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CalAttorney2
CalAttorney2, Attorney
Category: Education Law
Satisfied Customers: 10236
Experience:  Civil litigation attorney for individuals and businesses.
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My son is 14 years old, in 8th grade. We live in PA.

Customer Question

Hi, my son is 14 years old, in 8th grade. We live in PA. He has had an IEP for years, diagnoses - Autism & ADHD. In the last 1.5 years he's sustained 3 concussions. The most recent of which, was 8 weeks ago. He saw 2 primary doctors, the second of which referred him to an expert in concussion at CHOP in Philly. He last saw her about a month ago and we are waiting to schedule a follow up asap. We have an IEP meeting this Thursday. His symptoms of daily multiple headaches, clumsiness, memory loss, balance, mental fogginess and eye tracking problems have all continued. He has been receiving outside PT, where it is reported that he's making progress, however we don't see his improvement as significant. We've experienced a lot of resistance from the school, in fact, they directly violated the doctor's order 2 weeks ago, where it was stated that he was not to take any tests until there was agreement to do so with our son and us, his parents. We documented this several times in email, citing the attached documentation. The principal and vice principal, during a "BrainSTEPS meeting" (a county organization they paid for to attend) defended their teachers by saying that teachers are continually ("fluidly") assessing their students daily, so that was not in violation. My son, was, in fact, given a grade for this test and it was further justified as being comensurate with his prior performances.
At the BrainSTEPS meeting a number of accommodations were agreed upon. One of which came after our polite instance that our son be required to go to the nurse every period for a 10-15 minute rest as he demonstrated (& has a history of) unintentional under reporting of symptoms/difficulty advocating for himself. On each and every request we have been met with resistance. He has been accused of lying, asked to monitor his own time to go to the nurse and yelled at when missing instruction time, it's already been requested to titrate down the number of visits to the nurse, etc.
Prior to this most recent concussion, we had had a mini IEP, where I had requested further accomodations & modifications for language & reading based subjects, where he was clearly demonstrating difficulty even at that time.
The concussion expert, explained that his difficulties may be cummulative and explained that having Autism & ADHD may increase his recovery time significantly. The Dr. recommended a nueropsych exam and we are currently on a very long waiting list.
I'm wondering how I can best serve my child's best interest on Thursday (without the further nueropsych testing). Is there a way to require the team to add medical provisions, even though they are from over a month ago? Can the BrainSTEPS modifications be required to be added? Do I have a leg to stand on now to more solidly request to modify & add accommodations to language/reading based subjects, as I had at the mini IEP meeting?
Submitted: 7 months ago.
Category: Education Law
Expert:  CalAttorney2 replied 7 months ago.
Dear Customer,I am very sorry to learn of this situation.You have every right to ask for a new IEP (or "mini IEP" as you are only asking for changes to a portion of the plan, not a revision of his entire IEP).Your request for intervention due to his failure/inability to self advocate should not have been overlooked - this is a very common issue for individuals on the spectrum and the schools failure to address this is not excusable. Your polite requests should be upgraded to a simple insistence/demand that these accommodations be made. (Unfortunately as parents of special needs children we need to step up for our kids when their needs are not being met, especially when self advocacy is an issue - if your child reports that then interventions you are demanding are not being met, it is time for yet another IEP, this time with a representative from the District).If you are unable to get cooperation from the school, you can also look into bringing an advocate (regional centers, and advocacy programs for autism, special needs communities, and other groups often have resources for this), you are also entitled to bring an attorney if necessary.I understand the desire to work cooperatively with the school, but if they are not reciprocating, your child has every right to have their needs met, and you have lots of tools and resources at your disposal. The medical testing and resources that you already have (the BrainSTEPS, etc.) can be used to support the requests that you are asking for, in addition to your own experiences in finding what works to best meet your child's educational and social needs in the classroom.
Customer: replied 7 months ago.
I have an older son also on the spectrum, where 5 years ago I did have to bring in legal counsel after he was exited from the system for 3 horrible years. It was a devastating experience for the whole family.While, I've tried my very hardest to be friendly and not carry that experience to my younger son, I no longer trust anyone who works for or is paid by the district (BrainSTEPS) included. For a while, I've backed off from documenting every little thing in attempts to be more of a team player and it had worked quite well till the recent events I've reported.Since I have felt the push back from them, I've been documenting nearly every day. I'm sure I am a topic of conversation in no positive way.
I'm looking for some kind of compelling language I can use at the upcoming meeting to support my claims and get them documented into the IEP. Also, how do I get TBI added as another diagnostic category?The last time I used this service, I was able to converse with the attorney until my questions were fully answered. Has that changed?Thank you,
Robyn
Expert:  CalAttorney2 replied 7 months ago.
It is possible to get an additional diagnosis on your child's IEP. His medical record and diagnosis is what is going to be required to add this criteria to his existing IEP (so the diagnosis from his physician or other medical provider who gave the diagnosis).As far as "special language" there really isn't any. It is pretty straight forward - (Example only, use whatever language or phrasing works for you): "my son needs time away from the classroom due to his diagnosis, he cannot self advocate for when he needs this time, so we are going to build this time into his schedule. I believe that the nurse's station would be an ideal place for this, but I am open to other ideas (library, etc.) but he must have this time provided to him and he is not going to be required to ask for it (as we have tried this and it is proving ineffective)." I do not believe our site's policies have changed, but you can always contact our customer service at: http://ww2.justanswer.com/help
Customer: replied 7 months ago.
Do they have to provide me with a draft IEP pior to the meeting and should I ask for what I'm expecting prior to it as well?
Expert:  CalAttorney2 replied 7 months ago.
There is not a requirement for the school to provide a draft IEP prior to the meeting (the committee notes for the IDEA Act itself are actually conflicting on this point - which makes it even more frustrating).However, keep in mind, you are not required to sign to accept the IEP (you do sign to show that you attended the IEP, but you do not have to sign to show that you agree with the IEP) at the time of the meeting.This gives you time to review all of the provisions of the IEP, including any changes, alterations, or addendums that are made following the discussions in the meeting (for example, you would not want to "agree" to an IEP regarding your son's excusal from the classroom until you actually reviewed the language they input into the document itself).Take the time to review it and ensure you agree with the language, if you do not, you can still correspond with the school and come up with a compromise or understanding before signing to agree with it (you don't necessarily have to have another meeting, although you can if necessary).
Customer: replied 7 months ago.
1. Should I be sending them what I am requesting to be added to the IEP prior to the meeting?
2. How long after the IEP meeting do I have to review the documents and make changes if needed?
3. For incidents which occurred with my older son (now 18yrs. old and a senior in High School) and now with the younger one, how long does a parent have to sue the district? And does demonstrated suffering have to occur? I would want no personal renumeration, but any funds recovered to go to Autism research or under privlegeded children.
Expert:  CalAttorney2 replied 7 months ago.
Sending the IEP team a written notice of what you intend to bring up can be helpful as it allows them to better plan the IEP (it gives them time to incorporate your ideas and perhaps have them written in at the time that you meet - if not, you can discuss it at the meeting, let them know your demands, and they can rewrite it).There is no deadline on agreeing to the IEP (I have seen IEPs that were not agreed to for 12 months (so they basically went unsigned until the renewal) - this isn't a good idea, the entire purpose of participating is to have input, ensure that your input, requests, and if necessary, demands are incorporated). Following up to the IEP as we have discussed above is culminated in agreeing to an IEP (if you don't agree with it, take the actions we talked about).You are asking about 2 different things with your two children. With your son that is currently in school, you have to go through the appeals system we identified above (up to the school district), after which you can sue the district to enforce the IDEA Act and amend his IEP. This is not a money damages suit.With your older child, this is a separate question than what we are discussing on this thread, but in general if he has already exited the school system there isn't going to be a judicial recourse here. You can talk to a local attorney and see if there is a possibility of a lawsuit under the IDEA Act, or some other Ed Code, or Civil Rights Statute (this is something that would take a more detailed review of your son's situation than I can provide you on a "Q&A") but in most cases your statute of limitations is going to vary between 6 months and 2 years - but again, I don't have enough information to fully answer this question and you are going to need to talk to a local attorney (while there may be a possibility based on his specific facts and everything involved, this is not a traditional suit).
Customer: replied 7 months ago.
How do I get the TBI added as another diagnostic category? (in addition to Autism & ADHD?) Where in the IEP would this go?With regard to asking for my requests/demands, are you saying my recourse is to keep asking for another IEP meeting to discuss it further if they are not in agreement? Isn't there an experation for when the annual IEP needs to be completed?Can my advanced request be something along the lines of….In light of our requests for further modifications and accommodations at our "mini IEP" meeting on 2/24/16, the most recent concussion on 2/28/16, documentation that this is the third concussion in a year and a half, documentation from Dr. Master and BrainSTEPS, we'd like the added diagnosis of TBI added to the IEP along with modification and accommodations requested previously for language and reading based subjects along with accommodations documented and continued for concussion care.
Expert:  CalAttorney2 replied 7 months ago.
This isn't an unending procedure. If the school is ignoring your request, you start the appeals process.See this handbook for an overview (I am not going to retype it here, trying to overly summarize it is going to lose specifics and be a disservice to both of us): http://www.directionservice.org/cadre/pdf/DueProcessParentGuideJAN14.pdf
Customer: replied 7 months ago.
Can you tell me about the question I had asked below?
How do I get the TBI added as another diagnostic category? (in addition to Autism & ADHD?) Where in the IEP would this go?….and also your opinion of:
Can my advanced request be something along the lines of….In light of our requests for further modifications and accommodations at our "mini IEP" meeting on 2/24/16, the most recent concussion on 2/28/16, documentation that this is the third concussion in a year and a half, documentation from Dr. Master and BrainSTEPS, we'd like the added diagnosis of TBI added to the IEP along with modification and accommodations requested previously for language and reading based subjects along with accommodations documented and continued for concussion care.
Expert:  CalAttorney2 replied 7 months ago.
As I noted above, your son's diagnosis from his treating physician or medical provider (the one who diagnosed him) is what is going to cause that diagnosis to be added.There may need to be additional testing to determine whether or not any new or additional services need to be provided, but his condition is simply added to the IEP.I cannot provide you with formal or specific advice, as I noted, be direct and clear with what you are looking for. Your proposed language is direct and to the point, but I am not permitted to advise you as to specifics on this forum, you need a local attorney to provide you with that kind of formal advice.

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