School Districts Must Revise IEP Annually Or They May Not Be Providing A Free And Appropriate Education

By Michelle Ball, California Education Attorney for Students since 1995

In the Ninth Circuit Court of Appeals decision Anchorage School District v. M.P. (July 19, 2012, No. 10-36065), the Court ruled that the lack of an updated annual IEP (Individualized Education Program) plan resulted in M.P. (student) not receiving a Free and Appropriate Education (FAPE).  The Court also ruled that the parents were to receive reimbursement for private tutoring and attorneys fees.

In Anchorage, Judge Paez stated that a school district has only two options if the annual IEP remains unsigned (e.g. a parent wants more changes, rejects it, etc.). The District must then either:

1)  Continue working with the parents to develop an IEP which is accepted by all, OR
2)  Revise the IEP on their own and file a due process hearing to seek administrative approval of the proposed IEP.

This is significant.  There are many times that parents have a signed IEP, e.g. from 2 years ago, but no signed IEP since that time due to disputes.  However, as explained in Anchorage, this would evidence a lack of FAPE.  A district cannot just continue relying on the old outdated IEP while the child "advances" from grade to grade.  Rather, as the Court explained, they have "an affirmative duty to review and to revise, at least annually, an eligible child''s IEP."  If they do not, the district can be attacked for a lack of FAPE and may have to pay for services (compensatory education) provided by the parents during the time there was no FAPE.

The Court also was not deterred by the argument that the parents were too litigious and somehow stopped the annual IEP from being finalized.  Instead, Judge Paez opined that regardless of the parents exercise of their right to object, the district must update the annual IEP to ensure a student receives appropriate services.

This is a wonderful opinion for parents which should ensure that students don't get stuck with outdated IEP documents with pointless goals from many years before.  If there is an impasse, the school district must work with the parents to finalize the IEP or go to hearing. 

This is not a long decision and is a good read.  I encourage all parents of special education students to review it!

Best,

Michelle Ball
Education Law Attorney
LAW OFFICE OF MICHELLE BALL
717 K Street, Suite 228
Sacramento, CA 95814
Phone: 916-444-9064
Fax: 916-444-1209
Website: http://www.edlaw4students.com/

Blog: http://edlaw4students.blogspot.com/

Twitter: http://twitter.com/michelleaball

Youtube: http://www.youtube.com/user/EdLaw4Students

Faceboook: https://www.facebook.com/pages/Law-Office-of-Michelle-Ball/191273330901857

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Schools, Colleges, And Current Trends In One Education Law Office

By Michelle Ball, California Education Attorney for Students since 1995

It has been a VERY busy year for my office, as our clients come from all across California and issues run the gamut.  With the internet, even MORE parents and students in trouble are finding me!  So, I thought I would reflect on what the recent trends have been in my office where I focus only on Education Law.

This year, I have seen a great number of interdistrict (between two districts) and intradistrict (within the same district) transfer issues.  It seems that many districts have been clamping down hard on students attending outside their area of residence.  My phones have exploded with issues where kids who may have been attending a school previously are suddenly denied entry, or the student expected to go to "School A", but now has to attend "School B" which the family thinks is a bad school.  It is distressing for all parties concerned, particularly the student! They don't know where they will attend, if they will have to make new friends, or what will happen.

I have also been handling a large amount of expulsions for a variety of matters, but have seen a rise in school expulsions for drug sales.  These are very sad situations where a student gets caught up in the moment and they do something wrong.

I have seen more college disability-related issues lately as well.  Disabled students in colleges need to ensure that they take the proper steps to notify the college of their disabilities and insist that proper accommodations be put in place.  Students also need to ensure that they are mindful of discipline policies, and that if they are punished, they force the college to follow its own policies on discipline (and state law).

Special education denials abound as well, as due to financial woes, it seems school districts deny more students or limit services.  This obviously leads to disputes!

Bullying by students and school staff (teachers, etc.) have hit my office, as well as expulsions for things on Facebook, in text messages, and otherwise.  This is a somewhat new area of punishment and it can be confusing.  I have found that many districts don't necessarily know or limit themselves to what the law requires in cases of internet or other electronic comments and can expel students technically outside their jurisdiction.  Expulsion for speech on the internet while off campus crosses over into the area of free speech and the First Amendment. Students retain their First Amendment free speech rights in the school setting, although that speech can be limited (see Tinker v. Des Moines and cases since this time).

There are so many more issues as well!  One thing which would help them all, and alleviate many parent complaints, is better communication with parents by school employees.  I often find that if better communication had been in place, the parents never would have ended up in my office in the first place.

What have your school issues been this year?

Best,

Michelle Ball
Education Law Attorney
LAW OFFICE OF MICHELLE BALL
717 K Street, Suite 228
Sacramento, CA 95814
Phone: 916-444-9064
Fax: 916-444-1209
Email: help@edlaw4students.com

Website: http://www.edlaw4students.com/

Blog: http://edlaw4students.blogspot.com/

Twitter: http://twitter.com/michelleaball

Youtube: http://www.youtube.com/user/EdLaw4Students

Facebook: https://www.facebook.com/pages/Law-Office-of-Michelle-Ball/191273330901857

[please like my office on Facebook, subscribe via twitter and email, and check out my videos on Youtube!]

Please see my disclaimer on the bottom of my blog page. This is legal information, not legal advice and no attorney-client relationship is formed by this posting, etc. etc.!  This blog may not be reproduced without permission from the author and proper attribution of authorship.

Transfers for Special Education Students Achieved- One Parent's Story About How The Law Office of Michelle Ball Helped

By Michelle Ball, California Education Attorney for Students since 1995

What if you cannot get a simple transfer for your special needs children, but believe they will not be appropriately placed otherwise?  My office was hired to assist one family who no matter what they did, could not get a transfer for their special needs children.  When my office became involved, we were able to gather enough information and communicate effectively, thereby persuading the district that the transfers should go through.

Here is what one of the parents involved had to say:

"I highly recommend Michelle Ball!  Michelle Ball is a fantastic education attorney. Our school district wanted to make a school placement within the district that was not in the best interest of our children (IEP, 504, and handicapped). The district was adamant that our request for transfer would not be allowed, seemingly in opposition to the law.  We felt existing law supported our requested placement based on the services available at the schools in the district. In the face of a unified negative response from all levels in the district, she [Michelle Ball] provided legal guidance and support that ultimately drove the district to change their position and grant our request.

While the whole experience was unnerving, we learned not to give in, and pushed for a placement that was in the best interests of our children. The district seemed to believe that time and cost were on their side and that we would eventually accept their decision. With Michelle’s counsel we were able to fight and drive the district to change their position to one that met our children’s needs rather than the needs of the district. The cost of fighting the decision, while not insignificant, pales in comparison to the long term results that the district’s placement would have had on the rest of our children’s lives, and by extension, ours. They now have a much better chance at a quality education and a successful life, as opposed to the prospect of a less successful education experience and the negative impact that would have on the rest of their lives.

Many thanks!
-RJJ"

Thank you RJJ!

Michelle Ball
Education Law Attorney
LAW OFFICE OF MICHELLE BALL
717 K Street, Suite 228
Sacramento, CA 95814
Phone: 916-444-9064
Fax: 916-444-1209
Email: help@edlaw4students.com

Website: http://www.edlaw4students.com/

Blog: http://edlaw4students.blogspot.com/

Twitter: http://twitter.com/michelleaball

Youtube: http://www.youtube.com/user/EdLaw4Students

Facebook: https://www.facebook.com/pages/Law-Office-of-Michelle-Ball/191273330901857

[please like my office on Facebook, subscribe via twitter and email, and check out my videos on Youtube!]

Please note: This testimonial or endorsement does not constitute a guarantee, warranty, or prediction regarding the outcome of a legal matter.

Please see my disclaimer on the bottom of my blog page. This is legal information, not legal advice and no attorney-client relationship is formed by this posting, etc. etc.!  This blog may not be reproduced without permission from the author and proper attribution of authorship.

Can IEP Teams Say "No" To Special Education Services Based on Money Woes? No, No and No!

By Michelle Ball, California Education Attorney for Students since 1995

Oftentimes parents attend an Individualized Education Program (IEP) meeting, and although their child needs additional services to meet his or her goals, can be denied needed services based on reasons such as: "no funding," or "we just don't have the resources," or "that is not available here as there are no staff."  Are these legitimate reasons to deny a student services that will meet their unique needs?  No!

The whole special education system can be very overwhelming for parents and they often "trust" the IEP team to guide them on what their child should or should not receive as far as services, placement, and education.  Parents may also simply accept an IEP team denial of services based on money woes of the school district.  However, regardless of the funding problems school districts seem to be having right now, they cannot deny special education services based on those issues.  If a student requires a service (e.g. resource class, speech therapy, or a one-on-one aide) to receive an appropriate education to meet their unique needs, the district should provide the service.

If a district wants to deny services, they have to do so legitimately.  In other words, do a thorough assessment to evaluate, and prove the service is not needed.  If they do this, they may be able to "legitimately" defend themselves on a decision to reduce or deny services.  However, the bottom line is that many districts still will flat out say that "we can't afford speech and language therapy," and tell the parent to take a hike.  Sorry to say, but that is not legitimate.

If the district does not have staff to provide a service such as speech and language therapy, and the special needs student requires that service, the district has to provide the service another way.  For example, the district can pay a private therapist to deliver the speech and language therapy off site and can also pay for transportation to and from the therapy.  The district can't just say the child won't receive the service as they don't have the staff.  If the child needs the service to meet their unique needs, it needs to be provided one way or another.

This is one reason why recording IEP meetings is so crucial.  Often parents can document denials based on lack of money simply by recording the meeting.  When a school/district representative says "we don't offer speech and language due to the budget crisis," or words to that effect, the parents have a valid argument which they can later raise in a due process hearing to overcome the denial.

If a school or district is denying services based on money, parents need to stand up and say that is an unacceptable reason for the denial and demand the service be provided.

Best,

Michelle Ball
Education Law Attorney
LAW OFFICE OF MICHELLE BALL
717 K Street, Suite 228
Sacramento, CA 95814
Phone: 916-444-9064
Fax: 916-444-1209
Email: help@edlaw4students.com

Website: http://www.edlaw4students.com/

Blog: http://edlaw4students.blogspot.com/

Twitter: http://twitter.com/michelleaball

Youtube: http://www.youtube.com/user/EdLaw4Students

Facebook: https://www.facebook.com/pages/Law-Office-of-Michelle-Ball/191273330901857

[please like my office on Facebook, subscribe via twitter and email, and check out my videos on Youtube!]

Please see my disclaimer on the bottom of my blog page. This is legal information, not legal advice and no attorney-client relationship is formed by this posting, etc. etc.!  This blog may not be reproduced without permission from the author and proper attribution of authorship.

What is the Definition of Special Education in California?

By Michelle Ball, California Education Attorney for Students since 1995

Thousands of parents have their children in special education, but do not have any idea what "special education" really is.  In fact their special education definitions can vary greatly as no one is out there giving them instruction or direction on the LEGAL definition of special education.   There IS an actual, specific, legal definition, of "special education" outlined in both state and federal law.

Per California Education Code section 56031(a) "Special education," is:

"specially designed instruction, at no cost to the parent, to meet the unique needs of individuals with exceptional needs, including instruction conducted in the classroom, in the home, in hospitals and institutions, and other settings, and instruction in physical education."

The federal definition, outlined in the United States Code, volume 20, section 1401 (29) [20 USC 1401], which is even more brief:, states:

"The term "special education" means specially designed instruction, at no cost to parents, to meet the unique needs of a child with a disability, including -
(A) instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and
(B) instruction in physical education."

California Education Code section 56031(b) also includes in its definition of special education:

a) Speech and language services.
b) Other "related services" [see section 56363 for a full list]
c) Travel training.
d) Vocational education

The federal law does not include these services in the DEFINITION of "special education," as they are simply categorized under "related services."

All of these subjects could fill books as needed, but needless to say, these are the basic definitions of "special education" with which parents should become familiar.   The legal standard may need to be referenced as even districts can be confused about their obligations.   For example, I had a client who was homebound (could not leave to attend school due to disability issues) and the district denied the student was qualified for special education as independent study was available.  Their denial was mistaken as disabled students may receive instructional services in the home via special education.  When the school was educated on just what special education is and who qualifies, the student was promptly qualified and provided with one-on-one instruction from credentialed teachers at home.

Parents must know these legal definitions exist and what they are.  Attempting to argue any other special education "definitions" can result in losses for the student and confusion for all.  If parents utilize proper legal definitions in their advocacy, they should be able to get further in their quest for services.

Best,

Michelle Ball
Education Law Attorney
LAW OFFICE OF MICHELLE BALL
717 K Street, Suite 228
Sacramento, CA 95814
Phone: 916-444-9064
Fax: 916-444-1209
Website: http://www.edlaw4students.com/

Blog: http://edlaw4students.blogspot.com/

Twitter: http://twitter.com/michelleaball

Youtube: http://www.youtube.com/user/EdLaw4Students

Faceboook: https://www.facebook.com/pages/Law-Office-of-Michelle-Ball/191273330901857

[please like my office on Facebook, subscribe via twitter and email, and check out my videos on Youtube!]

IDEA Court Case: Berns v. Hamilton Southeastern Schools

By Michelle Ball, California Education Attorney for Students since 1995


The Seventh Circuit Court of Appeals recently upheld the denial of a parents request for reimbursement ($$$) for the cost of a private placement at Lindamood Bell.  This case illustrates how tricky it can be to obtain reimbursement from a school district for the unilateral placement (e.g. by parents alone) of a child in a private school.


In the case of Berns v. Hamilton Southeastern Schools, decided December 22, 2011, Judge Gottschall opined that the student in question had been provided a Free and Appropriate Public Education (FAPE), as the student made adequate progress toward his goals during his public school placement.  According to the case, the student in question suffered from a Traumatic Brain Injury (TBI) at age 4.  After that time, the school assessed him and placed him in a pre-kindergarten classroom for four weeks.  While in the placement the student met several of his goals and was allegedly making progress toward the others.  He was then recommended to move into kindergarten.


According to Judge Gottschall's opinion, the parents' private assessor had previously recommended that the "optimal" placement (see my blog on using words implying need for the "best" placement here) would be year round with an "all day" kindergarten.  The parents thereafter requested placement in both sessions of kindergarten (morning and afternoon), and were refused based on his progress toward his goals.  The family thereafter became at odds with the district and enrolled their son in Lindamood Bell.  


Although there were several procedural errors by the school alleged, the only question was whether the hearing officer's decision that the student received FAPE was proper.  The Seventh Circuit found that it was and denied the family's request for reimbursement for Lindamood Bell, for attorney fees, and otherwise.


Although this case was not in the California circuit (our court is the Ninth Circuit), it is illustrative of the importance of evidence and support when placing a child in a private school if the parents intend to later seek reimbursement from a school district.  If things are not supported well, or the school can show they DID offer FAPE, parents can be blocked and fail in their reimbursement claim.


Best,

Michelle Ball
Education Law Attorney
LAW OFFICE OF MICHELLE BALL
717 K Street, Suite 228
Sacramento, CA 95814
Phone: 916-444-9064
Fax: 916-444-1209
Website: http://www.edlaw4students.com/

Blog: http://edlaw4students.blogspot.com/

Twitter: http://twitter.com/michelleaball

Youtube: http://www.youtube.com/user/EdLaw4Students

Facebook: https://www.facebook.com/pages/Law-Office-of-Michelle-Ball/191273330901857

Please see my disclaimer on the bottom of my blog page. This is legal information, not legal advice and no attorney-client relationship is formed by this posting, etc. etc.!  This blog may not be reproduced without permission from the author and proper attribution of authorship.

Did You Hear The One About The Five Year Old Arrested At School And Taken To A Psychiatric Hospital? No, Really- No Joke....

By Michelle Ball, California Education Attorney for Students since 1995

As a California Education Attorney, I have heard horror stories for over 16 years since I started helping parents and students.  Sadly, the story of five year old Michael Davis, a student of Stockton Unified School District is nothing unusual.  It is again, a wake up call for parents.

From what I can gather from internet reports (KCRA, Newsone), Michael is a 5 year old student who allegedly gets in fights and is a behavior problem at school.  The first thing here is HE IS 5 YEARS OLD.  There is no legal obligation to put your kids in school until they turn six years old.  A student who can't sit still, who fights, etc. may just be a rambunctious student and not ready for the controlling environment that the public schools have turned out to be.  Also, sometimes five year olds can simply be wild and enthusiastic in a physical or distracting way.  It was not until the public schools came into the picture that this became a disease.

Additionally, the mother states in her KCRA interview that she had asked for special help for some time and was denied behavior support and other services due to money.  Item number 2:  you cannot deny a student with a qualifying handicapping condition (Michael is alleged to have ADHD- Attention Deficit Hyperactivity Disorder) the support services which are needed to provide a Free and Appropriate Public Education (aka FAPE) based on money.  He likely qualified for special education under the category of Other Health Impaired, which opened the door for special education and support services.  Sadly, unless he was designated with a "disability," he could not obtain support services which is an issue in and of itself, but I digress.

Next, the school gets the bright idea to have the school cop talk to Michael to "scare him straight."  Mom apparently knew about this in advance.  Item 3: bad idea to try to make a 5 year old scared straight.  This is not a good idea- they are five.  Jail is a vague concept at best and really, could you lock them up in jail anyway?  No.

When the cop went to touch Michael, Michael allegedly batted his hand away, kicked him, and pushed papers around.  Now, parents of five year olds, is this really that unusual?  What about stranger danger!?  I teach my kids the danger of strangers and would not want them to allow any stranger to put their hands on them.  I would actually have them try to get away.  Of course, the fact this was a "cop" in uniform was supposed to make legitimate feelings of fear irrelevant, but I doubt that eased little Michael's mind much.

Next, the cop allegedly zip tied this kid for approximately 2 hours (according to his mother), and took him to a psychiatric facility to be evaluated.  Hmmmmmmm...... that's one really bad way to get a kid evaluated without parental consent.  Yes, if a student is a danger to self or others, they CAN do this, but was this really reasonable?  Had a behavior plan been in place, or had the cop backed off when his "scared straight" approach obviously failed, Michael could have calmed down and gotten back to work.

Long story short, Michael was cited by a cop (at five years old!) and later retrieved from the psychiatric hospital.  The charge was later dismissed (thank you your honor!).

This sounds like fiction, but is a reminder to parents:  THIS COULD HAPPEN TO YOUR CHILD.  DO NOT BE COMPLACENT ABOUT THE SCHOOLS.  How would you like your kid carted off to a psychiatric ward when a cop touches them and they react in fear?  How would you like your son or daughter to be tied up by the cops because they would not behave in the institution that is our public schools?  I would not, and do not like it.  Parents may want to investigate placements other than the public schools for their kids, such as home school, as the public schools when it really comes down to it, are not safe at all.  Just ask little Michael Davis how safe they are.

Best,

Michelle Ball
Education Law Attorney
LAW OFFICE OF MICHELLE BALL
717 K Street, Suite 228
Sacramento, CA 95814
Phone: 916-444-9064
Fax: 916-444-1209
Website: http://www.edlaw4students.com/

Blog: http://edlaw4students.blogspot.com/

Twitter: http://twitter.com/michelleaball

Youtube: http://www.youtube.com/user/EdLaw4Students

Facebook: https://www.facebook.com/pages/Law-Office-of-Michelle-Ball/191273330901857

Please see my disclaimer on the bottom of my blog page. This is legal information, not legal advice and no attorney-client relationship is formed by this posting, etc. etc.!  This blog may not be reproduced without permission from the author and proper attribution of authorship.

What Parents Must Consider Before Giving In To School Pressure To Have Their Children Evaluated For A Mental Disorder

When a school pressures a family to have their child evaluated for a mental illness, usually for special education, it can be a very confusing time.  But before parents "give in," they owe it to their child to conduct a thorough and thoughtful evaluation of all possible causes and solutions to the situation.  Labeling a child with a mental illness, such as ADHD (Attention Deficit Hyperactivity Disorder), ED (Emotional Disturbance), ODD (Oppositional Defiance Disorder), or some other mental disorder, is a life-changing decision which not only alters the child's life forever, but also opens the door to potential mind-altering drugs to "control" the child's classroom issues.

Since 1995 I have been helping parents and students in all types of school matters, and I have represented parents both in and out of the special education system.  I have also assisted a handful of parents who fought against school pressure to label their children with mental health disabilities due to problems in the classroom.  The public schools and their staff often push parents to have their child evaluated by a medical professional, such as a psychologist or psychiatrist. Many parents follow through, as their child is not learning, is a problem in the classroom, or acts bad at school, and they don't know what else to do.  But is a disease really the cause?  Maybe, maybe not.

Consider these other potential causes:

1)  An undiagnosed physical disability.
2)  Nutrition/food issues.

3)  Sleep deprivation.

4)  Energy and interest in life.
5)  Poor teaching.

6)  Poor control of the classroom.

7)  Need to move around rather than sit still for 6 hours a day.

8)  Failure to understand the work in the time given.  Public schools don't stop for any student- they just move on whether the child understands or not.  When a child does not understand, they can get bored, distracted, and disinterested.

9)  Need for additional assistance with the work at school (not because of a disability, but because they just did not GET something).

10)  Teacher conflict with the student and/or a bad fit.

11)  Need for more stimulation in the classroom, such as visuals, music, movement, change.  Not all students learn best by sitting, listening, and reading.  
12)  School is not taught in an interesting way.
13)  Poor parenting- parents not working with them at home, not disciplining enough, not there.

14)  A multitude of other reasons.... other than a mental illness.

Sadly, if a student is pushed into the mental health system for the above reasons, it is not because they have a "DISABILITY," but because of something else. However, they may still be labelled as disabled and carry that crutch the rest of their lives.

Labeling a child with a psychological disorder is a BIG deal, and opens the door for drugs- drugs for behavior, drugs for attention, drugs for...control.  If Johnny sits there and no longer blurts out, the teacher will be happier, but will Johnny actually be better off?  Parents need to first consider what would help their CHILD to survive, learn, and flourish.  The school's needs are secondary.

When considering such avenues, parents should check the following sites (among others) for alternatives and information on labelling and drugging of children for alleged mental disorders:

-  Alternative Mental Health.com
-  The Block Center- alternative ADHD treatment
-  Public Service Announcements and the website of the Citizens Commission on Human Rights
-  The Psychiatric Drug Search Engine

Do it for your child.

Best,

Michelle Ball
Education Law Attorney
LAW OFFICE OF MICHELLE BALL
717 K Street, Suite 228
Sacramento, CA 95814
Phone: 916-444-9064
Fax: 916-444-1209
Website: http://www.edlaw4students.com/

Blog: http://edlaw4students.blogspot.com/

Twitter: http://twitter.com/michelleaball

Youtube: http://www.youtube.com/user/EdLaw4Students

Please see my disclaimer on the bottom of my blog page [http://edlaw4students.blogspot.com/]. This is legal information, not legal advice and no attorney-client relationship is formed by this posting, etc. etc.!  This blog may not be reproduced without permission from the author and proper attribution of authorship.

Special Education and the IEP Process- What Do Parents Need To Do and Know to Improve the IEP?

Special education can be very confusing for parents.  As such, I made a short video which goes over some Individualized Education Program (IEP) basics, how to prepare for the IEP, and tips to improve the special education process.

Please watch my video here to find the inside scoop:

I hope this helps all the parents out there trying to get a more appropriate placement for their children.

Best,

Michelle Ball
Education Law Attorney
LAW OFFICE OF MICHELLE BALL
717 K Street, Suite 228
Sacramento, CA 95814
Phone: 916-444-9064
Fax: 916-444-1209
Website: http://www.edlaw4students.com/

Blog: http://edlaw4students.blogspot.com/

Twitter: http://twitter.com/michelleaball

Youtube: http://www.youtube.com/user/EdLaw4Students

Please see my disclaimer on the bottom of my blog page [http://edlaw4students.blogspot.com/]. This is legal information, not legal advice and no attorney-client relationship is formed by this posting, etc. etc.!  This blog may not be reproduced without permission from the author and proper attribution of authorship.

Special Education Summer (or Anytime) Checklist- Get Your Special Education Ducks in a Row

Summer often can be a very different time for parents as school year woes fade away.  However, despite the new schedule, with kids at home, summer vacations, and other activities, parents should use the summer to make the upcoming school year more productive, for themselves and their kids.

Parents should try some of the below items (aka a short special education checklist) to make next year easier:

Organize
1)  Put student special education and other records into date order with the most current on top.
2)  Three-hole punch them and insert into a 3 ring binder.
3)  Separate by year (e.g. put dividers between school years).
4)  Tab key documents (IEPs, assessments, etc.) for easy reference, e.g. at IEP (Individualized Education Program) meetings.

Compare
1)  Now that the records are in order, they should be reviewed and compared to see what is amiss and whether regression has been occurring.  For example, did last school year see a decline in grades or test scores from the year before?  Have special education services decreased at the same time?  What changed?  2)  Check and note down gaps in the records or missing reports.

Review
1)  Review the services the student was supposed to receive during the last school year per the IEP.
2)  Talk to the student to find out what they ACTUALLY received.  Review any notes taken evidencing services delivered and/or not delivered.
3)  List out what was missed.  For example, did the student receive only half of  the speech and language services?  Did they receive all occupational therapy (OT) sessions?

Decide what is needed
1)  Are any assessments due?  Check assessments to see if more than 3 years have gone by since assessment.
2)  Should certain areas be reevaluated?
3)  Any services that were missed should be made up as the student was entitled to these services.
4)  Do new placement options need to be explored?
5)  Do services need to be increased?

Meet with professionals who can help you with your special education needs 
1)  Meet with an education attorney to go over the last IEP, findings, and to get the attorney's take on the situation.  The education attorney may also need to be involved to make things go smoother.
2)  Meet with any outside providers who can evaluate needs and ensure the placement is appropriate.

Request the items needed and/or wanted in writing to the District
1)  Assessments which may be needed
2)  Services which were missed
3)  Records that may be missing from the parent's files
4)  An accounting of all service hours which were actually delivered (e.g. OT, speech and language, etc.)
5)  Evidence (e.g. a sign-in log) showing the services were actually delivered.
6)  An IEP meeting (as needed).

This special education checklist should keep parents of special education students busy during those long summer days and should make the future go better.  When the press of an IEP meting comes, a parent with a great binder and actual knowledge of what was missed, done, and/or what is needed, can better argue the points and is more likely to get what they want.

Best,

Michelle Ball
Education Law Attorney
LAW OFFICE OF MICHELLE BALL
717 K Street, Suite 228
Sacramento, CA 95814
Phone: 916-444-9064
Fax: 916-444-1209
Website: http://www.edlaw4students.com/

Blog: http://edlaw4students.blogspot.com/

Twitter: http://twitter.com/michelleaball

Youtube: http://www.youtube.com/user/EdLaw4Students

Please see my disclaimer on the bottom of my blog page [http://edlaw4students.blogspot.com/]. This is legal information, not legal advice and no attorney-client relationship is formed by this posting, etc. etc.!  This blog may not be reproduced without permission from the author and proper attribution of authorship.

Special Education Agencies With Acronyms Parents Should Remember - OAH, CDE, OCR, OSEP, Area Boards

There are so many special education resources for parents, I thought I would briefly explain just a few and provide links for parent use.

1)  OAH- Office of Administrative Hearings:  This is a very critical agency in California for parents.  OAH is where parents file due process hearing requests to attempt to resolve special education placement, service, FAPE (Free Appropriate Public Education), and other special education issues.  Information on how to proceed, and even a searchable opinion database can be accessed at their site.

2)  CDE - Procedural Safeguards Referral Service:  This is the branch of the CDE (California Department of Education) which takes complaints for failure to implement an IEP, procedural failures of districts and other district issues.

3)   OSEP- the Office of Special Education Programs:  OSEP is a branch of the United States Department of Education (USDOE).  OSEP is more of an advisory group to school districts and states.  However, they have many resources and do issue letters, summaries, and opinions from time to time.  These can be printed out and used as references for parents, or simply can be used to educate a parent on issues.

4)  OCR-  Office for Civil Rights:  This branch of the USDOE accepts complaints on disability (and other forms of) discrimination by schools and districts. OCR also has a huge library of information and issues OCR opinion letters interpreting the law which can be instructive.

5)  Area Boards:  Area Boards serve the developmentally disabled (DD) community as well as students with autism, epilepsy, cerebral palsy and other disabilities with manifestations similar to DD.  Area Boards provide services, education, and advocacy to qualified individuals and can fill in gaps missed by school districts.

These are just some of the myriad of acronym-wielding agencies which can be useful to parents in their special education fight for a free and appropriate education, aka FAPE.

Best,

Michelle Ball
Education Law Attorney
LAW OFFICE OF MICHELLE BALL
717 K Street, Suite 228
Sacramento, CA 95814
Phone: 916-444-9064
Fax: 916-444-1209
Website: http://www.edlaw4students.com/

Blog: http://edlaw4students.blogspot.com/

Twitter: http://twitter.com/michelleaball

Youtube: http://www.youtube.com/user/EdLaw4Students

Please see my disclaimer on the bottom of my blog page [http://edlaw4students.blogspot.com/]. This is legal information, not legal advice and no attorney-client relationship is formed by this posting, etc. etc.!  This blog may not be reproduced without permission from the author and proper attribution of authorship.

Resist Teacher and School Pressure To Drug Your Children For Them To Attend And Be Educated

Under both California and federal law, schools CANNOT make drugging kids a condition of attending school.  This means that if a child is alleged to have "behavior issues" there is no requirement parents seek out a mind-altering substance to control them in the classroom. Despite this, there is often a LOT of pressure from school officials, teachers, etc. for parents to control a non-conforming child by use of drugs.  Prior to giving in to the pressure, PLEASE look at alternative methods of controlling behavior as described below.

Over the years, I have consulted with thousands of parents with problems in the schools. Conflict arises when a student cannot sit in their seat 4-6 hours a day without distracting other students with foot tapping, jokes, fidgeting, or other activity.  The intolerance is large and the schools have become much more focused on CONTROL of children.

Many parents, as a result, have been pressured by the schools to make their child "fit in" within the public school classrooms and their method of instruction.  Unfortunately, the typical classroom does not work for all kids.  As such, parents may hear little hints and/or direct suggestions from a child's teacher that "he may have ADHD (Attention Deficit Hyperactivity Disorder), you should get him evaluated."  Or, "he won't be able to stay in MY classroom unless he gets himself under control- have you looked into XYZ medication?"  The pressure can be intense and unrelenting.

Thankfully, there is NOTHING a school or district can do if you refuse to put your child on medication to control their behavior.  Now, when I talk about medication, I am referring to psychotropic medication.  In general terms, this is medication which is prescribed by an MD (Medical Doctor) or a Psychiatrist to purportedly handle attention, hyperactivity, mood, depression, anxiety, behavior, and other activities that are not "normal."

Before looking to medication as the "answer," consider these options:

1)  Placement in a different setting which allows for more movement, interaction, independent study, etc. -- whatever may work for your child.  There are charter schools, private schools, home schools and many options other than the public schools.
2)  Student Study Team (SST) meeting to develop a support plan for a child in regular education.
3)  504 Plan to develop reasonable accommodations to help your child BE in the classroom, for example:  frequent breaks, the ability to walk around the room or complete a task for the teacher, access to counseling with staff, etc.  There are so many accommodations which can be made if behavior is impacting school, it is unbelievable.  The student, however, has to have some sort of identified disability which impacts learning and/or other areas of existence prior to qualifying for a 504.
4)  Behavior Support Plan (BSP):  These plans may be developed in conjunction with the SST, 504, or special education.  I have been surprised with how many students with behavior problems in school have no and/or inadequate BSPs.  This is a fabulous tool to evaluate and handle behavior issues.
5)  Medical evaluation: a child may also need a full medical evaluation to discover what PHYSICAL problems may be causing behavior issues, such as allergies, vision problems, hearing problems, low thyroid, diabetes, or a myriad of other physical problems impacting behavior.
6)  Alternative Mental Health:  Parents also should consider alternatives to drugging such as listed at the site alternative mental health.com.  This site says it is "the largest site for non-drug approaches for mental health."  As psychotropic drugs may be "mind-altering" to a student and can have severe side effects, I would urge parents to look at every alternative prior to proceeding with drugs for behavior.  There may be another way.

The bottom line is that parents are in charge of their child's mental health and must help them if they have issues.  The school cannot force a parent to drug a child, and parents must be ready to resist the pressure.  You can do it!

Best,

Michelle Ball
Education Law Attorney
LAW OFFICE OF MICHELLE BALL
717 K Street, Suite 228
Sacramento, CA 95814
Phone: 916-444-9064
Fax: 916-444-1209
Website: http://www.edlaw4students.com/

Blog: http://edlaw4students.blogspot.com/

Twitter: http://twitter.com/michelleaball

Please see my disclaimer on the bottom of my blog page [http://edlaw4students.blogspot.com/]. This is legal information, not legal advice and no attorney-client relationship is formed by this posting, etc. etc.!  This blog may not be reproduced without permission from the author and proper attribution of authorship.

IEP Meeting Preparation: Gather Your Pile of Persuasive Documents to Go to War

Going to an IEP (Individualized Education Program) meeting is not just "going to a meeting," although it may seem like that.  It is going to war.  This is a war for our children and their education.  IEP meetings tend to be deceptively simple, where everyone "gets along," and the school members seem to decide all, with the parents just observing.  As such, it is important, prior to going to any IEP meeting, to put together documents which will help parents get what they want for their children.  This can mean the difference between a good education and a bad one for a special education student.

A critical document that a parent should obtain well in advance of the IEP meeting is a demand letter from an attorney setting forth requests and support for those requests.  Often parents' wishes may be ignored until an attorney steps into the matter.  Attorneys speak with authority and carry "big sticks" so resolution may come more quickly.  If not, the attorney may proceed to other means of resolution such as filing a due process hearing request, a state compliance complaint, a disability discrimination complaint, or starting some other process.

If the parents do not have an attorney letter, parents should provide their own written outline of the items which they want added to the student's IEP plan.  This list could include what placement would be appropriate, what goal areas should be covered, and the amount and type of services needed to help the student advance year to year.  If provided with enough time, key IEP team members will likely mull over parent requests prior to the IEP meeting and may already be in agreement when parents arrive at the meeting.  They will also usually go down a parent list item by item at the IEP meeting to discuss what the district will or will not do and why.

Also important are written reports gathered from independent outside assessments.  Although a parent may be able to get a district to pay for an outside assessment, the best possible assessments are usually from completely independent educational professionals.  This is because the professionals parents hire go to bat for the child, listen to what parents want, and help them achieve their goals.

District assessments, email, report cards, correspondence, and other documents should also be culled to locate support for each item requested. This is very important as otherwise parent requests are merely parent "opinion" and can easily be dismissed by the "authorities" at the IEP meeting.  With support in the records, a parent has a much stronger chance of getting what he or she wants for their child.

Documents which will support the parents' position should also be copied and provided to everyone at the meeting.

This list should help arm parents for battle. Providing persuasive documents can create quite an impact on the IEP team and the plan they issue, and can mean the difference between academic advance and academic decline for the student.

Best,

Michelle Ball
Education Law Attorney
LAW OFFICE OF MICHELLE BALL
717 K Street, Suite 228
Sacramento, CA 95814
Phone: 916-444-9064
Fax: 916-444-1209
Website: http://www.edlaw4students.com/

Blog: http://edlaw4students.blogspot.com/

Twitter: http://twitter.com/michelleaball

Please see my disclaimer on the bottom of my blog page [http://edlaw4students.blogspot.com/]. This is legal information, not legal advice and no attorney-client relationship is formed by this posting, etc. etc.!  This blog may not be reproduced without permission from the author and proper attribution of authorship.

IDEA Court Case - C.B. v. Garden Grove - Upholding Parents Right to Reimbursement for Private School Placement

Recently, the Ninth Circuit Court affirmed the United States District Court for the Central District of California's decision in CB v. Garden Grove Unified School District (2009).  This case (hereinafter "Garden Grove") addresses the issue of parent reimbursement for placement of a special education student at a non-public agency.  The affirmation solidified further the rights of parents to be repaid when a public school district  does not offer a Free and Appropriate Public Education (FAPE).

It is yet to be seen whether this decision will be appealed to the United States Supreme Court, but for now, Garden Grove stands for/reconfirms the following propositions:

1)  If a District fails to provide FAPE, full reimbursement may be sought by the parents.
2) Such reimbursement may be sought even if the parents place a student with a non-public agency, rather than a non-public school.
3)  The test for reimbursement of a private placement hinges on whether the placement was "reasonably calculated to provide ...educational benefit" not the location of the placement. (655 F.Supp.2d at 1099)
4)  To prove a denial of FAPE,  procedural errors are not enough unless they impeded the student's right to FAPE, caused a deprivation of educational benefits, or significantly impeded the parents' opportunity to participate in the IEP process (Garden Grove decision quoting 20 United States Code section 1415(f)(3)(E), 655 F.Supp.2d 1093).
5)  No IEP violation may be shown unless there is a material failure to implement the IEP, (Garden Grove quoting VanDuyn v. Baker, 9th circuit 2007, Id.).
6)  Lack of FAPE in this case was shown by the following:
-  Failure to provide speech and language services (SLS) as required by an IEP.
-  Failure to develop goals to address auditory processing needs and anxiety.
-  Failure to include Occupational Therapy (OT) services in the placement offered.
-  Failure to include general education time as the student's offered placement was to be in a more restrictive setting (special day class- SDC).
-  Failure to explain why a SDC was more appropriate than the previous placement.

The Ninth Circuit's upholding of the Garden Grove decision is one more positive mark for parents and students.  It supports parents rights to place a special needs student in private school and seek reimbursement if FAPE is not offered by the public school district.

Seeking reimbursement can be a risky proposition, and had the family not won, they would have been out the entire tuition cost (over $40,000), so be sure you dot your i's and cross your t's, as they say, prior to moving to that realm.  However, if they mess up and you proceed wisely, you may be able to get paid back for a private school placement you make.

Best,

Michelle Ball
Education Law Attorney
LAW OFFICE OF MICHELLE BALL
717 K Street, Suite 228
Sacramento, CA 95814
Phone: 916-444-9064
Fax: 916-444-1209
Website: http://www.edlaw4students.com/

Blog: http://edlaw4students.blogspot.com/

Twitter: http://twitter.com/michelleaball

Please see my disclaimer on the bottom of my blog page [http://edlaw4students.blogspot.com/]. This is legal information, not legal advice and no attorney-client relationship is formed by this posting, etc. etc.!  This blog may not be reproduced without permission from the author and proper attribution of authorship.

The Four Letter Word in Special Education: "BEST"

It does not cross the minds of most parents that certain language related to special education is somehow "bad," or that using a single word in the quest for services could cause a parent to fail.  However, there is one word which ranks in my book as the number one most hideous, most awful word when it comes to special education- BEST (otherwise known as  "B***").  Now, this is counter intuitive, but it is true.

Parents often believe that special education is to provide their child with the "best" education.  Little Johnny ought to be placed where he has the best chance to succeed, in the environment where he will go the furthest, at the school which interests him the most, right? Obviously, he deserves the best, doesn't he?  I hate to break it to you, but the answer is NO.  Johnny is not entitled to the best school environment, best services, or anything "best" at all, at least not when placement is made via the public schools.

How can this be?  We do not understand!  This is because under the Individuals with Disabilities Education Act (IDEA), the word best does not exist.  The word APPROPRIATE, however, does.  Johnny, as a special education student is ONLY entitled to an APPROPRIATE placement to meet his UNIQUE needs.

I recall cases I have read where the parents' professionals (psychologist, etc.) testified at hearing, and recommended X school with stellar services as these would be "best" for the child involved.  However, despite the truth of these assertions, the parents lost their case.  Why?  They attempted to apply a higher standard and of course, they used the bad word!  Best!  Well, like a child who does something wrong, they were punished for it and LOST their quest for the "best" placement.

Had the experts oriented themselves slightly differently to recommend X school with the APPROPRIATE services to meet the child's needs, they might have won.  I bet the school district attorneys in these cases (where a maximum benefit rather than appropriate benefit was sought) snickered to themselves as they knew the IDEA does not support the BEST OF ANYTHING.  Rather, it merely supports an appropriate placement.  This can come as a shock to parents, and even professionals.

So remember, please, that when you have professionals write letters in support of your requested placement, when you advocate for your son or daughter's placement, never ask for the BEST of anything- ask for what is appropriate - the appropriate placement, the appropriate services, the appropriate accommodations....  These could be exactly the same things, by the way, we just identify them differently.  And, exclude forevermore from your language, at least when it comes to the public schools and special education, the word "best."  It can mean the difference between winning and losing.

Best,

Michelle Ball
Education Law Attorney
LAW OFFICE OF MICHELLE BALL
717 K Street, Suite 228
Sacramento, CA 95814
Phone: 916-444-9064
Fax: 916-444-1209
Website: http://www.edlaw4students.com/

Blog: http://edlaw4students.blogspot.com/

Twitter: http://twitter.com/michelleaball

Please see my disclaimer on the bottom of my blog page [http://edlaw4students.blogspot.com/]. This is legal information, not legal advice and no attorney-client relationship is formed by this posting, etc. etc.!  This blog may not be reproduced without permission from the author and proper attribution of authorship.

Simple Steps To Help Handle the Special Education IEP Team

When parents first get involved in special education, and even over time, the whole process can seem incredibly intimidating. With a little understanding and preparation, parents can handle their child's special education IEP (Individualized Education Program) team meetings better and can improve their child's education.

INTIMIDATION BY NUMBERS PLUS INVALIDATION OF PARENT INPUT

When parents walk into an IEP meeting for the first time, it can be scary and confusing.  There is an US versus THEM sort of feeling.  Parents are met by a whole group of school and district personnel who far outnumber the parents, and who have various impressive credentials, training, and experience.  On the other hand, they are just... parents.

Parents as "parents" are actually a group which I have found to be lessened and invalidated as far as their input.  In reality parent input is VERY valuable and VERY important.  Yet, parents tend to be treated as the last man on the totem pole when it comes to special education decisions for their child.  This negative viewpoint toward parent opinion tends to be reflected by the "team" at the IEP meeting as the OTHER group (school group) seems to dominate the special education meeting, consulting the parents only for general information on the student. Parents, for good reason, tend to feel that the "team" (less the parent) makes all the decisions.

IGNORANCE OF WHAT IS BEING DISCUSSED

Parents can also be confused by the entire IEP discussion.  Just what are they talking about when they mention "related services?"  What are accommodations?  What does speech therapy cover?  What is a Special Day Class?  Why doesn't he qualify for special education?  What is a 504?  These are all huge questions, but parents should prepare well in advance of any IEP meeting to learn what special education is and what it is all about.

PREPARATION TO ALLEVIATE THE FEAR

Here are some steps you can take to lessen the discomfort:

1)  Request all assessments/reports which will be reviewed IN ADVANCE of the IEP meeting.  Usually, unless a parent requests these be provided pre-meeting, they will not be provided until the IEP meeting.
2)  Review all assessments BEFORE the IEP meeting, and write down any questions, corrections, and/or objections.
3)  Make a list of issues your child is having at school such as: cannot complete work, does not turn in homework, fails all tests, does not write down assignments, cannot read, behavior issues, etc.
4)  Add to this list your requests, such as resource class support in English, handwriting help, weekly emailed list of upcoming assignments, extended time on tests, paraprofessional (aide), etc.
5)  Provide this list in advance of the meeting to the individual who is in charge of the IEP meeting.  Then, you can go over your list at the meeting and see what they say.
6)  Provide notice you will record the meeting at least 24 hours in advance.
7)  Don't go alone.  Both parents should attend, with any family members who may be helpful, and any outside providers (e.g. tutors) you might have to provide information.  You can also bring an attorney if you so desire with advanced notice.
8)  Bring reports from outside sources, if you have them, such as an outside psychological report, eye exam report, etc.
8)  Don't bring the student to the IEP meeting.  Often the "team" wants the child to attend.  Unless they are approaching adulthood, don't have them attend.
10)  Take the IEP document home to read it over at your leisure prior to signing.
11)  Don't forget your POWER to decide.  You have the power to reject anything the IEP says.  You do not have to sign the IEP.  You can accept part, but not all of the IEP.

Hope this helps!

Best,

Michelle Ball
Education Law Attorney
LAW OFFICE OF MICHELLE BALL
717 K Street, Suite 228
Sacramento, CA 95814
Phone: 916-444-9064
Fax: 916-444-1209
Website: http://www.edlaw4students.com/

Blog: http://edlaw4students.blogspot.com/

Twitter: http://twitter.com/michelleaball

Please see my disclaimer on the bottom of my blog page [http://edlaw4students.blogspot.com/]. This is legal information, not legal advice and no attorney-client relationship is formed by this posting, etc. etc.!  This blog may not be reproduced without permission from the author and proper attribution of authorship.

Special Education Evaluation Timelines

By Michelle Ball, California Education Attorney for Students since 1995

The "Ottowa Citizen," a Canadian newspaper, recently reported that there may be a 4 year wait to receive a special education assessment in that region, and that teachers are specifically being told not to refer students for a special education evaluation (see link following my signature below). Luckily, in the United States we do not have to wait four, three, or even one year for a student to be evaluated for special education.  Assessment is mandated within specific timelines once a referral for special education is made.

Under the United States Code [20 USC section 1414(a)(1)(C]):
  "Initial evaluation shall consist of procedures-
(I)  to determine whether a child is a child with a disability ... within 60 days of receiving parental consent for the evaluation, or, if the State establishes a timeframe within which the evaluation must be conducted, within such timeframe; and
(II) to determine the educational needs of such child." (emphasis added)

The only exceptions to this rule listed are when the child transfers from one educational agency to another, or the parent "repeatedly fails or refuses to produce the child for the evaluation."

In California, the timelines for special education evaluation are further defined in California Education Code section 56344 which requires an IEP (Individualized Education Program) meeting within 60 days of "receipt of the parents written consent for assessment."  Vacation days in excess of 5 days, and/or days between regular school sessions/terms do not count in the 60 day calculation. If a referral for assessment is made less than 30 days prior to the end of a school year, the evaluation must be done and IEP meeting held within 30 days after the new school year starts.

Additionally, the assessment plan must be provided to a parent within 15 days of the date of a referral for special education.  Referral can be made by parent submission of a letter requesting evaluation.  If a referral for special education evaluation is made within 10 days of the conclusion of the school year, the plan must be provided within 10 days of the start of the next school year.  [see California Education Code section 56321].  Vacation days in excess of 5 days and/or between sessions similarly do not count in the timeline calculation for the assessment plan.  On receipt of an assessment plan, a parent has 15 days to return the plan to the district.

So, although there are many grumblings about services, special education, etc. in the states, at least we don't have to wait 4 years, let alone 4 months to see students receive a special education evaluation.

Best,

Michelle Ball
Education Law Attorney
LAW OFFICE OF MICHELLE BALL
717 K Street, Suite 228
Sacramento, CA 95814
Phone: 916-444-9064
Fax: 916-444-1209
Website: http://www.edlaw4students.com/

Blog: http://edlaw4students.blogspot.com/

Twitter: http://twitter.com/michelleaball

Please see my disclaimer on the bottom of my blog page [http://edlaw4students.blogspot.com/]. This is legal information, not legal advice and no attorney-client relationship is formed by this posting, etc. etc.!  This blog may not be reproduced without permission from the author and proper attribution of authorship.

[The Canadian newspaper article is here:  http://www.ottawacitizen.com/news/Four+year+wait+special+assessments/4291567/story.html]

IEP Preparation: Prepare To Always Record Your IEP Meetings!

By Michelle Ball, California Education Attorney for Students since 1995

Individualized Education Program (IEP) meetings (for special education students) can be very confusing.  They are made up of a group of individuals with different education levels, credentials, and motivations. Parents also often feel they are outnumbered or ill-prepared.  This is especially true if they disagree with the rest of the IEP "team."  As such, in their IEP preparation, parents should take the necessary steps to record their IEP meetings.

WHY SHOULD I RECORD?

Although at an IEP meeting there is an official note taker who is an employee of the school district and/or school, WHAT this person notes down and emphasizes is totally up to them.  As such, the note taker may miss things, or may not note down things a parent thinks are important.

Also, as parents are usually involved in the IEP discussion, they may be unable to take adequate written notes themselves or may take no notes at all.  How then does a parent prove an administrator offered to provide their son a one-on-one aide when it is not in the notes or the IEP document?  They have no way to prove this unless the administrator admits they said this, which certainly will not happen if the offer is disputed.  It is much better to be able to prove it by playing the recording.

Recording is important even with IEP teams who "get along."  This is because if there ever is a dispute, a record will be available.  Recording also keeps team members on their toes and influences all in attendance to meet their legal obligations.

CALIFORNIA LAW

Parents have a legal right to record their IEP meetings as long as they provide 24 hour written notice to the district.  This is outlined in California Education Code section 56341.1(g)(1) which states:

"[T]he parent or guardian or local educational agency shall have the right to audio record the proceedings of individualized education program team meetings.  The parent or guardian or local educational agency shall notify the members of the individualized education program team of his, her, or its intent to audio record a meeting at least 24 hours prior to the meetings."

As can be seen parents, the school and/or school district have the right to record.

PREPARATION TO RECORD THE IEP IS REQUIRED

Parents cannot just walk into an IEP meeting and record.  Rather, they have to do some IEP preparation in advance to ensure they are granted this right.  Otherwise, they may be denied the right to record.  To ensure they can record they must:

1)  Provide notice 24 hours in advance to the IEP team and/or person in charge.
2)  Bring a recording device.
3)  Bring a copy of the notice they provided in case they are questioned

This simple device can keep the IEP team on their toes and can ensure that the rights of the student are met.  As such, doing a little IEP preparation by sending advanced notice and bringing a recording device is well worth it.

Best,

Michelle Ball
Education Law Attorney
LAW OFFICE OF MICHELLE BALL
717 K Street, Suite 228
Sacramento, CA 95814
Phone: 916-444-9064
Fax: 916-444-1209
Website: http://www.edlaw4students.com/

Blog: http://edlaw4students.blogspot.com/

Twitter: http://twitter.com/michelleaball

Please see my disclaimer on the bottom of my blog page [http://edlaw4students.blogspot.com/]. This is legal information, not legal advice and no attorney-client relationship is formed by this posting, etc. etc.!  This blog may not be reproduced without permission from the author and proper attribution of authorship.

What Is a Manifestation Determination and Why Is It So Important?

When a special education student is placed up for expulsion and/or a change of placement is recommended due to a conduct violation, school districts are mandated to convene a meeting (aka manifestation hearing) within 10 days where they make a "manifestation determination."  This manifestation determination is supposed to determine if the conduct in question was related to the child's disability as defined under federal law.  The manifestation hearing is a VERY important meeting as it can stop the entire expulsion/transfer process. However, most parents have no idea what is going on when they arrive at a manifestation hearing and/or how significant it is until after it is held.

What is a Manifestation Hearing?

Per volume 20 of the United States Code (USC) section 1415(k)(1)(E), districts must determine prior to moving toward expulsion or a change of placement:

1)  "If the conduct in question was caused by, or had a direct and substantial relationship to, the child's disability; or
2)  "If the conduct in question was the direct result of the local educational agency's failure to implement the IEP." (Individualized Education Program)

If the answer to either of these questions, as determined by the group at the manifestation hearing, is "yes," the district may not move forward with its recommendation for expulsion and/or change of placement.  The student will then be returned to their placement unless the "team" agrees to a different one or certain exceptions apply.

It is thus very important that when parents are notified of any manifestation meeting, they prepare and argue that one or both of these items (#1 and 2 above) applies.  They should argue this themselves with their own proof.  They should also provide evidence from school records and outside sources that one or both of the above questions is true.

If the manifestation team decision is that the conduct was not a "manifestation" (e.g. neither of the two questions are answered affirmatively) parents can appeal that decision by filing for an expedited due process hearing http://edlaw4students.blogspot.com/2011/01/great-due-process-hearing-reference-for.html.  The pending expulsion hearing will then be pushed back until the due process matter runs its course.

As the decision of the manifestation team may stop the expulsion or transfer process completely, it is critical that parents take a stand at this meeting and/or challenge the findings of the team (if they disagree with them).

Best,

Michelle Ball
Education Law Attorney
LAW OFFICE OF MICHELLE BALL
717 K Street, Suite 228
Sacramento, CA 95814
Phone: 916-444-9064
Fax: 916-444-1209
Website: http://www.edlaw4students.com/

Blog: http://edlaw4students.blogspot.com/

Twitter: http://twitter.com/michelleaball

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