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New Jersey lawyer focusing on special education law and employment law

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I have spoken with parents at great length about their relationships with the IEP team. I’ve emphasized how important the IEP development process is.

Many times, however, parents who have been battling with the IEP team for a certain period of time grow tired of being open. So, they start changing their tactics. They file for a due process hearing, get their child privately evaluated, and hope that, on the day of the hearing, the IEP team will be surprised at the private evaluator’s report that their child is (gasp!) not getting a Free and Appropriate Education (FAPE).

Unfortunately, I’ve heard of these stories. Doubly unfortunately, many of these parents run into difficulties at the due process hearing and further down the road. The reason is simple: the courts don’t like it when the parents are being uncooperative. In the judge’s viewpoint, the goal of the due process hearing is to ensure that the child gets a FAPE — the process should not be used to “get back” at the school district for all the “troubles” they’ve caused the parents.

L.W. and J.W. o/b/o R.W. v. Norwood Bd. of Education is not as extreme as the stories I’ve heard. But it does serve as an instructive example of what not to do.

During kindergarten, R.W. was classified under the category of Communication Impaired and was placed in a regular class for half of the day and in the self-contained Language Learning Disability in the other half of the day. R.W. also received a variety of special education services, including speech, occupational therapy, and physical therapy. (p. 3)

In the following year, R.W. was placed in regular first grade class with pull-out instruction in the Language Learning Disability class. After the parents had R.W. privately evaluated, the IEP was revised to provide R.W. various in-class supports, such as extended time to complete work reading instruction according to the Orton Gillingham method. (p. 3)

Since R.W was successful in his first grade, the parents and IEP team agreed to continue a similar IEP for R.W.’s second grade year. Although R.W. made progress overall, he struggled with math. (pp. 3-4)

R.W.’s parents and the IEP team revised the IEP, incorporating Resource Center math into R.W.’s program. (p. 4)

Subsequently, R.W.’s parents requested that R.W. be reevaluated. A developmental pediatrician conducted a neurodevelopmental re-evaluation and diagnosed R.W. with “Pervasive Developmental Disorder-Not Otherwise Specified” and Attention Deficit Disorder. The developmental pediatrician’s report recommended pragmatic language therapy. (p. 4)

The school district’s psychologist conducted her own evaluation and opined that the “mainstream setting was linked to more problematic behaviors for R.W. than his resource room setting, which was quieter and socially less challenging.” (pp. 4-5)

An IEP meeting was subsequently held. The parties agreed that R.W. should be classified as autism. However, the parties could not agree on a placement. The school district offered two options:

1. Place R.W. in a self-contained Language Learning Disability class in every subject, with mainstream opportunities for gym, lunch, and recess; or

2. Continue the mainstream placement in the regular classroom with an aide, Resource Center pull-out instruction for reading, language arts, and mathematics.

(p. 5)

The parents disagreed with both options. Yet they did not explain why they had disagreed with either option. (p. 6)

Then, the parents informed the school district that they would be placing R.W. in an out-of-district placement. (p. 6)

In a subsequent meeting, the IEP team attempted to discuss placement options and programs for the upcoming school year. The IEP team had even proposed a 1:1 aide for R.W. (p. 6)

At some point, R.W.’s mother agreed to observe the proposed self-contained LLD class in the district.  When R.W.’s mother had the opportunity to observe the LLD class, she was disagreeable, but did not explain to the IEP team why she disagreed with the proposed LLD placement. (p. 7)

Ultimately, R.W.’s parents unilaterally placed R.W. at a private, out of district school, and then filed a petition for a due process hearing seeking reimbursement for tuition in connection with out of district placement. (p. 8)

At the hearing, the Administrative Law Judge (ALJ) ruled that the proposed IEP constituted a FAPE and found that the parents’ refusal to explain their disagreements frustrated the IEP development process. R.W.’s parents should have engaged in an open dialogue and explained their reasons why they had disagreed with the proposed IEP. (pp. 12-13) The ALJ denied the parents’ request for reimbursement.

R.W. appealed in federal court and lost again for the same reasons the ALJ gave. (pp. 12-18).

The lessons to be learned from this case should be very clear. First, sharing information with the IEP team and actively engaging in the IEP development process are very important. Although there may be situations where certain pieces of information should be kept confidential, parents do not have the expertise of knowing what (or when) such information should be kept private. Second, the unilateral placement is a risky gamble–and parents should only pursue it under limited circumstances. Ideally, parents will consult and retain a special education attorney before taking that step.

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