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Who is Responsible for Providing FAPE?
How to Document Your Concerns on IEPs, Tape Recordings and Letters
by Pete and Pam Wright

"My daughter has made little or no progress after years of special education. Her IEPs contain vague subjective goals and objectives. If our case goes to due process, is the school liable for not providing an appropriate education? Or, is this the responsibility of the parent who signed the IEP?"

Pete and Pam Answer

Free Appropriate Education (FAPE)

The school is responsible for providing your child with a free appropriate education. A free appropriate education (FAPE) is an education from which your child receives meaningful educational benefit.

Educational Benefit

To assess educational benefit, you must use data from objective tests - this is why we included two chapters about Tests & Measurements and the Bell Curve and a chapter about SMART IEPs in our book, From Emotions to Advocacy - The Special Education Survival Guide.

Vague Goals & Objectives

In due process cases, schools try to defend poor IEPs by claiming that the parent "fully participated" in the IEP process and agreed to these vague goals and objectives.

However, the school is responsible for providing an appropriate education. If the school doesn't want to accept this responsibility, they try to shift the burden onto others. The easiest person to blame is the parent.

If the school gives you an IEP that includes goals and objectives that cannot be measured objectively and IF the school says you must "take it or leave it" (drawing a line in the sand) and IF from your perspective as a parent, something is better than nothing, here are some strategies you can use.

If you are presented with an IEP that you believe is not appropriate for your child, you should say that you don’t think the IEP provides your child with enough help or the right kind of help - that your child has not made progress. You should be polite but firm.

Tip: Think about how Miss Manners would handle a difficult situation and use this to guide you.

When the team asks you to sign consent to the IEP, using your ballpoint pen, on the hard table top, write the following statement ON THE IEP "I consent to this IEP being implemented but I object to it for the reasons I stated during the meeting."

Then sign your name.

Do not be surprised if someone gets upset and says you are not allowed to write on your child's IEP - that it is a legal document. This is not true. Parents can write on their child's IEPs. (But the person who objects may not know this.)

You are a member of your child's IEP team and a participant in the process. The law requires you to make your objections clear. The IEP is the best document to use when you need to make your objections clear.

If someone tries to stop you, continue writing. If someone tries to pull the IEP out of your hands, continue to write while pressing down very hard with your ballpoint pen. If they yank the document away, continue writing as the IEP tears.

Stay calm and cool. Take your copy of the IEP (whatever is left), stand up. Say, "Thank you, I guess the meeting is over." Extend your hand to shake theirs. Gather up your tape recorder and leave.

If you anticipate problems with the IEP team, you should tape record the meeting. Make sure your recorder is out in the open.

For specific advice about how to tape record meetings, read Chapter 26 about "Maintaining Control in School Meetings" in Wrightslaw: From Emotions to Advocacy.

The school has a problem. You have told them you do not think the program is appropriate for your child. You advised them of this in writing on the IEP. You consented to the program, although you made it clear that it is not appropriate.

Restate Your Position in a Letter

When you get home, write a nice thank you letter.

Re-state your position - that you consented to IEP being implemented because "something is better than nothing" and that an inadequate program is better than no program. However, you still believe that the proposed program is not appropriate for your child.

In your letter, advise that you consented to the IEP being implemented and assume that the school will implement it (despite Mr. X's attempt to rip it out of your hands). Transcribe your tape of the IEP meeting.

If you take these steps, the school will want to avoid a due process hearing.

Why?

Your key pieces of evidence are the tape, the transcript, your letter, and the IEP.

In Wrightslaw training programs, we teach participants about the Rules of Adverse Assumptions:

* assume a due process hearing will be necessary to resolve your dispute;
* assume that all school personne will testify against you;
* assume that the school personnel's recollection of the facts will be opposite of yours; and
* assume you cannot testify.

If you cannot testify, how can you make your case? You will use your tapes, transcripts, letters, and the torn IEP. Good evidence.

This actually happened in one of my cases. When the parent began to write on the IEP, the special ed director yelled that the IEP is a "legal document" - the parent was not allowed to write on it, then tore the IEP out of the parent's hands as she was writing her objections on the document.

That case settled quickly.

Pam adds -

These problems (schools offering poor quality services) are similar to the problems people have with managed health care plans. Some HMOs don't want to provide expensive services for serious medical problems. Yet, the HMO staff have not been trained to treat serious medical problems.

Yet some patients succeed in getting expensive "experimental" procedures approved (this is kept quiet by both sides).

You want the school to give your child the help she needs. Sometimes you can persuade the staff to see the problems and solutions. Sometimes they will give you what your child needs because they want to avoid larger, more expensive problems.

This is why tactics and strategies are useful for parents who are trying to get the services their children need.

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