Worried about statewide district budget deficits and unknown federal cuts? Although we’re always concerned with ensuring our kids’ rights to an education are protected, we know this isn’t a typical school year. Reality has set in, and many parents are stressed about about how our kids’ education will be affected. Education attorney Dina Kaplan is here to help us prepare for the school year and give us her tips as an experienced advocate and parent for making sure our kids get the support they need in school.
Watch the full video above, or download this podcast episode to listen to our conversation in your favorite podcast app.
Check out a recap of the highlights in our article 7 Parent Questions Answered by a Special Education Attorney.
Hey everybody, welcome to Undivided Live. I'm Lindsay Crain and I head the Content and Community teams at Undivided, and for my visual description, I'm a female with a short brown bob, dark frame glasses, a blue and white blazer, and I'm sitting in a green office with bookcases to my right. Undivided is a digital platform and service that supports families raising kids with disabilities. We help families navigate the complex systems that our kids rely on, like public benefits such as Regional Center, Medi-Cal and IHSS, the maze that is private insurance, and the educational system, since our kids have the right to a free and appropriate public education, and that appropriate part, just like the ‘individualized’ in IEP, it can be tricky sometimes, which is why we're here today, so thank you for joining the conversation. And leading us in our chat, we are thrilled to have with us education attorney Dina Kaplan. Dina has been practicing law for more than 45 years, 30 of which have been in special education, and is a partner at the Vanaman German law firm here in California. She's also the executive director of the K.E.N. Project and the mother of a young adult with multiple disabilities. Welcome, Dina. Thank you for being here today. Thank you for inviting me and having me, and for my visual description, I'm a female wearing a... I guess it's black sweater and glasses, and I'm sitting in an office that is... my office is a little bit messy. With pictures of her family in the background, she was pointing out.
It's a very, very cozy office. And Dina and I were talking and many of our kids have been back to school for about a month or so by now, and this is what we like to call the reality check. Things should be falling into place. Our children's IEPs should be in full swing and being implemented with fidelity, but we all know that gap between what should happen and what actually happens can feel like it's swallowing us whole. And this year brings added stress for many of our families, as the federal and state landscapes have made funding, budgets, laws, rights, and confidentiality feel very unpredictable, so today we'll be talking about how we can ensure our children's IEPs are being implemented in the middle of, and in spite of, what might be happening outside of their schools. Also important to note the information provided during this event is for general informational and educational purposes only, and does not constitute legal advice. Miss Kaplan is an attorney, but participation in this event does not create an attorney-client relationship between you and Dina or her firm. So with that, we have lots to cover, so let's jump right in. So, as we were saying, with so many changes happening at the federal level, it can be hard to keep track of what's in place now, what might happen, and what’s set to start next year.
So, we know there have been cuts at the Department of Education, including major cuts to the Office of Civil Rights. We've also seen funding reductions to part D of IDEA, which affects specific supports, mostly under the category of technical assistance, and for some parents, these shifts can feel big picture and removed from their day to day realities, and others are terrified their childrens’ rights and supports will be disappearing imminently. So, Dina, for this school year, as of today, how could confirmed federal cuts or changes affect our kids’ everyday lives at school? I think the first thing that's important to remember and to know right now, that IDEA, the Individuals with Disabilities Education Act that provides for our childrens’ IEPs, is still good law. It hasn't been overturned. There's no act to do away with it in Congress, although our president has decided he does not... no longer wants the Department of Education, so he's basically taken the guts out of the Department of Education, meaning firing a lot of people and taking funding out, and what he is threatening to do, which hasn't actually happened yet, is put the administration of IDEA into Health and Human Services under Kennedy, which it has... That has not happened yet. What we know right now is IDEA is still good law, and California, if you're in California, has mirrored law in the California education code that mirrors the federal law. Most states also have their mirrored laws, similar to or mirroring the IDEA. So, that's what we know right now. The funding is going to be the big question. So, even if the law is still in effect, there's all kinds of threats to funding, not the least of which is the threat that our government is going to shut down in a few days because Congress can't seem to agree on a budget, and so if that happens, nothing is going to get funded, but if we get an agreement to keep funding going, right now, what has happened is our president has asked Congress to cut the funding for a lot of services, like you were just mentioning, Lindsay.
And so far, Congress has pushed back and said, no, we're not going to do that. So, that's what we know right now. I don't know if they will say... continue to say, no, we're not going to do that, or if they will go ahead and cut the funding. The big thing that they're looking at cutting the funding for is the university affiliated programs, the family resource centers, the things that really help support our families and our children, and have been in existence for basically the whole time that the IDEA has been in existence, which we are this year celebrating our 50th year of IDEA, so... And as of today, it's still here, and so we have to fight for that to be another 50 years, and hopefully improve upon and not chip away at. And I also had mentioned the Office of Civil Rights. This is... I've read a lot of newspaper articles, too, about parents who are really caught in the middle of this. They've had cases that have been very extreme that they have no answer to, so are you still advising parents to file complaints with the Office of Civil Rights? We are not because we don't know what happens to them. They closed the office in San Francisco, which was our main office, and my understanding was that there were a lot of complaints that were pending at the time that office was closed and nobody knows what happened to them, whether they were sent to one of the open offices... That's what we assume happened, but obviously got put to the bottom of the list for that office, right, because none of the offices were really cranking out the responses to these complaints quickly, so there was always a wait time. So, it's really difficult right now in terms of if you have a civil rights case, and you want to file a complaint with the Office of Civil Rights, I don't think that's the way to go.
And so... Sorry. That’s the best I can tell you at this moment. Right. And we're going to get into due process a little later, but is that what you would say to parents if they do have a civil rights complaint, is that... That's... or people know that that's a part of IDEA and our rights, and is that just going to substitute for that option of filing something with OCR? Well, so, maybe. The good legal answer is maybe, because it really depends on the type of case, and it depends... There is a legal requirement to what they call exhaust your administrative remedies if you are going to pursue an action in federal court, depending on the type of action. So, if there's an action that involves specifically your child's educational program, then that is an area that you have to exhaust your administrative remedies. In other words, you have to go through the due process proceedings in order to be able to pursue other civil rights actions regarding your educational program. However, some case law came down recently that basically said, if you're not looking at remedies that are available under IDEA, then you don't have to exhaust your administrative remedies and you can go right to federal court, so federal court is still an option to file a civil rights action. And there's all kinds of issues with regard to that, but just know that that is a possibility, especially if you're not seeking damages or remedies that you can get under IDEA and due process. -- Got it. Thank you. And I know it gets very complicated, but I want to make sure that parents know that because one door might be temporarily shut or unknown right now, then there are still things that you can do. It doesn't mean that your child doesn't have civil rights... --Right ...today. So, I also wanted to follow up on what you were talking about with some of the part D cuts, because I think, again, a lot of parents have heard this, kind of wondering how this affects them, and according to a recent EdSource article, several programs in California will have their funding redirected towards efforts the California Department of Education says, quote, “reflect this administration's priorities,” and specifically efforts have been targeted that include the language or intent of diversity, equity and/or inclusion.
So, I have some questions about that, but some examples, like you mentioned, Dina, of direct funding that have been cut in California include $2.3 million in SpEd teacher trainings, some resource centers for family of children with disabilities, like you said, and vocational and rehab programs at various universities such as braille training, so will these cuts affect K-12 and transition programs this year? I don't know that they will affect the programs this year, but likely... because we're still in a state of flux. We don't know if, in fact, that funding is going to be cut, and if it's cut, we're not sure whether our... because of the diversity, equity, and inclusion issue that has been raised by our government, but I do think that... Let me just phrase this. I have faith in our governor that he won't let that happen here, right? That those agencies obviously will have to get grant funding from other institutions rather than the grants coming from our federal government if that's the case, and I do think it's a possibility, but I'm not in the government, but I don't think that this year things will be affected by all of this. I think maybe next year, the next school year, maybe after the first of the year, but there's a lot of moving parts right now that we're just sort of trying to keep an eye on and follow along and see where they're going. Right. Which I think is important for all of us to keep in mind, because it can just really... overwhelming every day hearing things and wondering, all right, is my child going to go to school tomorrow and something's going to be different, so right now, we're staying the course, somewhat. And since the word inclusion is seemingly being targeted, do we need to worry that educational inclusion for our kids will be under attack, and more specifically, do we need to worry about the word inclusion in our IEPs, our school board policies, or our master plans for districts? I wish I knew how to answer to that question, but I do think that inclusion is a word that we have to talk around.
We have to find out another way to describe inclusion, only because I'm not sure what's going to happen if we keep saying we want our kids included, and there's that diversity, equity, and inclusion piece that the government is trying to do away with, which I don't really understand anyway, but regardless of that, I think that there's... The way to talk around it is to say, “My child, what... We want our child to be educated in a regular education program with appropriate services and supports so that he can participate or she can participate in general education with his or her peers,” and that basically is what the law describes as full inclusion, so I think that we need to talk around it. Okay, and so that... This approach towards DEI from the federal government, does this give districts any excuse not to include kids? I don't think so, no. I mean, it doesn't seem like that, but I know a lot of parents are worried, or they're worried about how their districts are going to creatively, or could creatively interpret this. Well, and I think that we have to go back to IDEA and the fact that the first place you look at for placement is full inclusion, general education with typical peers, with appropriate support, unless for some reason that can't be implemented, and there's a whole other question with regard to those things, but we firmly believe that most children can be fully included or fully attend general education with appropriate support, modified curriculum if necessary, so I'm defining inclusion at this point. It's still in the law. Perfect. And another huge issue right now is that our state, counties, and districts are facing fiscal strain, and can an IEP team use budget deficits as a reason to limit or cut services or supports? Technically, the answer to that question is no. It's not supposed to be based on budget, and we... and I always go back to the I in IEP. ‘I,’ individualized education programs should be individualized for what your child's needs are.
Some children have a lot more needs that are a lot more expensive than others, and I do think that at some point we're going to see pushback because of funding cuts, but I'm not sure what that's going to look like at this point, so right now, keep focus on the ‘I’ in IEP and what your child's needs are, and know that the law is still in effect and that budget constraints should not be affecting what your child's education provides. Well, and now I'm going to ask you what you just said that you don't know how to answer. -- What? But how... What are some ways that you think districts might change their approach to special education due to budget constraints, and are you seeing any trends yet? Not seeing any trends yet. I hear a lot of concern from all the districts about how they're going to manage special education, and one of the things that there's... most of the districts are currently looking at is how many children that they are reimbursing families for private school attendance. I think that's something that's going to be scrutinized. I have seen it happen. And children... What I'm talking about our children who have been placed by their parents in private school because the district has failed to provide their child with an appropriate educational program, and so that is one area where I'm seeing districts be very conservative about agreeing to reimburse families for that. I haven't seen too many other issues pop up at this point, but I do think that if we follow what's happening with the funding issues and try to figure out what's going on, we are going to see some cuts become effective, and how that's going to affect our children, again, keep in mind the ‘I’ in IEP is for individualized. Exactly. And what are some warning signs for parents that a district's response might be about money, even if they say it's not about money? “Well, we don't do that.” “We can't do that,” even though it's something we know they can. I mean, I think that's kind of the standard response. Yeah. Or I know, I've heard also, “Oh, we don't have that program here,” right? “Our programs have been impacted, this program, that program is closing,” right? Again, coming back to what Dina said, the ‘I’ in IEP. I think with... Excuse me. I think an important thing to talk about is the fact that... and I think it's unique to California, but don't quote me. We have the SELPA system, the Special Education Local Plan Area system, which is a group of smaller districts to come together to share resources and experiences, and they... the... Some of the SELPAs in California have their own programs for severely involved children.
Some of them support the members of their SELPA. LA Unified, in and of itself, is its own SELPA because it's so huge. But I think that if we see those kinds of budget cuts where they're closing programs and closing classrooms, we should look to the SELPAs to see if there are other programs in other districts that we might be able to get an inter-district transfer for, based on its membership in the SELPA, so I think that's something that we can look at definitely. Well, and I know a lot of the comments we got ahead of time, again, parents being worried that they would receive even stronger pushback against inclusion because their district might believe a separate special education classroom is more fiscally efficient, so what advice can you give those families? Again, look at the law. The law says the first place you consider placing a child is in general education, at their local elementary school, with their typical peers, with appropriate supports. And there's a case called Rachel H, which delineates the things that you look at to determine whether a program is appropriate or a child is appropriate for inclusion, and you look at the benefit to the child, the benefit to the other children, and one of those things in that case is cost, but that's like the last thing you look at. So, if a child... The one thing that I do see is if a child has pretty severe behaviors that are not controlled or not appropriately dealt with in general education classrooms such that they're interfering with the education of the other children, that's a reason to move the child out of the fully included program. However, there's... There are ways to work on getting the child back to an included program by including the child in the parts of the day that they're not having those behaviors, because not every minute of every day does a child have behaviors. So, for example, if there's a lunch event or a recess event or a... -- What do they call those? -- an assembly at school, work your way back to full inclusion, and that is something that I see happen frequently, but what I do see happen also is that a lot of the districts are saying this child's behaviors are totally interfering.
The special... or the general education teacher, can't handle that child's behaviors, so the question is, is the child in the class with appropriate support. Is he or she getting a behavioral intervention plan that's working? Is there a behavior intervention plan at all? Have they done a functional behavioral assessment to determine what's causing the behaviors, and what to do about them? So there's... It seems to me that most of the time parents will come to me, there's always things that can be done that haven't been done yet to determine the appropriate placement. Right. And those are some of the things that have cost attached to them, which might be some of the pushback that parents feel even though it's not being said, and that's why it's important, like Dina’s saying, that is part of the law to have those appropriate supports instead of just saying, “Your child's stimming. They have to do that somewhere else,” right? Because I'm sure you've heard it all, Dina. And if a district does imply that they can't afford something or that's not something we do, how can a parent respond? I'm going to sound like a broken record here, but ‘I’ in IEP stands for ‘individualized.’ My child needs this and therefore if it's not something you do, who does it? How do we get it? Is there another way around it? What can we...? But obviously, first we have to establish that it is a need the child has, and that's going to have to be based on an assessment, so... And don't get me started on assessments, but in any event, the way our law is written, you assess the child's present levels of performance. You determine from the present levels of performance eligibility, what the child's needs are, and how you're going to address those needs, and you develop goals and objectives. So that's the IDEA 101, and so you're looking at, was there an assessment done that showed that your child had a need. If so, and the district is saying, “No, we can't do that,” or, “We won't do that,” then the response is, “How do we get this done? Because this is a need that's been identified.”
Absolutely. And another huge part of our conversation and what kids need is staffing, right, and that's another huge victim of the budget deficit, and I'm sure people are seeing that across districts right now, and there has been a longstanding crisis in the shortage of special education teachers. Assembly Bill 1224 in California has passed the House and Senate, and it's awaiting the governor's signature. It doubles the time a substitute teacher can stay in one classroom, which would be 60 days. The previous limit for SpEd teachers was 20 days, so opponents worry that this could degrade the classroom experience. Do you foresee any issues with this change? It's a difficult situation because we're sort of caught between a rock and a hard place. If we don't have teachers, then how are we going to teach, right? And there's an extreme shortage of special education teachers and an awfully extreme shortage of staff support In special education, special education assistants to help the teachers, so I do think that the law is being passed because of its need, and maybe at some point, depending on what happens in the future, we won't have that need anymore, but I think that recruiting more special education teachers, and more teachers in general, has become very, very difficult, so I think that law was passed because there's no other way to teach kids other than doubling up teachers or changing the timing of classes and things of that nature that are less beneficial. And does the sub have to be a credentialed special ed teacher? Generally not. I would actually find out if the sub does have a credential, and if it's a general ed credential, what kind of needs does the teacher have in order to assist your child to benefit from his or her education. Right. And after those 60 days, are they then allowed to hire another uncredentialed sub? And I... Only because we got questions from parents saying we had a sub all last year, right? Is that legal? And I don't know the exact answer to that question because I'm not 100% sure how that bill is written, but I think it does allow for that flexibility, and a lot of the teachers that they bring in have what they call an emergency credential, and not necessarily special education, but I do think that parents should ask... This is the way I like to approach districts with regard to training. I ask, as a parent, “I would really like it if the district could do a training on augmentative and alternative communication, okay? Can we all participate? Because my child needs an AAC device. Can we do some kind of training?” Train the teacher, train the substitute teacher, train the aides, train the parents, train the child. So that's just one example, but that's what I like to look at, and the districts are usually... They usually welcome that. A lot of times they'll bring the SELPA people in who are trained in different areas and do training, so I think that's something that parents can definitely ask for, and district will usually say, “That's a great idea, let's do it,” and then, “Why don't we open it up to the whole school and see who wants to participate?”
Absolutely. And at the end of the day, it still comes down to... I mean, sub or not, obviously we want our credentialed teachers in the classrooms, but at the end of the day, it still comes down to: Is our child meeting their IEP goals? Right? Yeah. And if they're not, then we have then due process and our rights as of today in IDEA. And another staffing question. We are seeing, again, a lot of shortages even in related service providers, so we're seeing more SLPAs or speech therapy assistants and OT assistants providing services in schools. Are these acceptable service providers? They are acceptable service providers as long as they're being appropriately monitored and supervised. And does that mean there needs to be... Well, it could be even a consultant then. Like there could be a consultant OT as long as they're supervising that OT assistant, your child doesn't ever have to see the OT. They can just see the OT assistant as long as they're being supervised. -- Right. Is that correct? Okay. Yes. That's my understanding. Okay. And some districts are... We hear they're unofficially indicating that they're going to crack down on aides, including 1:1 aides to save money, so how can parents present their child's need for an aide or 1:1? Well, again, I'm going to look at what assessments have been done to determine the child's need for an aide. Every district seems to do things a little bit differently, but for example, in LA Unified, in determining whether or not a child needs an aide, we look at a functional behavioral assessment. A lot of the other districts do... They have all different kinds of acronyms for it, but special circumstances aide assessment, and they have their own criteria for that. So again, I would look at the needs of your child and what assessments have been done to show that your child has that need, and then... So I know we're going to talk briefly about IEEs, but just know that if the assessment’s been done by the school district and they say, “Your child is fine, he doesn't need an aide,” and you disagree, you have the right to request an independent educational evaluation. And I see Vanessa had a question. When is the first 30 day IEP meeting supposed to happen if it was canceled due to illness on the teacher's part? Well, the first 30 day IEP should be held within the first 30 days, but I do see things happen that way when somebody got sick, but the... the IEP should be rescheduled as soon as possible. Not in six weeks... -- No. ...or something, when they can fit in in their schedule. Right. Soon as that teacher comes limping back to the classroom. All right. So I also want to touch on confidentiality. Many are worried about privacy, some because the talks of a potential autism database and what that could mean and others might be worried an IEP could flag their immigration status. Others just want confirmation on who has access to the intimate details within their child's IEP. So number one, are our kids’ IEPs entered into any federal database? No. To my knowledge, no. And hopefully that will never be the case.
Right. So, our IEPs are still confidential and only seen by our school teams unless we explicitly share them with someone? -- Right. Correct. Okay. And have FERPA or any privacy laws changed? -- No. Okay. So, and then specific to immigrant families, should anything about their immigration status be in their IEP? No, nothing about their immigration status needs to be in their IEP. And I just wanted to ask all of those really specific questions, again, to underline the fact the our rights haven't changed there, so if someone is hearing something or if a district is doing something different in that regard, speak up, and if you need to, reach out to an attorney if that's happening, but I just wanted to be really clear on that. And what advice... We had a lot of questions come in in a lot of different ways. What advice do you have for families to stay on top of what's happening at school, because it's so hard, right? We as parents, we're not there. Facts are selectively shared sometimes, and we have no idea if we're hearing the whole story, so how can we ensure that our child's IEP is being implemented instead of discovering things have gone terribly wrong only during the annual IEP meeting? Well, there's a couple of ways. The first thing that I really think is very important works better at elementary school level, but there are ways to do it in middle and high school, is have a communication log between you and the teacher. Very easy to do in elementary school. You set up something either online or as a paper log that goes back and forth, or you have periodic meetings with the teacher and maybe some of the related service people to talk about what's happening or is not happening. That's really easy to do in elementary school. In middle and high school, I think the easiest way to do that is to... they all have online things like Schoolology and some of the other programs, and you have ways to communicate with your teachers, and I think setting up a way to communicate with your child's case manager, and then if necessary, go to the teachers, depending on what's happening, if your child's struggling in a particular area.
So, I think those are really important ways to stay on top of what's happening. The other thing you can do is whenever your child is supposed to be receiving a related service like a resource specialist program service or speech or OT or any of those related services, their school districts are required to maintain a log of those services, so the service provider will enter their time, the date, who they worked with, the child they worked with, and what they worked on, and parents can always request copies of those logs at any time, and in fact, we often recommend that parents request copies of their child's entire educational records at least once a school year so you have an idea of what's in the records, because you may not have any idea that there's something in the records that maybe shouldn't be in there or needs an explanation. So, I think that's... I think that's really important. You have the right to have copies of all personally identifiable information pertaining to your child. Personally identifiable meaning your child’s name is on the document, or on the log, or whatever you're looking at. Absolutely. And don't underscore the importance of work samples and seeing what your child is doing, and then those progress reports too. And sometimes... I know, I'm also a parent. I'm looking at things and I... until a little time goes on and I'm putting all those pieces together, is it telling me a story that on the day to day I'm not seeing? But then, when I'm looking at those progress reports and that work, is that matching up to what I'm hearing and what kind of questions do we have? Because it is... It's terrible to sit down at the IEP and to really realize that something's really gone off that you didn't realize. Right. And I think the other thing that's really important that a lot of times doesn't happen is the IEPs that have objectives, they're supposed to be reported on periodically, okay? So, the dates are in the IEP when they're going to be reported on, but typically it coincides with typical report card dates, so usually for the first either trimester or semester, you get a report card, so you need to get... Parents need to make sure that they're getting progress on goals reports on a regular basis, and there are so many times I ask parents, “Have you gotten progress on goals?” and they're like, “Huh? What? What’s that?” So, it’s really important to pay attention to what's in the IEP in terms of what's going to be reported on at what progress level.
Absolutely. And if we discover that things are going sideways at any point in the year, should we automatically call an IEP? Is that what we’re supposed to do? You can... You... I think that calling an IEP is the best way to get it on record, but if it's something that you think that you could sit down with the teacher or the related service person and say, “Hey, this isn't working. What can we do?” and then if you have to make changes to the IEP because of that meeting then you have to have an IEP meeting, but I think what's also important is parents say, “Oh, I asked for an emergency IEP.” Well, there's nothing in the law that says what an emergency IEP is. They... What it says is that if you're requesting an IEP and there are no new assessments that need to be done, the IEP should be held within 30 days. If there’s new assessments, of course, within 60 days of your signing the assessment plan. So, sometimes it's faster to have a quick meeting with the teacher if it's something that needs just a little tweaking and is not going to result in a change to the IEP. And I know you had touched on IEEs before as well, and I don't know if there's anything else you want to say or advice that you want to give, because Tanisha had a question about IEP... about IEEs that I want to ask, but is there anything that you want to tell families about an IEE and what that is? Because I think a lot of parents, they may read the assessment from school and think is this it, or this is missing something, or this might not be right. When should a family consider having an IEE? Whenever there's a question as to anything having to do with the assessment being appropriate, okay? So if you read an assessment, you're like, well, this is not my child. My child doesn't do this, or my child does do that, and they're saying he doesn't. If that's the case or the... You know your child has autism and they're doing a triennial three year reassessment and they're not assessing for autism, those are the kinds of things that you look at, and you... If you really feel like the assessment is not appropriate because it's not appropriately reflecting what your child's present levels of performance are, then you can request an IEE, Individualized Educational Evaluation, and that can be at public expense. What the law says is if you, as a parent, request an IEE at public expense, the school district has to do one of two things. They either have to agree to do the IEE, or they have to file for due process against the parent to defend their assessment. And it used to be that very few school districts would file against parents, but I'm seeing it happen more and more, especially if it's something that's not real obviously wrong with the assessment.
So, when the school district says they're going to file for... against the parent, oftentimes I have the parent just withdraw their request for an IEE because what happens is you... If you... Hang on. If they go to due process against you, and then you have to essentially hire your own expert to do an assessment to counteract why their assessment is not appropriate, so it becomes a cost... It becomes very costly for families, but if you win in a hearing showing that their assessment is not appropriate, then you get reimbursed for your out-of-pocket costs for that assessor to do that assessment, but that's a really difficult way of going about doing things, so then oftentimes I'll ask that... I'll ask the client to withdraw their request. Then the district no longer has a basis for filing for due process, so... And then you would recommend the family pay out-of-pocket for that assessment and then go to hearing? Is... Did I hear that right? I... Well, so here's what I usually do is, if we withdraw a request for IEE, if we're going to go to a hearing, we do need our experts. Any time we go to a hearing, we need experts, which is why it gets pretty costly for families, because those fees are actually not reimbursable, but if you... There is an argument to be made that if you requested an IEE and the district said, “We're going to file,” and you say, “No, thank you, but I'm going to get my own IEE and I'm going to file for due process to show that your assessment is not appropriate,” one of the remedies you could request in due process is reimbursement for that assessment. However, the costs of that assessor testifying in court are not reimbursable, so... Yeah, it definitely adds up. It's just so unfortunate, right? We're all trying to get what our kids need and... -- It is. Yeah. Did I answer the question that was pending or is there...? Oh yeah, and so... Well, Tanisha, actually I wanted to follow up. She said, “Can the district force a parent to use someone from their list for an IEE?”
Technically, no. So, an IEE is supposed to be individualized, and you as a parent have the right to choose the assessor. However, districts provide you with a list of assessors that they have vetted and that they know will fit within the SELPA guidelines in terms of the amount that they charge and the type of insurance that they have, etc., so if you say, “I don't want anybody on this list, but I want this assessor,” you have to make sure that that assessor fits into the qualifications that are delineated by the SELPA for assessors. So they can't force you to accept one of theirs, but if you present yours, they have to be qualified, as qualified as the ones on their list and have all the insurance, etc. And you touched on behavior earlier. Many parents receive communication, sometimes daily, about the behavior challenges their kids are having throughout the day, and if it feels like the notifications are complaints about their child without solutions, what can parents do? Because, I mean, there's a lot of parents who just... they constantly hear, like, “Well, Joey hit Susie again,” and I mean, it's just... You feel like it's such negativity without talking about what we can do, so what do parents do in this? Well, for those of you who don't know, I'm also the parent of a child who's got multiple disabilities and he's now 31, but I can't tell you how many times I was called. “He did this, he did that. Come and get him.” And he had a gastrostomy tube when he was in school, and he used to pull it out as a behavior when he wanted Mommy to come to school, so they would say, “Oh, he did it again. Come to school, come to school,” and I said... It finally dawned on me, hey, they're reinforcing his bad behavior, so I was like, wait a minute, wait a minute. I'm not a behaviorist, but we need to do something here. So, that said, what I would recommend is look at your child's IEP. Do you have a behavior plan? If you don't have a behavior plan, it's time to get one, and it's time to sit down and do a functional behavioral assessment.
Determine the antecedent. The... What is it? Antecedent... There's ABC: antecedent, behavior, and consequence. That's what it is. So, we determine those things and then we develop a behavior plan to hopefully work on controlling those behaviors. So, a lot of times I see, Johnny did this, Johnny did that, and I ask the parent, “Is there a behavior plan in the IEP?” and they're like, “Huh?” So, that's the first thing I would look for. The second thing I would do is ask for an assessment and make sure that what they're doing is appropriate, because if they're reinforcing his bad behavior like they were doing for my child, it's never going to end. Exactly. It’s like, thank you so much for these daily calls. Obviously we need to do something about this, right? So, let's flip that around. And Vanessa actually had a question about this with charters. “If behavior interferes with the learning process during learning time with the learning coach, AKA me, the parent, does a charter have to provide behavior supports to the student, specifically even if the charter says they don't offer behavior through the charter? I hope this isn't confusing.” It's confusing because I don't know what kind of charter it is. I know. I was wondering if maybe it was a homeschool charter. I'm not sure. Yeah. So, the easy answer is charter schools are public schools, just like any other public school, and they are controlled by the same laws and IDEA does apply, so the answer is if your child does have behaviors that need to be addressed, you need to request an assessment from the charter. However, if the charter can't meet the needs of the child, they can say this is not working out and you maybe need to find a different placement. That's the one thing. Typically, charter schools don't have special day classes, even the ones that are brick and mortar schools, so if a child needs a special day class instead of like a resource support class, then they might say, “You know, we can't meet your child's needs here,” so... but keeping in mind that charter schools are public schools. Right. And we had another question that says, “After a manifestation determination, are those suspensions expunged from the record, and can a manifestation meeting be called before the tenth suspension?”
Wow, that's a good question, and I will say this. Disciplinary issues are very complicated, and I don't know that I can answer that question in a way that would make sense. Yes, the school district has to have a manifestation determination on the tenth day or by the tenth time the child's been suspended to determine whether or not that child's behavior is the manifestation of his disability. If it is the manifestation of his or her disability, they can't be expelled. They can be moved to an alternative placement if they violated a code of conduct like bringing drugs or weapons to school for 45 days, and that's about as far as I'm going to go on suspensions and discipline, because it gets really complicated, and I think that anytime that you're dealing with multiple suspensions, then you probably need to get the advice of an attorney. Question about modifications. “If our child is in gen ed and they require modifications and we can see those modifications coming home and they're not appropriate, what options do we have if the team just does not understand how to make things accessible for our child?” Well, you ask for an outside assessment by somebody who is an inclusion specialist. I think that's the best thing to do. Oftentimes, the districts will give pushback and say, “Well, all of our special education teachers are inclusion specialists,” so... and that may or may not be true. That's a real difficult, difficult problem to resolve because what I think you need to look at is progress on goals, and if your child’s modified curriculum is not leading to your child making progress on their goals, then you can show that it's not appropriate, and you need to request that they bring in somebody who is qualified to look at it and see what better way there is to modify the curriculum. Modifications of curriculum are supposed to be based on core curriculum, so it's supposed to be based on core curriculum, and there are a lot of school districts out there that use a modified curriculum that may or may not be based on core curriculum. Right, absolutely. Yeah. Some are standalone, not at all related to standards. Yeah. Another question I have to hear at... or, I mean, that I hear at least on a weekly basis, it's about draft IEPs. We hear many districts saying that they will not provide a draft IEP because that would constitute predetermination, so are districts allowed to say that they won’t provide a draft IEP? Technically? Technically, yes, but if you say to the IEP team, “We really would like to have a draft so we can participate in the discussion when the IEP meeting happens and to basically facilitate the IEP meeting so that it's not four hours or redo, redo, redo, which is... Don't get me started on that.
I mean, I see IEPs that have been continued so many times that there's been no IEP in effect for the whole school year because they can't... They give an hour at a time. It's ridiculous. So that being said, I do think that yes, they can provide you with a draft IEP, a draft of the goals, they can provide you with copies of the assessment reports prior to the IEP meeting, as long as they can't say when you get to the IEP meeting, “This is what it says. We're not changing it.” If they provide you with a draft, you come to the IEP meeting, say you want to tweak a goal or you disagree with one of the goals, you can say, “I disagree with this goal. Let's rephrase it. Let's figure it out,” and the IEP team has to take that into consideration. So, predetermination results in... Predetermination happens when a parent goes to an IEP meeting, and the IEP team does not want to even discuss any changes to an IEP, so that's a hard thing to show, but... And one of the other things that I always recommend is parents audio record their IEP meetings. You have to give 24 hours advanced written notice, but at least you can... and you can't videotape, but you can audio record, and at least you'll have audio of the discussion that was had at the time of the IEP, and I think that's really important if there's ultimately any disputes that need to be resolved. Absolutely. Another obvious huge area of concern for families is placement, and many districts don't explain all of the options to us, so we don't even know what our choices are, so how can parents discover what's available in their district, and how can they best advocate for different placement? Well, okay. If you look at what IDEA says, it says that the school districts need to look at the continuum of possible placements that starts out in general education with the appropriate support, all the way down to a hospital or a home program, so those... And the least restrictive placement is the gen ed placement. The most restrictive is the hospital, and everything in between is more and more and more restrictive, so what... You can ask the school to discuss it. So, let me back up a second, because what I've been seeing in IEPs lately is we've discussed the continuum of possible placements, and the IEP team says this is appropriate when I... parents will come to me and say, “We didn't discuss any of that,” so I think that what's important is you can ask the IEP team what kind of... What is the continuum of possible placements, and what are we considering for this child and why, so that you can look at that.
And if full inclusion is your goal and they're saying, “Oh no, no, no, he needs a special day class,” and sorry if I always say he, but I have a boy, so I want to say ‘he,’ but if he or she needs a special day class, well, wait a minute. That is more restrictive than gen ed or more restrictive than being included part of the day, things of that nature. So, there are always arguments about placement, and that's what a lot of our due process cases involve placement, and if any of you out there know my colleague David German, he just had a great case that basically said... The holding in the case was that a child doesn't need to be meeting grade level standards to be fully included. They just need to be making progress on their goals and objectives. So yay for David and yay for all of us, because that was a great case that really, really has led the way for more inclusion, and we are, our firm, big advocates for inclusion, so... But I'm going to try to figure out another word for inclusion, which I haven't come up with yet. We'll figure out a way around it, but yes. And is there any advice that's a little different from what you just said, Dina, if a family wants a private or a non public school or an NPS? Oh, yes. There's lots of... How should they approach? Yeah. What's that approach? I mean, you have to... One of the things that I see is a school will make an offer of special day class. Parents are saying, “Oh, we're not... I'm not going to do that, not going to do that. I'm going to put my kid in a private school and I'm going to seek reimbursement,” and the first thing I say is, “Have you seen what they're offering?” and 90% of the time the parents are like, “No.” So, I think that's the first step. Go and look at it. Talk to the teacher. Talk about... Take a look around and see how many kids are in the class, how many adults are in the class, what the class looks like. Talk about the schedule in the class and those kinds of things, because you can't just say to the school district, “I'm not agreeing to this placement,” without seeing it, okay? So, that's really important. There are some kids that really can't be educated in the public school. I see that most often with kids that are twice exceptional who are absolutely brilliant but have learning challenges, so those children frequently are educated in private schools or nonpublic schools. Unfortunately, there aren't any nonpublic schools, which are special education schools, that are geared towards children that are twice exceptional. There are some private schools that are, and the other issue is that these schools are very expensive. I mean, 40, 50, 60 and one is $70,000 a year. I mean, I don't know most families can afford that. I certainly couldn't. I've known families who have sold their homes to afford placement and... or taken out a second mortgage, and so it's extremely expensive and going to due process is the only way to get reimbursed for a private school because school district, public schools cannot pay for private schools, and so there's a whole process involved in that, and I would suggest that if a family is looking at placing their child in a private school, they really need legal advice because there's notice requirements and there's IEP requirements and there's all kinds of requirements that need to be followed before you place your child if you're looking to get reimbursed.
Right. And obviously, we're not going to always agree, so I want to talk about when we do disagree, when parents disagree with the IEP team, districts often will call... will offer ADR or alternative dispute resolution, also sometimes called IDR, or informal dispute resolution. Is this something that you recommend for families? It depends on the issue. If you're looking for reimbursement for private school, no, because that's not going to get solved at an informal dispute resolution or an ADR, alternative dispute resolution and informal dispute resolution in some districts are used interchangeably. In LA unified, an ADR happens at the school level with the assistant principal or principal and not at the district level, and informal dispute resolution happens at the district level, so depending on what the issues are, I do think informal dispute resolution is a possibility if you're looking for more speech services or reimbursement for outside speech or things of that nature. When you're not looking for a whole new placement and services and supports, could be resolved at the informal level, but if you're looking for major differences to your child's education, then you're going to be going to due process. And if a family declines the ADR or the IDR and says they would prefer to just file for due process, can that be held against us? No. You have the right to refuse the IDR and it should not be held against you, and... but the other thing is, I do not recommend... Parents can file for due process on their own. I have never seen it be successful. And typically we get calls. “We have an IEP...,” “We have due process hearing next week. Can you represent us?” No, we cannot represent you because we have no idea if you filed for all the issues that... I mean, there's so many legal things that need to happen in order to go to a due process hearing, which is why when this law was passed 50 years ago, they didn't envision it being as litigious as it has become, but the fact of the matter is that at this point, if you request due process, the district is going to get their lawyers on board, and I do not recommend that parents go to due process without their own attorneys. Right. And when should a family consider talking to an education attorney? At what point in the IEP process? I think after you have an IEP with an offer that you disagree with and whether you've tried to resolve those informally or you just feel like you need some more advice before you try to resolve it informally, or there's no option, we have to go to due process, so I think that what's important to know for us, in particular our firm, we always give free intakes, one hour intakes. You have to request a consultation on our website, and then what happens is you fill out a form and you're assigned to one of the eight of us, and we'll spend an hour going over whether or not you have a case for due process, whether something else needs to be done before you have a case for due process, whether you don't have a case at all, or... There's so many forks in the road and so many different steps to take that it’s difficult to say what that would look like.
Every issue, every child, obviously, is different. And so, we get a lot of parents coming to us saying, “Well, my neighbor's child got X, Y, and Z.” Well, first of all, any settlement agreements are confidential, and so therefore that person should not be breaching confidentiality, but aside from that I go back to the ‘I’ in IEP. Every child is an individual, every child is different, so the needs of your child are going to be different than the needs of your neighbor's child, and so that's what we look at. What are the needs of your child? What do we know about your child? What are your child's present levels of performance? What is it..? What are your goals for that... for your child and how are we going to meet those goals? Right. And then looking at the time and I know we have to start wrapping up, but I do want to ask this too though. As we're talking about due process, we get a lot of questions about compensatory education and I would love for you just to touch on that and when a child would be eligible and when they wouldn’t. Okay. So, the remedy in this area of the law under IDEA is not money damages. What it is, is compensatory educational services to make up for what the district failed to do. What that looks like for each child is based on his or her circumstances, what the district failed to do with regard to that child. What it can be... Well, let me back up one second, because what it says is it's not... You're not entitled to minute for minute, and hour for hour that the district failed to give your child. What you are entitled to is reasonable compensatory services to make up for what the district failed to do, and what we think are reasonable and what the district thinks are reasonable amounts generally are different, so it's always negotiated to try to come up with an agreed upon amount. But, so what that looks like for families is if a family's been paying for out-of-pocket tutoring, speech therapy, occupational therapy, things of that nature, we can ask the district to reimburse for those things, or we can ask the district to pay for a block of hours of some of those things through a nonpublic agency. Districts cannot contract with an agency that is not a nonpublic agency that’s licensed to provide special education services by the state of California. They can, however, reimburse you for your out-of-pocket costs if you choose to work with your own person, okay? So, those are the remedies and there's a... there are some nuances. Different districts do a few different things, but that's the basics.
I think the other thing that's really important to know in this area of the law is because I think a lot of parents go, “Oh my God, if I call an attorney, it's going to cost hundreds of thousands of dollars,” and the good news in this area of law is there is a fee shifting statute, so what that means is if we are able to come to a resolution through mediation or we win in due process hearing, you're entitled to reimbursement for attorney fees, and those amounts are always negotiable because the districts don't want to pay us. They don't like us, they don't want to pay us, they don't want to pay our hourly, so it's all negotiated, and so you're not going to be out-of- pocket hundreds of thousands of dollars, but it will cost you a retainer agreement amount depending on the needs of the child in the case, and then that's something that we would talk to parents about, but always, come and have a free consultation and we can tell you what that's going to look like or if you don't have a case, we're going to tell you that because we're not going to take a case if we're not going to win it or we can't settle it. Yeah, exactly. Yeah. Red flags for attorneys if they're telling you right there they're going to get you hundreds of thousands of dollars. Yeah. Most will be... The good attorneys will be very honest if you don't have a case. So, Dina, I mean, I'm looking at the time. We have to wrap up, but I do want to end with what is the most important thing that you've learned in all of your years working with families and districts? And as a parent yourself, what do parents need to know? Parents need to really focus on the needs of their child, look at the ‘I’ in IEP, look at the assessments, whether the assessments were appropriate, whether your child's present levels of performance are accurate. Everything needs to be based on accuracy. And then when I said before about assessments, I have a nonverbal child who we have no idea what he knows and nobody was ever able to appropriately assess him when he was in school, and believe me, we tried all different kinds of assessments and assessors, so there are some kids that you will never know the answer to that question, but the vast majority of children can be assessed and you can get a present level of performance and draft goals and objectives, and look at your child's individualized need.
Yes, thank you. Thank you so much, Dina. At the beginning of the school year, as you know, always brings stress, but it definitely feels more charged this year, so thank you for your guidance because we just want our kids to be okay at school. We want to send them through those doors with people who care and who know how to support them so they can learn and make friends and build the skills that they need to live meaningful lives, and we need that trust, and it's hard because many of us, that trust was broken once or many times, and I was trying to think of this analogy and it feels like this tug of war, and if we let go, then boom, our kids go down, and it is so much pressure because quality control often falls to the parents, and that is not how it's supposed to be, so thank you. Thank you, Dina, for giving us the options, for laying out the expectations as this year begins, because just to reiterate what Dina has said, as of today, IDEA is still standing. It is still good law. We have not lost any substantial rights. Privacy laws are unchanged and the ‘I’ in IEP is very much valid, which means your child is not a generic prompt from a goal database, and the fiscal crisis our schools might be facing, it cannot be overcome on the backs of our children, so if you need help, please reach out. Thank you again to Dina and everyone at Vanaman German for fighting for students and families. And to all of you that came today, our mission is to support you so your children can thrive and we want you to thrive too, so hang in there. We'll see you soon.
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