Preparing For The IEP Meeting

Preparing For The IEP Meeting

Avoiding Due Process

G. Emerson Dickman, J.D.

Avoiding Due Process
A common sense approach to communicating successfully with school district personnel.

The ability to communicate is the key to a successful relationship with your school district.

The relationship between the parent and the district is often strained:

The Court in Lascari v. Board of Educ., 116 N.J. 30, (1989) found that both parties (parent and school) had an “interest in assuring that a handicapped child receives an appropriate education” and held that “the adversary nature of the proceedings [due process] should yield to obtaining the right result for the child.” If this is true, i.e., the goal of all involved is to gain the right result for the child: Why then are there so many disputes? Why then do parents suffer such anxiety?

There are many subtle and not-so-subtle factors influencing any interaction between parent and school that cause each to have a separate agenda. Therefore, in order to have successful communications it is necessary for at least one of the parties to recognize and meet the needs reflected in the other party’s agenda. In order to avoid unnecessary disagreement, the factors influencing the perspective of each of the parties must be better understood. For example:

A. Good of the whole v. good of the individual:

We invest the professionals working for the school district with the impossible task to set aside their responsibility to all students when recommending an appropriate program for a single student. Money, time, facilities, personnel, and training are some of the resources in limited supply that school personnel are expected to make due for all students, as best they can. When a child requires more than an equal share of such resources, in order to obtain an “adequate” education, the inclination of school personnel is to consider the needs of all students, while the parents are seeking what is necessary to meet the needs of only their child. Clearly “fair” treatment and “equal” treatment are different concepts. In other words it is fair to treat each child according to his/her needs. To treat each child equally is to provide more than necessary to some and less than necessary to others. Although resources are, for all practical purposes, viewed by the school district as finite, the law views the needs of the child to be paramount and assumes that resources are infinite. An adequate program must be provided to every child regardless of complexity or cost.

B. Expectations:

Often parents are allowed to harbor unrealistic expectations. It’s easier to say something positive to a parent. In the short run, their needs are met – their child’s potential will be realized because they are assured that the program offered will provide everything necessary for their child to succeed in life. A year later when their child doesn’t appear to have progressed, has few friends, is being teased in school, and is becoming frustrated, angry, oppositional and depressed; is it any wonder that parents blame the school that promised only “goodness and light.” Expectations must be realistically addressed. The child’s potential and rate of progress in academic, social, and emotional domains must be assessed. Unrealistically high expectations steal from the parents the opportunity to share in the joy of their child’s accomplishments. It is better to be underestimated, and to be praised for unexpected success, than to be overestimated, and be criticized for unexpected failure.

C. Subtyping and Comorbidity:

A child who is said to have a learning disability may have one or more of a myriad of problems impacting on his/her ability to learn. In New Jersey such a child is usually classified either neurologically impaired (NI) or perceptually impaired (PI). Unfortunately, the disability involved is rarely sufficiently identified to justify a program any less generic than the classification. By way of example: a dyslexic learner typically has a relative difficulty with learning to read and spell as compared to mathematics, has good visuospatial skills, and responds well to visual and tactile-kinesthetic stimulation and poorly to auditory stimulation. A so-called nonverbal learning disabled child, on the other hand, typically has a relative difficulty in mathematics as compared to reading and spelling, has poor visuospatial skills, and responds poorly to visual and tactile-kinesthetic stimulation and well to auditory stimulation. Unfortunately, these two very different children often end up in the sameclass with the same teachers who have had the same training and experience. It is up to evaluators, teachers and parents to expand their understanding of learning disability subtypes, the impact of comorbidity (more than one disability occurring simultaneously), and the necessity of focused programs to respond to the unique needs of the child. Without such knowledge schools, with only the best of intentions, find it impossible to appropriately meet the needs of many children who are eventually said to have “fallen between the cracks.” Parents become frustrated and vent their anger against – guess who? Child Study Teams must address the issue of diagnosis, subtyping and focused programming. Unfortunately, a multidisciplinary evaluation, that is otherwise professional and thorough, most often leaves a parent wondering: “What is wrong?” “How do these findings manifest themselves in school and in daily life?”, “What can we do about it?”, and “Are there social and emotional risks?” Unfortunately, parents are often unaware that answers exist and, therefore, don’t ask the questions. They do, however, walk away with the uncomfortable feeling that they have been sent across a bridge, over a bottomless chasm, unsure if it will hold their weight. If this anxiety is not addressed by school personnel, it will come to haunt school personnel. In Flowers v. Martinez Unified School District, C-92-1122-DLJ; (N.D. Cal. 1993), the Court held that: “Without an appropriate diagnosis of Kristin’s special needs, there could be no formulation of an IEP that would address those special needs.”

D. Intervention:

Our system of education evidences intrinsic weaknesses that interfere with the appropriate delivery of services. Three of these intrinsic weaknesses require mention.

1. Schools are required to quantify or establish concrete, measurable growth in pupil achievement. Pre-testing and post-testing are applied to virtually every increment of educational experience in order to quantify measurable growth. This quantitative accountability causes administrators and teachers to de-emphasize efforts at promoting skills that are not readily quantifiable (e.g., ethics, problem solving, and decision making), as well as strategies for the acquisition of social competencies and nonverbal literacy.

2. A related weakness is the slice-of-time perspective adopted by educational evaluators. Our current procedure of multidisciplinary evaluation focuses on what is, with limited concern for prognosis. Such evaluations are motivated by a desire to establish concrete baselines in order to quantify the success of remediation. Possible interventions are overlooked because prognosis is ignored.

3. The aptitude-achievement discrepancy formula used to determine eligibility for special education services is predicated on school failure. This threshold of failuremust be crossed before services can be delivered. Parents constantly complain that their child has a documented disability, but can get no service because he/she gets passable grades. By the time the child fails, it may be too late to preserve their full potential.

This combination of weaknesses has established a dynamic that ignores the evaluation of “risk.” A problem must exist, not merely be possible or even probable, before resources can be devoted to remediation. Our system of education provides greater rewards to those who cure than to those who prevent, reversing Ben Franklin’s axiom that “an ounce of prevention is worth a pound of cure.”

The impact of the lack of intervention to prevent avoidable manifestations of a disability on the ability of parents and school to communicate effectively is considerable. Whom are parents going to blame when they come to realize that their child could have avoided the experience of failure or that the impact of their child’s disability could have been less? The system may be at fault, but it is the people representing the system who are blamed.

The goal of effective communications is to establish a climate of cooperation. Once the resources of the parents and the school are successfully integrated, a united effort is capable of the planning and problem solving necessary to meet the most sophisticated needs of the child. Such collaborative effort requires the family and the school personnel to have a reasonable understanding of the dynamics that exist in their relationship. Educational professionals are trained to relate to pupils, not the parents of pupils. They often fail to recognize the needs of the parent when discussing the needs of the pupil. If such a perspective is adopted by school personnel it is necessary for parents to articulate their needs. Simply expressing something like—”I don’t feel comfortable with what we are discussing. Can you help me analyze my concern?”—will result in a dialogue that will permit the parents to articulate their needs more effectively. Also, Objectivity is necessary if parents are to communicate effectively and assure the best possible program for their child. If due process is required objectivity is essential to isolate the issues relevant to the dispute. As an example, you cannot allow your opinion of a particular person to color your ability to evaluate the merits of his/her statements or recommendations.

A. Barriers to effective communications faced by parents include:

1. Fear. The numerical and educational inequality of the “TEAM” vs. the “Parent” is overwhelming and intimidating. The result is distrust, paranoia and perceived dependence.

2. Subjectivity and lack of focus. Blame, lost expectations, guilt, anger, anxietyand confusion all result in an inability to sort out relevant issues and establish priorities.

3. Ignorance of the law. Ignorance of any kind exacerbates fear, confusion and dependence.

B. To overcome such barriers parents require support and information necessary to turn:

1. Fear into confidence and strength by disclosing to the parents a recognition of their worth in the process. No amount of education or status can give conclusions gathered from a one-hour contact with your child a validity remotely equivalent to the insights you can provide through a lifetime of observation.

2. Subjectivity and lack of focus into objectivity and focus. Parents must often be helped to recognize and set aside motivations not directly related to the best interests of their child. The struggle with “blame”, “lost expectations”, “hurt”, “guilt”, “anger”, “anxiety” and “confusion” serves to cloud the issues, rearrange priorities and misdirect attention away from significant concerns.

3. Ignorance of the law and rights of the pupil into knowledge. This is the simplest barrier to overcome. The code N.J.A.C. 6:28-1 et seq. is boring but understandable. The standard in New Jersey is currently hotly disputed. Although the standard applied in New Jersey is the federal minimum standard [see Bd. of Educ. v. Rowley, 102 S. Ct. 3034 (1982)], it can still be argued that special education pupils are entitled to the “most appropriate” (N.J.S.A. 18A:46-14) program and placement where they can be assured the “fullest possible opportunity to develop his intellectual capacities ” (18A:46-19.1) “to function politically, economically and socially in a democratic society.” (N.J.S.A. 18A:7A-4).

C. Preparation for conference with team:

1. Obtain copies of all individual evaluations before meeting. If team insists that they be present when you receive reports to explain their jargon or conclusions, meet only for that purpose. You need time to review the evaluations before you can take part in a classification or IEP conference. If, as a parent, you feel hurt, shocked or threatened by what you read or are told (i.e., cold sweat) you should automatically know that you are not ready to address issues logically, unemotionally and objectively. Go home, develop questions, and look up terms you are not familiar with (jargon). Now you are ready to discuss real issues armed with knowledge and objectivity.

2. Prepare profile sheet. Organize and write down the knowledge you have concerning your child (Profile Sheet)– the other team members prepare evaluations, you should prepare one too.

3. Review suggestions for effective communications. Review is essential, and rehearsing is recommended, especially in developing rational for statements, i.e., if you do not like something you must be able to articulate why you do not like it if you expect a response to your opinion. “I just don’t like it!” should be expressed as follows: “As a mother, I believe the ages and abilities of the other children in the class don’t provide appropriate opportunities to model the behaviors and skills contained in the goals and objectives of the IEP. The teacher does not exhibit the warmth and nurturing we agree is important and the class lacks the structure and organization which the team has pointed out as being essential.”

D. Developing a program:

1. Evaluation: Obtain thorough understanding of child’s needs through evaluation, assessment and observation.

2. Plan to meet needs:

a) Content areas (reading, written language, arithmetic, study skills, etc.)

b) Social competencies (decision making, problem solving, making friends, age appropriate behavior, etc.)

c) Mainstream experiences (Educate mainstream teachers to provide for child’s learning style.)

d) Carryover. (Often the difference between a private sector placement and a public sector placement is carryover – if parents are vested in the success of a program they support it and its potential for success is thereby enhanced. “What did you do in school today?” vs. “What did they do to you in school today?” Parents must be recognized as an important factor in the success of any program.)

E. Placement:

1. Visit placements potentially capable of meeting child’s needs. Prepare notes on your visits. Compare your child’s needs and the IEP requirements with the services provided.

2. Once placement is chosen modify IEP and instructional strategies to take unique strengths and weaknesses of placement into consideration.

F. Teacher:

All this work and it is often the case that the teacher never looks at the IEP. Years of experience tell her what is right, not “some piece of paper”.

1. Obtain agreement in IEP to convene regularly scheduled meetings with parent, teacher, CST case manager and related services personnel to insure continuity and carryover.

2. Establish direct communication with teacher. Create reason for regular contacts by accepting responsibility to carryover activities into the home environment, and regularly reviewing the success or failure of the tools, strategies and techniques contained in the instructional guide.


1. Assumptions:

A. The Child Study Team is motivated to promote the best interests of your child.

B. You are an equal member of the team with information and insight regarding your child that is essential to preparing a proper IEP.

2. Evaluations:

Review all evaluations prior to meeting with the Child Study Team. Highlight jargon with which you are unfamiliar and prepare questions.

3. Notes:

If no one on the team is taking notes, request that someone does so in order that you can concentrate fully on what is being said. (You can review notes later for accuracy and completeness.)

4. Eye contact:

Establishing eye contact with the person speaking or to whom you are speaking to promote understanding and decrease the potential for intimidation of the speaker by others in the room.

5. The rhetorical question:

In case of a hostile atmosphere use the rhetorical question to establish a base line for communications; i.e., “We are all here to do what is best for Peter, isn’t that right?” Use it to validate your comments; i.e., “Peter enjoys music. I expect that music can be used to motivate him to achieve in other areas, don’t you agree?” (You have just gotten the team to agree to brainstorm the use of music as a tool in the instructional strategies developed to meet the goals and objectives of the IEP.)

6. Understand:

If you don’t understand a point ask that it be restated. If you still don’t understand or if educational jargon is used that you are unfamiliar with, ask for an example or demonstration.

7. Share information about your child:

Go through your Profile Sheet with the team; solicit comments as you do so.

8. Ask questions:

Articulate the concerns you noted in the Profile Sheet or new ones that came up during the meeting; i.e., “This is the first time Peter will be with the mainstream for lunch and gym, how is he going to be protected from teasing? Won’t he be picked on by the older kids?”

9. Provide rational, require rational:

If you ask for something or make a statement, back it up. The statement, “I don’t like the teacher” must be supported by a discussion of “why”. “Because she is disorganized when Peter requires structure and nurturing; she speaks only French and Peter speaks only English, etc.” Of course you must require the same courtesy from the team. Ask them to support their conclusions. A statement that the team “feels”, “recommends” or “suggests” something should be supported by a concrete rational as to why they “feel”, “recommend” or “suggest”.

1. Things my child is interested in:

2. Things my child is ready to learn:

3. My child’s strengths:

4. My child’s weaknesses:

5. Services my child needs but is not receiving:

6. Questions I want to ask:

7. Other notes: