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Special Education/DENIAL OF FAPE for NO PROGRESS

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Question
This is very painful for me.  I see a similar question but am saddened by the reply. My child has made no progress in his school for over a year. I mean none. Everything has been from home and growing older and even that is not alot.  My child is OCD with Tourettes and ADD and a significant language impairment. Even with all this, he is a very bright and competent child. Sometimes he melts down over OCD but otherwise he is very very good. He learns a certain way and I have discussed it with the school endlessly and it falls on deaf ears. They would never bring in a specialist. I don't understand how no progress isn't a denial of a FAPE. Do I stand a chance of being reimbursed if I try to find people privately. I don't even know how to do that or if I could afford to lay out the money. I just know there is something wrong with no progress. They offer alot of support but it is not helping. Please don't suggest another evaluation. My son threw up once after a too long evaluation. It makes him very very anxious to be pushed for hours on end and I can't do this to him. He is very smart but he is frustrated by not knowing answers presented verbally-auditorally but he does know the concept.  When he does know answer, he thinks it boring so doesn't answer. I feel so badly for him. He is still very young. Can you give me specific advice on how to craft this as denial of FAPE? I am sure there are cases of kids who claimed this even though there was support, just wasn't what was needed.  Shouldn't the school HAVE TO MAKE CHANGES if what they do doesn't work? I have read many posts here and I must say, I do not care about alienating the school district. They alienated me by promising not to do certain things and then doing them. They have made my son doing work COMPLETELY reliant on external motivators (including JUNK FOOD) which I never ever had to do at home.

Answer
Hi CK,  I am sorry that you and your child are in a difficult situation. I am going to see if I understand the situation, then list your questions, then list my answers.  Feel free to follow up with me once you receive this, if I did not get any information correct or you need clarification.    

It sounds like this is the situation.  You have a very bright son who can understand the concepts of the curriculum but has trouble demonstrating his knowledge.  You feel he needs a specialized strategy/intervention when it comes to answering questions and demonstrating his knowledge in the classroom, and to address his language, processing and attention needs. He is a child who's been diagnosed with Tourette's, ADHD, OCD and language impairment. Sometimes, your son has meltdowns, but overall he is competent and bright.  You have tried to discuss the right methods with the school, but the school has not changed anything it is doing and you don't believe your input has been heard.  The school seems to offer a lot of support, but it is not the right kind of support, and it is not helping.  To make matters worse, you believe that your son is now reliant on external motivators such as junk food, which he is not allowed to eat at home.  You do not believe your son has made any progress, it's just that he's matured and you work with him at home, so if he has made even a little progress, it's not becuase of what has been done at school.  You are considering providing him with private services for which you will be asking reimbursement due to the school district denying him a FAPE.  

Did I get this correct?  Your stated questions to me are:
1.  How is it not a FAPE denial when a child is making no progress?
2.  How to craft this as a denial of FAPE?
3.  Should the school have to make changes if what they do doesn't work?
4.  Do I stand a chance for reimbursement if I find private providers?

These are some complicated questions but I will try my best to consolodate my answers and give you the best advice I can.  I will respect your desire for me not to recommend an evaluation, but I will give you fair warning that I will discuss the importance of evaluations so that you can then determine the best course of action for your son.

You did not say what disability is named in your son's IEP.  I would not be surprised if his disability is "Other Health Impairment", which is characterized by limited strength, vitality and alertness including trouble with environmental distraction, based on a medical condition such as ADHD or Tourette's.  The OCD is commonly co-occurring, an anxiety problem which can have a separate disability determination or be folded into the Other Health Impairment.  The speech or language impairment or specific learning disability may also be applicable.  The learning disability is characterized by processing problems.  The IEP should address specifically how he needs to receive and express his curriculum knowledge, and what he needs to make meaningful progress in the curriculum and his goals.  It would not be uncommon for your son to have difficulty with executive functioning skills--initiating tasks, ihibition, sustaining attention, shifting/making transitions, working memory and task completion.  Kids with all of these also often have trouble with self regulation and regulation of emotion.  Many parents of kids with these difficulties spend a lot of family time struggling with homework, school issues, and it can be quite stressful if the IEP is not correctly written and does not contain the right supports.  

Question 1 answer:
The answer depends on who you are asking.  FAPE is a legal concept, which means that many times, a judge or hearing officer decides if FAPE has been denied.  If you are dealing with a school-based IEP team, and you tell the team that you believe your child needs X to receive a FAPE, then the school team should respond by giving you written notice why it refused to do X and what reports it relied on to make its decisions.  That part is important, because much of proving whether FAPE was denied comes down to documentation and reports, such as evaluation reports.   

A parent who believes her child is not making progress may believe FAPE has been denied.  A school district who believes it is providing a FAPE believes the child is making adequate progress.  Who is right and who is wrong?  The answer usually comes from a dispute process-a due process hearing, a state complaint or a mediation.

The history behind this question of how much benefit is a child entitled to is very long, but it can be said to go back to the Amy Rowley case in 1982.  Here is a nice blog that lays out the history:
http://www.attorneyfeinstein.com/article_Free_appropriate_public_education.html

The Rowley Supreme Court decision is applicable today whenever we ask:  How much progress is meaningful progress for a child?  The answers in my experience come from evaluations, from IEP goals, from data collected about progress in the curriculum, and from classroom data.  The goals on your son's IEP should be attainable, meaning he should be expected to attain or master the goals.  He should be accessing the curriculum in a meaningful way, which is a component of FAPE, and data should be collected on his mastery of curriculum outcomes as well.  I cannot emphasize enough the importance of making allegations about FAPE and progress in a data-driven way.  

If you can chart out data points, challenge the data the school team is using to state your son is making progress, and provide data to the team which demonstrates your point that he is not making progress, then you will be in good shape to make specific requests, or in case you have to go to a dispute such as a hearing or mediation.  Mediations in NY are free and done by individuals who are very committed to mediation.  Here is the manual:
http://nypeace.org/wp-content/uploads/2011/12/New-York-Peace-Institute-Manual-on

I have been in cases where the judge/hearing officer determined that FAPE was provided, even though the child made little if no progress.  My non attorney understanding is that the judge/hearing officer makes the decision about whether FAPE was provided on a number of factors.  At the end of this answer, I gave you a link so you can see how the hearing officers have decided cases in NY in 2012.

Sometimes, a judge will decide that the IEP is appropriate and could be providing benefit, even if the child is struggling, and then the judge determines that FAPE has been provided, since the IEP was crafted well.  I have a service called an "IEP Audit".  Through my Audit, I review all documentation and determine if the IEP is crafted so that the child can benefit.  There are 10 parts to an IEP, as I have laid them out in my Special Needs Advocacy Resource Book.  Typically, parents need experts to help them analyze the IEP.  You can pick up my book, and see how your son's IEP measures up.  If you'd like to explore me doing an Audit, please email me abc4success@msn.com.  Otherwise, I would suggest that you meet with a special education attorney and let him/her tell you how FAPE may be seen in your son's case.  I also have as part of my team an ex-hearing officer, and if you would like to consult with him, I feel that may be valuable to you.  Please email me if you are interested.  You can find special education attorneys at copaa.org as well.

So, my answer to number 1 is:  there are many facets to FAPE, in addition to analysis of whether a child is making progress.

Answer to question 2:
How can I craft "this" as a FAPE denial?  FAPE denial means that the law was broken, so my first advice is to know the law.  A parent most effective in crafting a complaint will cite the law and provide evidence how the law was not followed.  This is necessary when crafting a state complaint, mediation request or due process hearing request, so it is a good skill to learn.  Here is the New York regulations, which also use the IDEA.

http://www.p12.nysed.gov/specialed/publications/

I know this is a monster of a read, but it would be important to craft any letter or complaint using the applicable laws and regulations, giving your evidence that your son is not receiving a FAPE.  

You also may find my Special Needs Advocacy Resource Book useful.  In it, we break down the 10 parts of the IEP and go through many of the procedures that must be followed so that a child's IEP can give him meaningful benefit.  The best way to make a request that will get action, or to state a problem or complaint, is to follow this general formula:  a--State what your child needs, and the evidence you have why you believe he needs it.  Much of the time, what a child needs comes from evaluations.  If a parent makes statements about what she thinks the child needs without back up from some source, then she is not as likely to be taken seriously by the team.  b--State that your child needs X to be addressed in the IEP, and state ways that the IEP is deficient or does not contain what is needed for your child to make progress and benefit from his program, c--make specific requests of the team, proposing how it can fix the problems you have documented in the IEP, and include timelines/by when you are requesting these things.  Use the language from the law as much as you can, and get help from experts like myself to help you identify the right methods, interventions, and components of the IEP in your requests or complaints.  

Answer to question 3:
Yes, when the school team and parent agree that the child is not making sufficient progress, the law says that the IEP team must meet to make the changes in the IEP and methods needed for the child to make progress.  However, if the school beleives the child is making progress and the parent does not, then the school team may disagree to have a meeting.  This is an example of how on one hand, the law says that the parent should be an equal partner with the team, but on the other hand, the law does not say that when a parent disagrees, she can influence the team in any way; she can be 'outvoted' (I put that in quotation marks because there really is not a 'vote', I just used that expression).  I mean, you probably know that in most states, the parent can disagree, but the team's decisions go forward over parent objection, and the parent must engage in a mediation or due process hearing to either stop the team's actions or compel the team to change its mind.

It's a good idea for you to chart your son's progress, if possible.  A visual chart of scores or other data points is a nice way for you to make your point.  It also highlights what data you are using vs. what data the school is using to make claims about your son's progress.

If a child is not making progress and/or not receiving the services in the IEP, or not receiving the appropriate services, the child can be entitled to compensatory education, which is determined by the school based IEP team, or judge/hearing officer if the parent requests a hearing or mediation.  

Inspect carefully the goals in the IEP.  They contain data methods for progress monitoring.  If you are not getting the right data or no data, is is typical for the culprit to lie somewhere in the way the goals are crafted.  

Answer to 4:
I don't know if you stand a chance obtaining reimbursement for private services.  I would need to review your son's information to start to answer that question.  Perhaps you would consider consulting with a special education attorney too.  The general formula I use to help this analysis is as follows:  Be sure you have the evidence/report/documentation about what your child needs.  Then, make these requests in writing to the IEP team.  Bring specialists if needed to the IEP team meeting to discuss your request for specific services or interventions. See if the district will provide these services. Get the IEP team's answer, including notice why it would not grant your request.  Be prepared to dispute the reasons why your request was denied.  I would then say you should go to an expert in the field.  For example, if you are requesting language therapy for your son, you should consider involving a speech language therapist, to document your son's needs and to help you articulate what interventions are needed.  

Then you have a choice:  start private services and pay for them now seeking reimbursement later, or go to a mediation or even hearing to request payment for the private services.  If you start services now, then the provider should provide information for the IEP team, to show that your private provider is doing what was recommended in the evaluations or other evidence you gathered earlier in the process, and to show that your son is benefitting from the service.  That will give you evidence later on in your request for reimbursement.  

I am not an attorney so I cannot legally advise you, but I do know that if a parent removes a child from the district to a private school, after rejecting the IEP and placement, the parent has to give written notice 10 days before the removal or at the IEP team meeting, or the reimbursement can be denied or reduced. A sample letter for this type of unilateral placement is in my Special Needs Advocacy Resource Book.

Here is the part where I talk about the importance of evaluations. :) You can skip this part if you like.  First, evaluations are not tests.  Assessments are tests.  Evaluation means a review of existing data, and can include assessment.  Evaluations are to an IEP what a foundation is to a house.  Evaluation information provides the data and baseline information upon which the IEP should be crafted.  The recommendations in evaluation reports should be seen as what the IEP team should consider for the child's IEP and program.

If your son was too upset by assessments or the assessments were not done in a way that would yield valid and reliable results, then I would suggest for the future that the evaluation planning should specify the accommodations he needs for evaluations.  These are likely similar to what he needs in the classroom, anyway.  Breaking down longer assignments, adjusting the length of task based on his attention, taking breaks, chunking difficult material and interspercing with easier material, etc.  

But, not all evaluations or assessments require such a lengthy session with your son, either. For example, is there a functional behavior assessment which shows whether he needs junk food as external motivation for the behavior of attending to task and completing work?  If not, I would recommend you consider asking the team for an FBA.  The FBA is a team activity, not a test for your son, and it includes your input.  The FBA should identify behaviors of concern and what motivates your son, rewards and inspires him to perform in the classroom.  The behavior intervention plan flows from the FBA, so the FBA should identify positive interventions, and the BIP should inform the team members what to do about the target behaviors.  The BIP becomes part of your son's IEP. So, not all evaluations require his direct involvement.  My book School Success for Kids with Emotional and Behavioral Disorders covers the FBA and neurological, medical and educational perspectives on discipline and behavior.  

http://www.amazon.com/School-Success-Emotional-Behavioral-Disorders/dp/159363431

Evaluation planning requires the team to ask and answer diagnostic questions such as: What type of interventions, special instruction or related services does your son need to make progress in the area of attention and concentration?  The evalution planning can also include checklists, interviews and other informal methods that would either not involve your son, or would feel like a classroom task to him.  Choosing the right examiner and how to decide private vs. public evaluations are part of my Special Needs Advocacy Resource Book.

http://www.amazon.com/Special-Needs-Advocacy-Resource-Book/dp/1593633092/ref=pd_

Since evaluation reports, including classroom reports, are pretty much used to make all decisions for a child, become part of the IEP in the present levels section, and are used to develop accommodations, aides and services, related services, identify interventions needed, track progress, to inform instruction and placement decisions by the team, evaluation should be seen as fundamental to developing an appropriate IEP. Also, any time you are at a stalemate with the team, providing additional information for the team to consider can be a way to move forward and have the team change its mind about things it has been denying earlier.  

OK, I am almost finished...I would just like to say a word about how the IEP team should be configured.  It should include someone who can allocate the school district resources and respond to all your requests for the right services, for compensatory education and for reimbursement as appropriate.  This person is usually not the principal of the school.  It is usually someone from the Board of Education.  You may want to consider having a personal meeting with a supervisor of special education for your son's school or other supervisory professionals so that you can be sure the team includes someone who could, if needed, allocate different or additional resources to your son.

Lastly, you said that you are sure there are other kids in similar situations and I am sure you are right.  I am now providing you with a link to all the hearing decisions from New York in 2012.  In reading these decisions, you will see how FAPE is defined, how the hearing officer perceives issues, what evidence was used and I hope you find this a helpful resource.  
http://www.p12.nysed.gov/specialed/dueprocess/decisions/home.html

I thank you for reaching out to me and giving me the time to write this answer.  I tried to cover each question in depth.  I hope it helps you as you think about how to best advocate for your son.  I wish you all the best in your advocacy efforts!  

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Michelle R. Davis, M. Ed.

Expertise

I can answer questions about disability definitions and criteria for services, the Individuals with Disabilities Education Act 2004, No Child Left Behind, 504 plans, how to craft an IEP that drives the appropriate services, school placement, dispute options, and least restrictive environment. I worked in the public school system as a special educator and am now in private consulting practice where we assist parents as they navigate the special education process. I have expertise in all educational disabilities except blind/visual impairments and deaf/hard of hearing. This includes ADHD and other health impairments, medical conditions, dyslexia and learning disabilities, Autism, emotional disabilities, language processing problems, and interfering behaviors.

Experience

10 years as special educator and administrator in public school system; Director of ABCs for Life Success since 1998; Expert services such as analysis and testimony; Author: Special Needs Advocacy Resource Book: What you can do now to advocate for your exceptional child's education; Special Needs Advocacy Training Institute; internet radio show Teach Your Children Well: Hot Topics in Education; author School Success for Kids with Emotional and Behavioral Disorders released March 2010 (Prufrock Press).

Education/Credentials
Masters in Special Education with Emphasis on Inclusive Education (Johns Hopkins University); B.S.in Special Education (James Madison University); Conduct training for Universities, public and private schools, parent groups. Adjunct professor current George Washington University and prior George Mason University.

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