Parent Participation Trumps Deadlines! (Doug C. Vs Hawaii)

5 07 2013

Monumental!!

Doug C. Vs. Hawaii rules (in essence) that the right of the parents to participate in IEP meetings/development is more important than the school’s need to meet the deadline for IEP annual reviews. (Happy Dance!!)

Well worth reading this Wightslaw analysis even if you’re not a geek: http://www.wrightslaw.com/law/art/dougc.hawaii.pwanalysis.htm

The Court explained that procedural violations that “infringe the parents’ opportunity to participate in the IEP formulation process, clearly result in the denial of FAPE” (*FAPE is Free and Appropriate Public Education)

While the case centers around the scheduling of IEP meetings so that parents can participate in the meeting– the ruling is clear that parents have a right to participate in the “formulation process”– which in my interpretation (am not a lawyer– just a geeky mom) also includes the right to help write the document.

Last year my work was taking me out-of-town every week, my son’s intervention specialist (IS) was going through chemo therapy so our schedules just didn’t allow us to work on his IEP together… not malicious, not that either of us was playing games; our schedules just didn’t match up. We got to a week before the IEP annual review was due and we believed we were meeting with his IS to work on the IEP and the school ambushed us– they tried to push through the rough draft we had been working on by email. It was really rough… and we refused to sign it. They threatened to implement without our agreement and we basically dared them to do it. To make a long story short– we found a work-around and bought some time to finish working on the IEP so it all turned out fine. But, thanks to Doug C. Vs. Hawaii this won’t happen again!

Too many people– parents and school staff alike– are under the impression that an IEP “expires”. Let me be clear– Individual Education Programs do NOT expire. Seriously– read the Individuals with Disabilities Education Act (http://idea.ed.gov/).  They do NOT expire!

The law requires that IEPs be reviewed at least once a year and be changed as needed. That’s all. The law doesn’t require a re-write… the program does not expire. So– the annual review is a procedural issue and Doug C. Vs Hawaii says clearly that the rights given by IDEA get priority over proceedural timelines.  

From Wrightslaw analysis:

“The Court discussed the balancing of two options, i.e., including the parent versus meeting the procedural timeline. There are two primary purposes of IDEA. The first is to prepare the child for “further education, employment and independent living.” [See 20 USC § 1400(d)(1)(A)]The second purpose of the law is “to ensure that the rights of children with disabilities and parents of such children are protected.” [See 20 USC § 1400(d)(1)(B)]”

 “When confronted with the situation of complying with one procedural requirement of the IDEA or another, we hold that the agency must make a reasonable determination of which course of action promotes the purposes of the IDEA and is least likely to result in the denial of a FAPE.”

“Under the circumstances of this case, the Department’s decision to prioritize strict deadline compliance over parental participation was clearly not reasonable.”

I am SO excited about this ruling– not only because I feel vindicated– but also because this gives families legal grounds for our objections to being excluded from the IEP process. Granted that generally speaking, parents aren’t the experts in education, in education law or in procedure– but, we are the foremost experts in our own children and have the legal right to have a say in our children’s educational plan.

Thanks Doug C.!

* Pete Wright is a Special Education Attorney. I am not. I encourage you to read this ruling for yourself and visit www.wrightslaw.com — go to one of their trainings… And don’t assume that everything you read on the internet is true! My post is to the best of my knowlege… but, I’m not a lawyer so do your own reading/research.





What’s Wrong with this IDEA?

18 06 2012

Special Education Law (IDEA) has kind of become my hobby. Sure it’s related to my son and my work… but it’s really interesting. As a mom and an advocate I think it’s a pretty good law. In both capacities there are a few things I’d change but over all it’s a good law. I’d love for the law to spellout what they’ve had to explain in commentary (http://www.wrightslaw.com/idea/commentary.htm) but it works. Well… it would work IF schools spent a fraction of the time getting to know their rights and responsibilities as the mom brigade has…

In my humble (but pretty experienced) opinion the biggest hurdles to our children with special education needs having their educational needs met are:

1. The people…. General Education Teachers who don’t think they have any responsibilities under IDEA… or don’t want to fulfil their responsibilities… or just plain don’t understand their responsibilities (which is the fault of those to taught them and those who are responsible for helping them with professional development). They know they are supposed to show up and sign IEPs… but they either don’t know or don’t care that it’s a legal document and their signature makes them legaly responsible for their part of the program. Special Education professionals— who don’t know the legal definitions of the buzz words they use… are treated as the “red-headed step-child” in their schools… need more funding for their students and can’t compete against the football program…. the list goes on. I do not believe that people go into special education as a profession without caring about our kids (some exceptions of course) and then they get beaten down. School Administrators— who see high expenditures with statistically minimal results… who are too arrogant to admit when they make “mistakes” and can’t make it right because that would mean admission.They fail at educating staff on special education law– fail to supervise special education programs– circle the wagons when anything goes wrong… fail to establish a culture that values special education, students in special education and families who live with special education needs. Parents— yes… we really are part of the problem. We are the foremost experts on our children– but,  (generally speaking) we are not experts in education. (Generally speaking) We are intimidated by professionals. (Generally speaking) We want our children to have it all– even what they don’t need because who knows– that might be the magic bullet. Many of us are angry and have blown a gasket at least once in the years of dealing with special education. (Generally speaking) We are excluded from the process. (Generally speaking) We are angry. (Generally speaking) We are tired.

2. Enforcement: The federal government went to all the trouble of creating a good law but appear to be careless about enforcement… it can take years to work through the process… Local and State cronyism makes it difficult for parents to fight for their child’s rights to have their “unique needs” met so that they can go on to “future education and independent living”. Without enforcement, this good law is impotent.

Of course funding is also an issue– but shouldn’t be because the law doesn’t let funding be a consideration in determining the child’s needs. When you get to nuts and bolts of HOW the needs will be met– that’s when you can get creative. There are many ways to skin a cat (my son is working on memorizing euphemisms so forgive me…) so, working together– so long as both parties have good faith and the best for the child at heart– is best for the child. Most of us understand a tight budget– been there or are there– so we can be reasonable. If districts would treat parents as true members of the IEP team and parents would set aside the anger over past wrong doings, creativity can lead to reduced cost– while avoiding reduced results. We must focus on the results– not the “thing”…  But, we can’t waste time on that which does not work.

There are many other obstacles to ensuring that our children’s needs are met and some we can overcome. There is already a pretty good law…