Have I gone too far???

Discussion in 'Special Ed 101' started by WhyCantTheyUnderstand, Jan 19, 2007.

  1. Long time no post...Life has been so crazy.

    I sent the following email to my son's school...well, the district superintendent, both vice superintendents, the principle, vice principle, and special education director for the district. Have I gone TOO far???

    To Whom It May or May Not Concern:
    My Question is this: Can XYZ Elementary provide my son with a Free Appropriate Public Education? Or, can it not?

    Per section 504 - of which I'm sure you are all aware - if you can not provide him FAPE you may place him in or refer us to a program that can support his needs. I realize that no school district wants to do this because then they have to cover that expense. However, I can not let things continue as they are and allow my son to not receive the services he is entitled to.

    We are called regularly (particularly my spouse as he works more closely) to come get Aedan, etc. This has been a regular occurrence since Kindergarten. Is he then receiving an education? One other than…"Hey…act up and I get to go home!"

    Yes, my son has an IEP. This is simply allowing for follow up on him…there are no behavioral modification approaches being attempted.

    We have jobs…these jobs are NEEDED in order to provide difficult child with food, shelter and his large amount of medical expenses. If the school can not handle him, he needs other provisions. My husband, may god bless him, has lost two jobs because of this. We've nearly lost our home!

    1. My son was diagnosed with Encopresis:
    Inability to control the elimination of stool (fecal incontinence). Encopresis can have a variety of causes, including inability to control the anal sphincter muscle or gastrointestinal problems, particularly chronic diarrhea and Crohn's disease. Several neurological disorders are also occasionally associated with the symptom of Encopresis, particularly in children, including Tourette's syndrome and obsessive-compulsive disorder. Preventive care for Encopresis including frequent scheduled toileting, and pads or diapers to prevent embarrassing soiling. Careful cleaning is important to prevent skin breakdown. Treatment of Encopresis usually involves treatment of the underlying disorder; cognitive behavioral therapy or behavior modification is also sometimes helpful.

    We get calls from school that he has soiled himself…ok, so we'll send extra clothes. But, I get notes, journal entries, etc. saying that he does this to avoid doing his work. He has been diagnosed, by TWO medical doctors, as having Encopresis. This isn't a ploy. I've even, in the past week, taken him again…"just to be sure" and the physician has diagnosed the same. We did x-rays, and we're doing blood work to "be sure."

    2. difficult child has mood swings, aggression, etc. Do you know or understand that he has been seeing a psychologist and psychiatrist since the age of 5? Does his school truly believe that we are parents that do nothing? He is diagnosed with a mood disorder/bi-polar. There's been much discussion as to the possibility of Aspergers. Rather than sending him home…what modifications, services and counseling does the school provide??

    3. difficult child is not doing well in half of his lessons. I'm told it's because he won't try…so what can be done? I ask for help for him and I'm told he doesn't need help…he just needs to focus. Can anyone see the source of my frustrations? He's still not doing well…not even "OK" and he's not getting help.

    4. I'm asked - couldn't you send a dose of medication for difficult child to school so that he can stay focused all day? Why do I have to keep saying "no?" Number one, his psychiatrist - who has legal authority to write prescriptions - doesn't recommend him being on more than what he is on…why would I even try to change that? And could I send extra medications to school "just in case" we have forgotten it…No, again to re-explain…this is a controlled substance. The insurance allows for only a 30 day supply…there is no extra.

    5. Is there positive reinforcements? What good is gotten from depriving a "hyperactive" child from recess as a punishment?? Every counselor, psychiatrist, etc. that difficult child has seen have all been amazed that the school district would do this knowing his issues.

    difficult child is not an easy child…God knows that I know that! Please…for one week just try being in our shoes. But in the course of our interaction with Vxxx Vxxx,difficult child has

    -been put at a desk in the storage closet for in school suspension - because there was no place else to put him.
    -Segregated from his class behind a storage/shelving area in the corner.
    -sent home more times than I can fathom.
    -he was left in some padded room…"to settle down" he was sobbing…sitting on the floor SOBBING and Shaking!!!…what if that was YOUR child? Once he broke down like that, did anyone even try to speak to him?

    And I have been made to feel like we must be uninvolved parents. We do everything we can do! Believe it or not, we do.

    Do any of you actually have a child with "disabilities?" Have you ever had to walk a mile in our shoes?
    What more do you want from us? Do I literally have to parade every doctor he sees into your offices to prove to you that we aren't full of garbage? Being intelligent does not mean that a child doesn't have disabilities…Yes, difficult child is so very smart…but there is a serious disconnect in how he functions…believe ME as I have known him longer than any of you.

    We are made to feel, on an almost daily basis, that we are missing the mark. That we aren't helping, pushing the homework issues, something…but no matter what…no one seems to believe that we are…and WE ARE! Every single night is a struggle to get him to focus and do his work. By then his medications are completely worn off…so it's very very difficult for us. And no one ever seems to care…my son is just another accumulation of cells…

    So…I ask again:: Can XYZ Elementary provide my son with a Free Appropriate Public Education? Or, can it not?
    I anxiously await your response(s).

    FREE APPROPRIATE PUBLIC EDUCATION - In order to comply with the federal mandate (Public Law 102-119, known as the Individuals with Disabilities Education Act, Part B (34 CFR Parts 300 and 301 and Appendix C) that all disabled children receive a free appropriate public education, a school district must provide special education and related services at no cost to the child or her/his parents Section 504 of the Rehabilitation Act of 1973 protects the rights of individuals with disabilities in programs and activities that receive federal funds. Section 504 provides that: "No otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . ."[1]

    The U.S. Department of Education (ED) enforces Section 504 in programs and activities that receive funds from ED. Recipients of these funds include public school districts, institutions of higher education, and other state and local education agencies. ED has published a regulation implementing Section 504 (34 C.F.R. Part 104), and maintains an Office for Civil Rights (OCR), with 12 enforcement offices and a headquarters office in Washington, D.C., to enforce Section 504 and other civil rights laws that pertain to recipients of funds.[2]

    The Section 504 regulation requires a school district to provide a "free appropriate public education" (FAPE) to each qualified person with a disability who is in the school district's jurisdiction, regardless of the nature or severity of the person's disability.

    Recipients operating federally funded programs must provide necessary services free of charge to students with disabilities and their parents or guardians. Provision of a free education is the provision of educational and related services without cost to the person with a disability or his/her parents or guardians, except for fees equally imposed on nondisabled persons or their parents or guardians.

    If a recipient is unable to provide a free appropriate public education itself, the recipient may place a person with a disability in, or refer such person to, a program other than the one it operates.

    However, the recipient remains responsible for ensuring that the education offered is an appropriate education, as defined in the law, and for coverage of financial obligations associated with the placement.

    The cost of the program may include tuition and other related services, such as room and board, psychological and medical services necessary for diagnostic and evaluative purposes, and adequate transportation. Funds available from any public or private source, including insurers,[4] may be used by the recipient to meet the requirements of FAPE.

    If a student is placed in a private school because a school district cannot provide an appropriate program, the financial obligations for this placement are the responsibility of the school district. However, if a school district makes available a free appropriate public education and the student's parents or guardian choose to place the child in a private school, the school district is not required to pay for the student's education in the private school. If a recipient school district places a student with a disability in a program that requires the student to be away from home, the recipient is responsible for the cost of room and board and nonmedical care.

    To meet the requirements of FAPE, a recipient may place a student with a disability in, or refer such student to, a program not operated by the recipient. When this occurs, the recipient must ensure that adequate transportation is provided to and from the program at no greater personal or family cost than would be incurred if a person with a disability were placed in the recipient's program.

    Part B of IDEA requires participating states to ensure that a free appropriate public education (FAPE) is made available to eligible children with disabilities in mandatory age ranges residing in the state. To be eligible, a child must be evaluated as having one or more of the disabilities listed in IDEA and determined to be in need of special education and related services. Evaluations must be conducted according to prescribed procedures. The disabilities specified in IDEA include: mental retardation, hearing impairments including deafness, speech or language impairments, visual impairments including blindness, emotional disturbance, orthopedic impairments, autism, traumatic brain injury, other health impairments, specific learning disabilities, deaf-blindness, and multiple disabilities. Additionally, states and local education agencies (LEAs) may adopt the term "developmental delay" for children aged 3 through 9 (or a subset of that age range) who are experiencing a developmental delay as defined by the state and need special education and related services. /ubbthreads/images/graemlins/919Mad.gif :9-07tears:
  2. Liahona

    Liahona Active Member

    Sorry I don't have any advice, but you might want to take out your names from the post. You have my sympathy.
  3. JJJ

    JJJ Active Member

    It looks good. I don't think you have gone too far at all. I would now follow up with a certified letter, reconvening his IEP team for the purpose of updating his IEP and discussing appropriate placement.

    Do you have a record of days/times they have asked you to come and get him? I believe that if it adds up to more than 10 days this year, then they must discuss an alternate placement!

    I would get an advocate or possibly a Special Education lawyer to attend your IEP meeting. They don't seem to be a school district with a clue.

    Best of luck,
  4. Sheila

    Sheila Moderator

    That should get Mr./Mrs. Superintendent's and Mr./Mrs. Sp Ed Director's attention. :cool:

    When protocal hasn't worked time after time, and obviously it hasn't, you have to do what you have to do. So no, I don't think you went too far.

    In fact, you need to print the letter out, sign it, and send it Certified Mail (Superintendent). Otherwise, there may be no formal "notice" in the file to the upper chain of command that there was a problem (allowing deniability). In other words, you have to have proof that you notified the appropriate parties.

    I'd also send it to West Virginia's State Education Agency, Attention: Special Education Monitoring (via Certified Mail) so that they are "on notice" your school district isn't in compliance. Again, the CM is your proof the appropriate party has been notified. It's their red flag that they need to step in and get things straight in the District.

    I suspect the Special Education director will be contacting you shortly. Be prepared to tell them what you want in case they ask.

    If they try to stall or snow you, be prepared to advise them that you will file a formal complaint with the SEA and US Department of Education OR file suit. Then if they don't follow through, do it.

    I've been in your situation. It's very painful.

    by the way, you might want to familiarize yourself with the 10-day rule, e.g., change in placement. This is where after 10 days of school suspension, there should be an automatic review of placement. It would be my contention that sending my son home should count. There's a thread in the Sp Ed Archives (page 3 I think) that may be of interest to you.

    Let us know how the District responds.
  5. Martie

    Martie Moderator

    If this letter hasn't been sent, I would suggest you change the first reference to Section 504, if your son has an IEP.

    You have many of the citations below, I would just say "IDEA 2004."

    If anything, this letter says TOO much because you have laid out your whole Due Process case.

    I also agree with Sheila, however. This certainly puts them "on notice." If it has not been sent, I would cut some of the "you don't live with him 24 hours per day" but not cut the "we know him better than you do." The parts about physicians are very well-stated.

    The reason I would take the "we live with him" part out is I tried this and was told not only that it was my job--but it was used vs us to show that we didn't "want" our child. What I thought I ws saying is, "if he gets worse, we will not be able to manage," how it was construed is, "we are neglectful and want to dump him--besides, he's adopted so of course we would want that."

    As far as the 10 day notice, I'm not sure what Sheila is referring to. If you are considering putting him in a private placement at your own expense due to denial of FAPE, I would get legal advice BEFORE doing that. I did that, and made a couple of minor errors, but those errors later barred any reimbursement.

    You also cannot file in court without going through the administrative procedures. HOWEVER, no new information can be introduced in court that was not brought out at the DP hearing. Therefore, there is a HUGE burden on parents to get it right at DP.

    I am sorry for your painful situation. I have been where you are without the clear cut medical issues. The only positive thing I can think of is that it is somewhat easier to win when a school district is doing exactly what yours is: trying to override an MD--dispense medications at their own discretion, denying more than one diagnosis, etc.

    Martie :warrior: