Tag Archives: timeline

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.

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Understanding the Initial Assessment Process

The way special education law generally works is that the implementing regulations of the Individuals with Disabilities Act (“IDEA”) set the basic framework at the federal level and each state’s laws speak to how the federal requirements of the IDEA will be implemented within its respective state. Similarly, U.S. Territories, the District of Columbia, etc. have their own equivalents of state laws speaking to the implementation of the federal regulations within their respective jurisdictions. For the purposes of today’s posting, when I say “state,”? I’m also referring to the other types of American soil.

So, given that there is so much variation from state to state in how the federal regulations are implemented, I’m going to start at the top with the federal regulations. I’ll touch on a couple of the states’ regulations, but there’s no way to fit them all into one posting. You can research your own state’s regulations by going to its web site. The U.S. Department of Education has all the states’ web sites here: . If you can’t find it on their site, there’s a phone number for the special education division listed somewhere on their site and you can call and ask what the timelines are.

To start out, let’s define what exactly an initial assessment is. I will tell you that it is not necessarily the first special education assessment the child has ever taken. An initial assessment or initial evaluation (“assessment” and “evaluation” are used interchangeably in special education) is the assessment that determines if a child is eligible for special education. Sometimes children are tested at parent request every few years and are found ineligible. It doesn’t matter how many times the child was tested before; if the child’s fifth assessment finds him eligible for special education, then it is the initial assessment of his special education program that begins with his first IEP in which he is found eligible.

Sometimes kids exit special education only to later qualify again years later. Even under a circumstance like that, if the child wasn’t in special education at the time he/she was assessed and was in special education after the assessment, then the assessment that “re-found” the child eligible for special education would be considered an initial assessment.

This use of the term is meant to distinguish it from re-evaluations and triennial evaluations. We’ll talk more about those in future blogs, but for the purposes of distinguishing among these different assessments enough for the present discussion, a re-evaluation is any assessment conducted subsequent to the initial evaluation. It could be a year later, three years later, or ten years later. A triennial assessment is also called a three-year evaluation.

All evaluations are supposed to be sufficiently comprehensive in all areas of suspected disability to properly inform the IEP team. For initial evaluations, this is paramount because a child’s eligibility determination needs to be based on a rich body of data that includes scores on standardized testing and actual school work, as well as feedback from the adults interacting with the child throughout the day. The parents play a huge role in informing the IEP process.

But, initial evaluations aren’t supposed to be all about finding kids eligible. That’s only half of what initial assessment is supposed to achieve. The other half of the initial assessment is to identify the student’s present levels of performance. If the child is eligible for special education, this information is used to create the measurable annual goals.

If the child is not eligible for special education, he/she may still be eligible for a 504 Plan, in which case the present levels data would drive the content of that document. If the child is not eligible for a 504 Plan, then the local education agency would still have to provide regular education accommodations. In the very least, the child’s teacher should know about the assessment findings so that he/she can provide regular education accommodations to the degree they are needed.

Once a referral has been made for special education assessment, an assessment plan must be provided to the parents. While many school districts rely on 34 CFR Sec. 300.503 to issue denials of assessment referrals, in California, for example, whether or not school districts must conduct an assessment once a referral has been made is non-negotiable.

5 CCR Sec. 3021(a) states that all referrals for special education assessment <em”>shall initiate the assessment process. According to EC 56029, a referral for assessment is any written request by a parent, teacher, other service provider, or foster parent of the student to have the student tested for special education.

Georgia, to the contrary, has a very curious practice that I’d like to know more about. Its stance is apparently that while parents have the right to make referrals pursuant to the federal regulations at 34 CFR Sec. 300.301(b), local education agencies have the right to refuse those referrals pursuant to 34 CFR Sec. 300.503(a)(2).

I’ve seen schools say the same thing in California despite the State laws that prevent it, but in this instance, it’s the Georgia Department of Education that’s taking this stance (see the Georgia Department of Education Special Education Implementation Manual

Gwinnett County (Georgia) Public Schools conveniently leaves out of its public information anything about how parents can make referrals for assessment as well. With the State Department of Education taking the position that it has apparently taken, at least based on what I could find, I have to wonder if there are local education agencies in Georgia that simply ignore parent referrals altogether without any consequence. I’d be interested in hearing from folks in Georgia about this. I really couldn’t find anything to help me out looking at the that have come out of Georgia.

Regardless of what state you’re in, once the referral has been made and assessment has been consented to by the parents in writing, under the newest IDEA regulations, local education agencies can’t take more than 60 days to conduct the assessment, write the reports, and hold the IEP meeting to go over the data. However, some states have imposed even shorter timelines. It is 30 days in Minnesota for the evaluation process to take place. While state law cannot diminish the protections offered to students under the IDEA, it can add to them.

The same federal law that specifies the maximum deadline also mandates that initial assessments be comprehensive enough in all areas of suspected disability to allow the IEP team make informed decisions about whether a child qualifies for special education services and, if so, what those services should entail. This is where things can get dicey.

There can be a great variation of opinions as to what constitutes as “reasonably sufficient” when it comes to assessments. At minimum, the assessors should be qualified for the types of assessments they are respectively performing, follow the instructions of the producers of any standardized assessments, and follow the “best practices” of their respective professions.

It is also important to know that, while those areas that were tested may have been done so sufficiently, that doesn’t mean that all areas of suspected disability were assessed. I can’t even begin to tell you how many children I’ve come across with huge red flags in the area of auditory processing who have never been properly assessed for it. Auditory Processing Disorder (“APD”) can only be diagnosed by an audiologist.

The quality of any evaluation is important, but the initial evaluation is the one that’s opening the Pandora’s Box of the child, the way he/she learns, and the nature of his/her disability. You need to go into that situation equipped to contend with whatever you may find because, typically, you have very little to go on regarding a child’s educational needs at the time of the initial assessment, other than the fact that the child is not being successful in school.

Our next posting will be devoted to understanding assessment data. If I can, I think I’d like to put it together as a screencast for you because there are statistics involved and, personally, I need visual aids to understand concepts like that. I can’t presume I’m the only one.

Please do post your comments, particularly parents and educators in Georgia. We’d like to hear people’s feedback regarding how long these assessments take in their experience.