Solving Problems Early, Inexpensively, And Without Attorneys

1. Solving Problems Early, Inexpensively, And Without Attorneys A Stitch In TimeSaves Nine SES Spring 2010

2. Overview • Before the Meeting: Front-loading the IEP • During the Meeting: Wash, Rinse & Spin 3. After the Meeting: Ironing out the Problems

3. Rule of Thumb All communication (verbal and written) must be child-centered

4. Rule of Thumb • Child-centered communication takes the emphasis away from the personalities of the participants and places it where it should be – on the child. • Child-centered communication can deescalate tense situations, placing the focus on what the parties have in common. • Child-centered communication shows judges and compliance investigators that despite the pressure, the District’s concern is serving the needs of the student.

5. #1Before the MeetingFront-loading the IEP

6. Before the IEP • Train staff in IEP procedures • Judges are lawyers, not educators: procedural compliance is often more important to FAPE than substantive compliance • Procedural compliance prevents advocates and attorneys from gaining the leverage to widen disputes

7. Pre-Meetings Districts may hold meetings without parents for the purpose of preparing for an IEP team meeting These meetings are usually considered to be “preparatory activities … to develop a proposal or response … that will be discussed at a later meeting" (34 C.F.R. 300.501(b)(3).)

8. Pre-Meetings Discuss data, review recommendations and solutions to potential problems Coach nervous staff members Develop an agenda Fix any deficiencies in draft IEP

9. Pre-Meetings • Gather evidence of progress • Ensure that there is adequate data • Understand strengths and weaknesses • Make sure IEP team members can explain data to parent • Data focuses conversation on facts, not sides • Progress = educational benefit

10. Pre-Meetings • Assessment reports • Journals • Logs • Correspondence • Grades • Test scores • Portfolios and work samples • Classroom assessments and anecdotal evidence

11. Review development of the IEP over time, especially goals • Present levels of performance • Goals – baseline expectations • Placement – increasing independence? Less restrictive? • Teacher reports

12. Draft IEPs • Districts may prepare a draft IEP and present the draft to the parents at the IEP team meeting • However, exercise caution when using draft IEPs • Consider drafting only time-consuming parts of IEP (e.g., goals and objectives) • Do not make any final decisions during your pre-meeting!!

13. Draft IEPsOCR Example FACTS: • District prepared a draft IEP and distributed at the IEP team meeting • District informed the team that the draft was a starting point for discussion and subject to change • Parent participated and provided input regarding the IEP • The draft IEP was modified to reflect Parent’s input and suggestions (New Hanover County (NC) Schools (OCR 2007).)

14. cont. Draft IEPsOCR Example FINDING: • District did not predetermine Student's services or placement • All members of the team, including Parent, actively participated in the discussions and development of Student’s IEP • There was no evidence that the draft IEP curtailed Parent’s participation in developing Student’s IEP (New Hanover County (NC) Schools (OCR 2007).)

15. Practice Pointer • Write “DRAFT” on each page of the draft IEP • Consider sharing your draft IEP with parents before the meeting • At the IEP team meeting, announce that the document is a draft subject to change • Review each page and solicit parent input and/or questions • Frequently check for parent understanding and document those checks • Document each parent change to and/or disagreement with the draft IEP, team response and changes to draft IEP

16. IEP Team Notice • Be clear as to purpose of meeting: • Parents can prepare for the discussions • Alleviate parent anxiety • Encourage the team to focus • Assist in expediting the meeting

17. IEP Notice Requirements The IEP notice must: • Indicate the purpose, time, and location of the meeting and who will be in attendance • Inform the parents that they may invite other individuals to attend the meeting who have knowledge or special expertise regarding the student (34 C.F.R. § 300.322(b)(1).)

18. Practice Pointer • If the district plans to have an attorney attend the IEP team meeting, include the attorney on the IEP team meeting notice • Failing to include the attorney on the notice can result in a request that the meeting be postponed

19. #2During the Meeting Wash, Rinse & Spin

20. Assign an IEP team member solelyin charge of establishingthe human connection

21. Fix Personality Conflicts Sometimes particular folks just don’t get along!

22. IEP Team Member Excusal • IEP team members can be excused, or not required to attend, if the parents and the district agree, in writing, that the attendance of the member is not necessary • The excused member must submit written input if the meeting involves the member’s area

23. Which Teachers to IncludeCase Example FACTS: • Student was eligible for services from the District • Student attended a private preschool • Student’s private preschool teacher attended the Student’s triennial IEP, and acted as the general education teacher • A general education teacher from District did not participate in this IEP team meeting (Yucaipa-Calimesa USD v. Student (OAH 2008).)

24. cont. Which Teachers to IncludeCase Example RULING: • Failure to include a credentialed general education teacher with knowledge of the district’s general education program was a procedural violation of the IDEA • The private school teacher could not provide useful input regarding the possibility or extent of Student's contact with general education peers at a district school (Yucaipa-Calimesa USD v. Student (OAH 2008).)

25. Team Input • Specific stories work best • Humanize your interactions

26. Listen!!

27. Parent Participation • School districts must ensure that parents have the opportunity to “meaningfully” participate in developing the student’s IEP • This means parents must have an opportunity to discuss a proposed IEP and have their concerns considered by the IEP team

28. Parent ParticipationCase Example FACTS: • District attempted to schedule an IEP meeting and Parent did not respond • Later, Parent rescheduled the meeting twice • After third request to reschedule, District held the IEP team meeting without Parent • District sent IEP home and offered to review; however, Parent rejected the offer • The following year, Parent did attend but stormed out before the meeting was completed (Winkelman v. Parma School Dist. BOE (N.D. Ohio 2009).)

29. cont. Parent ParticipationCase Example RULING: • The court found that District made a good faith effort to engage Parent in the IEP process • While noting that District did commit some errors, Parent’s withdrawal from the IEP process in essence prevented Parent from collecting the reimbursement requested (Winkelman v. Parma School Dist. BOE (N.D. Ohio 2009).)

30. Avoid Predetermination • Participating in IEP team meetings with an open mind and a willingness to listen to parents fosters communication and parent trust • When you avoid saying “we don’t do that here” or “we will not consider anything other than [x],” you are working collaboratively and amicably with parents • This collaboration helps to build a rapport that can be essential in avoiding disputes

31. Questions to Consider Regarding Predetermination • Did the district come to an IEP meeting with an open mind and several options to offer for discussion with all team members? • Did the district suggest different potential programs? • Did the district discuss and consider any parent suggestions and/or concerns regarding the child's program?

32. Predetermination Case Example FACTS: • At the first IEP meeting, team discussed placing Student in a NPS once he demonstrated certain skills • Team did not offer NPS • At later IEP meetings, Parent believed District would offer their preferred NPS placement • The team offered a public school placement (Student v. Murrieta Valley USD (OAH 2007).)

33. Predetermination Case Example RULING: • Parent and their advocate had a meaningful opportunity to participate in all placement discussions • The mere fact that District did not offer the Parent’s preferred placement was not evidence of predetermination (Student v. Murrieta Valley USD (OAH 2007).)

34. Responding to Dispute • Preempt (identify disputes before they arise, but don’t predetermine) • Acknowledge (use “I” statements) • Deescalate (operate in your comfort zone) • Respond (again, based on the needs of child)

35. Don’t be afraid to punt: • Forced decisions can be wrong decisions • Typically harder to fix items than it is to get them right the first time

36. Practice Pointer • Always follow-through! • Unanswered requests or unkept promises frustrate parents to the point where they search for a louder voice

37. #3 After the IEP Ironing out the Problems

38. Issue Spot: Run the IEP Through the Connect-the-Dots • Present levels • Areas of Educational Need • Goals • Placement • Related services

39. Rowley • Consider whether IEP is substantively appropriate: • Designed to meet unique needs • Reasonably calculated to provide educational benefit (not maximize, but more than trivial) • Services comport with IEP • Least restrictive environment

40. Target Range (now IDEA 2004) • Consider whether IEP had procedural missteps that: • Impeded right to FAPE • Significantly impeded parents’ right to meaningfully participate in the decision-making process • Caused educational deprivation

41. Fix Mistakes by: • Reconvening IEP team • Sending clarifying letter • Sending prior written notice • Convening informal meeting

42. Informal Dispute Resolution

43. Roadblocks To Resolution • Parent’s dislike, or distrust, of district staff • Members’ misunderstanding of each other’s positions • Clash between parent’s representative and district staff • Parent’s request that an IEP include certain information

44. Resolve Disputes by: • Convening an informal meeting with select members of the student’s IEP team • Asking a trusted staff member to call the parents • Having a district expert contact the parents outside of an IEP team meeting

45. Practice Pointer INFORMAL MEETING • Include only a few trusted staff members • Obtain parent agreement that meeting is not an IEP meeting • Have specific proposals ready to discuss • Keep an open mind and actively listen to concerns • Document recommendations and disagreements

46. Procedures forEarly Dispute Resolution • Consider developing procedures for early dispute resolution • The goal of early dispute resolution is to resolve a dispute quickly, efficiently, cheaply, and with the best interests of the student as the top priority

47. Terms Considered DuringEarly Dispute Resolution • Student placement and/or related services • Assessments • Status of the IEP in dispute • Stay put • Attorney fees • Waiver • Next steps

48. Settlement Agreements • A settlement agreement is a binding contract • Provides protection for both the district and the parents • By including a waiver, a district can avoid later litigation on the same issues

49. The Last Word … • Empower staff to resolve issues early • It’s good for • students, • parent relations, and • the district’s bottom line!

50. And… Communicate in a manner that your grandmother would understand!