1. Your child isn't making appropriate progress. Under federal and state special education law, your child should be making progress in his or her educational program. In California, this progress is referred to as “educational benefit.”

What is Educational Benefit?

     Unfortunately, the bar for what qualifies as educational benefit is tragically low. Courts throughout the country have concluded that students can make very little progress and yet inexplicably still receive an educational benefit. For example, consider the following statements drawn from prior legal decisions:

•  A student may benefit even though his progress is far less than one grade level in one school year. Houston Indep. Sch. Dist. v. Bobby R. (5th Cir. 2000) 200 F.3d 341, 349 n.3.

•  A two-month gain in reading in 10 instructional months has been held an adequate showing of progress. Delaware Valley Sch. Dist. v. Daniel G. (Pa. 2002) 800 A.2d 989, 993-94.

• A student derives benefit when he improves in some areas even though he fails to improve in others. Fort Zumwalt Sch. Dist. v. Clynes (8th Cir. 1997) 119 F.3d 607, 613.

• A student may derive benefit while passing in four courses and flunking in two. Cypress-Fairbanks Indep. Sch. Dist. v. Michael F. by Barry F. (S.D. Tex. 1995) 931 F.Supp. 474, 481.

• A student may derive educational benefit even if most of his goals and objectives are not met, as long as he makes progress toward some of them. J.P. v. West Clark Community Schools (S.D.Ind. 2002) 230 F.Supp.2d 910, 943. 

Proving a Lack of Educational Benefit

     Even though the deck is arguably stacked against parents, it is possible to prove a lack of an educational benefit. Proving this, however, requires a strong knowledge of the applicable law and an ability to strategically apply the law to your unique factual situation. If parents successfully prove that their child didn't receive an educational benefit, they can frequently receive legal remedies, such as public-funded private tutoring services to remediate the educational loss.

2. Your child is losing skills that he/she previously had obtained (i.e., regression). Regression occurs when a child not only doesn't make progress, but actually loses the skills he or she had previously obtained. A child can regress for many reasons. Therefore, it is crucial that parents are prepared for the public school's arguments and justifications for why the regression occurred. Frequently school staff attempt to evade responsibility for the regression by blaming circumstances allegedly outside of their control, parents, and even the child. 

     Regression of skills is rare, but not entirely uncommon. In these situations, it is incredibly important to understand why the regression occurred in the first place. Only then can the Individualized Education Program (“IEP”) Team develop an appropriate IEP to help the child regain the lost skills and then successfully move forward to other goals and academic accomplishments.

     Unfortunately, getting to the bottom of why the regression happened isn't always an easy thing to achieve because school staff are frequently reluctant to admit that a regression occurred in the first place. And even when they do admit to it, they often try to blame everyone under the sun but themselves. Having an experienced special education attorney in your corner can help to quickly and effectively resolve the matter.

     Like a failure to make adequate educational progress, a provable regression of skills can lead to legal remedies paid for by the public school. Obtaining these remedies could make all the difference in getting your child's education back on track.

3. Your child doesn't have goals in all areas of need. Once a child qualifies for special education and related services, the public school must provide the child with goals in all areas of need. A simple example of this is when a child has a deficit in a particular area of reading, say decoding, and the school fails to develop an annual IEP goal in this area.

     More often than not, however, when a school fails to develop a goal in a needed area, it is in an area that's not nearly as obvious as failing to create a decoding goal when a child needs it. Often times, identifying the full scope of a child's needs requires an ability to interpret educationally-related assessment reports and other data. Equally important is the ability to understand when the school should've have conducted a specific assessment but didn't. (See #9). Unfortunately, interpreting educationally-related assessment reports is a skill that many parents don't have the time or opportunity to acquire. This is where an experienced special education attorney can help.

     If your child doesn't have goals in all areas of need, he or she is likely losing out on an educational opportunity. Under the right circumstances, the loss of this educational opportunity could result in public-funded legal remedies that could help your child moving forward.

4. Your child's goals aren't measurable. Public schools must develop measurable goals for students with IEPs. Simply put, this means the child's individual goals must be written so that his or her progress toward the achievement of those goals can be tracked and measured.

     A well-written IEP goal begins with an accurate statement of the child's present level of performance (“PLOP”). This is sometimes referred to as a baseline. The PLOP should create a clear picture of the child's current performance.

     Starting with the PLOP, the IEP Team then develops a goal that is specifically designed to the meet the student's individual needs. IEP goals should include a clear statement of what knowledge, skills, and/or behaviors the child will be expected to demonstrate within the year during with which the IEP will be in effect.

     Parents should carefully review their child's goals to ensure they are measurable. If the goals aren't measurable, parents will have no way of knowing if their child made progress or not come the next annual IEP goal.

5. Your child's IEP goals are repeated year over year with only small changes, if any at all. This situation relates back to item #1. If your child's goals are repeated year over year, it's a clear indication that he or she isn't making progress. A school that merely repeats a child's IEP goals, without taking additional steps such as modifying service levels, is likely not complying with its legal obligations under federal and state education law.

6. Your child's service times are inadequate. Once a school has identified a child's needs and developed his or her IEP goals, the next step in the IEP process is to determine what services/supports are required to enable the child to make progress on his or her annual goals.

     Children with special needs frequently receive special education and related services. Special education is delivered as specialized academic instruction (“SAI”). SAI can be delivered in a general education classroom (“push-in”), in a separate small-group classroom (“pull-out”), or in a full-time separate classroom (e.g., Special Day Class).

     Related services include, but are not limited to:

• Speech and Language
• Adapted Physical Education
• Occupational Therapy
• Vision Therapy
• Physical Therapy
• Transportation
• Nursing Services
• Music Therapy

     IEP service times are offered in a form of minutes per day, week, month, or year. For example, a school might offer 750 minutes per year of speech and language services. In this example, the child would receive on average 20 minutes per week of speech and language services. While 20 minutes might be sufficient for some children, others might require much more time per year in order to make progress.   

     If a child isn't making progress, one of the reasons might be that his or her service times are inadequate.

7. The school regularly calls you to pick up your child early. There are many reasons why a might be display disruptive behaviors in school. Some examples include:

• Frustration with academic tasks
• Attention seeking
• Sensory needs
• Anxiety
• Learned helplessness
• Lack of ability to communicate
• Copying behavior
• Task avoidance
• Lack of instructional structure.

     If the school is frequently calling you to pick up your child when he or she has a behavioral incident, this might be a sign that the school isn't appropriately addressing your child's behaviors. Sending your child home early isn't a long-term solution. And each time your child is sent home early, he or she is missing valuable academic instruction.  

8. Your child's one-to-one isn't properly implementing his/her BIP. Many children have one-to-one aides in school. Often times, the one-to-one aide is assigned to help the child eliminate disruptive behaviors that prevent him or her from fully accessing the academic curriculum. These students typically have a behavior intervention plan (“BIP”).

     A BIP is a documented plan (it's part of the student's IEP) that details the specific behavior(s) the staff is targeting. A BIP will generally include both preventative strategies and strategies for handling the behavior when it occurs and how to redirect the student back to educational tasks following a behavioral incident.

     A BIP should be reviewed by the IEP Team, at a minimum, on an annual basis just like the IEP, to make adjustments or modifications as necessary.

     Sometimes an IEP Team develops a great BIP, but for whatever reason, it is not being implemented correctly so the behavior plan isn't working. Many behaviorists will tell you it is easy for school staff (and parents) to inadvertently reinforce negative behaviors if they're not careful and extremely diligent.

     More often than not, the school staff member who implements the BIP is a paraprofessional or one-on-one aide. These staff members generally are not trained behaviorists nor credentialed teachers. No disrespect to these dedicated individuals, but they are usually the least experienced person in the classroom. Yet, they are often tasked with managing students' behaviors that would be challenging for a trained behaviorist, let alone someone without the requisite education and experience. Not to say that someone without the education, training, and experience couldn't do the job well. But missing these foundational knowledge and skills certainly makes the job more difficult. 

9. The school should assess (or re-assess) in a particular area, but hasn't. Schools must re-assess student's with IEPs every three years unless parents and the school agree that re-assessment is unnecessary. Schools must also assess when they have notice of a suspected disability (e.g., behavior, mental health, etc.).

     If your child is experiencing new difficulties in school, the school may have a legal obligation to conduct an assessment to determine if he or she requires additional goals, supports, and/or services.

     If the school doesn't assess when it has a legal obligation to do so, the school may be required to provide your child with legal remedies, such as compensatory education, independent educational evaluations, etc.

10. The school wants to change your child's educational placement. School districts must educate children with special needs in their “least restrictive environment” (LRE). The requirement to provide an educational program in the LRE is often referred to as “mainstreaming.”

But what does least restrictive environment mean?

     Simply put, it means that a special education student must be educated with nondisabled peers to the “maximum extent appropriate.” This means special education students may be removed for the general education classroom only when the nature and severity of his or her disabilities is such that education in regular classes, even with the use of supplementary aids and services, cannot be achieved satisfactorily.

     There is a strong preference for “mainstreaming” in special education law. However, the law also recognizes that some educational settings are not appropriate for some students with special needs. This determination is made of a case-by-case basis rather than by disability category.

How to determine the least restrictive environment for students with disabilities?

     In California, the least restrictive environment is determined by looking at four factors. These factors were set forth by the Ninth Circuit Court of Appeals in Sacramento City Sch. Dist. v. Rachel H. (9th Cir. 1994) 14 F.3d 1398. The four factors are:

• Education Benefit
• Non-Academic Benefit
• Effect on the Teacher and Children in the Regular Class
• Cost

Applying the Rachel H. Factors

Educational benefit. The IEP Team (and a reviewing court in cases where a dispute has arisen) will consider whether the student will receive an educational benefit in the regular classroom.

Non-academic benefit. This is the social component of the educational experience.

Effect on teacher and classmates. Here, the IEP Team will consider two things: (1) whether the student engages in disruptive behaviors that impede his or her education or the education of his or her peers; (2) whether the student requires an inordinate amount of the teacher's classroom time such that other student's would suffer from the lack of attention.

Costs. The IEP Team will weigh and consider the costs involved in educating the student in the general education classroom versus an alternative classroom setting, such as a special day class.

Understanding placement options

School districts are required to have a continuum of placement options available for children with special needs. The continuum of placement options includes, but is not limited to:

• regular education;
• resource specialist programs;
• designated instruction and services;
• special classes;
• nonpublic school;
• nonsectarian school;
• state special school;
• specially designed instruction in settings other than classrooms;
• itinerant instruction in settings other than classrooms; and
• using telecommunication instruction in the home or instructions in hospitals or institutions.

The above list is extensive, but many of the placements can be further subdivided—and they often are. For example, one “special class” might serve children with mild-to-moderate disabilities while another class serves children with moderate-to-severe disabilities.

As you can see, there are many options. These options also provide ample opportunities for IEP Teams to disagree about what placement is the most appropriate such that it would provide the student with his or her least restrictive environment.

What You Can Do About It…Today

     If you identify with one or more of the IEP warning signs noted above, you and your child may benefit from a free consultation with an experienced special education attorney. Under the right circumstances, an experienced special education attorney can help you obtain:

• Assessments (e.g., Independent Educational Evaluations)
• Compensatory Education (i.e., tutoring)
• Additional Services/Supports
• Change of Placement
• Reimbursement for Out-of-Pocket Expenses

      If you would like to discuss your unique situation, please feel free to contact me.

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