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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