controlling the Outcome of a Complaint

Controlling the Outcome of a Complaint
by Pete Wright, Esq.

My son has autism. He has an IEP and a Behavior Intervention Plan (BIP). Recently, I learned that his teachers put him in a time out box when they didn't know how to handle his behavior. When I pictured my son in that small windowless box, I was shocked and horrified. The teachers called the time out box a "study corral."

I filed a complaint with the state department of education (DOE). The school claimed that the Behavior Intervention Plan was not valid because they had not attached the BIP to my son's IEP.

The DOE found "no violation" because the BIP was not "attached to" or mentioned in the IEP. The state DOE made this ruling, even though I provided copies of the BIP that was in place at the time of these incidents.

Questions:

1. To be valid, does the law require the school to attach the BIP to the IEP?

2. If the answer is "yes," isn't the IEP team responsible for ensuring that appropriate documents are in place?

Review the Facts and the Law

Review the IEP statute (20 U.S.C. 1414(d); Wrightslaw: Special Education Law, 2nd Edition, p.99).

Does the law say that you must attach a Behavior Intervention Plan to an IEP?

Does the law say that you must incorporate it by reference into the IEP?

No, it does not.

Rule Regardless of Facts and the Law

Change one fact in this situation. The person with power (in this case, the state DOE employee) wants to rule in your favor. The school argued that the child's IEP did not have the BIP attached.

As a good judge will do, this person in power would find a reason to rule in your favor.

The judge may find:

"The school district asserts that the BIP must be physically attached to the IEP as a matter of law. The law does not require that an IEP have the BIP attached to it. A BIP is clearly a part of the child's educational plan as set forth in the IEP.

The parties relied on the BIP to be part of the child's educational plan, so the BIP was clearly incorporated into the IEP by reference. Thus, the BIP is part of the IEP, even though it was not mechanically stapled to the IEP."

In the case above, the state DOE employee did not want to rule against the school district. If the BIP and IEP were attached by steel cables, the state DOE employee would find another reason to rule against the parent.

The Decision-Maker Controls the Outcome

This happens all the time in litigation. The judge will find a way to rule for or against one party, regardless of the facts and the law.

In our training programs, I explain that the facts and law do not control outcome. The decision-maker controls the outcome.

You must make the decision-maker want to rule in your favor. When parents write a compelling "Letter to the Stranger," they can often accomplish this objective.

Read the original "Letter to the Stranger" at https://www.wrightslaw.com/advoc/articles/Letter_to_Stranger.html

To Top

Revised:
Created: 03/07/11


COVID-19 Law Advocacy Topics A-Z Training Wrights' Blog Wrightslaw Store Yellow Pages for Kids