Earlier this month we brought you Scoop Essentials: IEP Boot Camp, a conversation about the rights of students with disabilities with special education attorney Marcy Tiffany of the law firm Wyner & Tiffany in Torrance, Calif.

Now, Marcy answers your questions on everything from requesting remediation and reevaluations to transition and placement.

What is considered an appropriate education as is referred to in FAPE? Is appropriate being able to read, write and perform simple mathematics? Is it more than just being able to function at a third or fourth grade level at the age of 21 or high school graduation? What exactly defines FAPE? — Susan Mitchell, 38, Oklahoma City, Okla.

Marcy: There is no fixed definition of FAPE. It means different things for each individual child. Much depends on the child’s abilities. The expectations are obviously higher for a gifted child with a specific learning disability than for a child who is developmentally challenged. It also depends on the child’s areas of needs. For example, many children have goals to address behavior, social skills, fine and gross motor skills, etc., in addition to, or even in lieu of, academic goals.

My son is almost 6-years-old and is in special pre-K. He seems to be progressing quite well in this environment, which involves a contained classroom and then three times per week he participates in a regular kindergarten class. My question is this: Should we continue the current regimen or do you feel we should consider putting our son in a classroom designed for autistic children specifically? If he is progressing well now, should we rock the boat? — Monique, 36

Marcy: The IDEA provides that a student is entitled to be educated in the least restrictive environment with the maximum possible exposure to typically developing peers. Typically, students in a special day class receive a modified curriculum. Thus, students in such classes may bring home A’s and B’s, but, unbeknown to the parents, are really performing well below students in the regular education classroom. If your child is making progress in a less restrictive environment, you should seriously consider keeping your child there.

I work for a school district as a Parent Mentor. This means I help families understand and implement laws related to the education of children with disabilities. My question is: A student has an IEP, is identified as having autism (very high functioning) and has earned all of his high school credits. Unfortunately social behaviors were never formerly addressed in any of his IEPs, so he is ready to graduate but has no prospects of getting along in the world because of social skills development. The parents were going to let him graduate and the school was happy to let him, but I convinced the parents to press for another year of school focused on social skills development. The plan is to let him come half day to school for this and the other half day to attend a local community college to see if he can handle the academic rigor. The school is balking because they don’t, “have a class for social skills.” No amount of talking makes them stop offering only what they have, not what he needs. Any advice, short of due process, which I think should be avoided if possible. Thanks! — Paula Taylor, 60, Cincinnati, Ohio

Marcy: The school district is required to address all areas of identified need, including social skills. There are certified non-public agencies that specialize in addressing the needs of autistic children but in my experience, most are focused on younger children. Unfortunately, even going to due process is of little help unless there is a remedy available. Often speech therapists are the providers who address social skills because they are so closely related to pragmatic language skills. You might explore whether the speech therapist at the school, or a private therapist, is willing to set up a group speech program targeting pragmatic language that might even include typical kids.

My daughter is diagnosed as MMR. She is currently in the ninth grade. However, recent tests reveal that she is scoring at a first grade level in math and at third to fourth grade level in other subjects.  Despite my numerous requests, the school has not pursued an aggressive remediation program to bring her up to grade standard. The IEP goals are vague and therefore the teachers make up their own set of instructions. What course of action can I take to ensure that she is brought up to grade level? At the end of the twelfth grade she will be given an IEP diploma that does not bear any significance.  Help! — Joan, 40

Marcy: In a case like yours, I would want to get the input of an outside expert to assess both your child’s ability levels and present levels of performance. This would also include a review of the educational program, including whether, and to what extent, she has made progress based on her previous goals and objectives and assessments. If she has consistently failed to achieve her goals, and/or shows little objective progress in comparison to her ability level, this is good evidence that the educational program she has been given is not appropriate. The educational expert can make recommendations as to what your daughter needs in order to make educational progress.

My son is in the sixth grade and reading on a third grade level. The school district tried to refuse the reevaluation at the end of last school year. I insisted that it was necessary. They agreed to retest. However, the school psychologist used different tests. And they agreed to the objectives that I had asked be inputted but the evaluation of these objectives is “class participation and student work samples.” So my question is, how do I know if he is actually making progress towards the objectives or any progress at all. — Kristi, 32

Marcy: Reading is one area that can be pretty accurately tested using standardized tests. You might need to consult an outside expert to test your son’s reading skills and, more importantly, to try to determine why he is struggling with reading. For example, he may well have poor phonemic awareness or an inability to visualize while he is reading.

The IDEA requires school districts to use scientifically valid teaching methodologies whenever possible, and reading is one area where it is possible. You may want to look at the California Reading Initiative, available on the California Department of Education web site, which includes a discussion of scientific studies that have been conducted in the area of reading remediation and a description of what has been shown to work and what has been shown not to work. The studies show that providing reading instruction as part of the general curriculum is not effective to address the needs of students who are substantially delayed in reading. Rather, they need an intense, specialized, reading remediation program such as Lindamood-Bell, for example. Unless the school district provides your son with a scientifically proven reading remediation program, it is very unlikely that he will make any meaningful progress on his goals, no matter how well they are written.

My daughter is about to graduate from an excellent pre-K-only school where she has been in a self-contained classroom for two and a half years. She has multiple disabilities, is non-verbal and non-ambulatory, but very engaged in school and progressing, if slowly, toward communication and ambulation. We have very little encouraging information about the options for her next school, and I am concerned about the next IEP meeting because we seem to have so little voice in the placement. My question is this: what is legitimate to require regarding a placement? Does transit time “count”? If one school has better staff/resources for computer-assisted communication and learning (which my daughter has begun to use this year with notable success) than another, are we legally able to demand the better school? Or is the mere presence of the technology and a teacher sufficient to meet federal law? Also, in the event that she is placed in a school we find objectionable, is our next step mediation? Do we refuse to sign the IEP (even if we think it is good), or is the IEP separate from the placement? Thanks for any advice you can offer. — Margaret S., 39, Chicago, Ill.

Marcy: Your child is entitled to an appropriate placement, even if that placement is not in your local school. If you do not believe that the placement proposed in the IEP is appropriate, you should not consent to it. However, consenting to an IEP is not an all or nothing proposition. You can consent to other aspects of the IEP, such as goals and objectives and services, if you believe they are appropriate, and just withhold consent to the placement. Of course, if you do not consent to placement, then the issue will have to be resolved somehow. Some school districts provide for “administrative review” of IEP disagreements while some provide for informal mediation. If that doesn’t work, either you or the school district may file for due process (which also provides an opportunity for formal mediation).

We have a 5½-year old-son who is repeating preschool by recommendation of the teacher as well as our own concerns. A pediatric neurologist ordered a psychological evaluation in October 2008. After three months of constant run around with our school district they told me that because my son is of kindergarten age but still in preschool, they cannot evaluate him. This, of course, makes no sense to me. Do I have any legal right to have a private evaluation done at the expense of the school district? Your answer will be gratefully appreciated. — Rosa Freetone, 44, Shelby Twp., Mich.

Marcy: Although state laws may differ some with respect to the age of students who are eligible for services, at age 5½, your son is clearly entitled to a FAPE under the IDEA. Indeed, the school district has an obligation to seek out and identify students who might be eligible as part of its “child find” obligation, and if it refuses to assess, you are entitled to “prior written notice” with a full explanation of the reasons.

You should make your request for an eligibility assessment in writing. If the school district still refuses to assess, you can obtain an independent evaluation and request an IEP meeting to discuss the independent evaluation.

The law does not expressly provide that the school district must pay for a private initial assessment, unlike the situation where the parent disagrees with a school district assessment and requests an independent assessment. Of course, if you file for due process on a denial of FAPE for the refusal to assess and for violation of “child find,” or even a procedural violation for failing to provide the required “prior written notice,” you might be able to obtain reimbursement as part of your remedy.

My son attends a parochial school. At his recent IEP meeting, the public school special education said he can only get twice monthly social worker services because he is in a private school. However, if he was in a public school he could get once a week social worker services (as his private psychologist recommended). They also stated that he had a great support system in his school, which is small compared to the public schools, so we shouldn’t move him. My question is: Is it legal to offer one thing to parochial school students and another to public school students, even though it was deemed necessary by one professional not attached to the school? — Kathy, 43, Ann Arbor, Mich.

Marcy: Just to be clear, I understand that your child is not enrolled in the public school system, but has been placed in the private school by you. If that is the case, then yes, it is legal. The requirement to provide special education support to students who are in private school is very limited. There’s a good deal of discretion on the part of each school district as to what they will provide. There is no requirement of FAPE.

I am a graduate student at NYU’s Silver School of Social Work. I was once informed that schools have to meet quotas for special education students, that there must be at least a certain percentage of students in special education in certain areas for funding purposes. Is this true? If so, can you give me a link to information on this? — Andrew Kissel, 28

Marcy: No. There are no funding quotas. Special education has been chronically underfunded by both the federal and state governments for many years, with local school district’s having to make up the difference. Moreover, school districts may not consider cost when determining what placement and related services are necessary in order to provide a student with FAPE.

Can a child be punished by losing a token and/ or recess for not eating at school? — okiesharp, 41, Oklahoma

Marcy: I’m not sure how to interpret your question. Some autistic children have programs that involve a “token economy,” where they are rewarded with tokens for positive behavior and lose tokens for negative behavior. If the child’s behavioral goal involves eating at school in order to maintain nourishment, I suppose the tokens could be used in this way to encourage the student to eat. However, this is not really being “punished” if it is part of a supervised behavioral program.

Read all of Disability Scoop’s original series Scoop Essentials. Your Life. Your Issues. Your World.

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