Example of a Request for a Better IEP Offer During the COVID-19 School Closures

Photo Credit: Mike Cohen

 

I know that everyone in special education is scrambling to try and make things work during these unprecedented times, but a lot of parents and advocates are struggling to find the language necessary to move things in the right direction and keep entire IEP teams from coming apart at the seams. Our kids who require expert behavioral interventions appear to be losing the most ground.

 

I want to speak to the families and advocates working with students who have behavioral needs by sharing the language of a communication that I recently had to submit on behalf of one of our families. It's altered, of course, to protect the identity of the student, but I think a lot of parents and advocates may be able to recycle this language to fit their own situations.

 

Because so many families are in this same boat without an oar, we all need to share resources with each other so that we can be effective IEP team members. It shouldn't be on us to keep school district people from spinning out, but humans are humans regardless of who employs them and, particularly if you're a parent dealing with this on behalf of your kid, it in the best interests of your child to be the anchor that keeps the rest of the IEP team from drifting off course.

 

Just to put things into perspective, this student is in a Special Day Class (SDC) with embedded mental health and behavioral supports, including a Positive Behavioral Intervention Plan (PBIP) in his IEP that identifies his target behaviors as: Refusing to follow staff directions by either not responding, putting his head down, making statements such as "this is stupid," "why do I have to do this?" or engaging in a different activity. Not surprisingly, this is what he is now doing at home during his school closure instead of participating in the online instruction.

 

Below is a copy of the email exchange that includes the language you can hopefully repurpose if you are having to argue similar points on behalf of your own children or clients. The first bit is an email that the parent and I received from the student's special education teacher/case manager. The second bit is the reply I sent, which has now been forwarded to the district's main office and we're awaiting Prior Written Notice (PWN).

 

For more information about PWN, please see the ad-free early release of our informative Quick Fix video on Patreon by clicking here. This video will be released on YouTube for free, but with ads, in a couple of weeks and run for 30 days on YouTube before retiring to our Quick Fix Video Archive on Patreon, but for the $2.99 monthly pledge to our Quick Fix Video Archive on Patreon, you have immediate and indefinite ad-free access to that information plus all of our other Quick Fix Videos.

 

Because we've already published content on PWN, I'm not going to belabor it, here. I'm just going to get right into these emails and the language I hope at least some of you are able to repurpose and tweak to your own situations.

 

So, here is the email that I and the parent received:

 

Good morning,

I hope ALL is well and you guys are staying safe and well.

I was hoping you could help me with [Student's] participation in our weekly Google Meets. He declined the meeting again for tomorrow  

I really need to speak with him at least once a week.

Thank you VERY much for your help.

Be Well,
[Case Manager]

 

Now, here is what I wrote in response:

 

[Case Manager],

We would appreciate the District's help with this, as well.  Behavior modification is supposed to be embedded in [Student's] specialized instruction as part of his placement, but that component is not being implemented in the home and no one who lives there is specifically trained, credentialed, or certified in the necessary expert disciplines.  The District is responsible for FAPE, even now.  The fact that [Student] is not receiving the behavioral interventions necessary to afford him equal access to education as that given to his peers without disabilities is directly reflected by his refusal behaviors in the absence of his social/emotional and behavioral supports from his SDC.

The parent is not in any position to implement an expert level of positive behavioral interventions to facilitate [Student's] participation on her own.  She is relying on the public agency funded by the taxpayers to deliver these interventions under a federal mandate to provide him with a FAPE, that being the District, to come up with these solutions.  The parent requests an offer of appropriate behavioral interventions as part of a prospective offer of FAPE that addresses these immediate concerns or an offer of compensatory services that will be provided to remediate this behavioral and academic regression once school starts back in the Fall and the campuses are re-opened.

We understand that these are difficult times, but regardless of the difficulties, [Student] still has a legal right to a FAPE and he isn't getting it.  You asking his mother for help to facilitate his compliance with online learning given his unique circumstances inclines us to worry that the District doesn't know what to do and is grasping at straws.  Any IEP team member that actually understands the complexity of [Student's] needs would already know that [Student] requires supports beyond what an average lay person would know to provide.

While [Student's] mother absolutely wants to be part of the solution, she cannot be expected to deliver any kind of home instruction on par with what [Student] was previously receiving in the SDC, which was a step down in restrictiveness from his previous placement, and in which he had been participating for only a few months before the campuses all shut down.  There is an overtly apparent need for an increased level of support to [Student] in the immediate present to avert significant behavioral and academic regression during the shut-down.  

The lack of an appropriate response from the District right now will create a significant compensatory education claim that [Student's] family will have to pursue in order to make him as whole as possible.  We're not looking for a lawsuit, but if that is the only procedural mechanism the family has left to protect [Student], I will refer them to a qualified attorney.  It is the District's burden to offer and render a FAPE.  We remain ready to collaborate with the rest of the IEP team to come up with an appropriate solution, here, and avoid the need to involve attorneys.  We would much rather sort this out than have to litigate.  We want to see [Student] appropriately served as quickly as possible.

[Student's] family will participate in IEP implementation during the shut-down to the degree they are able, with the full understanding that they do not have the training, experience, or professional expertise needed to competently support [Student] behaviorally and academically at home on their own.  If his mother tells you that something that needs to be done is something they cannot do, they will expect the District to propose viable solutions to each such task.  

[Student] continues to require the expert services from which he was previously benefitting in the SDC and the effects of the absence of those expert services is apparent to all of us.  We understand that these difficult times call for out-of-the-box thinking.  So long as there is a viable plan for how to deal with this situation in place, whether it's through the immediate increase and/or modification of how current IEP services are provided, a plan for compensatory services upon the campus reopening, or a hybrid combination of these two options, the family can trust that everything will come out okay in the end, but we can't leave things so open-ended.  That lack of predictability is part of what is causing [Student] to experience increased school-related anxiety and avoidance behaviors.  

The District has a legal obligation to make a firm offer of FAPE based on [Student's] present levels of performance in the immediate moment, as well as plan ahead for the next 12 months via the IEP process.  We're not asking for anything other than what the regulations already promise and we're willing to be creative about how we achieve that as an IEP team given the unique circumstances.  We await the District's PWN in response to the request made herein.

Kindest regards,
Anne M. Zachry, M.A. Ed. Psych.

 

So, there you have it. What I see in all of this is a case manager who hasn't been given the tools and authority to do what needs to be done. I'm not frustrated with the case manager. I feel bad for him because he's being expected to somehow pull this off without the support of his employer.

 

I wish I had the PWN to include, here, because I think it would be equally informative. That may become a future post topic. In the meantime, if you think you can recycle this language to create your own request letter to address similar issues with your own children or clients, please feel free. It isn't the work product of an attorney and I'm not putting this out there as formal legal advice. It's just a tool that might be useful to some people, but if it helps even one family, it's worth sharing.