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 Where to find help for a child in Michigan, Anywhere in the U.S., or Canada
 
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Last Updated: 11/20/2017
 

 Ask the Attorney:  Questions and Answers with John Brower, J.D.
QUESTION: Our son is an elementary school student with autism (AI). Recently we went to an IEP meeting and discovered the school does not have a speech-language professional available to carry out the goals of the last IEP much less the one for next year. When I raised the issue with the special education director, she verbally told me that they are not going to write any goals for this school year when they know in advance that they do not have professional staff available to deliver the services. If the local school cannot fully service my child, I see no reason to send him to school.

ANSWER: Your question contains three major issues. As always in reviewing my responses please note that many school staff persons and their attorneys will not agree with my analysis or position. That is why we are fortunate to have available a system where both sides can go before an impartial third party in the form of an IDEA hearing officer, of if necessary a judge, to decide whose interpretation is correct.

1. Relief for a denial of services contained in a current IEP - anytime a school substantially fails to provide a direct or related service contained in an implemented or agreed upon IEP, in my opinion, the provider is subject to a claim of denial of a FAPE and claim for "compensatory education" [read Trica and Calvin Luker's excellent article on compensatory education available on this site].

In Michigan, the easiest way to address a current denial of services included in an agreed upon IEP is to make an administrative complaint (in writing) to your local Intermediate School District (ISD) or to the Michigan Department of Education if the local ISD had some role in the complaint. However, be aware that in my experience in Michigan some compliance officers are very reluctant to order an award of "comp ed". Again, in my opinion, that is a student's right under IDEA-97, but a compliance officer to agree is an entirely different issue.

Another way to accomplish this is to ask for a due process hearing and/or mediation. However, again be aware that in Michigan there is an ongoing debate if claims or a present denial of services is "a hearable issue" that an IDEA hearing officer has the authority to address. Many school districts and their attorneys will claim that present denials can only be addressed via an administrative compliant. I do not agree with that argument, and I refer you to the hearing rights contained in 20 USC 1415(b)(6) which in my opinion clearly state: an opportunity to present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child (emphasis added). Unfortunately it has been my experience that not all hearing officers agree with my analysis and interpretation of this section of IDEA.

2. Keeping a child out of school - This is always a tough issue to address. It is my general opinion that unless the school environment is hostile or dangerous (due to safety issues, incessant teasing, untrained use of physical restraint, etc.) it is not in the child's best interest to be kept at home. By withdrawing a student, albeit temporary, all that does is let the school off the hook as to its obligation to provide a FAPE and may well result in a loss of educational opportunity that will be difficult to replace. A better alternative may be to provide the school with notice of a claimed denial of a FAPE and then seek a private placement.

As noted above, if the parent's position is that the services detailed in the current IEP are not being properly delivered, or if the goals and objectives are no longer appropriate, then they should (in writing) ask the IEP Team to reconvene and rewrite the IEP. If they then cannot agree on a new IEP, the proper response is to request a hearing and/or mediation.


Also, even for parents with training and a support system, home schooling general education students takes a real time commitment and an extra high level of dedication. From my observations, the requirements are even more for a child with special needs.

A parent also has to consider that all states, including Michigan, have compulsory attendance laws. Under those laws (which do have some narrow religious exceptions) if a parent keeps a child home and out of school without first meeting the state's home schooling or private home school standards they run a risk of being charged with violation of the law and educational neglect. If so, the parents may find themselves involved in a criminal action brought by Child Protective Services.

Finally, if a parent is that dissatisfied with the education their child is receiving, and feels it rise to a denial of a free and appropriate public education (FAPE), they should let their school district know of this in a well-written certified letter (see the excellent articles on letter writing at www.wrightslaw.com).  If they are considering a private placement and will be seeking reimbursement, then they should also give the school at least ten days notice of their plans to place the student privately and seek reimbursement. At the same time, they should realize that when faced with such a possible claim, the school might well convene the IEP Team and change what it is offering the student and parent. However, as a change in program or placement is what is driving the dispute, then such a meeting may not be a bad idea.

3. Prior Written Notice - If a school refuses to provide what you see as an appropriate service, accommodation, placement, etc., it is my opinion that a parent is entitled to Prior Written Notice (PWN). This requirement comes from IDEA-97 and its supporting regulations (see www.michedlawcenter.com web site for links to the statute and regulations). In the statute, Congress significantly increased the communication a school must provide a parent. 20 USC 1415(b) states:

TYPES OF PROCEDURES? The procedures required by this section shall include -

(3) written prior notice to the parents of the child whenever such agency ??

(A) proposes to initiate or change; or

(B) refuses to initiate or change; the identification, evaluation, or educational placement of the child, in accordance with subsection (c), or the provision of a free appropriate public education to the child;

In further explanation of what must be contained in "prior written notice", at 20 USC 1415(c) Congress stated:

CONTENT OF PRIOR WRITTEN NOTICE? The notice required by subsection (b)(3) shall 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.

In my opinion, the application of this section of IDEA requires the school to provide the parent, in writing, a full written explanation of why they cannot address the mutually agreed upon communication or speech/language goals. That being said, I do know that some hearing officer do not see the denial of Prior Written Notice as a significant denial of rights while others do. I also know that some hearing officers are of the opinion that prior written notice is provided via the IEP form itself. I think that this conflict will exist until the courts provide a clearer interpretation of the need and importance of prior written notice.

To address this issue, I suggest a parent either put in writing for the IEP Team's review what services, accommodations, goals, objectives, etc. they are looking for. Then if they are not successful in their request, add a dissenting report to the IEP document asking for a written response and explaining why they feel what they asked for was appropriate.

I hope this helps.
John F. Brower, JD
Education Law Center
www.michedlawcenter.com

Education Law Center, PLLC 810-227-9850 www.michedlawcenter.com 

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