Finding and Communicating Solutions
This is a transcript of the third edition of CSNLG’s podcast Special Education Matters. In this podcast, our host Michael Boll and lead attorney Richard Isaacs discuss how a family should find solutions to their child’s special educational needs. The podcast can be found here.
0:00 Michael Boll
You’re listening to Special Education Matters, a regular podcast about things that matter in special education. I’m your host, Michael Boll, and I am the proud father of an 18 year-old boy with autism. I’m here to introduce a special series we are running on our podcast, Special Education Matters. Our lead attorney, Richard Isaacs, and others, will be discussing the process and steps that happen when a parent decides to work with us. In this show, California Special Needs Law Group attorney, Richard Isaacs, returns to talk about finding solutions for a child’s specific educational needs. Enjoy the conversation.
Let’s talk about finding solutions now. So you come up with what you want as a family and working with your attorney, and then it’s time to request it from the district, and then you wait for response from the district to see whether they’re gonna say, ‘Sure, yeah, that’s what needs to be done’, or you hear maybe what should be done instead, or, ‘We’re not gonna do any of it at all’. Can you take us through a typical scenario where that would work out, let’s say, in the parents favor this time?
0:60 Richard Isaacs
Sure, so once we have all the outside assessments that we need, we presented them in an IEP meeting, the district has its data, and it has offered what it feels is appropriate, oftentimes there’s still a disagreement there – meaning that whatever our outside assessors are recommending, let’s say it’s a certain placement or a certain level of services, the district just doesn’t think it’s appropriate. So there’s no meeting of the minds. What happens at that point? And too often parents feel the IEP is it. The district says no, and then what do you do next? From our perspective, from the legal perspective, it really is just the beginning of the conversation. Districts will often not take risks in IEPs. They’re gonna offer that basic floor of opportunity, but it doesn’t mean that we can’t push harder, because the district’s gonna have an obligation to either defend its offer, FAPE, potentially in court, or offer more services that are gonna address the student’s needs that’s gonna make the student or the parents happy and thus avoid the litigation.
For example, if there’s a student with dyslexia, and the district has ’em in some kind of a, say, RSP program, and our outside assessor shows that their potential is high, but their actual present levels are much lower than where they should be, how do we close that gap? And oftentimes districts don’t want to close the gap. What they want to do is they they want to slow down the curriculum and put them in, say, some pull-out or some push-in or some kind of SDC setting, but that’s not really what the student needs. So, once we start the resolution, oftentimes it’s filing a due process complaint, putting our recommendations on what the student needs, and it could be some kind of educational therapist coming in with a specific program to address their learning needs, and close the gap. Districts won’t offer that in an IEP oftentimes, so we file for due process and we sit down with a resolution or mediation, and we try to get them to fund these programs. And oftentimes we can get a program funded by the district, but it’s gonna be outside the IEP process. It’s gonna be in a settlement agreement.
Alright, we’re gonna talk more about that in the next talk, but couple of words came up that people might not be familiar with. So tell us what the ‘FAPE’ is.
So FAPE is the district’s obligation to provide a Free Appropriate Public Education. ‘Free’ is obvious, it’s the government, they have to provide the education. The key is ‘appropriate’, and what is appropriate for one student is not always appropriate for a different student. The courts have ruled on what appropriate is, and it really is what’s meaningful to that specific student. They have to make meaningful progress. They don’t actually have to make a years progress in a year. They don’t have to meet all their goals, but they’ve got to be progressing. And that’s where the fight usually comes down to. The district also only has to provide that basic floor of opportunity. And I say ‘basic floor of opportunity’, that’s what the courts use. The courts have also used that they don’t have to provide the ‘Cadillac’ level of services, they just have to provide the ‘Pontiac’. And if parents want the students to achieve or maximize their potential, then the parents have every right to go out and fund it. Now our job, I feel, as defending the rights of students, is really to get the district to provide much more than that basic level of opportunity and get a much higher level of services that the district’s gonna jump on board with. And that’s usually a fight. But 97 or 94 of cases settle. And with the right data, the right experts, and if we put put the case together correctly, there’s no reason that we can’t get the district on board to provide the services that the student needs.
Now, you also mentioned SDC, so I’m assuming that’s Special Day Class.
It is. So, the districts go back and forth on what they call these placements. Oftentimes what they’re gonna do, and this is a scary thing with these RSP programs or the special day class, is students,- lets go back to the dyslexia example – they may be struggling academically and not up to their potential, so they may put a student in an all-day special day class in fourth grade. All of the sudden they go through the next four or five years and they’re still in that special day class and by the time the enter high school, they’re off diploma track. They’ve never closed that learning gap. Another example is we’ve had students graduate high school reading at a second/third grade level, and we’ve been able to push for really intensive intervention, getting them up reading past the 12th grade level after about six months, and the district wasted six years of their time where they failed to make any progress at all. So it’s really identifying what the student needs, identifying the specific programs (that’s where the outside assessments come in), and then pushing the district to provide that. Often times, with the level of services that many students need, it’s probably gonna have to happen outside the IEP, meaning we’re going to enter a settlement agreement. Now, there are exceptions and we can get really good services – especially when the district is gonna provide them – built into the IEP, which is always the best way because the whole team is on board with an agreement on what the student needs.
Alright, we’re gonna talk up next about what happens if we don’t agree, and then we can talk about things like the due process complaint that you mentioned already. But up to this point, do you really need an attorney? Could work with, say, an advocate for the beginning stages, and then really you need to move on to an attorney as soon as you have to file a due process complaint ’cause that’s a specialized sort of expertise that you need.
Advocates can definitely handle it all the way up to the litigation point, and the key is – and this is where parents run into the most trouble when they try to go alone – even if you go out and get an outside assessment and the district funds it, the district’s gonna direct you towards assessors that they work with often. And what we see in a lot of these cases is the recommendations are meaningless. Meaning they may assess, but the recommendations have no teeth. They will not take a stance. And so when we get involved in cases like this, we look at the assessment and we just can’t use it. We don’t know what the student needs, or the assessor just wants to work within the system. Meaning it’s just going to be RSP services. And advocates or an attorney is gonna direct the family to experts that can really identify what’s going on with the student, but equally as importantly, they’re going to have clear recommendations of what the student needs. And then at that point, if the district says, no, it can definitely go legal. We can get involved, or other attorneys can get involved and take those recommendations and put them against what the district is offering. And we do that in a legal framework with the idea that we’re gonna reach a resolution.
But prior to that, it sounds like an advocate would be okay. And there’s different fees- advocates would be less expensive versus an attorney, who’s more expensive. Of course, the flipside is that settlements can often include an attorneys fees, so if he had an attorney along the whole way, maybe that would include all the fees, versus an advocate who you would have to pay along the way. So it’s back and forth choice, I guess.
It is. I take the position, and I’ve been talking to a lot of opposing counsels to the attorneys that work for school districts, that I don’t think attorneys really should be at IEP meetings. We go, we have to present information – I think it’s a great place for advocates, and I always consider advocates equal to the district administrator in a sense of a special ed. director who knows the resources of the school district. By bringing an advocate in, you’re having somebody who also knows the resources of the school district, that knows how to read and present assessments, and talk about goals, bringing that level of expertise that’s really good for the IEP team. And most advocates have a connection – either they have an educational background, or they were former teachers, special teachers, or parents who’ve just been to dozens and dozens of IEP meetings. They bring an educational sophistication to the IEP meeting, whereas with an attorney, we’re looking at the law – what does the law say? And then what does the law give you the ability to get in terms of services? The IEP team, the educators, an advocate really shines in that setting.
So, let’s go ahead and stop now, and then in the next show we’re gonna talk about what it’s like to, have to move to protect the educational rights in the form of a due process complaint. Thanks for listening to another edition of Special Education Matters. For more information, including show notes, head to our website, csnlg.com/listen. And if you like what you hear, please consider giving us a review on iTunes. Those reviews bring us lots of happiness. I’m your host, Michael Boll, and we will talk again soon.
This is part of our complete Beginner’s Guide to the Special Education Legal Process.