IEP VIolations

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Latest post 02-11-2009 8:39 AM by Drew. 8 replies.
  • 02-09-2009 2:20 PM

    Question [=?] IEP VIolations

    My son has an IEP , he was officially diagnosed as having bipoloar disorder, pervasive developmental disorder, and a few other minor disorders. With his official diagnosis were suggestions made by the Dr as to how we at home, at school and in therapy can best serve him. One of those being not to send him home early. As with the bipolar and pdd he needed to be on a strict schedule and any changes would cause him anxiety. His anxiety attacks ranged from him chewing on himself to outburts of foul language. Once we started him on the proper medication for his bipolar disorder things calmed down quite a lot. At one point in October we had a case conference and the principal insisted on half days. She was the only one in favor of this. And it is stated in the case conference notes that my husband and I opposed it, knowing it would cause him to regress. We have been fighting since then to get him back on full days. We managed to get him to 3 full days a week. I had even rearranged his therapy so we could get to 4. Well he had a very small incident 2 weeks ago , and I mean small outburst, lasted all a minute maybe. She then suspended him for 3 days and said we had to be there when he went back to school the following Monday. No where in any conversations or paperwork sent home were we notified it was a case conference. This gave us no time to contact all parties that had been involved in his previous case conferences. But in the meeting my husband was blind sided with paperwork already made out to transfer my son to a whole other school district to a self contained classroom. All testing he had done, even by the school personel , said he would best thrive in a general education classroom. So being left with no other option, I chose to pull him from the school and home school him. As I do not want him in a class that will concentrate on his behavior over his education. He is not a behavior problem. He is not a mean child in any way. And with all the road blocks being put in our way , his IEP was not being followed to it's full extent. Everything was cut in half.
    Do I have any case against them, for basically giving up on him because of a disability? He is making progress at home in academics. But I know he should be in a school to receive the social aspects he needs.
  • 02-09-2009 3:20 PM In reply to

    • Drew
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    re: IEP VIolations

    What exactly does the signed IEP say--that is what you are entitled to get--absent a full due process to the contrary.

    If services spelled out in signed IEP were missed/skipped I'd be jumping up and down for full remediation/make up.

    If they cut it you have solid legal case for fee recovery as well---and they know it--so sometimes step two is big time paid counsel on your team.

    If IEP is unsigned you have much weaker position!

    Note once you enter gunfight corral you must win to recover fee--NO compromises count!

    Repost as to what took place......



  • 02-09-2009 7:27 PM In reply to

    Feedback [*=*] re: IEP VIolations

    The signed IEP stated 1 hour a day of time with a special aide , with him being cut to half day they lowered it to a half hour.This was never approved by me. Actually have it in writing that we did not agree to it. He was to also have another special education helper for one hour a week, I don't know for sure how often that happened, if at all.
    ALso I know it is a violation to call a case conference but not invite or notify all involved parties. We had no time to get his therapist notified or were we even told this was what the meeting was about.

    I am struggling to find a lawyer in my area that works with education law. I do want to fight this all the way.
  • 02-10-2009 7:58 AM In reply to

    • EdRoz
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    re: IEP VIolations

    You said that you "chose" to take your son out of that school and home school him. Since that was your CHOICE, then you have no case for anything.

    Even if you had stayed, I do not see that the school did anything wrong. You said that your son had an IEP, and you said that the doctors made "suggestions" for full day service and continuity, but you have not said exactly what the requirements are in the IEP.

    When the IEP is being negotiated and written, the school is allowed to disagree with you and with your doctor. If you and the school cannot resolve those disagreements, then you may wind up filing an appeal just over what the IEP should say. But if the IEP eventually gets written (and I assume it did, since you said you had one), then whatever the IEP says is supposed to be followed.

    Having an IEP does not mean that your son may not be disciplined or may not be suspended. He may, if he breaks a school rule.

    The school may not unilaterally change your son's placement and send him to a different school. The school may suggest it, may present it to you, may recommend it, may even push hard for it. This kind of change would require an agreement of the IEP team. If the majority of the team agrees that the change is necessary, but you do not, you would have the right to appeal the change to the Special Ed. appeals board for your state.

    But since you chose to take him out of the school system, you have nothing to appeal any more.

    Good luck.
    Ed
  • 02-10-2009 8:01 AM In reply to

    • EdRoz
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    re: IEP VIolations

    Why do you want to "fight"? Wouldn't it be better for your son if you work with the school and resolve the problem? If they didn't give you adequate notice for a meeting, ask to postpone or reschedule it, until particular people can be called.

    Good luck.
    Ed
  • 02-10-2009 9:09 AM In reply to

    • Drew
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    re: IEP VIolations

    Laymans suggestions

    Well you have some major gaps---if you didn't sign/approve the IEP then that IEP may not be in place. An IEP is sort of a contract--and if the two of you are still debating the IEP then its not a deal. That said, if they put a written offer on the table---you might be very wise to lock in same before its pulled from the table. This is a very technical area and beyond me--but its sort of like this--and you need to keep your yap SHUT--if the school put an IEP on the table signed by them to deliver XX and in the meanime some administrator delivers WW which is way less than XX , if that IEP has not been pulled from the table by a formal retraction and you formally accept thier IEP then you just locked in the XX service package effective that date. If you alert the other side they will of course retract the offer?

    I do not know the precise rules of how to accept an IEP--but you'd be wise to read up FAST. IF and thats a big IF, they follow the general rules for contracts in your state and offer does not specify how it must be accepted then the "letterbox rule" may apply--which in effect says you alert nobody to anything and you post by mail a written acceptance of the IEP as offered--with a clear reference to that precise offer .

    I've been the route into court against district which failed to deliver its own IEP, they crafted it, not me.

    This is 98% about knowing the rules and common sense has little to do with it.

    Mom, there is another set of issues that during pendency of an IEP the district is not supposed to alter the status quo placement--this often works against parents in context of if the child is recieven not enough help as you see it you are locked into a low help position until you come to agreement--but the reverse is also true--if there is an established pattern that child is getting services XXX then to change the placement during pendancy

    Mom I think unless you get out the rulebook you are going to get outmaneuvered! Were I in your shoes, and strictly my view, if I had a written offer on the table signed by School that was better that what was going on I'd sort out formal acceptance of same via a method lest likely to alert anybody--see mail box rule--it may apply--I don't know. Then once the IEP they wrote is in place I'd go to bat about making sure it was followed starting a day or so later--and I might even file a new due process for them having altered the status quo during pendency--EG make up for all the dropped services.

    EG I would NOT schedule a meeting to come back in and sign the IEP if possible--somebody might read thier own offer and pull it!

    What the child needs is not relevant --its what the parties agree the child needs, that counts.

    Now would you rather debate it with child locked into a program with IEP as presented, or about 1/4 of that or ZERO. Being locked into status quo can cut badly both ways--make it work for you

    This is a very narrow area of law and until recently there was not much money in it for those on kids side of equation so few got into that area--things are changing but you sort of need counsel with prior experience in this area--expect to pay at high end of scale.

    Again ,just my view but I'd be sorting out rules this morning as to if I could accept the IEP as offered very low key before somebody pulls it off the table! Keep your yap SHUT until you have solution in hand!



  • 02-10-2009 9:19 AM In reply to

    • Drew
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    re: IEP VIolations

    Mom, I missed that part about your having pulled child to home school him--I think that was most unwise thing to do if in fact he needed the services under discussion--you obviouly have right to reenroll him in school tomorrow morning. But into what program?

    There are some real hairsplits on this IEP stuff.

    If in fact the district made a written tender of an IEP and said offer has not been retracted by District or negated by a counteroffer on your part it may technically still be on the table even if the kid is in China. Mom I would be doing summersaults to accept that IEP as written --just my view of course. Its easier to fight from inside the rink than it is to be locked out of rink!



  • 02-10-2009 11:00 AM In reply to

    • Drew
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    re: IEP VIolations

    Parts of the literature address that once an IEP is developed the parent can take it home for several weeks to decide about it--30 days--I have NO CLUE if this is in the regs or not. But if it is there by some mechanism I'd be turning summersaults to lock it in!

    And I would NOT be asking the other side about the regs or IEP.



  • 02-11-2009 8:39 AM In reply to

    • Drew
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    Angry [:@] re: IEP VIolations

    Mom --the more I think about your post the more unclear it seems.

    Did your child have an approved IEP and now they want a different one which you don't approve or did you not approve the one that was offered initially?

    And how recently was the IEP offered if there was a recent offer?

    I think you are doing your son a royal disservice to pull him from school and you are looking at many many years of problems. In short the public school is required to expend all the money it takes to provide him a FAPE. And unless you have a megabuck trust fund you will run out of resources to provide what your son needs.

    There is another legal way to look at this but its not foolproof especially since you may have rejected the IEP in writing--it sort of hinges on bad faith and status quo and extreme need. But it ne4eds an attorney to sort out if it fits....

    If the school offered package A as thier professional opinion of what child needed and began to implement package A then package A become the status quo --and if the IEP process breaks down then status quo seems to require that package A stay in place until an agreement is reached or ordered. For the district to unilaterally cut existing services violates status quo--and in this case their own proposal supports what that they determined the child needs more. Now there is a provision in the law if the provider doesn't meet the kids needs you can go outside and pay for them and seek recovery if in fact you are held to be right--but to my knowledge there is no recovery provision for home schooling.

    I believe, if I follow your post, the school made a major proceedural blunder to cut the kids services in the midst of an IEP debate--and it is ultra bad faith for the district to have cut services below thier own proposal if in fact that was what they were already delivering. You didn't help matters at all---but I think you have a strong point that the district needs to deliver the prior service level during pendancy and that you can posture the district in a bad light to accept the IEP as offered especially since that was the status quo at the time.

    My own experience on such matters is districts will buffalo parents all day long--until /unless the parent knows the technical scorecard and 99.5% of the time that means you show up at door with a paid gunslinger whose reputation has proceeded him or her--and they cave. Now I happen to think District would be wise to implement its own IEP and you don't need a $300/hr advocate to tell them that and by written acceptance of the prior IEP/status quo and showing up at the door to re enroll child both sides would be better off--I can only suggest I'd go there if it was my child.

    (Once you show up at door with $300/hr attorney WITH a reputation of winning IEP cases for kids the district pretty much needs to go get specialized counsel to defend as well--and they know that!)









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