus filled mostly with emotionally disturbed children being transported to an ED program on the same campus where his learning handicapped class was located, only to be forced to regularly orally copulate a male ED peer in the back of the bus in the absence of a transportation aide and out of sight of the bus driver.

The latter case was peer-on-peer violence, but it was the lack of appropriate supervision that allowed it to happen. Passiveness on the part of adults can result in just as much harm as outright aggression.

The point is that children with disabilities are at a higher risk of being preyed upon and victimized by people who should know better or peers who themselves are not receiving adequate intervention. This continues in one form or another into adulthood where cognitively impaired adults are put up to committing crimes they don’t understand so that other people will “like them” or are taken advantage of by scam artists and are economically abused.  Women with mental disabilities can easily end up in the sex trade.

What is really scary is when a person with mental deficiencies is repeatedly exposed to violence and learns through experience to behave violently him- or herself.  Trying to unteach that learning when the person has reached adulthood after a lifetime of inappropriate, violent behavior, can only be achieved through very time-consuming, involved, and usually very costly, direct instruction.  The long-term consequences of seclusion and restraint are far-reaching and devastating.

Combatting the School-to-Prison Pipeline

Many people have never heard of the School-to-Prison Pipeline, or may have heard of it but don’t know what it is.  Here are some web sites that provide information on this horrific phenomenon that literally funnels children out of our schools and into our prison populations every day.

While there are a variety of populations that are impacted by this phenomenon, children with special needs are right up there at the top of the list. The failure of public schools to utilize positive behavioral interventions and, instead, rely on punitive measures in response to the manifestation of behaviors related to or caused by children’s handicapping conditions directly contributes to the incarceration of children with handicapping conditions rather than their education and remediation.

Unfortunately, the arrest of 11-year-old Zakhquery Price in Fort Smith, AR is just one of many cases of school districts responding inappropriately to the behavioral needs of special education students and is a prime example of the School-to-Prison Pipeline in action.

Podcast: Services for IEP Behavioral Goals

On July 7, 2009, we originally published “Services for IEP Behavioral Goals”. 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 “Services for IEP Behavioral Goals.”