School won't follow IEP on Tuesdays because my daughter has medical appointments.?

Question

Last May we signed an IEP for my daughter giving her 3.5 hours of special instruction per day to be delivered by a special-ed teacher or a parapro.

They had in their documents, and knew very well at the time that my daughter does not arrive at school until noon on Tuesdays because she has physical and occupational therapy. She has had this schedule for the past two school years. They also have documented that it is doctor ordered and must occur in the morning, early in the week (She is hypotonic).

We called another IEP last week to adjust her goals and the Director of Special Education of the county was sitting at the table when we arrived (ambush?) and proceeded to inform us that, by law, the school did not have to provide her service hours on Tuesdays because we "choose" to take her out of school. So she will not receive any services on Tuesday (even after she arrives!) and we have been told we are free to take her work home and teach it ourselves (which is what we did all last year).

I fail to see how we "choose" it when it is doctor ordered and related to one of her disabilities.

I asked him to cite the law for me which he hasn't done yet.

How do I fight this??? I don't want my child missing 20% of her education. Thanks for your help!

P.S. The school doesn't provide her PT/OT because it is not educationally necessary. So we get it done privately. Again, it is doctor ordered.

Answer 1

There is a solution to any problem before involving due process. Maybe the special education department/school district could contract out with the PT/OT so they can come to the school your daughter attends. That way she will receive her educational needs as well. Another suggestion, is there a special education teacher available that could come to your house to meet your daughter's educational needs? I am not sure why the IEP was written the way it was if the special services department knew that your daughter had prior arrangements. In my opinion, the IEP should be amended/rewritten. Good luck.

Answer 2

You were correct in asking for the legal citation.  But if you asked for it verbally, and not in writing, then you never asked it.  In reviewing your email, I couldn't gather if u tape recorded.  If not, don't make that same mistake twice.  Always tape record especially now that your IEP issues have elevated to a serious level.  In a way, the SpEd Head was right.  You did "choose" to take her to PT and OT.  BUT, if the District is aware of your child's hypotonia, "Child Find" laws require the District to assess in "all areas of suspected disability" [34 CFR Sections 300.530-300.532].  My question for you is:  has the District fulfilled its legal and fiduciary responsibility to (1) assess your child in all areas of suspected disability, and (2) from those District assessments (PT and OT) (a) identified all areas of "need", (b) were those needs translated into some "IEP goals"? and (c) did they then offer "services" for those goals.  Under IDEA, the District has the right to assess using their own evaluators, but, if they haven't even assessed, this is your greater issue for advocacy.  You then, it seems, have just cause to file a state complaint for the Districts violations of SpEd law and regulations.  Even if the District were egregious enough to ignore offering your child an individual assessment plan for PT and OT, the law still requires the IEP team to "seriously consider" any information presented by Parents. Did the IEP team review and discuss your private pay reports and recommendations?  You asked, "How do I fight this?"  You first need to go thru the steps above to determine if the District fulfilled its duties under the law.  If they didn't, it would seem u have a very good case of non compliance on your hands.  And finally, you wrote, "the school doesn't provide her PT/OT because it is not educationally necessary."  Who said this?  Prior Written Notice under 34 CFR 300.302 requires the District to put forth all explanations, consideration, assessments, reports, evaluations as a basis for explaining the reasons why a District proposes or refuses an action.  Lastly, please be aware that if your daughter's PT and OT needs INTERFERE with your daughter's ability to ACCESS her education, THEN she may likely need goals and services to address her NEEDS.  For example, if she has poor gait or coordination that keeps her from participating in P.E. activities, then an assessment must be done by PT and OT (separate) and goals written.  Once goals are written, services must be offered such as Adaptive P.E., Physical therapy or occupational therapy in the clinic or at school. Hope this helps.  E-mail me off list if you need more direct help.  www.business-web.org/Parent_Advocate    GOOD LUCK.

Answer 3

The school has many students and many IEPs to adhere too... So if you don't abide by the timings given to you, then they won't be able to fulil the IEP. You have to adjust your timings to fit the school and not expect them to take your daughter as and when she's available..

Answer 4

You asked this same Q here about a week ago --

http://answers.yahoo.com/question/index;...

Read the answer I give you there.  For more help,  The BEST place for help with this situation is a great message board-

http://www.millermom.proboards107.com/in...

Answer 5

I suggest you contact the protection and advocacy organization in your state for information, advice and/or assistance.  Go to http://www.ndrn.org/ and then click on the pull-down menu, "Get help in your state."

Answer 6

you need to have the IEP amended..

as with other children who are health impaired---they have a modifeid school schedule--either late start, early dismissal, shortened week etc...

the IEP specifically needs to state that the school week will be 4 1/2 days with one day being afternoon session only.

also on theshort day--you may need to agree to a shortened special ed period of service--maybe 1/2 or 3/4 of the time with the services--

if th school day on tues is from 12-3--it could be 2 hours of services

Answer 7

What kind of Special Education Services for 3.5 hours a day - as that could quite significantly affect answers given.  For example if there is 2 hours of academic support delivered in the regular education classroom during math and reading and math and reading are in the morning - that could be the problem.

This is the second time you've posted this but you have not indicated what kind of services your child gets for 3.5 hours a day.  If you can be more specific as to what services the school provides and take a careful look at the minutes of service we might be able to come up with some suggestions for you or tell you if the school is being reasonable or unreasonable.  With what you have provided so far, that is unclear.

Answer 8

I agree with No Cal Advocate.  You are not taking your daughter out of school for the entire school day.  The District still has time to provide the services they have written in the IEP.  Yes, please do ask for the legal citation in writing that supports the SpEd directors claim.  Also, make sure you do EVERYTHING in writing from here on out and tape record all IEP meetings.  Check out our web site at www.valleysnafu.com under Downloads & Info for more information.

The bigger issue I see here is that someone along the line told you that PT/OT was not "educationally necessary."  I suggest inviting the doctor to attend the IEP meeting (by phone or in person) and to present the results of the doctor's assessment to the IEP team for consideration.  The District may insist on their own assessment to be completed, which is their right.  Make sure you review the assessment plan with your child's doctor before you sign it.  There should be an area on the assessment plan to write any additional areas or language your doctor recommends.

For more specific information, please feel free to contact us directly through our web site at www.valleysnafu.com.

Answer 9

I think the school is wrong.  You may have to consult a lawyer who specializes in Special Ed law.  Unless the school can provide the PT/OT services your child requires, they are unfairly penalizing her due to her need for the school absence.  The school did ambush you in my opinion.  They certainly will not cite the law for you.  They want to make it difficult for you and make you do the footwork and pay the legal fees for a lawyer.  However, I believe in the end you will be victorious.  Unfortunately, the school is going to make things difficult for your child throughout her academic career.  Stick to your instinct.

Answer 10

It can be difficult for a school to provide services when students have appointments, but it doesn't sound like the school is trying very hard.

Before "fighting", I recommend trying to discuss it with them again.  Perhaps she could get more hours of service on the other days.  Can the school explain why it is not possible on Tuesday afternoons, perhaps for an hour or two?  

As a member of the IEP team, you can request an IEP meeting at any time.  If you have not done so already, perhaps you could get a letter from the doctor explaining why she needs the PT and OT, and why it has to be done at that time.  Ask the school to include it in the IEP documentation.  Tell the school of your concerns and that you want to come to a reasonable agreement in the best interests of your daughter (you do not need to sign anything you don't agree with).

If you feel that you've tried all you can, you may need to consult a lawyer.  A good source of information about Special Ed. law and advocating for your child is:  http://www.wrightslaw.com/

Answer 11

If you child qulifies for an IEP, then there is special funding given by the state to the school system to provide services for your child.  Find the agency that gives that funding.  They are required to have regular audits, and provide services in order to qualify for the funding.  Get the rules that govern the money, and beat the system over the head with those rules.  

My child has a DEP, and the same type of funding rules apply.  When I threatened to attack the system's funding from the state for not providing services, guess what happened.  

Answer 12

The school only has to provide the opportunity during the hours your daughter is legally supposed to be in school.  You, the parent, are breaking their end of the deal when you withdraw her from school on Tuesday mornings.  I would try to move her therapy appointments ASAP.     Doctor ordered or not it doesn't overcome the rights of the school system.  

Try to change the IEP but be prepared for mediation.  

Answer 13

Unfortunately, you are going to have to play "hard ball" with your district.  Look into hiring a lawyer who has experiences dealing with the school systems.  Sometimes all you have to do is threaten getting a lawyer, but if they call your bluff you want to know who to call......Good luck!