I’m starting a new blog series to talk about all the successful wins we’ve gained for parents of children on an IEP.
A while ago I wrote on my Facebook page and talked about a case I had in which the parents prevailed in getting what their child needed to be successful in school. An attorney replied and in his comment, he said, “What do you mean by parents prevailed? Are you saying you simply got the goals and services the child needed?” I laughed and replied, “Oh yeah, we got all the goals, services, and placement the child needed to start learning in school, which addressed all the problems the parent wanted to resolve. Isn’t that the point?”
Albeit many attorneys think that having “parents prevail” means filing for due process and winning, I completely disagree!
Parents can prevail without filing by utilizing their parent rights in the IEP process.
Prevail can mean when parents resolve issues through the informal dispute resolution process by choosing not to sign the IEP. Very unfortunately, there are only 4 states in the nation that endow parents the right to choose the informal dispute resolution process, which does NOT require filing for Due Process.
State law for California, Massachusetts, Montana, and Virginia are the only states in the nation that require parents to sign the IEP to authorize implementation and agreement to the IEP.
For all other 46 states, a parent is not required to sign the IEP before the district can implement the plan, depleting parent participation rights as an equal IEP team member PER IDEA! Because I live and advocate in California, I am well aware of this, however, many parents in California, Massachusetts, Montana, and Virginia have no idea that Federal law requires that the only parent signature that is required on an IEP is the initial. For all subsequent IEPs, IDEA doesn’t require a parent signature to authorize agreement to implement the IEP.
On the other hand, the parents that live in states other than California, Massachusetts, Montana, and Virginia have no idea that all other states don’t have this mind-blowing right to put a stop to the IEP if we DON”T sign!
In CA, MA, MO, VA, parents can prevail outside due process because they have the power to refuse to sign the IEP until their disputes are settled through the informal dispute resolution process endowed to them by state law in those specific states. Those parents have the right to VETO the IEP, which stops the IEP from being implemented by refusing to sign, triggering the informal dispute resolution process outside of DP.
The Informal dispute resolution process endows parents the right to choose from these advocacy options:
- Parent meets with their IEP team to present their disagreements in an effort to resolve the issues in dispute. In the meantime, the IEP will NOT be implemented until the parent signs in agreement.
- Parent writes a Partial Consent outlining the things they agree to and lists the issues in dissent. I recommend you do NOT sign the IEP with exception. Not have any signature on the IEP will strengthen your Partial Consent letter. Your Partial Consent letter serves as your signature to implement the things you agree to and veto’s the things you are in dissent.
- Parent requests an Informal Dispute Resolution meeting with the Sped Director.
- Parent has the option to request Mediation ONLY, which does NOT require filing for Due Process.
- Parent has the option to file a state Compliance Complaint.
- Parent has the option to go to the School Board and present their case to outline the violations and failure to provide FAPE.
And here’s the kicker…when a parent has a dispute in all other 46 states, their options are:
- Call an IEP meeting to try and resolve the dispute, nevertheless, the IEP will be implemented even if parents disagree.
- File for due process
- File a compliance complaint
- Mediation Only
- Go to the School Board
Now that you have the understanding about HOW I can have parents prevail outside of Due Process, let’s talk about my latest case in which I was able to win what the parents wanted, and the child was entitled to receive.
- Parents requested their child be assessed for an IEP and were denied eligibility three times.
- Student: 11 years, 6th grade, medical diagnosis of ASD and found eligible for Autism and SLD in a Psycho-ed IEE.
- District: Inland Empire, CA
- Student was receiving failing grades, presented with anxiety, depression, and behavioral outbursts in home and at school.
- Parents obtained a Psycho-Ed IEE conducted by a neurologist and a psychologist of their choice.
1. An IEP meeting was held to review the district’s Psychoeducation assessment and the district found the student ineligible. Parents had requested assessment twice in the past and were also denied.
2. We requested an IEE and the district incurred multiple violations. They failed to provide a PWN within a reasonable timeframe and they failed to hold the IEP to review the IEE findings within a reasonable timeframe, just to name a few.
3. Unlawful facilitation of IEP meeting to review the IEE findings:
- During the virtual IEP meeting, the Vice Principal disallowed the team to be on camera and technology precluded parents from participating due to technology sound issues making voices inaudible.
- The Vice Principal spoke for the team and when we directed questions to specific team members, the VP would answer for them.
- The Vice Principal would not allow the IEE provider to present her full IEE report with recommendations, violating the school’s obligation to consider the IEE.
- The Vice Principal found IEE invalid with no merit or legal basis.
- The Vice Principal predetermined the decision to find the student ineligible for special education. During the recorded meeting she stated, “We met before the meeting and the team determined the student was ineligible.”
- Because the student was already awarded a 504 that was not working, the Vice Principal violated “Child Find” which requires the IEP team to make the decision to find the student eligible for an IEP if the child requires Specialized Instruction.
The difference between a 504 and an IEP: a 504 finds the student with a qualifying disability that negatively impacts their ability to access the general education curriculum but only provides accommodations. An IEP finds the student eligible with a qualifying disability that negatively impacts their ability to access the general education curriculum but also requires Specialized Instruction.
4. We requested an informal dispute resolution meeting with the SELPA Director and the dispute resolution specialist.
The SELPA Director asked us to attend another IEP meeting facilitated by the dispute resolution specialist. She assured us that with the assistance of the dispute resolution specialist, our issues would most likely be resolved. Upon our request, the SELPA Director agreed to fund the IEE provider to attend a 2nd IEP meeting. Due to the egregious manner in which the VP facilitated the last meeting, we also requested that the school site principal replace the VP in the facilitation of the meeting. The SELPA Director agreed.
5. A second IEP meeting was held with the principal in attendance. We once again reviewed the Psychoeducation IEE in an effort to resolve the dispute regarding eligibility. Conversely, the resolution specialist was unable to resolve the issues and the student was, once again, found ineligible by the IEP team even though the parents disagreed.
During the meeting, the resolution specialist “interviewed” each team member by posing the question: Do you believe the student qualifies under the category of autism? Most team members would reply with something like this, “I am not a psych or an autism specialist, so I’m not qualified to make that kind of decision, but I want the student to receive what she needs.”
Now this is important, majority rules is NOT a requirement in the IEP team decision-making process. Parents hold 50% power in a consensus. It is not 10 IEP team members versus the parent(s).
If there is not a consensus reached, which means all members of the team can come to an agreement (which includes YOUR 50% stakeholder rights as the parent), then parents have the option to request an IDR. Now remember, in CA the parent DOES have the right to VETO the IEP, which endows them the option to trigger the informal dispute resolution process outside of filing DP.
After two long hours of having the resolution specialist interview each IEP team member and without a decision being made, the principal made the unilateral decision to NOT find the student eligible, disregarding the team’s input which clearly stated they were not qualified to make that decision and violating parent rights for the team to come to a consensus.
6. I wrote what’s called a “strongly worded letter” to the SELPA Director, outlining the myriad of violations incurred during the IEP meeting. In the letter, I let her know our intent to file a Compliance Complaint citing multiple violations, an Administrator Credential Complaint, a 504 Complaint, speak before the School Board and contact the Press to let them know how this district violates state and federal law.
In addition, the IEE provider also wrote a strongly worded letter. She was so appalled with the manner in which she was disrespected and the unlawful way the IEP was facilitated, that she felt it was her obligation to let the SELPA Director know what was going on within her district.
7. These are the violations I included in letter, which were incurred to date of the letter:
- An Assessment Plan provided to parents 10 months after parent requested assessment.
- The IEP meeting to review the district’s assessment exceeded the 60-day timeline.
- The IEP meeting to review the IEE findings exceeded a reasonable timeframe. After the parent requested an IEE, an IEP meeting was held 13 months after parent request.
- Failure to consider IEE findings during 1st IEP meeting.
- The district violated parent participation rights (team off camera, team not allowed to speak to parent, voices inaudible.)
- Predetermination for eligibility.
- Denied IEE provider opportunity to observe student.
- Parent received incomplete records.
- 504 Violation: Failure to implement 504 Plan accommodations.
- Child Find violation.
8. We requested a 2nd IDR with the SELPA Director – Parents Prevailed!
During the IDR, the SELPA Director conducted an IEP meeting. She did this by having her staff serve as the mandated IEP team members. During the IDR IEP meeting, the SELPA Director agreed to the following:
- Autism and Specific Learning Disability criteria finding the student eligible for an IEP and as recommended per the Psycho-ed IEE.
- Speech and OT goals and services as recommended per the OT IEE.
- Accommodations as recommended per the Psycho-ed IEE.
- SAI as recommended per the Psycho-ed IEE.
- 250 hours of SAI Comp Ed by a provider of parent’s choice due to the district’s unlawful denial of eligibility dating back to the first meeting when the district reviewed their Psychoeducational report.
- Parent’s right to take action if the IEP was not implemented with fidelity. We did have to agree to an Alternative Dispute Resolution agreement, but it’s not the same as a Settlement Agreement and does not require the same waivers.Now this is huge because districts typically want parents to waive their right to take action on future issues. However, because I told the SELPA Director we didn’t believe the Principle and Vice Principle would comply with the IEP she created during the IDR, she agreed to add that parents had the right to take action if the IEP was not implemented with fidelity. The ONLY waiver in the Alternative Dispute Resolution document included all past issues up to the date of IDR.
Now what you need to realize is that Principals and VPs are not versed in SPED Law. They conduct unlawful IEP meetings all the time and stonewall unaware parents. Parents, if you don’t know your rights and the Principal or VP doesn’t know SPED law, you can pretty much bet that your IEP meeting will be facilitated unlawfully.
So, in the end, the parents prevailed on 6 issues:
- Awarded eligibility under Autism and SLD for the Initial IEP
- Awarded Speech and Language goals, supports, and services
- Awarded Occupational Therapy goals, supports and services
- Awarded Specialized Academic Instruction
- Awarded Accommodations
- Awarded 250 hours of Compensatory Education by a provider of the parent’s choice
- In terms of waivers, parents were only required to waive past issues to date of the IDR and that’s it. This is not typical for settlement agreements! What is typical is for the district to require parents to waive their rights for everything under the sun in order to resolve disputes.
Now, looking at this list of wins, I’d call that a case in which the PARENTS’ PREVAILED!
This case is a strong example of the power parents have in California, Massachusetts, Montana, and Virginia and the dispute resolution steps available in order to resolve dissents outside of Due Process. These are the advocacy steps and strategies I teach to parents who sign up for my consultation services.
Stay tuned for the Episode 2 of my Parents Prevailed blog series!
Cheering you on always!
If you haven’t joined our Private Special Education Parent Empowerment Facebook Group yet, you should check it out here.
Here’s what parents are saying about the group:
“You and your page have been so inspirational, empowering, and educating. I truly appreciate the ability to ask and get responses from you and all the members here! Thank you so much, Valerie!” ~Simone
“Your posts and responses have helped support and educate me. I thank you for that. I have two children with disabilities and admire the wisdom you provide. You have a very special mission and have touched a lot of lives.” ~Jodi
Valerie Aprahamian is a special education advocate, IEP strategist, and speaker. She speaks on behalf of parents to protect the rights of neurodiverse children to receive the supports they need in public school.