Sheila or Martie...

[mistmouse]

Please, can you tell me if there is a basis to complain about the SD continuing to have an attorney present at IEP meetings when they know I cannot have counsel present?

As you may remember, we have been in litigation almost constantly with the SD since 2002. However, we are no longer in litigation. I have written no complaints of any sort regarding the IEP not being followed this school year. In October we had an IEP meeting to clarify some points on the BIP. SD invited counsel, I objected beforehand, to no avail. Counsel was not only present, but ran the meeting. I had to argue with the SpEd director regarding my parent input stating I felt intimidated and therefore unable to meaningfully participate in my daughter's IEP. The director wanted to take that out of the IEP. I got to keep it in, as I reminded him it is parent input. I then wrote another letter stating that I was intimidated further because the attorney ran the meeting.

Now, it is time for my daughter's annual IEP meeting, and again the SD has invited their attorney. Is there no way to put a stop to this? Am I going to have to face the SD's attorney, and be intimidated in every IEP meeting for the next five years?

What do I do? Is my only recourse to file a state complaint? I consider this retaliation for fighting for FAPE in the LRE for my daughter, and I also feel discriminated against, as there is no way they can make me believe that they have counsel present at all their IEP meetings.

It is stressful enough to always have 15-20 SD personnel in the meeting against me, the parent. Add to that the fact that the SpEd director is more ODD than my daughter ever thought of being, and I think he could benefit from a dose of Adderall himself. He goes off on tangents and it is hard to reign him in.

Any help would be appreciated.

mistmouse

 

[looking4hope]

Check the federal IDEA law. If the SD has counsel present, then my interpretation is that you are also allowed to have counsel. Your SE lawyer from prior litigation may also be able to answer this question.

I agree that having the SD have so many people there is intimidating. There are some agencies, such as your local NAMI chapter, may have Special Education advocates that can attend a meeting with you. Even though our difficult child's aren't qualified for their services, your local agency that deals with autistic and developmentally disabled children may also point you in the direction of an advocate that can help. There are some agencies that provide the service for free or for a low fee.

Good luck, and let us know how it turns out.

 

[mistmouse]

looking4hope,

unfortunately, I do not have the services of an attorney available to me. My attorney was through Protection and Advocacy and once the case closed, they aren't available to me. I would have to submit an application to show I needed another case opened, and I am afraid that just the SD having counsel present isn't enough. I am aware that if the SD has counsel present, then I am entitled to have counsel as well, but of course I cannot have counsel present.

Due to the number of years and the level of involvement with attornies and advocates already, they consider me to be qualified to be my own advocate at this point.

I am just trying to find a way to prevent the SD from having counsel present for the next half a dozen years.

mistmouse

 

[Martie]

MM,

I am sorry you are continuing to have this problem. It may be a small consolation to you that I use your situation in classes as an example of what NOT to do to parents.

Here is the answer: the law is silent but the regs PREFER that neither party be represented because it interferes with home school collaboration and as you note, is intimidating. Therefore, you cannot stop them. I would go on noting in writing in the IEP and by post-meeting memos that you feel this is inappropriate as there is no current DP or litigation, and that you feel intimidated.

I hope you are not going to meetings alone. I would NEVER do that myself. Taking someone is better than going alone. Is there any chance you can get a local advocate? Sometimes this is more helpful than an att'y in terms of getting a good IEP. Finally, review SMART IEPs on Wrightslaw and get REALLY insistent about objective measurement. This is the ONLY way I know of to hold a SD accountable.

Best to you,

Martie

 

[mistmouse]

Martie,

I was afraid that is what you would say. I will continue to write my letters objecting to the attorney every time I get my invitation to the IEP and am aware they have invited an attorney. I will make sure it gets into the parent input of every IEP that I feel intimidated to the point of not being able to meaningfully participate in my daughter's IEP, then I will write my post-IEP letter stating I feel this is retaliation, discrimination, and intimidation.

I am still going to request mediation so that I have that record that they are bringing an attorney to the meetings when they know full well that I cannot have counsel to represent me.

As for going alone, well, I have nobody to go with me, so the last two meetings since we were no longer in litigation, I have gone alone. There are no local advocate groups. However, I do have the psychologist who has been seeing my daughter for years, and who by the HO's order has to be a part of the IEP as the behavior consultant, and she has my daughter's best interests in mind. At the last IEP meeting, she asked for a break when the attorney was railroading things and she could see I was overwhelmed (partly because I was sick, and partly because I had no idea they were going to push for a BIP that would remove my daughter to alternative school if she could not meet their demands).

Thanks for replying, and I wish there was something I could do to put a stop to this. It is small comfort that our situation is used as a teaching tool, but if what we have gone through can be used to stop even one more child from having to suffer the same fate, it is good.

mistmouse

 

[Sheila]

The only place I've seen in the regs that prohibit attorney attendance is Resolution.

ed.gov comments regarding IDEA 2004:

Comment: A few commenters
expressed concern that IEP Team
meetings are being used by parent
advocates to train parents of other
children, and by attorneys to train their
associates about the school's IEP
process. In order to prevent this, these
commenters stated that the regulations
should identify the specific knowledge
and expertise that an individual must
have to be included on an IEP Team.
One commenter expressed concern
about confidentiality rights; the lack of
credentials for advocates; and the lack
of authority for a parent or school
district to prevent advocates from
participating in an IEP Team meeting.
Discussion: Section 614(d)(1)(B)(vi) of
the Act allows other individuals who
have knowledge or special expertise
regarding the child to be included on a
child's IEP Team. Section 300.321(c)
provides that the determination of the
knowledge or special expertise of these
individuals must be made by the party
(parents or public agency) who invited
the individual to be a member of the IEP
Team. We continue to believe that this
determination is best left to parents and
the public agency. We also believe that
it would be inappropriate to regulate on
the specific knowledge and expertise
that an individual must have to be
included on an IEP Team because it
would be burdensome for both parents
and public agencies.
Additionally, nothing in the Act
prevents parents from consenting to
have an observer who is not a member
of the IEP Team present at the meeting,
as the parent can consent to the sharing
of confidential information about the
child. With that exception, it should be
emphasized that a person who does not
have knowledge and special expertise
regarding the child and who is not
requested to be present at the IEP Team
meeting by the parent or public agency
would not be permitted to be a member
of the IEP Team or be permitted to
attend the IEP Team meeting as an
observer.
Changes: None.

I'd go at this from a different angle -- via OCR. If you feel this is an intimidation tactic, Section 504 may help. (I doubt they can prove that a sd attorney attends every IEP meeting.)

 

[mistmouse]

Thanks Sheila, How do I get more info on OCR and Section 504 complaints? I think I am going to have to do something drastic to put a stop to this intimidation. I have already put it in writing in more than one letter that I feel intimidated by the SD having counsel present when they know I cannot have counsel present.

mistmouse

 

[Sheila]

I hope the following links are still good -- haven't had to file a complaint in a while. lol

But if not, it should give you some leads:

How to File a 504 Complaint with the US Department of Justice
http://www.usdoj.gov/crt/ada/cguide.htm#anchor65610


OCR Complaint - Timeliness of complaint
http://www.ed.gov/offices/OCR/docs/ocrcrm.html#I_F

OCR Complaint Resolution Manual
http://www2.ed.gov/about/offices/list/ocr/docs/ocrcpm.html


How do I file a complaint with OCR?
http://www2.ed.gov/about/offices/list/ocr/docs/howto.html?src=rt


OCR 504 and Title II prohibit retaliation for advocating or filing a complaint
http://www2.ed.gov/policy/rights/guid/ocr/disabilityoverview.html


504 complaint
http://www.advocacyinc.org/ED9_complaint.htm


OCR Complaint by Wrightslaw.com
http://www.wrightslaw.com/info/sec504.faqs.ocr.complaints.htm

The Court of Appeals reviews the elements of a retaliation claim under Section 504 and the ADA. (1) the mother or student was engaged in a "protected activity." (2) the person or persons alleged to have retaliated were aware that the mother or the student was engaged in a protected activity. (3) An adverse decision or course of action was taken against the mother or the student. (4) A causal connection exists between the protected activity taken by the student or parent and the adverse action taken by the school personnel. Thus the Circuit Court of Appeals concluded that the parents had alleged a viable claim that the school district had engaged in retaliation, intimidation, coercion, threats, and interference with their advocacy efforts. The Circuit Court also found that Rose was denied a Free Appropriate Public Education because all the retaliation by the school district denied her any chance of "meaningful educational benefit." The parents had sought damages for the school district’s misconduct, under 42 U.S.C. 1983.​

The Americans with Disabilities Act, 42 U.S.C. 12101, prohibits "retaliation" [at 42 U.S.C.12203(a)], "interference", "coercion," "intimidation" or "threats" [at 42 U.S.C.12203(b)] against an individual who is "opposing any act or practice made unlawful by" the ADA or who "has aided or encouraged any other individual" in the exercise of rights protected under the ADA. You should complain to the state education agency (which has duties to oversee this misconduct under the IDEA, 504 and the ADA) using the language prescribed by the Supreme Court in the Gebser case, and demand that the state order the local school district to stop violating your rights, and the parents' rights, in regard to participation in educational planning for that child.

Remind the state education agency in those complaints that the state cannot lawfully pass federal dollars through to a local educational agency that the state now has been notified is discriminating in violation of Section 504 [see 34 CFR 104.4(b)(1)(v) and (b)(4)]. So you should complain to your state that they have only two lawful options: to force the local district to correct their misconduct, or to withhold the federal dollars to that local district that refuses to end its noncompliance.


retaliation cases
http://www.wrightslaw.com/info/teach.index.htm

 

[mistmouse]

Thanks Sheila,

Most of the links are still good. I am most grateful to you for this info. I hope the director of SpEd will just decide to forego having an attorney present and I won't have to take it further.

mistmouse

 

[looking4hope]

Just an update. I spoke to a Special Education teacher at my school, and he said that if the SD has an attorney present, he law is that you get to be represented at the SD expense. You are legally allowed to have an advocate there. His advice was to call the SD Special Education office and tell them that as long as they have an attorney present, that you want them to provide an advocate at their expense. He did not know where exactly this is in the law, but that was his understanding. I would try and find out more anyway.

 

[Martie]

I am almost certain that if you are correct (Special Education teachers generally are NOT a good source of legal advice), then it is state law or SD policy. It is not in Federal law.

Sheila,

The deal about attorney's not being preferred was in the Q & A implementation questions accompanying Section 300. I may be misremembering and that commentary applied only to IDEA 97...With this additional information, does it ring a bell?

Martie

 

[mistmouse]

Well, I just received word that the SD is refusing to have mediation. I was contacted by an employee from the State Department of Special Education who says they had talked with the director of SpEd and he refuses to submit a joint request for mediation as there is no reason to mediate them having their attorney there as they are within their rights to have her there. I understand all of that. So, will a fascilitated IEP meeting just be refused as well. I mean, does that have to be agreed on by both me and the SD, or can I request a fascilitated IEP meeting and they have to comply? If they can refuse both the mediation and the fascilitated IEP meeting, then that only leaves a parent one recourse, which is the state complaint or higher. This is ridiculous. I suppose I am going to have to file something so that they can be forced to prove that they have an attorney present at other IEP meetings besides my daughter's. Of course I know they will falsify records if that is the case to show she was at IEP meetings she never attended.

On the plus side, the employee from the state department of SpEd said the director of SpEd must feel I know the IDEA as well or better than he does in order for him to feel he needs an attorney at the meetings to be on level ground. :crazy1:

mistmouse

 

[Sheila]

I believe the facilitated IEP step used in a limited number of states -- yours may be one. Check your state regs for requirements. It may be optional, therefore, the sd would decline.

On the plus side, the employee from the state department of SpEd said the director of SpEd must feel I know the IDEA as well or better than he does in order for him to feel he needs an attorney at the meetings to be on level ground.

Couldn't help but to lol. On the other hand, it tells you that the State knows they have compliance problems.....