Minor revision of IEP

[svengandhi]

I am not sure if this is the right place for this question, but ...

My rising 8th grader is a very smart child. He has a high IQ and mostly very superior scores on his WIAT's etc. He is diagnosed with a Disorder of Written Expression and a school-based anxiety disorder. He has mostly grown out of his ODD and/or learned to react in more socially appropriate ways. He is turning 13 today.

We had a horrible year in grade 6, highlighted by the principal trying to have him removed to a residential treatment center and culminating in our having him removed from his math and science teacher, but only after we threatened to have the teacher arrested for assault. The Sped department head and her assistant were a blessing to us for their intervention finally helped us get him into a different classroom setting (though still mainstream).

Last year, we fought and got him into accelerated math. He did well and is continuing in it this year.

8th grade is when honors science starts. We have been told he did not meet the criterion, but what the criterion are has never been fully explained. He failed English but that was due to his disability and his remaining ODD manifestations, which prohibited him from seeking help from anyone. We don't blame the teacher - the man went way far out of his way to try and work with him and failed him only as a last resort.

After months of phone calls, letters and appeals going back and forth, we were told by the superintendent that it was a building decision and that the principal (who HATES my son and tried to have him removed to a residential treatment facility in grade 6) had said no. We wrote back to him that we would be moving along in our efforts and asked him if we had exhausted our administrative remedies within the district. He responded that we had and then added that if my son's IEP stated that advanced classes were needed to meet his educational needs, he would have to be placed in there because the federal law in essence trumps state and local law, as well as the principal's decision.

Based on that, my husband went to see the head of Pupil Personnel (a gem who became our son's advocate in grade 6 once I finally decided to seek out her assistance). She has arranged a meeting next week for my husband and I, the superintendent. the SD atty and herself to discuss the situation. The principal is not going to be there, as far as I know.

My question is - would adding a provision in his IEP saying that he requires an advanced class be enough? His IEP entering grade 7 said "He would benefit from a compacted and/or accelerated curriculum, particularly in math, in which he excels and shows great promise" and he was put in honors math. Could we just draft a revision IEP adding language like that without the need for a full CSE meeting - school starts the day after this meeting? The Pupil Personnel head told me that technically this is not a proper use of the IEP but she did it last year because she believed he belonged in honors math and he proved her right and she added that the principal clearly doesn't realize it's not technically proper. However, last year's was the full CSE committee meeting and this would be just us and her.

I sort of feel like the PP head and the superintendent want to put him in but fear the wrath of the principal. If they can sidestep her and said that the federal law controls here, we all win (except for the principal, but who cares about her anyway?)

In the alternative, if we can't reach a consensus to get him in and we have to sue, do you think suggesting that he be placed in on an interim basis is a good idea? Do we have any basis under the law to ask for that, because then we could argue that it's his "stay put" placement if they try to toss him out. I honestly believe he can do this work - it's easier than the math and my older daughter, who is not gifted in math or science, passed this science class when she was in grade 8.

Sorry this is so long.

Thanks for all advice.

[Sheila]

<div class="ubbcode-block"><div class="ubbcode-header">Quote:</div><div class="ubbcode-body">He responded that we had and then added that if my son's IEP stated that advanced classes were needed to meet his educational needs, he would have to be placed in there because the federal law in essence trumps state and local law, as well as the Principal's decision. </div></div>

How refreshing that this type information is tendered to a parent. The information is correct. Placement decisions are made by the IEP Committee. In instances like this, your situation being one, vague language leaves the door open for problems -- like a building decision.

It's my understanding that minor revisions to the IEP can be made without a full-blown IEP meeting as long as the school district representative AND the parent agree to the revision. The revision needs to be specific. Even "He would benefit from a compacted and/or accelerated curriculum, particularly in math, in which he excels and shows great promise" is too vague for me. I'd want it worded similar to ""He would benefit from a compacted and/or accelerated curriculum, particularly in math, in which he excels and shows great promise. He will be placed in Honors science class." It's clear, simple, and not left to misinterpretation.

I'm thinking you're not going to have to sue. Although your Superintendent is letting the Administrative relief procedures play-out (apparently to appease the Principal), the buck stops with him. It is the Superintendent's ultimate responsibility to make sure his district and all educators therein abide by local, State and Federal education laws.

<div class="ubbcode-block"><div class="ubbcode-header">Quote:</div><div class="ubbcode-body">if we can't reach a consensus to get him in and we have to sue, do you think suggesting that he be placed in on an interim basis is a good idea? Do we have any basis under the law to ask for that, </div></div>

Your basis in law is that the parent has the right to ask for whatever you think your child needs. Ask. All they can say is "no." When the sd says "no," they need to provided the reason for the rejection in writing -- it's part of Prior Written Notice parental rights. [For more information on this, do a search in this forum on parent attachment to the IEP. There's a link that will further explain.]

If you knew me, you'd know that I am going out on a limb here by saying getting this minor change to the IEP should not be a big deal. It's not uncommon for upper management at school district's to circle the wagons and support a prior decision even when the decision was a poor one or flat-out in error. But your Superintendent didn't do that, so I'm optomistic for you.

With that said, I don't mean for you to let your guard down and get blind-sided. A school district attorney being present at such a meeting is unusual. But your style of advocating for your son seems to be working.

Let us know how the meeting goes.

[Martie]

I wrote a seven paragraph response, and it did not upload correctly.

I'm sorry but I cannot reconstruct it right now.

I will try to get back later.

Martie

[Sheila]

This is the Prior Written Notice info I referred to earlier.

http://www.geocities.com/Athens/Orac...iornotice.html

[svengandhi]

Sheila -

Thank you so much. Can you guide towards where in the regs it says that placement decisions are controlled by the CSE?

I have always been told that the CSE controls the TYPE of placement (e.g, mainstream with aide, self-contained, residential, etc) and that the school makes the decision as to what classes within those parameters.

I think that is why his prior IEP was written so vaguely, because it is believed that the CSE placement means only the type of class not the nature of the content. ALTHOUGH, I know that the school does modify curriculum for kids who learn more slowly, I have never heard of it being done for kids who learn more quickly, like mine.

As for the SD lawyer being present, both WH and I are attorneys, although neither of us specializes in special ed issues (it is my dream to do that when I retire and don't have multiple kids to support anymore, though!). Neither H nor I was insulted at that. H handled a suspension hearing with this attorney and says he is a zealous advocate, but a pragmatist. In the other case, they were able to work out a deal where a child who sold drugs at school was FINALLY (in grade 11) evaluated and then was sent to an alternative school. The SD did not have to do that, he had never been considered at risk. The mom was illegal and had never sought services. Anyway, the district could have had him arrested and sent to jail, but they paid for his rehab and now he's coming back for his senior year. I just hope they can do as solid for my guy.

Thanks again and I eagerly await Martie's answer.

[Sheila]

IEP are often intentionally vague.


From http://idea.ed.gov/explore/view/p/%2...300%252E116%2C :

Regulations: Part 300 / B / 300.116
Sec. 300.116 Placements.

In determining the educational placement of a child with a disability, including a preschool child with a disability, each public agency must ensure that--

(a) The placement decision--

(1) Is made by a group of persons, including the parents, and other persons knowledgeable about the child, the meaning of the evaluation data, and the placement options; and


Re: IEP Changes http://idea.ed.gov/explore/view/p/%2...2Cd%2C3%2CF%2C

Statute: TITLE I / B / 614 / d / 3 / F
(F) Amendments.--Changes to the IEP may be made either by the entire IEP Team or, as provided in subparagraph (D), by amending the IEP rather than by redrafting the entire IEP. Upon request, a parent shall be provided with a revised copy of the IEP with the amendments incorporated.

As you are likely aware, the Fed regs are minimum requirements. Some states have statutes that provide IEPs for gifted students. You'll have to check your state regs on this issue.

However, placement is controlled by the IEP Committee and the best interest of the child and his/her educational needs should be what drives the IEP. Even delivery of subject matter and amount of instruction minutes per week can be addressed in the IEP. Committee members tend to forget that IEP is an acronym for "Individual Education Plan."

It is true that placement decisions are controlled by the CSE -- assuming this is an IEP team. However, you are a full member of the team, so these type decisions are not at school district discretion.

Regulations: Part 300 / D / 300.321
Sec. 300.321 IEP Team.

(a) General. The public agency must ensure that the IEP Team for each child with a disability includes--

(1) The parents of the child;

(2) Not less than one regular education teacher of the child (if the child is, or may be, participating in the regular education environment);

(3) Not less than one special education teacher of the child, or where appropriate, not less then one special education provider of the child;

(4) A representative of the public agency who--

(i) Is qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of children with disabilities;

(ii) Is knowledgeable about the general education curriculum; and

(iii) Is knowledgeable about the availability of resources of the public agency.

(5) An individual who can interpret the instructional implications of evaluation results, who may be a member of the team described in paragraphs (a)(2) through (a)(6) of this section;

(6) At the discretion of the parent or the agency, other individuals who have knowledge or special expertise regarding the child, including related services personnel as appropriate; and

(7) Whenever appropriate, the child with a disability.

[Sheila]

Forgot to comment on one thing.

I now understand why the school district attorney will be present. It's because you and Dh are attorneys. lol

It's not uncommon for the sd to have a policy that requires the sd attorney to be brought in when the parents bring an attorney to meetings.

[Martie]

OK,

I'm back and sorry that I lost the post. That does not happen very often to me anymore.

Here is what I wanted to bring up: an IEP that is validly constructed trumps the principal because it is based in federal law. Further, the IEP team does not decide the placement FIRST. The invariant order is as follows: Evaluation, CSE meeting, eiglibility determined (in your case this has been done) IEP development to determine needs and FINALLY, the LRE where the IEP can be implemented is determined. If you child needs advanced math and science, then the LRE is going to be the advanced regular class. However, for English, perhaps he needs a smaller class to become motivated to compensate for his problems in which case (as an example) a smaller resource class would be the LRE for English. When IEP comes BEFORE placement decisions, individualization is easier. With children such as yours, it is very important to remember that special education is a service NOT a place. Also, the ADA protects "otherwise qualified" individuals from discrimination based solely on disability. You have a strong case IMO that gfg is "otherwise qualifed" for advanced science and the principal is being very arbitrary which is a close cousin to discriminatory.

A really important addition to IDEA 2004 allows an IEP to be amended to make "minor changes" without a full meeting as long as it is in writing, the parent agrees and signs it. You will certainly have enough SD personnel there, so if you can go this route, I would. The only thing left to argue about is whether or not adding an advanced science class is a "minor change." I would contend it is minor because advanced math was in the prior IEP and math and science are closely related subjects.

Special Education is INDIVIDUALIZED in all regards and failing English has nothing to do with math and science levels as the principal should (and probably does) know.

On a personal note: it is in part due to this issue that my son ended up in a private high school after EGBS. He got fairly consistent D's in English but needed advanced math and science as well as German. The Due Process Hearing Officer actually said she had never seen a special ed student with these sorts of needs and it was most inconvenient. I was really sorry about having an "inconvenient" kid.....Sheesh.

I think that in addition to the SD treading lightly because you are an attorney, the SD may want this IEP to be amended either to force the principal to comply or use it as an issue with her. There may be an agenda here besides your child which is unfortunate in one way, but may be turned to your advantage in another. I think the superintendent is getting ready to push the principal out on a limb; it's just a feeling, but based on your description, something else seems to be going on. I generally think that it is a bad idea to get on the wrong side of the principal, but you have little to lose here since she already does not like your child.

Finally, I think the superintendent saying you have exhausted administrative remedies means "informal" remedies. Both mediation and Due Process Hearings are considered "administrative" and must be undertaken before you can bring suit in federal court. IMO I do not think this will go to Due Process let alone court because the individualization of special ed and the primacy of the IEP has been reinforced so many times by the Supreme Court. In addition, Winkelman settled whether or not you can represent your son, so the SD has that to worry about also although perhaps Winkelman does not apply because you ARE an attorney. However, the other important part of Winkelman is that parents have rights under IDEA independent of the rights of the child.

Best to you,

Martie

[klmno]

I haven't read all the details in each of these posts, however, my gfg was in a similar situation with his classes and after a couple of discussions with school personnel re. advanced placement in math, I called the district head of the math dept. and asked if there was any reason my gfg couldn't be in advanced math just because he's on an IEP. Of course, he said no and after I gave him the reasons why it was clear my gfg belonged in the class, he told me to discuss it with the principal one more time and then call him back if she hadn't allowed it. Oddly enough, the next talk with the principal quickly resulted in my signature on a "parent over-ride" for the class, which means that's all it took to get him in that class, the course number was changed on his IEP and it was a done deal. She voluntarily brought me the over-ride form this year and we did the same thing. I noticed your principal is not on your side, but I'm wondering if you still couldn't go to the guidance dept. and asked for an over-ride form and/or call the district head for the science dept. BTW, I worded things to make it obvious that my opinion was that it would not be an adequate education if gfg was not allowed the same opportunity to be educated on a level appropriate for his abilities and it would be discrimination if this opportunity was offered to other students who don't have disabilities. I hope this helps!!

[svengandhi]

klmno -

Thanks, the middle school does not allow waivers or over-rides, although it can be done in the high school. I have, however, offered to sign one acknowledging that he can be removed from the class if he goes below a B two quarters in a row. That is the standard that applies to all students in the honors class, it is not applicable just to him.

The teachers are all terrified of this principal. Even the science teacher who ran the Astronomy Club and loves my son, was afraid to go up against her. I can't ask teachers to risk it- she changes THEIR placements around like she is playing dominoes. She is an evil woman and a liar but like many of them was able to keep her true nature under cover until she got tenure - I really think it should be 5 years and not 2, most people can't conceal true evilness for 5 years but can manage it for 2.

I did however read the links Sheila provided and integrated them in my mind with Martie's advice. H and I LOVED that advanced math is the LRE - that is an argument that did not occur to us. We plan to combine that with the modification argument (if you modify to slow work down, why can't you modify to speed it up?)

We plan to attend the meeting with our 3" full binder of documentation concerning our son's intellectual abilities, outside sources of accomplishment (he is almost an Eagle Scout) and the horrors he has been through with this school in the past. That material is for the lawyer, the PP head and the superintendent are well aware of what has gone on.

Martie - I told H that the superintendent was incorrect about exhaustion of remedies, but if the SD thinks we have exhausted them and our next step is court, they might be willing to play ball with us. They know that I am a trial attorney by profession and that I am not afraid of a courtroom or a confrontation. In any event, I have already filed a verbal complaint with my State Ed. Dept and will follow up in writing if the meeting does not have the outcome I want.

I just wish my SD was like the neighboring one that was in the top 100 in Newsweek - that SD allows all kids who want to do the work to be in honors and AP (and I did mention that in my note).