In this installment of Disability Scoop’s original series, Scoop Essentials, we chat about the rights of students with disabilities with special education attorney Marcy Tiffany of the law firm Wyner & Tiffany in Torrance, Calif.
Since the enactment of the Individuals with Disabilities Education Act (IDEA) in 1975, students with disabilities have the right to a free appropriate public education (FAPE). Accordingly, each student deemed eligible for special education has his or her own individualized education plan known as the IEP. But things can get sticky when parents and school staff sit down at so-called IEP meetings to decide what’s needed to educate a student.
Marcy offers must-read advice for anyone headed to an IEP meeting. She tackles everything from preparing for and participating in an IEP meeting to what rights students with disabilities have under the law.
Check out what Marcy has to say and then submit your own questions to her by clicking here.
Disability Scoop: Tell us about the work that you do.
Marcy Tiffany: I represent students with disabilities in an educational context. I deal with school districts and assist parents in developing appropriate IEPs. If that doesn’t work, I represent parents in mediation and due process hearings and also in federal court proceedings.
Disability Scoop: If you’re a parent of a student with a disability, what should you expect from the IEP process?
Marcy Tiffany: School districts are obligated to provide a free appropriate public education (FAPE). This includes an annual IEP that includes goals and objectives that are measurable and that address the student’s areas of need.
Given the financial constraints most school districts suffer under and the chronic lack of full funding of the IDEA, there’s an inherent tension between what the student really needs and what resources are available to the school district. Understanding that this is at the root of many of the difficulties in the IEP process is important. It’s not that the school district doesn’t want to serve the children, it’s that they don’t have money.
Disability Scoop: What rights do students have that families are often unaware of?
Marcy Tiffany: There are two recent changes in the IDEA that came with the 2004 reauthorization. One is the emphasis on and the requirement that school districts use research-based teaching methodology wherever possible. The other change many people are not aware of is the requirement that there be functional goals as well as academic goals. For example, in a college bound student you might want to look at functional skills like being able to take notes. For some children, functional skills include social development.
Disability Scoop: Is it necessary for schools to follow research-based methodology in their teaching practices when it comes to students with disabilities?
Marcy Tiffany: Schools are supposed to use research-based teaching methods whenever possible. It’s important for parents to do as much research as they can to see what kinds of programs are out there and what research supports them so that they can walk into an IEP meeting armed with this information and be effective advocates for their children’s rights.
Disability Scoop: Tell us the top three things you should keep in mind when preparing for an IEP meeting.
Marcy Tiffany: Try to avoid becoming adversarial. You want to focus on what the child’s needs are, not simply complain about what’s not happening. Once an IEP meeting becomes adversarial, it’s usually not going to be very productive. Many parents bring food, which helps to relax the environment.
Another mistake is lack of preparation. You must know what it is that you want to focus on and don’t rely on the school district to set the agenda.
The third mistake is to consent at the IEP meeting (i.e. sign the parent signature section). We always advise our clients, no matter how well the IEP meeting went, to take the IEP home and think about it. Make sure you’re comfortable with everything that’s been said. You have a right to supplement the IEP. It’s important to read the narrative and make sure what was discussed at the IEP meeting was included. Along the same lines, we always recommend taping an IEP meeting. School districts are used to it. It’s very important to have a complete record of what was said and if you just have notes, sometimes they’re complete and sometimes they’re not.
Disability Scoop: Tell us about writing a supplement to an IEP.
Marcy Tiffany: Write out what it is that you felt wasn’t adequately covered or you disagreed with. Then, you can say “here’s an addendum to the IEP and I’d like it to be included.”
Disability Scoop: When you request to think about the IEP and bring it back, are you simply withholding your signature from the IEP until you feel comfortable and have thought about things?
Marcy Tiffany: Yes, I’m not saying don’t consent. Keep in mind that you can partially consent. For example, let’s say that you think your child needs two hours of speech and language but the school district only offers one hour. Well, consent to the one hour and indicate that you don’t think this is sufficient but that you’re consenting because some services are better than no services.
Disability Scoop: How do you indicate which elements you agree with in the IEP versus those that you don’t?
Marcy Tiffany: You can indicate this in a separate statement with your consent. The IEP usually has a place for a parent’s signature. You can sign the IEP with an asterisk that says, “please see detailed consent.” Or, you can say “we’re consenting with the exception of blank and blank.” Typically, however, we write a separate consent that says here are the things we consent to, here are the things we don’t consent to and we reserve our rights to object to the entire IEP as not providing of FAPE (Free Appropriate Public Education).
Disability Scoop: What can you do to make sure your priorities are the focus of the IEP meeting?
Marcy Tiffany: Again, try to avoid becoming too adversarial. Prepare before you walk into the IEP meeting so that you know what you’re saying and can say it concisely and clearly. Start with the old IEP. Look at what those goals and objectives were and see if your child has achieved them in your opinion. All too often the description of the present levels of performance are very vague. Johnny has “improved” in his reading ability. Johnny’s spelling is “better” than it was last year. These kinds of statements mean absolutely nothing. The present levels of performance need to be articulated in terms of the previous goal. Visit with the child’s teachers ahead of the IEP meeting. Go over the goals and, equally importantly, go over the content standards, which most states have available online (check your state’s Department of Education Web site). For example, here’s what Johnny should be doing in sixth grade math, is he doing it or isn’t he? It’s important for parents to really understand their child’s current levels of performance and to do so in terms of the content standards.
It’s also important for parents to understand the nature of their child’s disability. If you don’t understand your child’s disability, you’re never going to have an effective IEP.
We also strongly recommend private assessment. If a parent disagrees with the school district’s assessment or can simply afford to go out and get a private assessment, they should do so. With a private assessment they can get a more detailed explanation about what the nature of the disability is and also obtain recommendations they can take with them to the IEP meeting.
Disability Scoop: Is there a way you can force the school district to pay for a private assessment?
Marcy Tiffany: Yes. If the school district conducts an assessment and you disagree with it, you can request an independent educational evaluation (IEE). What the law requires is that the school district either pay for the IEE, or the school must file for due process to establish that its own educational evaluation was appropriate. Something the school districts are now doing, is the minute a parent requests an IEE, the school district files for due process, which in turn intimidates the parents who then withdraw the request.
Another tactic school districts use is they’ll say, “okay we’ll pay for it but only if you have it done by this particular individual.” This, of course, doesn’t end up being an independent educational evaluation because it’s done by providers selected by the school district. The school district is supposed to provide guidelines for IEEs. They can also provide a list of providers in the vicinity who are qualified, so there’s a fine line in helping the parents obtain an IEE and having the school district control it.
Again, the key would be disagreeing with the evaluation. Sometimes you don’t know whether to agree or disagree until you get the independent evaluation. What you might want to do is take the school district’s assessment to an independent assessor who you think is qualified and ask for an opinion. Do you think this is a good assessment? Did they do all the testing they should do? You have to be prepared before you ask for that independent educational evaluation.
Disability Scoop: You talked before about content levels. Were you talking about general standards for each grade level for any child?
Marcy Tiffany: Yes. They vary from state to state, not dramatically, but they differ some and parents ought to know, what is my child supposed to be learning in fifth grade? Should they be able to write a single paragraph or should they be able to write a multi-paragraph essay? If you don’t know what it is that they should be doing then you don’t know what the areas of focus need to be.
Disability Scoop: When you’re going to an IEP meeting, what should you make sure to have with you?
Marcy Tiffany: I would certainly have the previous IEP. I would have the most recent assessments that have been done on the student. I would have work samples.
Disability Scoop: Are there any other things you would recommend bringing with you?
Marcy Tiffany: Food!
Disability Scoop: What are the hallmarks of a good goal versus a bad goal?
Marcy Tiffany: I rarely see good goals and I see lots and lots of bad goals. One of the most frequent errors is having a goal that appears to be measurable on the surface but really isn’t. Frequently you’ll see, “the student will do x, y and z with 80 percent accuracy in three out of five trials.” It looks great on paper, but you need to ask, “what does this mean as a practical matter?” When we come back to this IEP meeting a year from now, what are you going to show me to prove that this goal has been achieved? What evidence? What documentation? What would the student have to do in order to achieve this goal?
Another common mistake with goals is having too many skill sets in a single goal. For example, a child will initiate a conversation and respond and maintain a conversation. Well, initiating a conversation is different from responding to someone else’s initiation, which is different from maintaining the conversation. So which is it? If a child initiates a conversation, is that goal going to be achieved even if the child is not responding and not maintaining? So trying to make sure that the goal has enough specificity so that what’s being measured is clear.
Disability Scoop: What are the commonalities among goals you’ve seen that are good and productive?
Marcy Tiffany: They have a very specific focus relating to the content standard. You want to make sure that you understand what grade level the goal is at. Also you want a goal that is measurable in a meaningful way. For example, if the proof of the goal is work samples, then insist that those work samples be provided to ensure that the goal has actually been achieved. A typical way of looking at progress is data collection. Make sure the data is being collected. Who’s going to collect the data? What is it going to look like? What does the data collection sheet look like? When you have that kind of specificity, you’re going to have a good goal.
Disability Scoop: If you’re feeling discouraged about the outcome of your IEP or the way the process is going, where can you turn for help?
Marcy Tiffany: There of course are advocates who are non-attorney lay people who can go to IEP meetings and assist in the IEP process. And then of course there are attorneys and there are lots of different places to find out who the attorneys are in your community (check the Disability Scoop resources page).
Disability Scoop: If you’re unhappy with the IEP that your team has created, what type of recourse do you have?
Marcy Tiffany: There are various procedures in different schools. If you’re not happy with an IEP, it’s important to act quickly. I’ve seen students go for multiple years without a signed IEP and that’s not supposed to happen. If the IEP isn’t signed, the school district is supposed to initiate due process. If you’re not happy with the IEP, then you need to get legal counsel. We have cases that we get resolved without the need to file for due process. Sometimes, obviously we need to file. Once you get into a hearing, all too often the real focus is on a battle of the experts and the school district already has their experts so you need to get yours. Until you have that information, all you know is that you’re unhappy. So, seeing an attorney as early as possible is very important so you can get the pieces in place so that you can file a due process case that will be a winning case.
Disability Scoop: What about mediation?
Marcy Tiffany: Mediation is an integral part of due process. Mediators are provided for free by the agency that conducts the hearings and a good mediator can be very helpful in resolving a dispute. Most cases are resolved by settlement, usually as the result of mediation.
Disability Scoop: When is it appropriate or necessary to involve an attorney?
Marcy Tiffany: If you don’t feel your child is making progress, it’s useful to consult an attorney. Sometimes we can resolve a case without having to go to due process if we can get to it early enough. Waiting until it’s been a year and nothing is happening and you’re totally frustrated is a mistake.
Disability Scoop: If you do want to go forward with an attorney, how can you find one and what qualifications should you look for?
Marcy Tiffany: There are some web sites. Wrightslaw has a listing of attorneys in various states and advocates and that’s certainly one place to look. The Department of Education is supposed to keep a list, at least in California, of special education practitioners, which they will provide to parents upon request. (Check with your state’s Department of Education or check the Disability Scoop resources page.) I think probably word of mouth is the way most parents learn about who’s good.
Disability Scoop: Where can you find free or low cost legal advice pertaining to special education law?
Marcy Tiffany: This varies from state to state. My firm’s Web site lists some agencies that provide free legal advice in California. Also, some law schools have special education clinics that can provide assistance. (Also, check the Disability Scoop resources page.)
Disability Scoop: What’s the best advice you would give to families about approaching the IEP process?
Marcy Tiffany: Ask a lot of questions. Keep asking until you understand and feel comfortable. Ask about the previous IEP and what’s been achieved. Ask questions of the teachers about what the child is doing and isn’t. Ask how goals are going to be measured. Ask questions of the assessor. What is the specific nature of my child’s disability? How does it impact my child’s functioning in the educational environment? Ask other parents what they’ve been through. Ask until you get answers that you really understand.
What do you want to know about IDEA, IEPs and the rights of students with disabilities? Submit your questions for Marcy by clicking here. Then, check back at Disability Scoop in the coming weeks for Marcy’s answers.