MONTVILLE, NJ – Attorney Adam Wilson of the law firm Hinkle, Fingles & Prior spoke at a seminar hosted by Pathways for Exceptional Children held at the Lazar Middle School media center on Nov. 11. His topic, "The IEP and Your Child's Basic Rights," explained the special education individualized education program (IEP) and how parents can expect the most from special education – and their child.
“An IEP should be individualized, but in my opinion, most school districts approach the process backwards,” Wilson said. “Most times they start to discuss placement first. ‘Should the student be in a self-contained classroom? In or out of district?’ Then they fill in the IEP based on what that particular classroom can accomplish.
“But really the child study team, which is the group of teachers, administrators, and you [parents] who work to write the IEP, should start with the child’s needs for programming. Does the child need speech therapy? A certain reading program? Once the team figures that out, then placement can be decided.”
Wilson stated that the goals and objectives are the heart of the IEP, but districts have pre-written goals in drop-down menus.
“These pre-existing goals are poorly written and super vague. Goals have to be measurable in a meaningful way,” he said. “Furthermore, they should be different from year to year.”
IEP meetings have to be at least yearly, but they can be more often if the parent wishes, for example, if a new behavior is observed in the child, Wilson said.
“Evaluations such as speech, education and psychological testing should be conducted every three years,” said Wilson, “but they can be done yearly if you request them. Try to get them done every year, even if the district is good to you, so you can measure progress better. They also need to contain recommendations, or else they’re basically raw data.
“If you can afford it, get independent evaluations. The school district has to read and take the independent evaluator’s recommendations into account, and the district has to have a real, clinical basis to reject them.”
Wilson warned that sometimes districts will state a behavior must take place in the “school setting” before they will address it in the IEP, but this isn’t true.
“The school wants a good student but we’re trying to make a good citizen who interacts in their community. Students need to generalize their learning. As long as it’s not medical or religious, the school needs to provide services that aid the child’s social and emotional growth,” he said. “When you see a behavior you want addressed, videotape it and show that it’s impacting the child’s ability to learn. You’re the expert on your child.”
Sometimes parents and the school district don’t agree on the best program for a student, and Wilson recommends evoking the Stay Put rule.
“This is an automatic injunction against any change if you object to it. You are required to file a request for mediation or ‘due process’ within fifteen days, and during that time, the child’s program will remain the same,” he said.
Wilson described the mediation process, in which a mediator provided by the state meets with the school district and parents, both simultaneously and separately.
“Your conversation with the mediator is confidential,” he said.
If the parties don’t agree, the case will go into ‘due process’ and is transferred to the Office of Administrative Law.
“A judge will conduct a case management conference,” said Wilson, “and he or she will be more forceful. The nature of these first two meetings is to find a common ground between the district’s and the parents’ wishes and settle. Neither the mediator nor the judge is deciding.”
If an agreement is not made, the case will go to trial.
“There will probably be four non-consecutive days of testimony. It can take about six months for the trial plus about 45 days for the judge to issue a ruling. The parents also have the right of unilateral placement, which is pulling the child out of the school and placing them in another program. The parents have to give ten business days’ notice that they’re going to do this, but if they eventually win the case, the cost of the new program must be refunded by the district.
Wilson also encouraged parents to plan their estate to provide for special needs children’s adult-life needs. He encouraged the formation of a Special Needs Trust for children.
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