Special Ed Advocacy: Mistakes People Make

Source: FamilyEducation.com

 


Parents

Here are several common errors which can undermine parents' ability to obtain appropriate services:

(1) Viewing the special education process as the moral equivalent of war, fighting that war with a "scorched earth" approach, and letting personal animosity toward administrators and/or teachers distort one's judgment about what is best for the child and what is realistic to accept;

(2) The opposite mistake: trusting administrators and teachers too uncritically; assuming that if they are "nice" they are also competent and interested in serving the child's best interest; not questioning slow, or nonexistent progress as long as the child, parent and teacher have a cordial relationship;

(3) Taking an "all or nothing" approach: waiting too long before getting good independent advice, then insisting on instant delivery of needed services rather than steady progress toward the right program;

(4) Failing to understand that the special education process sometimes requires that the parent educate the child's special education team about the child's disabilities and needs (the school system may not be willfully refusing to meet the child's needs; they may simply not understand those needs);

(5) Not trying a program or added services, even on a temporary basis, when they are offered by the school system -- holding out for an alternative program only to have a hearing officer decide the untried program might have worked;

(6) Attempting to "micro-manage" the details of a child's life in school; even if parents don't feel things are going well, their efforts to control the child's day usually backfire when the hearing officer concludes that the parents were over-protective and didn't let the school professionals do their job;

(7) Focusing on minor, nonprejudicial procedural missteps by the school (e.g., the parent who already knows her rights who says, "Aha! Gotcha! School district forgot to give me the rights brochure!") instead of focusing on the substantial issues in the case;

(8) Not consenting to school evaluations;

(9) Choosing the wrong independent evaluators: e.g., "hired guns" who only say what the parents want them to say, and have a reputation for doing so; those who will not follow through by observing programs, attending team meetings, etc.; those who do not have training or experience to evaluate a child like yours;

(10) Not providing copies of independent evaluations to the school, or not providing them in a timely way;

(11) Not responding in a timely way to proposed IEPs;

(12) Not documenting issues with the school; not sending letters to confirm agreements with the school or to record important conversations with school personnel.

(13) Seeing the school system as a monolith ("All those teachers are incompetent [or wonderful!]"); failing to look carefully at alternatives within the system for this year and at next year's teacher possibilities.

School systems

Anything a school system does that undermines parents' trust creates a climate that is costly in dollars, time, peace of mind, and the quality and success of services given to the child.

Here are the most significant school system mistakes, according to persons at every level of the system:

(1) Refusing to let parents or parents' experts see programs, either within or outside of the school system. When school systems tightly restrict the parents' access to their own programs, the parents wonder what they are hiding and assume the worst; when they refuse to clear the way for parents to see an outside program, the parents will assume that the grass is greener over there;

(2) Failing or refusing to communicate and actively coordinate with outside experts working with the child, such as the child's therapist or a tutor;

(3) Ignoring reports from independent evaluators; failing to speak to those evaluators to clarify ambiguous information or recommendations; failing to add the evaluator's recommendations to the IEP when reasonable;

(4) Failing to respond to parents in writing or at a meeting when a problem arises;

(5) Taking a patronizing and/or antagonistic and/or insulting attitude toward parents; personalizing issues between school and parents; attempting to blame parents for their children's educational failures rather than looking for solutions (school system professionals need to treat parents with respect even if those parents are insulting and belligerent themselves); 

(6) Sweating the small stuff (e.g., spending twenty minutes at a team meeting arguing about whether the meeting can be tape-recorded);

(7) Failing to observe procedural timelines and notice requirements (e.g., scheduling timely meetings, getting evaluations to the parents before the team meeting, notifying the parents who will attend the meeting, providing clear written explanations of parent rights);

(8) Writing careless and sloppy IEPs. Parents, evaluators, and hearing officers all look first at the extent to which the written IEP reflects a thorough and logically coherent view of the child, the goals and objectives for that child's program, and a clear and understandable description of what will be provided, how, by whom, and when; and how the child's program will be evaluated;

(9) Failing to implement an IEP and, worse, trying to cover up that failure;

(10) Failing to modify an IEP that is not working and waiting, instead, for the program - and the child - to collapse;

(11) Failing to provide additional or different services as a way to avoid having to make more restrictive (and expensive) outside placements;

(12) Failing to call in expert consultants from outside the school system with good reputations among both school and parent communities who can help develop or monitor a program for a child with unusual needs;

(13) Losing contact with families who have placed their child unilaterally. Some school systems forget or ignore their continuing responsibility to evaluate, review, and propose IEPs for children when they are attending outside placements at their parents' expense;

(14) Botching the required procedures around suspension or expulsion of students with identified or suspected special education needs (e.g., failing to convene the team, failing to make a manifestation determination, failing to re-examine the IEP to see if services are appropriate and have actually been provided, failure to provide FAPE to suspended or expelled students with special education needs;

(15) Failing to ensure that non-special education administrators - particularly building principals - are fully informed about and are following the required special education policies and procedures.

Independent Evaluators

As informed and articulate as particular parents may be, they usually cannot make a case for particular services or programs for their child without the help of a competent and credible independent evaluator. In due process hearings there is usually no more important witness for the family. In this light, the most serious mistakes evaluators can make are the ones that undermine their credibility or which render their opinions powerless for lack of the evaluator's follow-through. Here are some serious mistakes independent evaluators should try to avoid:

(1) Failing to assess the student's testing performance in the larger context of his/her educational history, family situation, school setting, psychological make-up and other factors. An evaluation can only provide a snapshot of a student. A report that only describes current test scores explains nothing and provides little foundation for the evaluator's recommendations.

(2) Not contacting the student's teacher(s), special education administrator, or other school personnel involved with the student as key sources of information in the evaluation. Evaluators should not simply assume that the parents' perceptions are more accurate than the school's; sometimes the evaluator's most important role is to reassure parents that their child's public school program is essentially sound.

(3) Writing reports that are poorly organized, full of jargon, carelessly proofread, or in which the recommendations do not connect logically to the testing results; using boilerplate recommendations that are obviously not specifically geared to the student and his/her particular circumstances.

(5) Limiting program and service recommendations only to those the evaluator knows are available in the student's particular school system and/or taking the potential cost of providing recommended services into account. Worse, failing to make any educational recommendations at all on the misguided premise that only school employees can decide how to meet identified needs. Special education law entitles the student to services that will enable him/her to progress educationally. The evaluator's job is to recommend appropriate services, not to limit recommendations to those that are convenient for school systems.

(6) Failing to consider and report on the likely risks for a student if recommendations are not implemented.

(7) Not clarifying for parents that there is often a real difference between recommendations that are clinically desirable and recommendations that are legally mandated (e.g., the best educational program for Johnny may be at a private school catering to his specific needs, but the public school program, which offers less intensive special education services in the "least restrictive" setting may be what the law entitles Johnny to). Not referring parents to a competent special education attorney or advocate to evaluate and advocate for their legal rights.

(8) Refusing to leave the citadel: not following through after the report is written; e.g., not attending team meetings, observing programs, and/or testifying when those activities are necessary to ensure that the evaluator's recommendations will be understood, accepted, and implemented.

(9) Working exclusively as a parents' or as a school system's evaluator; this is a sure way to lose credibility as an evaluator over time.

Advocates

The non-lawyer advocate plays an extremely important role in the special education process. A well trained advocate (who is often the parent of a child with special needs herself) can provide invaluable assistance to parents trying to make their way through the complexities of special education law and procedures. A strong advocate can help parents to: 

Obtain necessary information about their child and about available educational alternatives;

Organize presentations for key meetings;

Develop effective strategies and obtain necessary services; and

Make intelligent and realistic choices along the way.

Advocates need to be constantly mindful of the power of their role and the trust parents place in them. Parents see their advocate as the person with particular knowledge of a difficult system; they rely on that person to have a cool head and to apply keen, informed judgment every step of the way.
The more serious mistakes advocates sometimes make are generally ones of excess -- excessive emotion that clouds judgment; excessive advice in areas beyond the advocate's expertise; excessive involvement in a case where the parents would be better off doing things for themselves; raising parents' expectations excessively; and feeding parents' sense of outrage rather than helping them cultivate a calm, persistent approach. (Please note that the roles of lay advocates and of lawyers are similar in many respects, and special education lawyers can and do make the same mistakes on occasion.) Here are some of the more common mistakes we see: 

(1) Perhaps the most harmful mistake some advocates make is replaying their own special education or health advocacy battles through their advocacy for other families; this clouds the advocate's judgment and tends to create a hostile relationship between the family and the school system that has more to do with the advocate than with the family's real needs.

(2) Not informing parents up front what the special education process entails so that parents are aware from the beginning of the potential costs in time, money, and energy that will be required, particularly if they are seeking expensive services or an outside placement. For example, advocates should inform families that just obtaining an independent evaluation is not necessarily enough to convince a school system to implement the evaluator's recommendations (or a hearing officer to order them); the family may have to incur the evaluator's additional expense of school observation(s), consulting with the family's advocate and/or lawyer, testifying, etc.

(3) Assuming they know the child's disability and educational needs before the independent evaluation is complete. Also, attempting to interpret testing results, scores, percentiles, etc. without the experience and training to do so. These mistakes too often lead to giving advice outside of the advocate's expertise, setting parents up for a fall if the evaluator's findings and recommendations are different. The parent needs to hear from his/her independent evaluator, rather than the advocate, about what their child's needs are and what services or program might meet those needs.

(4) Raising parents' expectations too high without regard for the real limits of the process, the available services, and the legal standards that apply.

(5) Being habitually confrontational, mistaking an "in your face" approach for dealing from strength and encouraging parents to do likewise. Not only does this approach undermine the particular family's work with a school system; over time, the advocate gets a negative reputation and becomes increasingly ineffective for all his/her families.

(6) The opposite problem: becoming too "chummy" with the special education administrators the advocate deals with repeatedly. The best approach for the advocate -- and for the parent -- is to combine a steady skepticism with a willingness to try all reasonable options offered by the school system, and to treat even the most arrogant or adversarial school personnel with the same degree of respect the advocate and parent wish to receive themselves.

(7) Failing to learn about the child from the school personnel who work with him or her. The advocate should listen carefully to what the child's teachers say about the child and help the parents evaluate the credibility and usefulness of the teachers' opinions and observations, rather than simply rejecting them out of hand.

(8) Not staying informed about special education procedural and substantive requirements. This means being completely familiar with the governing laws and regulations, state and federal, and with changes in those laws as they are enacted (e.g., studying IDEA '97, the amendments to the federal special education law enacted in July 1997). It also means following the decisions that are issued by the due process administrative hearing officers in your state to know how issues are being decided and what kind of attitude to expect from the individuals who make those decisions.

(9) Not consulting with an attorney knowledgeable in special education law at key decision points and on difficult issues of law or procedure; waiting until it is too late for the lawyer to be fully effective.

Robert K. Crabtree is a partner at Kotin, Crabtree, and Strong, LLP, a general practice law firm in Boston, Massachusetts. Among other areas of practice, Mr. Crabtree concentrates in special education and disability law. 

Copyright 1998 Kotin, Crabtree, and Strong, LLP