Self Help in the Special Education World

  • Self-Help in the Special Education World:

    How To Get Compliance With An IEP Without an Attorney

    Susan Foley, Attorney at Law

    As an attorney concentrating in Special-Education matters with public school districts, I often remember the times when I was navigating in unchartered waters for my own son, prior to becoming an attorney.  At that time, there were very few attorneys in the Bay Area concentrating in the field of special education.  As a law-school student, I could not afford an attorney even if I was able to find one.  I therefore learned, first-hand, different avenues to take, on my own, when things went awry with my son’s Individualized Education Program (IEP.)

     

    A very common situation is the failure of the School District to deliver the services as written on your child’s IEP.  If you find that your school district is not providing the services as written on your child’s IEP, the California Department of Education (CDE) will investigate your complaint and render a decision within 60 days from receipt of your written complaint.  If the district is found out of compliance, the CDE will order the district to remedy its mistake.

     

    By far, this problem is the easiest to remedy.  School districts cannot unilaterally change your child’s IEP, or the services to be delivered, without your signed consent on an IEP document.  Let’s suppose that the district does one of the following:

    1. Attempts or threatens to change your child’s program as written on the IEP without your agreement OR

    2. The district is simply not able or willing to deliver the services written into the IEP for other reasons

    In either case, your remedy is a Compliance Complaint with the California Department of Education (CDE)

    For example, if your child’s IEP provides for 30 minutes, twice weekly, of group speech therapy, and the speech therapist assigned to your child’s school has not shown up to deliver therapy (for any reason) a Compliance Complaint should remedy that situation.  It does not matter what the district’s excuse for failure to deliver a service as written on the Student’s IEP is.  A district’s obligation to deliver services on an IEP is analogous to “no-fault” liability.  In other words, the district is strictly liable to deliver the IEP services regardless of the reasons that they are unable to.

     

    Common excuses are that the therapist is on maternity leave, or the therapist got married and moved to New York or the therapist went to work for a private agency.  The District must find a substitute qualified therapist and offer to make up all missed sessions (commonly referred to as “compensatory services”). The district also must have the student’s parents’ agreement as to the frequency and delivery of  “compensatory” services and cannot simply double sessions on their own and then tell you  that they made up the missed sessions.

     

    A compliance complaint is a fast, parent-friendly, way to ask for intervention from the California Department of Education in Sacramento, referred to as “Procedural Safeguards” and the “Compliance Department.”  Filling in the form does not require specialized legal training to  initiate a Compliance Complaint.  If you can fill out a form as simple as a job application or credit card application, you can initiate a Compliance Complaint with the CDE, usually in less than an hours’ time.  Here are the steps:

     

    1. Open and Print the form labeled:  Request for Complaint Investigation found at the very bottom of this webpage on the CDE’s website:  http://www.cde.ca.gov/sp/se/qa/
    2. Make a copy of your child’s last signed (consented-to) IEP.
    3. Fill out the form.  When you get to the second page, the first section requires you to describe the problem.  Describe the problem in simple clear words, i.e., “The district is not providing speech therapy as called for in my child’s IEP of 30 minutes twice weekly and has not provided the therapy for at least the last two months.”
    4. The next question on the form is regarding whom you have complained to regarding the matter.  Fill in this section with the specific name of the individual and their title, (the principal of the school or the teacher) and the approximate date that you informed the individual of the problem.
    5. Next, you fill in the blank as to the result of your complaint to date: i.e., “no services delivered” or “IEP continues to not be implemented as required.”  Say it as simple as possible.
    6. The last section requires you to complete the following sentence:  “A complaint investigation would not be necessary if: [blank for you to fill in].  Fill this section In with your hope of complete resolution.  Following is an example:

    “If the district immediately provides a speech therapist to deliver services written on my child’s IEP as called for and provides compensatory services of 2 – 30 minute sessions per week, after school, as arranged with me, for all missed sessions.  I believe the number of missed sessions to be [X], a complaint would not be necessary.”

    1. Feel free to get creative in designing a remedy and keep in mind, the Investigator’s Order may not incorporate your  proposed remedy 100 percent, but he or she should consider your input when ordering a remedy.
    2. The last step is for you to attach the last signed IEP to your signed complaint form.  Fax the completed form and the copy of the IEP to the CDE at 916-327-3704.  If you do not have access to a fax machine, or the IEP attachment is more than 25 pages, make a copy and mail it to:  CDE, Procedural Safeguards, Special Education Division, 1430 N. Street, Suite 2401, Sacramento, CA  95814.  If you have any questions, call them at 1-800-926-0648, they are parent friendly.  Ask them any questions that you may have about your rights and a school district’s obligation.

     

    Once your complaint is submitted, time lines are required to be met by the CDE Investigator.  The investigator assigned may call you and ask you questions.  Answer honestly and thoughtfully.  Keep in mind, that at this point, you are your child’s Advocate, and it does not help you to get emotional about the complaint.  Simply state the facts, as you believe them to be true, and request the remedy that your child will benefit from.

     

    The investigator will contact the district and inquire as to the complaint.  He or she may request documents in support of the district’s side of the story from the district.  Within 60 days, the Investigator will render a report. If the district was found out of compliance , CDE will Order the district to do something. You will receive a copy of the Investigator’s report, but not necessarily copies of the documents supplied by the district to the CDE.  If you want those documents, send a written request with your Complaint Number on it requesting all documents provided by the district with regard to the complaint.  The CDE may charge you a nominal amount of money to provide you with the requested copies.

     

    Keep in mind that this procedure is limited to black and white problems, i.e., services your child is entitled to, but not receiving.  This is not the avenue to take, if you believe your child requires a different program than the IEP provides for.

     

                      Susan Foley has 15 years of experience helping families with special needs obtain appropriate educational services for their children. She is a member of the Council of Parents, Attorneys & Advocates (COPAA); and the San Mateo County Bar Association. She has extensive knowledge and experience with IEP meetings, consultations, mediations, due process hearings, appeals and disciplinary matters. She understands first hand what it means to be the parent of a special-needs child and finds it very fulfilling to help other families.

     

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