By Jacob Verchereau, Special Education Attorney
It’s no secret that school districts have attorneys – and they are trained in the process of special education law. Generally, the school district has more resources than parents. Parents are usually the “underdog.”
That said, it’s the school district – not the parents – that has the legal obligation to provide students with an appropriate program. In this handout, we’ll explain the important terms parents need to understand, as well as the CSE process, parent’s rights under New York education laws and tips for effectively preparing for CSE/504 meetings.
FAPE: Free Appropriate Public Education
Key word: “appropriate.” The “A” in FAPE means appropriate. It does NOT mean optimal – school districts are not required to maximize a child’s academic progress. A lot of special education disputes come down to this concept- is the program that is being provided to your child “appropriate?” What does that mean exactly? Where is the threshold for when a program is appropriate?
Caselaw:
Generally speaking, a child must be making some level of meaningful progress across all areas – academic, social, emotional, and behavioral. It’s more than just passing grades. We want to see that the child is meeting her/his annual goals. We want to see that no one area of functioning is lagging or preventing academic progress.
For example, a child may be perfectly able to learn the material. IQ and cognitive functioning may be intact. However, a child may have social and emotional concerns that are preventing the child from accessing their education. Maybe the child is experiencing debilitating anxiety, or school avoidant behavior, so they aren’t learning. When the social and emotional issues are preventing the child from learning, then it becomes the school district’s obligation to develop and provide a program that addresses those needs enough to allow the child to learn.
PREPARING FOR CSE (COMMITTEE ON SPECIAL EDUCATION) MEETINGS:
At least once a year, the CSE needs to convene to review your child’s IEP. In most cases, this gets treated like a formality – especially if the parent has not raised any concerns during the school year. I often see short meetings, lasting only 15-to-20 minutes – where nothing meaningful is really discussed. The district usually re-recommends the same program, or a similar program, for the following school year. Everyone leaves the meeting, and that’s it. You get an IEP mailed to you a month or so later.
Now, if you are content with the IEP and the services being provided to your child, that may be fine and acceptable.
However, if your child’s needs have changed – or if your child has not been making meaningful progress in all areas of functioning, then a 15-to-20-minute meeting is not enough.
Let’s focus on how to effectively prepare for such meetings:
1. EVALUATIONS: Parents can and should consider privately evaluating their child to provide an impartial evaluation of their child’s needs. This can be paid for privately if you have the resources. Some Insurance providers will cover some or all of the costs of evaluations. If those are not options, then you can request an “Independent Educational Evaluation” aka “IEE” from the CSE by which the district will fund an independent evaluator. Regardless of how it’s done, it should be done in advance of the meeting. It will give you data to show specifically where your child is struggling. A good evaluation will also provide recommendations on what could be changed to address areas of deficit. Once the report is written, it should be provided to the CSE in advance of the meeting. Please understand that the district does not have to adopt the private evaluation and its findings, but they must at least consider it.
2. PAPER TRAIL: districts are trained to call parents, rather than email, about parental concerns. I have many cases where a parent will email the district to complain, then receive a callback rather than a written response. Make sure you are building your paper trail. Put your concerns in writing so you can demonstrate later that you have complained. If you receive a callback, summarize the call in an email as soon as you hang up and send it back – “to summarize our call, here is what was discussed.”
A couple of weeks before the meeting, be sure to put any concerns you have with the program in writing so they can be discussed at the meeting. Don’t wait until the meeting to raise issues – it puts the district on the defensive and no one is prepared to have a meaningful discussion about your concerns.
3. INVITE PEOPLE to the meeting who have special knowledge or experience about your child’s needs. Private evaluators, therapists, doctors, tutors, etc. Parents are allowed to have whomever they want attend. Accommodations can be made to have them attend by phone or Zoom so make sure you notify the CSE in advance and to make sure accommodations are made.
4. BRING AN ADVOCATE OR AN ATTORNEY: you need to have a voice at the CSE table. It can be very intimidating to sit across from 5 to 10 district professionals. Often, they will tell you they know more about your child than you do. If you have the ability to say “no” and advocate on your own behalf, that’s great- but many parents don’t have that. Also, because this is so personal and emotional, often it’s best to have an objective person representing you and helping you articulate your concerns. It’s also important to have someone there who can interpret the technical special education language, lingo and jargon so you can follow along productively with the conversation.
5. ASSERT YOURSELF: don’t be afraid to assert yourself and state your concerns. Do not agree with recommendations just because you want to play nicely. You are your child’s #1 advocate. If you don’t like the sound of a proposed change or recommendation, ask for more info. State that you do not agree or disagree until you have more info or need more time to process it. Take the proposal to a private provider for a second opinion before responding to the district.
6. ONE IS NOT ALL YOU GET: Parents can call new CSE meetings anytime. You are not stuck with one annual meeting. Moreover, there is no time limit for how long a CSE meeting can, or should, last.
7. REEVALUATIONS: your child must be reevaluated at least once every 3 years. This is called triennial evaluations.
8. RIGHT TO PENDENCY: Parents have pendency rights: if the program gets changed and you disagree, you can assert pendency. Once you’ve asserted pendency, the program cannot be changed until you are granted a hearing. For many parents, this allows the child to stay in the last agreed upon program for another year or more.
9. TAKE GOOD NOTES or have someone with you who takes notes so you can focus and participate in the conversation. These notes are critical because after you receive the new IEP, you should compare your notes to the new IEP to ensure everything is accurate and all programming made it into the IEP in the way it was discussed and agreed upon.
10. FOLLOW UP AND SUMMARIZE the meeting in writing. Once you’ve received the IEP, if there is anything incorrect or that you disagree with, make sure you put it in writing and send it to the CSE.
As you follow these tips , keep tabs on your child’s progress. Try new programming, don’t forget your paper trail. Before the next meeting, review all your letters or emails sent to the CSE throughout the year. It will serve as a reminder of the nuances and issues that arose throughout the year so you can bring the issues into the CSE discussion.
Finally, there will be challenges along the way. Don’t don’t be afraid to file for due process/impartial hearing if the IEP isn’t working. The added pressure of having a complaint pending can often allow for more meaningful discussions to occur. The district will see how serious you are and give you more attention. They will often work with you to resolve the complaint. You can choose to do this on your own or with the guidance of a special education attorney.
