A solution hiding in plain sight: special education and better outcomes for students with social, emotional, and behavioral challenges.

• Author: Cannon, Yael
• Position: II. Mapping Implementation Failures of IDEA'S Key Provisions B. The IEP Process 2. Implementation Failures of the IEP Process Provisions through Conclusion, with footnotes, p. 451-497

2. Implementation Failures of the IEP Process Pro visions

   For too many of the families we represent, however, the IEP Team meeting does not generate the positive outcomes for which it was designed. Even when the system works as it should to identify, locate, and evaluate children for special education, many students remain un-or under-served because of missteps that occur as part of the IEP process. This process is a complicated one, particularly for parents who may be going through it for the first time. (208)

   For many of the parents we represent--especially single parents, parents who work multiple jobs, and parents with infants who do not have childcare--the first stumbling block is often not even being able to attend meetings when school officials schedule them. The law requires schools to take reasonable measures to ensure the parent's availability, including scheduling meetings at a mutually agreeable time and place. (209) Frequently, rather than contacting the parent to arrange a date and time, schools will send home written notice, often in a child's backpack, that a meeting has been scheduled at a time pre-selected by the school. If the parent is not available at that time or does not show up, it is not uncommon for the meeting to be held without his or her participation. (210) Parents often face tremendous pressure when forced to choose between attending special education meetings and fulfilling the other obligations in their lives. For example, one of our clients--"Ms. Ortiz"--was threatened with the loss of her job as a parking attendant at a local university because she had to keep asking for time off to attend meetings at school during the workday.

   Parents who are non-English speakers (or who communicate in American Sign Language or another mode of communication) encounter an additional set of challenges. Schools commonly fail to fulfill the IDEA'S requirement that they provide an interpreter for all meetings and translate important documents into the parent's native language. (211) Even when documents are translated, it is not unusual for our clients to wait weeks or even months for a translated copy of a notice to arrive in the mail; often, by that point, the action about which the notice is informing the parent has already taken place. Upon reviewing the file of one of our clients--"Mrs. Delgado," an immigrant from the Dominican Republic who did not read English--a law student discovered that she had signed three previous IEPs written in English and had never been provided a Spanish translation. Even with legal representation, the school district failed to provide Mrs. Delgado with a Spanish interpreter at the IEP meeting. In this instance, the law student--who was a fluent Spanish-speaker--translated for her client.

   Using a non-professional interpreter is not an uncommon practice. With a relatively common language like Spanish, schools will often meet their translation obligation by pulling into the meeting another member of the staff who speaks the parent's language. With less common languages, the school often relies upon a family member who also speaks English. In "Ms. Alemayehu's" case, her son's school had established the practice of calling her teenage daughter out of class to translate from English to Amharic at the young man's IEP meetings, which had an adverse impact on the daughter's education. In all situations where untrained interpreters are used, there is great risk that educational jargon and concepts with legal significance will not be properly communicated to the parent. Many parents do not have access to this kind of informal translation assistance in the first place, and schools frequently do not provide any interpreter services at all--professional or otherwise. When they do, even professional interpreters are often unfamiliar with IDEA jargon. Relatedly, we have also encountered the substantive barriers to designing appropriate services that can arise for students who are English Language Learners when a bilingual educator is not present at the IEP meeting. (212)

   Even parents who speak English fluently can experience several disadvantages at an IEP meeting. For example, several authors have noted the informational asymmetries that can exist between parents and school staff. (213) In addition to the general discrepancies that exist between most parents and professional educators--e.g., knowledge of pedagogy, knowledge of legal rights and duties, knowledge of district resources--we have observed several other gaps with which our clients often contend. (214) is that the school frequently does not provide parents with copies of evaluation reports in advance of the IEP Team meeting, making it difficult for them to prepare for and understand the Team's conversation. (215) One of our clients, "Ms. Lipinski," did not receive advance copies of the school's transition assessments of her 18-year-old son, although her lawyer asked for them in writing six weeks prior to the meeting and reiterated this request the week before the IEP discussion. Mrs. Lipinksi and her attorney prevailed on the school to delay the meeting for 10 minutes so they could quickly review the evaluations together in order to participate meaningfully in the ensuing discussion. (216)

   Another common occurrence is for school staff to have a "premeeting" where they develop a draft IEP that is not shared with the parent prior to the Team Meeting. (217) Finally, even when the parent attempts to balance the information asymmetries by, for example, bringing an independent evaluator to the meeting, school staff retains the advantage that comes with being facilitators of the meeting. "Dr. Lewis," an independent neuropsychologist who had evaluated Mrs. Delgado's son (see above), explained that the school limited the duration of the IEP meeting to one hour and listed her last on the agenda. By the time all of the student's teachers had presented their reports, there were only ten minutes left in the meeting, leaving insufficient time to discuss her evaluation.

   In our experience, such barriers to effective participation in the IEP Team meeting itself are compounded by the fact that the imaginations of those making educational recommendations and proposing IEPs are often limited because they either do not have authority to offer certain placements or services or they are not aware of what options exist. Congress has recognized that schools frequently do not follow the provision of the law requiring the presence of a special education administrator who has authority and knowledge of the district's offerings. (218) Even when such a person attends, we have participated in many meetings where the discussion is limited only to those programs and services that the individual school or district already has available. This limitation can render the resulting Team meeting more an exercise in pressuring parents to accept some pre-ordained reality than a process of brainstorming earnestly and creatively an education plan designed to unlock a child's potential. (219)

   The unfortunate tendency toward myopia is compounded by the fact that the resulting plan, however good or bad, is often not even shared with those individuals--classroom teachers--who are going to be responsible for carrying it out. (220) While the law requires that at least one general and one special education teacher participate in an IEP meeting, the reality in our experience is that teachers are often not provided coverage for their classrooms to attend these meetings. When they do attend it is not uncommon for them to have to return to class after presenting their updates and concerns. Also, in higher grades where students have more than one classroom teacher, we often attend meetings where only one teacher is present. This is not necessarily a teacher from a class in which the student is experiencing particular difficulties. As a result, students' teachers are often unaware of the recommendations contained in expert evaluations and may not even receive a copy of their students' IEPs. This was the case with "Victor," a fifth-grader whose classroom teacher routinely sent him to the office for making rude noises and inappropriate comments during her lessons. An expert evaluation revealed that the cause of Victor's quirky behaviors was a non-verbal learning disability. The expert attended his IEP meeting to explain the complexities of this disability and methods for addressing its behavioral manifestations in the classroom. While Victor's special education resource teacher attended the meeting, his general education teacher did not attend and the school did not provide her with a copy of the new IEP. Without the benefit of the neuropsychologist's tips and suggestions, she continued to rely on the strategy of sending Victor to the office to remedy his behaviors, and Victor remained on the school's "behavior list" due to his large number of referrals.

   Institutional failures with respect to parental participation in the IEP process are particularly harmful to students with social, emotional, and behavioral challenges because these are the challenges about which parents and outside providers are most likely to have essential information. For the most part, parents and outside therapists and social workers have less information that is critical to understanding the crux of a learning disability like dyslexia; the educators who are more intimately involved with the student's academic learning are the main repository of such information. With nonacademic challenges that have an adverse impact on a student's education, the information that parents and outside agencies and providers bring to the table has more potential to be transformative for the work of educators in school. Yet, the implementation failures we have highlighted make it less likely that schools--and students--will benefit from the sharing of this information.

   The story of "Sara," a middle school...