Related Services & Due Process

Discussion in 'Special Ed 101' started by JJJ, Jan 14, 2010.

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  1. JJJ

    JJJ Active Member

    Kanga's school wants to drop her SL minutes from 60 to 40. I refused. They said they are doing it anyway. I need to send them a certified letter stating that they cannot do this.

    I need to

    (a) make sure I am right that this would constitute a change in her services and as such need an agreement or that they -as the party wanting the change - would need to take it to due process to make the change over my objections

    (b) that I can invoke a stay-put to keep her minutes at 60 pending the result of the due process if they file it

    (c) quotes from the law or court cases supporting this.
     
  2. slsh

    slsh member since 1999

    JJJ - patchwork info from IDEA. All bolding is mine.

    [FONT=TimesNewRoman,Italic](D) AGREEMENT.--In making changes to a child's IEP after the annual IEP meeting for a[/FONT]
    [FONT=TimesNewRoman,Italic]school year, the parent of a child with a disability and the local educational agency may[/FONT]
    [FONT=TimesNewRoman,Italic]agree not to convene an IEP meeting for the purposes of making such changes, and instead[/FONT]
    [FONT=TimesNewRoman,Italic]may develop a written document to amend or modify the child's current IEP.[/FONT]
    [FONT=TimesNewRoman,Italic]([/FONT][FONT=TimesNewRoman,Italic](F) AMENDMENTS.--Changes to the IEP may be made either by the entire IEP Team or,[/FONT]
    [FONT=TimesNewRoman,Italic]as provided in subparagraph (D), by amending the IEP rather than by redrafting the entire[/FONT]
    [FONT=TimesNewRoman,Italic]IEP. Upon request, a parent shall be provided with a revised copy of the IEP with the[/FONT]
    [FONT=TimesNewRoman,Italic]amendments incorporated.[/FONT]

    You're not agreeing.

    The IEP team determines the IEP - you are a member of the IEP team. If you don't agree, the team doesn't agree.

    You know that sheet of rights you used to get at every IEP mtg? This should be in there (it's from IDEA as well):


    (c)
    [FONT=TimesNewRoman,Italic]NOTIFICATION REQUIREMENTS.--[/FONT]

    [FONT=TimesNewRoman,Italic](1) [/FONT]CONTENT OF PRIOR WRITTEN NOTICE--The notice required by subsection (b)(3)

    shall include--

    (1[FONT=TimesNewRoman,Italic]A[/FONT]) a description of the action proposed or refused by the agency;

    (2[FONT=TimesNewRoman,Italic]B[/FONT]) an explanation of why the agency proposes or refuses to take the action;
    (4) [FONT=TimesNewRoman,Italic]and [/FONT]a description of each evaluation procedure, [FONT=TimesNewRoman,Italic]assessment[/FONT], record, or report the agency used as a basis for the proposed or refused action;
    (6
    [FONT=TimesNewRoman,Italic]C[/FONT]) a statement that the parents of a child with a disability have protection under theprocedural 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[FONT=TimesNewRoman,Italic]D[/FONT]) sources for parents to contact to obtain assistance in understanding the provisions of
    this part;
    (E) (3) a description of other options considered and the reasons why those options were
    rejected;a description of any other options [FONT=TimesNewRoman,Italic]considered by the IEP Team[/FONT]
    and the reason why those options were rejected; [FONT=TimesNewRoman,Italic]and[/FONT]

    [FONT=TimesNewRoman,Italic](F) [/FONT]a description of [FONT=TimesNewRoman,Italic]the [/FONT]factors that are relevant to the agency's proposal or refusal.

    And placement - it's stay put unless you agree to change during DP process:

    (j) MAINTENANCE OF CURRENT EDUCATIONAL PLACEMENT.--Except as provided in subsection (k)(7)[FONT=TimesNewRoman,Italic](k)(4) (which is the manifestation determination stuff, not applicable here), during the pendency of any proceedings conducted pursuant to this [/FONT]section, unless the State or local educational agency and the parents otherwise agree, the child shall remain in the then-current educational placement of [FONT=TimesNewRoman,Italic]the child, or, if applying for initial admission to a public school, shall, with the consent of the parents, be placed in the public school program until all such proceedings have been completed.

    [/FONT]
    A change in related services is a change in placement. I'd invite them to take advantage of their rights to due process, since the IEP team has *not* agreed to the change in services (and did you get the necessary prior written notice in it's entirety - I'd bet not). Since the *team* has not agreed to the changes school district has proposed, current placement stays as written on last IEP, including related services.

    If they really do take you to DP, you need a lawyer. I'm sorry, but this is absolutely not something you can do in IL and expect to win unless you have a shark, and a really good one. I learned the hard way - the school district and their atty will really do a number on you.

     
  3. dadside

    dadside New Member

    An IEP change is made by the "team", of which a parent is to be a fully participating mamber. However, I do not think that the parent has to agree to all decisions of the team in order for them to be implemented. The team makes a decision, and lack of unanimity ought not paralyze the process. As long as your input is fairly considered by the team as a whole, it remains a team decision. I've seen nothing suggesting the team members must be unanimous. As I understand it, technically it is not the school wanting to make a change; it is you objecting to the decision of the team. So, I believe the burden here is on you to object, potentially leading to due process.

    In any event, they should provide you in writing with a description of "a description of each evaluation procedure, assessment, record, or report the agency used as a basis" for the proposed action. I think you'd need something good to counter their presentation. Also, understand that nationally, schools win the majority of due process hearings (I recall hearing something over 80%).

    Try to work out your disagreement informally in the next couple of days - before they implement the change - and if unsuccessful you can file your objection ("complaint") before implementation, which should mean keeping existing service levels until the process is concluded.

    I'd advise talking to an education attorney before filing a due process complaint, and to be prepared to follow it through as necessary. At an absolute minimum, talk with someone at your state's Parent Training & Information Center.
     
  4. klmno

    klmno Active Member

    slsh is right- many times I or someone from the school district called or emailed and we agreed to change something in the IEP but didn't want to take the time for another meeting. They still usually wouldn't implement the change without a revised IEP signed and in-hand. They just either sent it back and forth with difficult child or I picked up/dropped off.
     
  5. JJJ

    JJJ Active Member

    The "team" only have two votes - the school has one and I have one. Therefore whoever holds the school's vote and I are the ones who must agree.

    THEY will have to file for Due Process since they are the ones who want the change.

    My questions were:

    1. Does a change in related services constitute a change in placement?

    2. Since she is placed at an out of district school, does that school have the 'vote' or does my district have the 'vote'?
     
  6. slsh

    slsh member since 1999

    A change in related services is a change in IEP and ergo constitutes a change in placement, since placement is the program and not a physical place. Again, the "team" must agree to all changes in the IEP. If you don't agree, the team doesn't agree.

    The out-of-district school has zero say. If the IEP calls for services that the OOD school doesn't provide, district must arrange for those services to be provided. Your district is the entity responsible for FAPE in LRE - not the OOD school. We went through this with- Occupational Therapist (OT) for thank you at one point. Residential Treatment Center (RTC) school didn't provide so school district had to contract with an agency local to the Residential Treatment Center (RTC). (Actually, that's along the same lines as if you were dealing with an in-district school. IEP drives services. Just because district/school doesn't provide services, if IEP determines they're necessary for FAPE in LRE, school district must foot the bill.)
     
    Last edited: Jan 16, 2010
  7. dadside

    dadside New Member

    From a 2004 letter from the state in West Virginia:

    Please note that voting to make IEP decisions is not appropriate and the IEP team should work toward consensus among all team members, regardless of their roles. If a disagreement occurs during the review and/or development of the student’s IEP with any IEP team member and the dispute cannot be resolved, the county school district has the ultimate responsibility to ensure that the IEP includes the services the student needs in order to receive a free appropriate public education.
    --------

    From a handout pareared for the 16TH ANNUAL SCHOOL LAW CONFERENCE, November 2, 2007, Minneapolis, Minnesota:

    WHAT IF THE IEP TEAM CANNOT ACHIEVE CONSENSUS?

           The new IDEA regulations retain the objective of working towards consensus when making educational decisions. See 71 Fed. Reg. 46661 (August 14, 2006) (discussing the concept of consensus in eligibility determinations). However, the school district has ultimate responsibility to ensure that a FAPE is provided. If the team cannot reach consensus, the school district must provide the parents 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.

    29. IF CONSENSUS CANNOT BE ACHIEVED, CAN WE VOTE INSTEAD?

          Sure, but you do so at your peril (i.e., the practice is not recommended). If you do decide to vote, make sure the votes are properly counted. In one case, a New York court upheld a hearing officer’s decision allowing several individuals invited by the parent to vote at the child’s IEP meeting. Initially, the school district only counted the votes of the individuals whom the IEP team chairperson thought properly comprised the IEP team. The parent challenged this decision, arguing that if voting is conducted, all members of the IEP team are entitled to participate. See Sackets Harbor Cent. Sch. Dist. v. Munoz, 34 IDELR  227 (N.Y. App. Div. 2001).

    -----

    From a 2003 decision by The State Of Wisconsin, DIVISION OF HEARINGS AND APPEALS:
    The IEP team may make decisions with which the Parents will disagree. The IDEA does mandate that parents shall be participants in the IEP meeting. Courts have ruled that being a participant does not necessarily involve parents having a "vote" equal to that of the school personnel who are the other members of the IEP team. Buser v. Corpus Christi Indep. Sch. Dist., 20 IDELR 981 (S.D. Tex. 1994), aff'd, 22 IDELR 626, 51 F.3d 490 (5th Cir. 1995), cert. denied, 516 U.S. 916 (1995), (rejecting the parents' "equal vote" interpretation of the IDEA and holding that equal participation does not mean equal voting power; to adopt the parent's argument would in effect allow parents to prevent the implementation of an IEP anytime there is a disagreement, contrary to IDEA's intent). Ultimately, parents have no veto power over IEP decisions, short of disenrollment.
     
  8. slsh

    slsh member since 1999

    nevermind
     
    Last edited: Jan 16, 2010
  9. JJJ

    JJJ Active Member

    Ugh.

    Thanks all anyway. Not going to die on this hill. Home district is good and I have 3 more to get through them. They aren't happy with placement school either but we have little choice as this is the only sped school available to girls in Kanga's Residential Treatment Center (RTC).
     
  10. Sheila

    Sheila Moderator

    I'm on an iPhone so bare with me.

    This would be a change in placement.

    I'd invoke "stay put" pending receipt of a new sl evaluation and report together with recommendations. As always if you don't agree with the new RPT you'll request an IEE.

    Tks for posting the regs -- I can't manGe with this device. Fingers crossed my computer is repAired soon.

    And fingers crossed for you
     
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