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Tuesday, March 12, 2013

Required Reading for Parents - Two New "IEP Season" Articles

Words Count! Treat Your Child’s IEP as a Contract

From Smart Kids with LD
March 11, 2013

By Matthew C. Saleh, J.D., M.S.

Legal scholars disagree as to whether a child’s Individualized Education Program (IEP) constitutes a binding contract between the school district and the parents. Nevertheless it’s important for parents to think of the IEP as a contract, and take care to avoid semantic pitfalls when drafting it.

The Four Corners Rule

A number of courts have held that a “four corners rule” applies to a student’s IEP. “Four corners” refers literally to the edges of the piece of paper; the four corners rule means that an IEP should be interpreted based only on the contents of the written document.

The rule is meant to protect parents and children so that the terms of the IEP are not altered by the school district after the fact if a disagreement between the district and parents arises.

If, for example, the district writes in the IEP that a one-on-one paraprofessional will be provided to the child, they may not later claim that they meant that one floating aide for the entire classroom was sufficient.

The existence of the four corners rule underlines the importance of language in writing the IEP—especially language and clauses that may limit or qualify services.

The four corners rule is a legal safeguard for parents, but one that is useful only if the language in the IEP is crafted as if the IEP was a binding contract.

Common Semantic Pitfalls

One of the most common IEP pitfalls involves the use of the “and/or” phrase. In contracts, the use of “and/or” usually connotes that if one condition, an alternative condition, or both conditions of the agreed-upon term are met, then the term is satisfied. In education, this can be a problem.

For example, if the IEP guarantees a student an allotted amount of one-on-one instruction from a qualified instructor “and/or” paraprofessional, this can be interpreted to mean that a paraprofessional rather than a teacher can be used for 100% of individual instruction.

If parents hope to have their child receive at least some one-on-one instruction from a qualified special education teacher, then the phrase “and/or” should not be used.

Instead of the “and/or” clause, the IEP team should negotiate the percentage of time instruction is to be delivered by a certified special education teacher, and note that in the document.

Likewise, if the team agrees that the student requires a specialized instructional methodology to address his learning deficits (e.g., Applied Behavior Analysis or the Orton-Gillingham method), the IEP should specify the amount of classroom time that will be devoted to that method of instruction.

Define Vague Terms

Another example of a common semantic pitfall involves whether services are delivered one-on-one or in a group setting. If parents want individually delivered services, that must be specified in the IEP.

If the IEP states that the services are to be provided in a group setting, the parent should be careful to specify how many students are in that group and whether it is an appropriately matched group in terms of the students’ level of functioning and learning needs.

Vagueness in the definition of “group” can lead to parents having a different expectation for what occurs in the classroom versus what actually happens.

For example, a reading group could be substantially larger than the parent intended, or it could contain students functioning at different grade levels.

Clarify Time and Place

It is also worthwhile for parents to determine the percentage of time they want their child to be in the general education and special education settings, as well as the specific classes that the child is taking.

For example, if the IEP states that 19 hours per week are spent with “typical peers,” it is important to designate in the IEP the particular classes the student is taking with typical peers.

Again, vagueness or lack of clarity allows the person writing the IEP leeway to subsequently define the provisions in their own terms: An IEP stipulation of 19 hours of class time with typical peers, kept vague, can translate to 19 hours of recess, lunch, and special subjects rather than in core curricular courses.

Finally, if the IEP team agrees to time with an outside consulting expert (e.g., in reading or assistive technology), these terms must be written into the IEP as a specific number of hours, including frequency and duration.

The parent should ask what the specific frequency and duration of consulting services per week or month will be, and request that they be written into the IEP document.

If that is omitted, then the IEP essentially contains no time requirement, and the presumption may be that the frequency is minimal.

Think Like a Lawyer

At its core, the advice given to parent-advocates seeking to fully exercise their child’s rights under the IDEA via the written IEP should be threefold: be careful, ask questions, and be specific.

If, upon review, the terms that were agreed upon are not written into the IEP, then parents should request that the document be amended to include those terms.

If parents have concerns about the vagueness of a term or lack of definition for a particular service, then they should note those concerns in writing and seek to change the language to something more specific in the final document.

The IEP is the only document a parent has to rely on, and should be drafted and scrutinized as though it is a complete accounting of the child’s services and rights under IDEA.

Matthew C. Saleh is a graduate of the Syracuse University College of Law and is currently pursuing a Ph.D. at Columbia University. Saleh is a research associate at the Campaign for Educational Equity in New York City.


Parent Advocacy Strategies: The IEP Is Business, Baby

From Smart Kids with LD
March 11, 2013

By Ann McCarthy

Under the Individuals with Disabilities Act (IDEA) parents of children with learning disabilities and ADHD have a right to participate in their child’s Individual Education Program (IEP) planning meetings.

Approaching an IEP meeting as you would a business meeting will increase your influence at the table, enabling you to be a more effective advocate for your child.

1. Prepare! An informed parent is a powerful parent.

At a business meeting, you cannot make a meaningful contribution if you do not understand what is being discussed. That’s true for an IEP meeting as well.

Special education acronyms and jargon often make it challenging to understand the basics. Consider a meeting where evaluation results are being discussed: WISC, WIAT, CTOPP, PLS, GORT, TOWL, BASC, BRIEF…standard scores, scaled scores, standard deviations, and your child received a score of 100 and that’s average.


Don’t let the lingo sideline you. Come to the meeting with a basic understanding of the assessment tools being discussed and their terminology.

Being familiar with the key elements will enable you to actively participate in discussing what to do with the results, which is what matters most for your child.
  • Action Tip: Ask the school to provide you with copies of the evaluations at least five school days prior to the meeting. Schedule informal chats with the authors of the evaluations in advance of the IEP meeting to get clarification on anything you don’t understand. Share the evaluation reports with an outside expert who can help interpret the findings. 

2.) Set an agenda. An agenda keeps the meeting moving in a productive direction.

An agenda provides structure to a business meeting. Without it, participants waste time and overlook important items. For the same reasons, an agenda is important for an IEP meeting.
  • Action Tip: Send your suggested agenda items to the school in advance of the meeting, and ask the school team for their additions. A helpful tip is to use the structure of the IEP document itself to establish your agenda items.
Let’s consider the annual review meeting. Most parents experience what I call “annual review speed dating.”

You have one hour for the meeting. The first 45 minutes are spent reviewing five evaluations, the present levels of performance pages are skipped entirely (big mistake: they set the stage for the rest of the IEP) so that you can fly through the goals and objectives, give a quick wave to the accommodations and modifications page, and finally talk about services as everyone is packing up.

Where’s everyone going? We’re just getting to know each other! This is not Beat the Clock. Use an agenda to slow down the pace. For this meeting the agenda might be as simple as this:
  • Review evaluations and discuss progress;
  • Present levels of educational performance;
  • Goals and objectives;
  • Accommodations and modifications;
  • Services for next year.
Three-quarters of the way into the meeting and you have only made it through the first bullet point of your agreed-upon agenda? Spend the remaining time on point #2, and complete the "present levels of performance:as a team.

Say that you do not want to rush the agenda, that you understand another meeting is immediately following yours, and suggest setting a date to reconvene to discuss the remaining items.

3. Listen actively. Be open to alternative suggestions.

A common rookie mistake in business is to be so focused on what you want to accomplish in a meeting that you do not actively listen to your colleagues.

Understandably, parents often have this type of tunnel vision at IEP meetings, as they are emotionally invested in the outcome. That said, consider shifting where you put your energy: rather than concentrating on how to achieve your goal, focus on your end game.

If your child has a reading disability, the IEP team might agree that improvement in decoding skills is required. You, however, might have a particular reading program in mind, and have specific thoughts on how it should be delivered.

If the school offers another solution to the problem, be open to it.
  • Action Tip: Listen, consider, and research. You might find that they are offering a viable way to address the challenge at hand.
Final Thought

A parent recently commented to me that “the special education process is designed to make the average person give up.” There is no denying it. It is exhausting for a parent to advocate for their child with special needs. But by taking steps to insert yourself fully into the process, rather than letting the process control you, you can be an active and powerful member of your child’s IEP team.

Ann McCarthy is a special education advocate and serves as the Managing Director of The Southfield Center for Development in Darien, CT

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