 Tips On Advocating For Your
Child
None of the panel of advocates for this page are lawyers. The information on
this page is to be used to provide some thoughts and information. This information is not
to be used as legal advice. For legal advice, I suggest you contact a lawyer who
specializes in Special Education law.
Many of the questions I'm asked are answered in
IDEA '97 Final Regulations
Appendix A to Part 300
—Notice of Interpretation. We feel this is an underused resource and
suggest you check to see if your question is answered there.
? Did You Know ?
Having trouble getting your child's needs met at the IEP
meeting? Did you know that you are entitled to Prior Written Notice? This is
from the IDEA '97 Final Regulations
Appendix A to Part 300 —Notice of Interpretation
"The IEP team should work toward consensus, but the public agency
has ultimate responsibility to ensure that the IEP includes the services that
the child needs in order to receive FAPE. It is not appropriate to make IEP
decisions based upon a majority ``vote.’’ If the team cannot reach
consensus, the public agency must provide the parents [FR Page 12474] with prior
written notice of the agency’s proposals or refusals, or both, regarding
the child’s educational program, and the parents have the right to seek
resolution of any disagreements by initiating an impartial due process hearing."
[Emphasis Added]
Prior Written Notice is explained at §300.503
Prior notice by the public agency; content of notice of the Implementing
Regulations and must include:
- (1) A description of the action proposed or refused by the agency;
- (2) An explanation of why the agency proposes or refuses to take the
action;
- (3) A description of any other options that the agency considered and the
reasons why those options were rejected;
- (4) A description of each evaluation procedure, test, record, or report
the agency used as a basis for the proposed or refused action;
- (5) A description of any other factors that are relevant to the agency's
proposal or refusal;
- (6) A statement that the parents of a child with a disability have
protection under the procedural safeguards of this part and, if this notice
is not an initial referral for evaluation, the means by which a copy of a
description of the procedural safeguards can be obtained; and
- (7) Sources for parents to contact to obtain assistance in understanding
the provisions of this part.
See Use
of the IDEA's Parental Notice Requirements as an Affirmative Advocacy Tool
Visit our Ask Listen-Up
page for a few Cochlear Implant related Questions and Answers.
I can't afford hearing aids for my child. Does the
school system have to provide them?
 OSEP has 3 guidance memo's
along these lines. OSEP is a sub-branch of the United States Department of
Education and are responsible for ensuring States' compliance with and
implementation of the Individuals with Disabilities Education Act (IDEA).
re: Hearing Aids are Assistive Technology
http://www.listen-up.org/rights2/osep1.htm
In a nutshell, this one says that if a child needs them in order to receive
FAPE, the school has to provide them.
Whenever you even mention hearing aids, the first thing out of the school
district's mouth is "We don't provide personal hearing aids." This next memo
covers that:
re: Presumptively Denying Assistive Technology
http://www.listen-up.org/rights2/osep4.htm
And the third one is re: School District's Liability for a Family-Owned AT
Device
http://www.listen-up.org/rights2/osep3.htm
Which says that if the AT is provided by the family in order for the child to
receive FAPE, then the school district is liable for them because if you
hadn't provided them, they would have had to.
The following will probably be useful too:
From the ADA:
28 C.F.R. 35.160
http://www.ed.gov/offices/OCR/regs/28cfr35.html#S160
"a) A public entity shall take appropriate steps to ensure that communications
with applicants, participants, and members of the public with disabilities are
as effective as communications with others.
(b)(1) A public entity shall furnish appropriate auxiliary aids and services
where necessary to afford an individual with a disability an equal opportunity
to participate in, and enjoy the benefits of, a service, program, or activity
conducted by a public entity.
(2) In determining what type of auxiliary aid and service is necessary, a
public entity shall give primary consideration to the requests of the
individual with disabilities."
From the IDEA:
"Each child's IEP team must consider the child's need for assistive technology
(AT) in the development of the child's IEP (§300.346(a)(2)(v)); and the nature
and extent of the AT devices and services to be provided to the child must be
reflected in the child's IEP (§300.346(c)). A public agency must permit a
child to use school-purchased assistive technology devices at home or in other
settings, if the IEP team determines that the child needs access to those
devices in nonstop settings in order to receive FAPE (to complete homework,
for example)."
If you have questions about a child placed in a
private school by their parents and are confused by the current rules and
regulations, join the crowd. We hope the following 2 links will be of help:
- USDOE Brief,
"Parentally-placed Children in Private Schools"
- IDEA '97 Final Regulations
This week is back to school night. We asked for an
interpreter but the deaf ed supervisor said they don't have to provide one since
it is not in our daughter's IEP. Is this right?
Under the
Americans with Disabilities Act, the school is obligated to provide
communication that is as effective as communications with others, and does not
need to be written into the IEP. For further details, please see
We're getting ready for our first IFSP meeting. What can we
expect regarding getting the services we need?
They won't OFFER
anything. It still amazes me that professionals who know what kinds of things would
benefit your child won't open their mouths unless you ask for services.
-Angie
How can I be sure the things I think are important are covered
at my child's IEP meeting?
Write an agenda, hand it to all the team members
and do not leave, before all the points on the agenda are discussed. Keep it short and
precise, what the needs of the child are.
- A Parent Advocate
I feel that the minutes of our IEP meetings often miss a
lot of what we talk about. How can I better document the meetings?
They have their own
documentation, so why shouldn't you?? You could try tape recording the meeting (you
have to give them advance notice that you intend to do this.) I know from firsthand
experience (as a parent of a disable child that has had to fight for rights) that
sometimes a tape recorder is not enough. Try taking a legal pad, writing down the
major "points" to the meeting, and then pass the pad around and have them sign
it! Calling it "taking minutes" is a great way to handle this delicate
area. They shouldn't get too bent out of shape. Make sure you list ALL members
present at the beginning of your paper. Ask them to repeat spelling if necessary. Ask for
clarification of important points - "Just to make sure I understand you, you
stated..............., is this correct?" At the end of the meeting, re-read it back
to them and then request they sign it for your documentation. The state (should you need
to go further) will not accept it as an official document without the signatures. If they
don't cooperate, make sure you tell them that you will make note of this on the pad.
- A Parent Advocate
How do I reopen
my child's IEP?
Part of the
Response to
Question 20 in Appendix A to the IDEA reads:
"Although the public agency is responsible for determining when it is
necessary to conduct an IEP meeting, the parents of
a child with a disability have the right to request an IEP
meeting at any time. For example, if the parents believe that the child
is not progressing satisfactorily or that there is a
problem with the child's current IEP, it would be
appropriate for the parents to request an IEP meeting. "
Ask for a review of the IEP in writing. Here is a sample letter that will make
things easy for you:
http://www.comnet.org/sac/review.htm
- A Parent Advocate
I would like to get a related
service in my child's IEP, but the team tells me they can't because they have
nobody who can provide the service.
OSEP has consistently ruled that
lack of available service providers is not an
excuse. States have an obligation to anticipate
service needs and take whatever measures are necessary to
ensure an adequate pool of special ed service providers. It's right
there in IDEA.
-Celeste Johnson
How much weight does an OSEP policy statement have?
In the past, an OSEP policy statement was almost
as good as case law. In some respect, it was better, because case law is only
binding within the federal circuit in which it was generated; it merely advisory in the
others. However, technically, an OSEP policy statement is NOT law, thought it has
been viewed as such. Not only does it have the advantage of being applicable
nation-wide, but school administrators routinely abide by such policy statements, and keep
abreast of them, as opposed to case law, which is a virtual mystery to them (just like the
rest of us <grin>.) I have seen school administrators carry around a binder
filled with OSEP policy rulings. I have never seen anyone carry around case law.
HOWEVER, IDEA97 attempts to put the kibosh on the weight placed on OSEP policy statements.
That is why the OSEP Policy Guidance on the Placement of Children Who are Deaf is
specifically mentioned in IDEA '97 - and thus virtually takes the force of statute. It
remains to be seen how the courts will view policy
statements/guidance, in light of IDEA 97. In terms of school districts, I don't see
that anything will change. Hand them a policy statement from OSEP, and an
immediate attitude adjustment occurs. They rightfully feel that OSEP does the
monitoring and holds the purse strings.
-Celeste Johnson
When
addressing how much weight to give OSEP policy statements, in
The United
States Court of Appeals for the Third Circuit, Michael vs the Radnor Township
School District, the judge stated (emphasis added):
"Citing to 20 U.S.C. S 1407(f), plaintiffs argue that the 1997 IDEA
amendments make clear that OSEP's policy statements are not entitled to the
force of law. Presumably, plaintiffs intended to cite to S 1406(f), which
states that where the Secretary responds to an inquiry regarding a policy,
question, or interpretation under Part B of the IDEA, that response "shall
include an explanation that the written response--
(1) is provided as informal guidance and is not legally binding; and
(2) represents an interpretation by the Department of Education of the
applicable statutory or regulatory requirements in the context of the specific
facts presented."
"Assuming that Policy Memorandum 96-5 is the type of response referred to
by this provision, section 1406(f) merely imposes a requirement that the DOE
response put readers on notice that it is not legally binding. This
requirement, which was not effective when OSEP published Policy Memorandum
96-5, does not prevent us from considering DOE policy statements to be
persuasive and therefore worthy of deference."
and
"This court has held that the level of deference to
be accorded such interpretive rules depends upon their persuasiveness.
"Admittedly, [they] do not rise to the level of a regulation and do not have
the effect of law. A court is not required to give effect to an administrative
interpretation. . .. Instead, the level of deference given to an interpretive
bulletin is governed by the bulletin's persuasiveness." Brooks v. Village of
Ridgefield Park, 185 F.3d 130, 135 (3d Cir. 1999)"
This judge goes on to explain, at least in the provision
that was being contested, he pointed out that the sections of the document
upon which the OSEP memo was based (the 'old' IDEA) was essentially
unchanged under IDEA '97, and so the OSEP memo was not outdated. It
might be worth your time when using any OSEP memo to look up the IDEA
references and document the changes in the wording before you use it for an
IEP meeting. We've done one for you.
It is worth pointing out that
OSEP Policy Guidance on the Placement of Children Who are Deaf is
specifically mentioned in IDEA '97 (see note above)
- and thus virtually takes the force of statute.
-Kay
I believe my child would benefit from the use of assistive listening
technology but the School District doesn't agree. What now?
If the School District's response is they don't
use FM systems, you need to know that OSEP (Office of Special Education Programs) has
issued a policy guidance letter Presumptively Denying Assistive
Technology where they say:
In brief, it is impermissible under EHA-B for public agencies (including school
districts) "to presumptively deny assistive technology" to a child with
handicaps before a determination is made as to whether such technology is an element of a
free appropriate public education (FAPE) for that child. Thus, consideration of a child's
need for assistive technology must occur on a case-by-case basis in connection with the
development of a child's individualized education program (IEP).
The IDEA tells us (emphasis added):
Consideration of Special Factors. The IEP Team shall --
(i) in the case of a child whose
behavior impedes his or her learning or that of others, consider, when appropriate,
strategies, including positive behavioral interventions,
strategies, and supports to address that behavior;
(ii) in the case of a child with
limited English proficiency, consider the language needs of the child as such needs relate
to the child's IEP;
(iii) in the case of a child who is
blind or visually impaired, provide for instruction in Braille and the use of Braille
unless the IEP Team determines, after an evaluation of
the child's reading and writing skills, needs, and appropriate reading and writing media
(including an evaluation of the child's future
needs for instruction in Braille or the use of Braille), that instruction in Braille or
the use of Braille is not appropriate for the child;
(iv) consider the communication
needs of the child, and in the case of a child who is deaf or hard of hearing, consider
the child's language and communication needs,
opportunities for direct communications with peers and professional personnel in the
child's language and communication mode, academic level,
and full range of needs, including opportunities for direct instruction in the child's
language and communication mode; and
(v)
consider whether the child requires assistive technology devices and services.
Your child's evaluation should include an evaluation to see if they would benefit
from assistive technology.
If the School District's response is they feel your child does not require assistive
technology ask your child's audiologist to test Speech Reception Threshold (SRT) levels in
the absence and presence of background noise. In my son's case, his SRT level dropped from
90% in the absence of background noise to 40% in the presence of background noise clearly
showing that he required an FM system if he was to benefit from his educational placement.
You may also need to prove that there is significant background noise in the classroom. To
do this find a sound meter and test the background noise level in the classroom. Be sure
to place the sound meter where your child would be sitting.
I've also heard that there is a good screening device called the SIFTER. It's
a questionnaire teachers fill out about the child's auditory behaviors. It
indicates if a child is at risk in the area of listening skills.
- A Parent Advocate
Classroom Amplification: Not Just
for the Hearing Impaired Anymore
How can I get our child's school to allow the FM system
to come home with her?
Don't go
after this with an extra-curricular approach (my child needs it for girl
scouts, church, ...). Public education is not required to provide an FM for
her to use there. However, if you feel your child is missing out on education,
that's a whole different matter.
Check Appendix A of the IDEA. Specifically, question
36
"36. Under what circumstances is a public agency required to permit
a child with a disability to use a school-purchased assistive technology
device in the child's home or in another setting?
Each child's IEP team must consider the child's need for assistive
technology (AT) in the development of the child's IEP (§300.346(a)(2)(v));
and the nature and extent of the AT devices and services to be provided to
the child must be reflected in the child's IEP (§300.346(c)).
A public agency must permit a child to use school-purchased assistive
technology devices at home or in other settings, if the IEP team determines
that the child needs access to those devices in nonstop settings in order to
receive FAPE (to complete homework, for example).
Any assistive technology devices that are necessary to ensure FAPE must
be provided at no cost to the parents, and the parents cannot be charged for
normal use, wear and tear. However, while ownership of the devices in these
circumstances would remain with the public agency, State law, rather than
Part B, generally would govern whether parents are liable for loss, theft,
or damage due to negligence or misuse of publicly owned equipment used at
home or in other settings in accordance with a child's IEP."
Does your child have homework and do you help her with it? That one's
mentioned right in the Appendix to the IDEA as one of the reasons a school
would have to allow an assistive technology device to go home.
I've also heard from parents who have successfully used the tactic that not
all education occurs in the classroom, that learning language and vocabulary
happens all day long so any event where your child would be able to benefit
from the FM system would be a great opportunity for your child to learn
vocabulary, language, and practice their listening skills. The book Kid-Friendly
Parenting With Deaf and Hard of Hearing Children gives us some helpful
information along these lines. The intro to chapter five was written by Mervin
D Garretson. He writes:
"Some years ago, I developed a paper on what I called 'the unwritten
curriculum.' After teaching some twenty years, I became interested in
knowing how much of and what part of the 365 days in the year were spent in
a classroom. In taking account of all the time spent out of the classroom:
walking down the halls; during recess; in the bathroom; during the lunch
break; during after school hours; counting the time spent out of school for
[holidays], and the long summer vacation; the actual time spent in the
classroom for the average child, whether deaf or hearing, came to just eight
percent of the total year. This means that 92 percent of their learning is
taking place through communication outside of the classroom."
This is further supported in
Acoustics and Socialization in a quote by Dr. Carol Flexer where she
says "the literature in developmental psychology teaches us that about 90
percent of what very young children know about the world was learned
incidentally, casually".
Another parent advocate tells us: I would posit that a child who
significantly benefits from an FM unit would need it outside of school in
order to receive FAPE, since language acquisition depends on constant
immersion in the language. State law, rather than Part B, generally would
govern whether parents are liable for loss, theft, or damage due to
negligence or misuse of publicly owned equipment used at home or in other
settings in accordance with a child's IEP.
How do I go about requesting an Independent Educational
Evaluation?
Federal regulations pursuant to IDEA (34 CFR
Sec. 300 et seq.) describe only very general minimum rules re: IEEs (Independent
Educational Evaluation). Each state must have its own special education rules which
further expand on the IDEA regulations. However, in order to make a legitimate request for
an IEE, IDEA regs require that
- 1) the request be made in writing
- 2) the parent(s) state that they disagree with the school's evaluation (you do not have
to explain why)
- 3) that the letter be signed and dated.
The school district has 7 days from receipt of the written request to respond, in
Michigan. Check your state rules for special ed for the time guidelines in your state.
The response may only be one of two: The request will be granted OR the district finds
its own evaluation to be appropriate and therefore will implement an administrative due
process hearing (pursuant to IDEA) to dispute the parent's disagreement. Generally,
however, if the school knows you know what you are doing, they will grant the request -
It's cheaper than a hearing. If the district does not respond within the time line, or its
response is not one of the two above described, you may file a formal complaint pursuant
to your state's special education rules. Contact your state dept. of ed if you do not have
them.
As an advocate, I deal with this issue frequently (I also work for an attorney who
specializes in disability civil rights.) The operating school district is responsible for
implementing the IEE. They pay for it, but may bill back the district of residence. States
may have established regulations regarding payment limits, geographic limits, etc.,
allowable for an IEE. However, remember that state rules are subordinate to federal rules,
(most of the time) so the district MAY agree to something outside the state rule's limits.
The parents and the district must agree on the evaluators.
Once evaluators are agreed upon, the district may have the evaluators come to the
school, transport the child to the evaluators, or ask the parents to do it. If the parents
accept, the district must reimburse the parents for mileage (at the current federal
mileage allowance) and any expenses they may incur (e.g. meals, lodging, if overnight.)
Advocacy agencies (like Protection & Advocacy) and independent advocates should be
knowledgeable about the IEE process and where evaluations may be obtained. IEEs do not
necessarily have to be done by employees of other school districts, but they they may be.
For example, I am currently working on a case in which the parents have requested an IEE,
after having requested due process when the school refused to grant their request to place
their child at the school for the deaf. I am arranging the IEE with the district's
attorney (I am working for the child's attorney) and we have agreed that a university
clinic will do the audiological, speech and language component. We are still negotiating
about a social worker and psychologist. I am pushing for clinicians in private practice
and the school's attorney is pushing for clinicians employed by a school district in
another part of the state. We will work it out.
Before agreeing to any clinician, I always require a copy of their vita. I also call
around to other professionals in the field whom I trust, and get their feedback. Sometimes
it is impossible to get a clinician who signs. Then we have to agree on who will
interpret. We require the vitae of any candidates before we decide. Members of your state
or local chapter of NAD, ASDC, AGBELL, etc., may be able to give you input on good
clinicians.
If the parents obtain an evaluation at their own expense, it is very difficult for them
to obtain re-payment from the district. (I did it, went out of state for it, but it was
part of a larger issue for which we were going to due process hearing. As part of the
settlement agreement, the district paid half.) If you go this route, you will definitely
need a lawyer. Regardless of being paid for by the parents, federal regs require that the
school take into consideration the evaluation when making any program, service or
placement recommendations.
It isn't always that complicated. If this is not part of a due process hearing request,
most of the time the schools will agree to the IEE without a fuss, and the parents and
school will be able to agree on the evaluators without a problem.
© Celeste Johnson. The presence of this tip on this web page is with permission
and does not place it in the public domain. Celeste Johnson retains all rights to
this tip. Feel free to use the information but please do not redistribute it or
include it in any published material without first obtaining her permission.
Why should I follow up each school meeting or phone
conversation with a letter?
When push comes to shove, it doesn't matter what
was "said". If it wasn't written down, it wasn't said.
How do we know, as parents, that our kids are really getting the
number of hours specified in the IEP?
- If you believe that your child is not getting
speech or terp or OT or whatever services as scheduled, first you ask the school to
provide you with the schedule (as per the IEP.) If your child cannot confirm that
s/he got the service when s/he was supposed to, you can do several things. Re:
terps, you can request a copy of their time sheets under FERPA and/or your state Freedom
of Information Act. With the therapists, they are required to keep progress notes on every
single session. You can request to see them or have copies of them, also pursuant to
FERPA and/or FOIA.
-
- This is pretty drastic stuff, so make sure you can't get the accurate info by asking
your child or the service provider first, before you take this measure. But if you
have to, well, we all have to do what we have to do.
-Celeste Johnson
Some of the services in my child's
IEP aren't being provided. Now what?
IDEA is very clear about this.
Section 300.342 states:
http://www.ideapractices.org/law/regulations/regs/SubpartC.php#sec300.342
"(ii) Is implemented as soon as possible following the meetings described under
§300.343;"
Appendix A states it even more clearly:
http://www.ideapractices.org/law/regulations/regs/AppendxA.php#ques18
"18. What timelines apply to the development and implementation of an initial
IEP for a child with a disability?
Section 300.343(b) requires each public agency to ensure that within a
reasonable period of time following the agency's
receipt of parent consent to an initial evaluation a child,
the child is evaluated and, if determined eligible, special education and
related services are made available to the child in
accordance with an IEP. The section further requires
the agency to conduct a meeting to develop an IEP for the child within 30 days
of determining that the child needs special education
and related services. Section 300.342(b)(2) provides
that an IEP must be implemented as soon as possible
following the meeting in which the IEP is developed."
What I did when my son's school wasn't complying with my son's IEP (after giving
them 5 months to do so) was to write my son's
principal a letter stating the above, and that if they
weren't in full compliance with my son's IEP within 10 days, I would have no
other choice but to file a complaint with our State
Department of Education.
You also have the right to ask for compensatory education for the missed time.
"Compensatory education" is additional educational services to make-up for what
the child lost and may take the form of additional tutoring or therapy.
You ask for
this when you write your letter of complaint to the state.
Section 300.660 states:
"In resolving a complaint in which it has found a
failure to provide appropriate services, an SEA, pursuant to its general
supervisory authority under Part B of the Act, must address:
- (1) How to remediate the denial of those services, including, as
appropriate, the awarding of monetary reimbursement or other corrective
action appropriate to the needs of the child"
For a sample letter of
complaint,
Click Here.
How do I request information from a federal agency?
To request a document from a federal agency,
insert the following at the end of your request:
- "This request for information is made pursuant to the United States Freedom of
Information Act, 5 U.S.C., §552, which requires you to respond in writing within ten (10)
business days. If there is any cost involved for photocopying and/or postage, please
indicate the total and I will remit the fee. Thank you very much for your attention to
this matter."
-Celeste Johnson
If you're requesting this info from the public school system, you might want
to look at some sample letters for the wording you
want. You might also want to consider going in and reviewing the documents and
marking each one you want a copy of (perhaps with a yellow sticky note).
Otherwise you'll end up with a mountain of documents. School districts are also
more apt to charge you for these copies if they have to copy everything. We
thank Celeste for these ideas.
Where do I file my next level complaint re OCR failure to find
appropriately at the local level? How many days do I have...60 days will be up if I
get it in the mail tomorrow. Do I have 30, 60 or 90 days?
This information should be
included in OCR's initial response to a parent, acknowledging receipt of the
complaint, but it is not. One must search the USEOE-OCR website (http://www.ed.gov/offices/OCR/)
for it.
Previously, one would file a formal written appeal of the findings with
another OCR office. No longer. One is now directed to discuss one's
dissatisfaction with the complaint investigator, and if one remains aggrieved,
then one sends one's reasons for dissatisfaction, in writing, to the director of
one's regional office, and if still aggrieved, then to the U.S. Dept. of
Education's deputy assistant secretary for OCR. There is no mention of time
lines, other than one should make contact "promptly." It is my experience that
it is wise to send a U.S. Freedom of Information Act request (reference
http://www.listen-up.org/rights/advocate.htm#9) to one's OCR complaint
investigator, requesting the entire complaint file, so one is aware of all the
documents on which OCR based it's findings. It may also be helpful to reference
OCR's Case Resolution Manual, on line at
http://www.ed.gov/offices/OCR/docs/ocrcrm.html.
If one is to exhaust administrative remedies (which is required in the 6th
Circuit, but not in all others) one must completed each of these steps before
one may pursue the matter in court. In my experience, it is best to get a
written statement that one has exhausted administrative remedies, if one's
federal circuit court requires it before one is permitted to file suit.
Sometimes this can only be done by sending a letter stating that one understands
that one has now exhausted all administrative remedies available relative to
this complaint, and unless one is informed otherwise, in writing no later than
10 days from receipt of this letter, it will be understood by all that
administrative remedies have been exhausted.
See
http://www.ed.gov/offices/OCR/complaints-how.html, which states in part:
"Review of OCR Resolutions OCR's goal is that every complaint is appropriately
addressed. Complainants who believe their complaint was not resolved
appropriately may promptly contact the staff person who worked on the complaint
and explain the reason for disagreeing with the resolution. This can be done by
phone, e-mail or regular mail. If concerns continue, the second step is to write
to the Office Director. If the complainant is still not satisfied with the
Office Director's response, he or she may write to the Deputy Assistant
Secretary in Washington, D.C. OCR will modify its final decision only if there
has been a clear error in the facts or legal analysis. General statements of
disagreement are not enough to support a change in our decisions. Legal Rights
Right to file a separate court action OCR does not serve as a personal
representative or private attorney for any parties. A person may file a
separate court action on his or her own behalf or through a private attorney.
OCR will stop its processing of a complaint if a court action is filed involving
the same complaint allegation."
Go to
http://wdcrobcolp01.ed.gov/cfapps/OCR/contactus.cfm to find one's regional OCR
office, and the contact information. If one needs to know what federal circuit
one is in, go to
http://www.law.emory.edu/FEDCTS/.
© Celeste
Johnson, 2002
How do we get our school district to honor the mode of
communication we've chosen for our child?
One approach many
have had success with is to get as many Goals and Objectives into the IEP as
possible that directly relate to the mode of communication you want for your
child, while not allowing any in for other modes. For example, if your child is an oral child, some of your Gs & Os
might be to increase the intelligibility of speech by 20% as measured by the CID Picture SPINE,
increase spoken vocabulary by 200 words/grading period, ask appropriate
questions orally to request information or clarification, and so on. In other
words, they stacked the deck in their favor so that the easiest way for them to implement
the Gs & Os was to use their child's mode of communication. If,
for example, the school wants to put this child in a TC classroom, it could be
argued that sign language is a modification of the general education curriculum
which is not specified in the child's IEP. Update:
An OSEP policy
statement about Deaf Students Education Services includes the following that
may be helpful:
"The Secretary believes it is important that State and local education
agencies, in developing an IEP for a child who is deaf, take into
consideration such factors as: 1. Communication needs and the child's and family's preferred mode of
communication"
In Doe v. Board of Education of the Detroit Public Schools,
a hearing officer had this to say:
- "In developing an IEP for a child who is deaf, OSEP noted it is important to take into
consideration such factors as: the communication needs and the child's and family's preferred
mode of communication; linguistic needs; severity of hearing loss and potential for using
residential hearing; academic levels; and social, emotional and cultural needs, including
opportunities for peer interactions and communication. OSEP went onto state that:
"any setting,
including the regular classroom, that prevents a child who is deaf from receiving an appropriate
education that meets his or her needs, including communication needs, is not the LRE for that
individual child.'"
Some people have asked: How much weight does an OSEP policy statement
have? Read our answer here. It may also be useful to have on hand research
findings that support your preferred mode of communication. Here are but a
few:
I have also found it helpful to study case rulings to find
the arguments, procedures, and path others have taken with successful results.
You can find some of those here.
At the IEP meeting I asked why the box for hearing
impairment was not checked. Basically they said it didn't need to be checked
because his hearing loss was not that bad. What does it take to get that box
checked?
I fought this
battle with my son's school district for 5 years (but for a different reason),
and they kept saying it didn't matter if it was checked or not, it wouldn't make
a difference in the services he received. It was the right answer as far as the
IDEA is concerned, but it isn't what I found to be the case.
- §300.300
(a)(3)(ii) "The services and placement needed by each child with a
disability to receive FAPE must be based on the child's unique needs and not
on the child's disability"
- §300.532
(h) "In evaluating each child with a disability under
§§300.531-300.536, the evaluation is sufficiently comprehensive to
identify all of the child's special education and related services needs,
whether or not commonly linked to the disability category in which the child
has been classified"
In our case, our son was not considered for the services he would have been
had that box been checked. Once it was, he received many more services than he
did when it wasn't.
It appears as if they're using the IDEA's definition of deafness as the
eligibility criteria - but the IDEA also includes Hearing Impairment in it's
definitions: §300.7
(c)(5) "Hearing impairment means an impairment in hearing, whether
permanent or fluctuating, that adversely affects a child's educational
performance but that is not included under the definition of deafness in this
section."
What it takes can vary from state to state. In Texas, it took forms filled
out by both my son's audiologist and ENT before they would even consider him as
qualified under this category - which was amazing to me since my son has a
profound hearing loss and nobody in that room doubted that his hearing loss was educationally
significant and they already required him to use a home provided FM system for
all academic instruction.
A parent advocate I know who specializes in deaf/hoh wrote Who
Pays for Audiograms Used in Schools? Because it is not an accepted practice
by the school systems, she asked us to make it available to others on our
website to help them convince the school pay for this assessment.
Does my child have to be failing in order for his hearing
loss to show an adverse affect on educational performance?
The American
Speech-Language Hearing Association (ASHA) website has a brief discussion about
this on their School
Services: Answers to Frequently Asked Questions (FAQs) page
(must be a member to view this page).
At the bottom
of the page it reads:
The term "education performance" has been interpreted by the
Department of Education and is not limited to "showing of discrepancies
in age/grade performance in academic subject-matter areas. The extent of a
child's mastery of the basic skill of effective oral communication is clearly
includable within the standard of "educational performance" set by
the regulations. Therefore, a speech-language impairment necessarily adversely
affects educational performance when the communication disorder is judged
sufficiently severe to require the provision of speech pathology services to
the child." If communication skills are a required part of the school's
curriculum, and considered to be a basic skill necessary for all children
attending school, then children who have a speech or language impairment would
have a disorder that adversely affects educational performance. State or local
school districts may apply different interpretations to "adversely
affects educational performance."
You might also want to read
Denial of Eligibility Because of Gifted Intellectual Ability and/or Lack of Failure
from the Learning Disabilities Association and this OSEP Policy Letter.
The OSEP policy letter states that "Underachievement is measured against the student's own ability, and not against a normative performance standard."
For those whose children are not failing because they are receiving outside help
and they're trying to convince the school district to provide that help, the
OSEP letter goes on to state that "Generally, it would be appropriate for the evaluation team to consider information about
outside or extra learning support provided to the child in developing the written report required at 34 CFR § 300.543, as such information may indicate that the child's
current educational achievement reflects the service augmentation, not what the child's achievement would be without such help."
Another OSEP Guidance Letter
Developing Rules for Determining Whether a
Student with an Impairment Needs Special Education and Related Services
states: "In determining whether a child's impairment adversely affects
educational performance, the multidisciplinary team must
consider non-academic as well as academic areas. Therefore,
the assessment is more than the measurement of the child's
academic performance as determined by standardized
measures. While State operational criteria are useful in
determining whether a child needs special education and
related services because of an impairment, the
multidisciplinary team must have the ultimate authority to
make such determinations using their professional judgment
based on the child's evaluation." Another helpful documents is
IDEA
and Your Caseload: A Template for Eligibility and Dismissal Criteria for
Students Ages 3 to 21 (scroll down to the heading Rejection of Cognitive
Referencing).
Dual Exceptionalities - A list of characteristics
of gifted students with specific disabilities (including
hearing impairment) from the ERIC
database.
Twice Exceptional
has a list of links relating to this topic.
Any suggestions on where I (and/or my daughter-8 years
old) can learn ASL, SEE or Cued Speech - depending on which route I choose?
Providing sign
language classes to the parents of deaf students is specifically mentioned in
Appendix A to Part 300 -- OSEP's Notice of Official Interpretation. I will quote
it below, but first want to add the caveat that while the answer to the question
(Appendix A is in a Q & A format) specifically mentions participation in the
general curriculum, that need not be the only reason parents need to
learn/improve their sign language skills in order to support the goals and
objectives. Virtually every deaf child has g's and o's that relate to improving/remediating
his/her mastery of language. For a signing child, the parents need to be fluent
in whatever flavor is sign the child uses, in order to support that.
Additionally, parents need to be able to help with homework, projects,
explanations of school rules, etc., at the same level those parents do those
same things with hearing children. Thus, the need for the school to provide sign
language classes, as a related service under "Parent Training," as
part of the provision of FAPE for the child.
This provision of sign language classes does is not necessarily limited to
the school actually conducting those classes for parents. Some schools do so,
but only up to a certain level. I know some parents who completed those classes,
but needed further instruction. They then continued at Community Education
programs and Community College classes, having their tuition and books paid for
by the district, under this part. One parent even took classes at a 4 year
college - but the district only paid for "audit," which I feel is
justified. Other schools do not have the resources to provide direct instruction
for parents, or are only offered at one time, which is not accessible to the
parents. In addition to Community Adult Ed, and Community College options, some
of the possible solutions I have encountered include the school paying for
parents to attend sign language classes (including the text) at regional Deaf
Services Center and special classes for parents only, taught by members of the
Deaf Community. These "by special arrangement" classes have held in a
variety of settings, including the school library, in parents' homes (parents
rotated "hosting" the classes, in the public library, in a community
center of a large apartment complex. The possibilities are endless. "It
can't be done," is unacceptable, IMHO. It just becomes a question of how
creative people can be in order to solve the problem.
Having said that, Appendix
A states:
"2. Must a child's IEP address his or her involvement in the general
curriculum, regardless of the nature and severity of the child's disability and
the setting in which the child is educated?
Yes. The IEP for each child with a disability (including children who are
educated in separate classrooms or schools) must address how the child will be
involved and progress in the general curriculum. However, the Part B regulations
recognize that some children have other educational needs resulting from their
disability that also must be met, even though those needs are not directly
linked to participation in the general curriculum.
Accordingly, Part 300.347(a)(1)(2) requires that each child's IEP include:
A statement of measurable annual goals, including benchmarks or short-term
objectives related to
(i) Meeting the child's needs that result from the child's disability to
enable the child to be involved in and progress in the general curriculum; and
(ii) meeting each of the child's other educational needs that result from the
child's disability.
Thus, the IEP team for each child with a disability must make an
individualized determination regarding (1) how the child will be involved and
progress in the general curriculum and what needs that result from the child's
disability must be met to facilitate that participation; (2) whether the child
has any other educational needs resulting from his or her disability that also
must be met; and (3) what special education and other services and supports must
be described in the child's IEP to address both sets of needs (consistent with
Part 300.347(a)). For example, if the IEP team determines that in order for a
child who is deaf to participate in the general curriculum he or she needs sign
language and materials which reflect his or her language development, those
needs (relating to the child's participation in the general curriculum) must be
addressed in the child's IEP. In addition, if the team determines that the child
also needs to expand his or her vocabulary in sign language that service must
also be addressed in the applicable components of the child's IEP. The IEP team
may also wish to consider whether there is a need for members of the child's
family to receive training in sign language in order for the child to receive
FAPE."
Update: A fellow parent advocate reminds
me of these:
§300.24
Related services.
(a) General. As used in this part, the term related services means
transportation and such developmental, corrective, and other supportive
services as are required to assist a child with a disability to benefit from
special education, and includes speech-language pathology and audiology
services, psychological services, physical and occupational therapy,
recreation, including therapeutic recreation, early identification and
assessment of disabilities in children, counseling services, including
rehabilitation counseling, orientation and mobility services, and medical
services for diagnostic or evaluation purposes. The term also includes school
health services, social work services in schools, and parent counseling and
training.
(7) Parent counseling and training means-
(i) Assisting parents in understanding the special needs of their
child;
(ii) Providing parents with information about child development; and
(iii) Helping parents to acquire the necessary skills that will allow
them to support the implementation of their child's IEP
Also remember it is in the improvement strategies.
§300.370
Use of SEA allocations
(2) Support services includes implementing the comprehensive system of
personnel development under §§300.380- 300.382, recruitment and training of
mediators, hearing officers, and surrogate parents, and public information and
parent training activities relating to FAPE for children with disabilities.
§300.382
Improvement strategies.
Each State must describe the strategies the State will use to address the
needs identified under §300.381. These strategies must include how the State
will address the identified needs for in-service and pre-service preparation
to ensure that all personnel who work with children with disabilities
(including both professional and paraprofessional personnel who provide
special education, general education, related services, or early intervention
services) have the skills and knowledge necessary to meet the needs of
children with disabilities. The plan must include a description of how the
State will-
(j) Provide for the joint training of parents and special education,
related services, and general education personnel.
My daughter's IEP includes an interpreter. Yesterday
her interpreter wasn't there (sick child) and the school asks me to interpret
for her. Is this OK?
Since this
is the first instance (to your knowledge) of failure to provide a terp, I
suggest you write a letter to the administrator in charge of the program stating
the facts: On x date you became aware that your daughter attended mainstream
class(es) without an interpreter. Ask for their policy relative to interpreters,
substitute interpreters, and ask for their list of substitute interpreters. Also
ask for an explanation of how the district goes about getting recruiting sub
interpreters and what screening process is used before a candidate is placed on
the sub list. Also ask for the district's policy relative to the education of
d/Deaf/hh children who require terp services, when no terp is available. Ask for
a written response within 10 days of receipt of the letter. If it should happen
in the future, just send a letter confirming that your child did not receive
terp services at x times and dates.
Once you have sent the letter (certified mail, return receipt requested), and
waited either until you have the response or 10 days has elapsed without a
response. Then file a formal complaint with your state dept of education. (See sample
complaint letters) alleging violation of the requirements of your daughter's
IEP [copy of IEP attached] and requesting compensatory education services. Of
course, what kind of compensatory services you want are your decision, but if I
were filing for my daughter, I would ask for in-home tutoring to be provided by
either a teacher who signs, or a properly certified teacher accompanied by a
qualified terp, equal to the number of hours your child endured without a terp,
to teach your daughter what she missed.
IMHO, it is IMPERATIVE that you file a complaint every single time your child
goes without a terp. Provision of someone whose heart beats and hands flutter,
and who does NOT provide equal access to/effective communication is a violation
of the requirements of ADA and Section 504, and is not genuine interpreter
services. I have argued, and continue to argue on behalf of other children, that
it is actually MORE detrimental to the child to have an ineffective person who
wants to be a terp, but isn't, than to have NO terp. The provision of the former
makes everyone else *think* that the child is receiving accurate info, or that
what is voiced accurately reflects what the child is "saying" and that
all expectations should remain as usual.
Even though I am a qualified terp, and I had subbed in my daughter's school
system, *I* refused to terp for my child. I know I would not be able to stay in
my role and remain neutral. The other issue, raised here, aside from the
propriety of terping for one's own child, is the issue of
credentials/competency. If YOU are not a qualified terp, you send a message to
the school that it is OK to send in other unqualified terps. That is not a
message that I can support.
There isn't a place on the IEP for us
to sign that we do or don't disagree, just that we attended. Now what?
There
should be a place on all IEP forms for the parents to
agree or disagree, at least. I have heard that some states have it printed in
teeny-tiny print that if the parents want to disagree and request a
hearing, they have to jump through some other hoop. That should be
challenged! Be that as it may, if you don't want to fight the
implementation of the IEP, not having a place to sign in
disagreement/agreement is no big deal. I often advise clients not to
sign the IEP if they disagree with it but don't want to contest it for
whatever reason. Of course, if one wants to go to mediation over it,
that does require a statement of disagreement, but would involve a
request for both a hearing and mediation, bluffing about going to
hearing.
In any event, when one signs the IEP for attendance, one can always
write next to one's name that the signature on this line is intended to
indicate attendance ONLY, and may NOT be construed to mean agreement
with the content of the IEP. (Watch some eyes pop if you do THAT!) No
one can make you change it, if you write that in! Let 'em call their
attorneys or whatever, but everyone has the right to clarify the
meaning of one's signature on a document, especially in the absence of
an obvious statement declaring it's purpose. And you can write anything
you want on the IEP, anywhere you want. Of course,
there is always my handy-dandy "Additional Agreements"
form, that no one should attend an IEPT meeting
without.
If one DOES wish to overtly disagree with the IEP, whether or not one
wished to contest it, one may write at the bottom of the IEP - if you
can get your hands on it - something like, "I DISAGREE with this IEP,
and I can't find anyplace on this form where I can indicate my
disagreement. I will be following up with a notice of disagreement and
a complaint, under separate cover." All kinds of variations there, but
you get the picture. If you can't get your hands on the IEP to write
that, a letter stating things precisely, sent to the district's
superintendent, and copied to the local sped head, state sped head,
state school board and OSEP ought to do the trick. How much noise do
you want to make?
-Celeste Johnson
Our child's school disagrees with us
and our audiologist as to what assistive Technology device would be appropriate
for her (FM System vs. Soundfield, or FM with cords vs. FM without cords). Can you think of anything that will help us?
28 C.F.R. 35.160
(one of the implementing regulations for the ADA) states
http://www.ed.gov/offices/OCR/regs/28cfr35.html#S160
a) A public entity shall take appropriate steps to ensure that
communications with applicants, participants, and members of the public
with disabilities are as effective as communications
with others.
(b)(1) A public entity shall furnish appropriate auxiliary aids and services
where necessary to afford an individual with a disability an equal
opportunity to participate in, and enjoy the benefits of, a service,
program, or activity conducted by a public entity.
(2) In determining what type of auxiliary aid and service is
necessary, a public entity shall give primary
consideration to the requests of the individual with
disabilities.
In addition, have the child tested by an Audiologist. What you're looking for
is testing done in the sound booth that will give you the results of how well
your child does with each system being proposed. You'll have the proof you need
that one system is more appropriate for your child than the other (hopefully it
will be the system you want) and the evidence you need to tell them just how
much more it's appropriate for your child. For example, if one system shows your
child understands 80% and another shows 95%, that's pretty clear cut - even for
the uninformed.
I have a hearing loss, as does my
daughter. I received an request recently from
the district audiologist asking for information about
my hearing loss, for a current audiogram,
and one from my childhood.
I didn't even know they knew about it. Must I provide them with this information?
Send a letter to whomever sent
the request that you are considering her request that you sign a release of
medical info, and to help with your consideration, request that she put in
writing
- what she wants
- why they need it
- how it will be used
- who will use it
- where the information will be stored
- how she knows there there is any audiological data about you
- a written statement of assurance of privacy
Eventually, you are going to have to decide for what, if anything, you will
grant permission to be released, and to whom. If you do sign a release of
information form, I suggest you put an END date on it (like six months or one
year from the date of the document.)
-Celeste Johnson
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None of the panel of advocates for this page are lawyers. The information on
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to be used as legal advice. For legal advice, I suggest you contact a lawyer who
specializes in Special Education law.
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