Episode 70: The IEP – What Parents Need to Know – Dina Kaplan

LD Expert Podcast with Jill Stowell
The IEP: What Parents Need to Know
Dina Kaplan

 

Jill Stowell: Your child needs help in school. Who should you talk to? What rights do you have? Which laws apply to you? Today, we are going to wade into the IEP process and give you the opportunity to ask your questions live.

[Welcome to the LD Expert Podcast. Your place for] answers and solutions for learning differences, dyslexia and attention challenges. I’m Jill Stowell, your host, Founder and Executive Director of Stowell Learning Centers and author of Take the Stone Out of the Shoe: A Must-Have Guide to Understanding, Supporting and Correcting Dyslexia, Learning and Attention Challenges.

Our guest this evening is mom and special needs attorney Dina Kaplan. I’m going to let Dina tell you more about herself but she has been where you are and lived the IEP experience as both a distressed parent and as an attorney. She is a great resource for you and she is going to do a live Q and A, so start putting your questions in the chat.

Welcome Dina.

Dina Kaplan: Thank you. Thank you for inviting me. It’s nice to be here. Go ahead, sorry.

Jill Stowell: We just had such a wonderful conversation earlier and I’m just delighted to have you here tonight. So thank you for making time to do that.

Dina Kaplan: You’re welcome and I love doing this. I love talking about what brought me to my passion and that is my son who is going to be 30 in February which is hard for me to believe because I’m only 27 still.

Jill Stowell: Right.

Dina Kaplan: But when he was born, he had special needs. We did not know the depth of these special needs and honestly we never got the answers to all of our questions. The best that anybody ever gave us was, “Oh, we don’t know.” So nobody could answer the question as to what was wrong with our child.

They could not put a name to it, so to speak. So we never got a specific diagnosis. What he has is what we refer to as the “Brandon Syndrome”. What that is, we deal with whatever the day happens to bring. Now being almost 30, he’s still non-verbal. He still does not have any self-help skills, so he doesn’t feed himself or bathe himself or dress himself or toilet himself.

So it’s all 24/7 hands on. Thankfully I’ve got a lot of help because I have a full-time job in addition to being a fulltime parent with a full-time job taking care of an adult with special needs.

So I have lived through the IEP process. I have lived through all of the different agencies that provide services to children and adults with special needs. So what I wanted to do is just start and talk a little bit about what Jill said. What do you if your child is struggling in school? It also depends on where your child is in school.

Assuming your child is in a public school or a charter school which is also a public school, and you have concerns about your child’s academics, you can ask that the district or the charter assess your child for special education.

What that means is they would conduct assessments in the cognitive abilities. They call it a comprehensive psychoeducational assessment. So it looks at your child’s cognitive abilities, your child’s academic skills, your child’s socioemotional abilities, their adaptive skills, how they deal with their day-to-day functioning and then if your child has for example any language needs, you could ask for speech and language assessment. If they have fine motor needs, you could ask for an occupational therapy assessment. What happens is once you ask for your child to be assessed for special education, the district has one of two options.

The first one is they can agree to assess your child and that would be in all areas of suspected disability and we will talk about that in a second. The other option is they can say, “No, we’re not going to assess,” and give you the reasons why. They have to give you what they call a prior written notice.

So often I see kids are struggling in school. Parents send the district or whoever your contact is at the school a letter or email requesting that your child be assessed for an IEP, which is the first thing that you have to do. Always put it in writing. I never used to like email but this email seems to be acceptable at this point.

So you can say, “Dear assistant principal or principal. My child is struggling and these are the ways in which my child is struggling. I want my child assessed for special education.”

Jill Stowell: So I just want to make sure because we have parents, some parents who are deep into the process and some who are really new into it. So the first thing if they feel like their child needs help and they’re not already getting help at school, then they want to send a letter or an email to say – tell us again Dina who they send it to.

Dina Kaplan: Either the teacher, the assistant principal, the principal, whoever you’re in contact with on a regular basis. It’s usually going to be the teacher. Sometimes the assistant principal. But it works to send it to anybody at the school that has knowledge of your child and the letter should be specific or the email should be specific about what your concerns are.

For example my child is struggling with reading or my child can’t do math or I would list all the things that your child is struggling with because the law says that they have to assess your child in all areas of suspected disability.

But very often what I see is once a parent asks for an assessment for special education, the response is, “Oh, well let’s have an SST meeting,” and that’s referred to or sometimes as an SSPT meeting. It’s basically a student success team meeting or student – I can’t even say it.

Jill Stowell: Like a study team meeting or something?

Dina Kaplan: Study team meeting or student progress meeting. They call it a bunch of different things but it’s what we call the student stall team meeting because basically what happens is they get your letter requesting special education and the response is going to be, well, we need to check what our response to intervention is first.

In other words, have they done any kind of interventions that they can do, short of assessing your child for special education? While it’s appropriate to do a student – let’s just call it SST meeting. It’s not appropriate to wait until your child is struggling more in order to get your child assessed.

So the assessment process is a long one and they can do any kind of intervention, like a reading intervention or whatever it is that they think might help your child while they’re doing the assessment for special ed. What happens is …

Jill Stowell: OK. And that’s a little bit different than the message that we often get. You kind of hear, “Oh, let’s do an SST meeting and see what things we can do that will make a difference and then if it doesn’t work, we will do the testing.” But you’re saying they can do that simultaneously. You can do the SST, start doing some interventions but get that assessment process started because it takes quite a long time.

Dina Kaplan: The law I’m referring to in this area is called the Individuals with Disabilities Education Act. So what we refer to as IDEA. Of course there’s lots of acronyms that parents have to learn. It’s like a whole new language when their child has special needs.

But what the law says is that response to intervention is something that the school can do but it doesn’t prevent them or stop them or allow them not to do an assessment for special education if there’s a basis for assessment.

Basically, there’s what we call Child Find Obligation and what that obligation is under the law is that if the district or – I always refer to the district so let’s assume it’s a district. It could be a charter. It could be another public school. But let’s call it the district which would be essentially your school, your local school and whoever you’re working with, the teacher or the assistant principal, et cetera.

So what you would do is request that your child be assessed and the assessments. You know, I mean the assessments that they use are going to look at, like I said, all areas of suspected disability. The Child Find Obligation basically says that if a district, a teacher suspects that a child might have a disability and for our purposes we’re talking about a learning disability, then they have to assess. They don’t necessarily have to assume that the child is going to be eligible. They have to assess.

So, so often parents will ask for an assessment. They will say, “Well, we’re going to do the student study team meeting and see how it works,” or they say, “Oh, your child is getting good grades so they’re not going to qualify.”

So those are not the answers. The answer is you as the district, the school, have an obligation to assess a child if you think that they might have a disability.

Jill Stowell: So Dina, I thought I heard you say earlier that sometimes the district doesn’t have to assess, that they either assess or they somehow opt out.

Dina Kaplan: What they do is the law requires them to either provide you with an assessment plan which they have to provide within 15 days of your request or provide you with what we call a PWN, a prior written notice that will state why they’re not going to assess what they relied on. Your child is making good grades so we don’t think they’re going to qualify, so we won’t assess.

That’s not the right answer but OK. There are things that we can do with that but so often I will have parents come to me after trying SST meetings, getting notices from the district that they’re not going to assess their child. The child continues to struggle and a whole lot of time goes by.

If your child is struggling in school and you suspect that the child might have a learning disability or your child has ADHD and is having problems accessing their education because they can’t sit still or they can’t do their homework or they do their homework and they can’t turn it in because they can’t find it. I mean there’s a multitude of reasons why a child might be struggling and so what happens, like I said, 15 days do the – they provide you with an assessment plan that will indicate all areas that they’re going to assess in.

If you have any questions about those assessments, you can always ask what they’re going to assess and then if they say, “No, we’re not going to assess,” you have options, which I want to come to after we talk about if the district does agree to assess. Unless Jill, do you want me to talk about those options now?

Jill Stowell: First I was just thinking already there’s just so much information that parents need to know and particularly if parents are new to the process. How can they get a handle on what they need to know? Is there a website they can go to or do you have a recommendation for that?

Dina Kaplan: Yes. It’s extremely overwhelming and the one thing that I tell parents to access most frequently is publication by Disability Rights California. Their website is disabilityrightsca.org. So altogether disabilityrightsca.org and you go to “Publications” and it’s called “Special Education Rights and Responsibilities,” and that publication basically is written in question and answer form. It quotes the federal law and the California law but it’s very easy to understand and there’s so much misinformation out there on the internet.

The first thing we do is we Google something as we always do. We Google. You know, which is great but you have to know what you’re looking for when you Google in this area because there’s so much misinformation. So I would tell you, if you want some very accurate information, the best publication to get is the “Special Education Rights and Responsibilities”. You can download it chapter by chapter onto your computer or print it if you want to print it and refer to it and it’s a great resource.

Jill Stowell: Great and we will put that in the show notes so that people can refer to it but I know there’s just so much. I remember when I went into special education as a teacher, I was so overwhelmed by all the acronyms and everything and so I know it’s so much for parents. So that’s a great resource and then let’s go back and talk now about the assessment a little bit.

Dina Kaplan: OK, yes. So there is some dispute resolution that I want to talk about a little bit at the end if the district says, “No, we’re not going to assess,” because it’s there. If the district says, “OK, we’re going to assess. Here’s your assessment plan,” you sign the assessment plan. Give it back to them. The district then has 60 calendar days to do the assessments and hold the IEP meeting. That does not include school holidays in excess of five days. So usually winter break, some schools are off for all of Thanksgiving week. So it would exclude those times in terms of calculating the 60 days for the assessment.

During that time period, the assessment, what it’s going to look like is let’s assume it’s the school psychologist that’s doing the psychoeducational assessment. The school psychologist is going to interview the parents first and foremost, find out what their concerns are because that’s very important, find out medical history, mental history, educational history, talk to teachers, look at – depending on the grade that the child is in, look at previous report cards, previous testing, that kind of thing.

Then they do some standardized testing of the child. Very frequently they give behavior rating scales to the parents and the teacher. Depending on the age of the child, sometimes also to the child. Not for a young child usually but for maybe a teenager or somebody who’s in high school.

Then from there, they also consult with the special education teacher that’s doing the academic assessment and the academic assessment is usually done with a standardized test either called the Woodcock-Johnson or the KTEA, which are pretty standardized academic assessments.

There are a couple of others that I see floating around but those are the two that I see most often and those will look at reading ability, math ability, writing ability and general knowledge. So that tests all different areas of academic skills. 

So the psychologist will look at that testing and compare it to the cognitive abilities of the child and determine if there’s a learning disability, if there’s not a learning disability according to their determination, if the child might be eligible under another category.

So learning disability is SLD, specific learning disability, and then oftentimes the child that’s not eligible under SLD might be eligible under OHI which is “other health impaired” which I see frequently for kids with ADHD and kids with anxiety, if their disability is interfering with their ability to access their education. So in other words if their attentional issue is causing problems with accessing their education, then they might be eligible under OHI.

The other thing that I see frequently is if a child has language issues, that might fall under the purview of the speech and language therapist and the child might be eligible, SLI, speech and language impairment. That would be determined from an assessment by the speech therapist and of course eligibility then is determined by the IEP team. What happens is – OK, go ahead.

Jill Stowell: Before we go on there Dina, one of the things that I think is really important for parents to understand is, well, you mentioned when you write a letter to the school requesting an assessment, to tell the – you know, to tell them what you’re concerned about and I just want to say with students with learning disabilities and dyslexia, sometimes these kids are really good at masking it. They’re smart and they find ways to kind of cover their challenges and look like they’ve kind of got it together at school and then they get home and they just fall to pieces and you have spent a tremendous amount of time working with them and reteaching them.

If that’s the case, you need to make sure when you write that letter, that you’re really describing what you’re seeing because sometimes with our kids that are perhaps going to qualify for specific learning disability or kids with dyslexia, it isn’t as obvious at school sometimes. So I just wanted to make sure we said that and also as you go ahead and talk about the IEP team, parents remember you are a really important part of that team. You know your child better than anyone so there’s going to be a lot that you can bring to the table there too.

Dina Kaplan: That’s very true and I would tell parents to be honest and talk about the struggles at home because you’re right Jill. Sometimes the kids are doing fine at school because they’re doing so much work with their parents after school and at night. The other thing too is that grades are not always the telltale eligibility, right? Even if a child is getting good grades, there are other issues, socioemotional issues that might come into play, that might determine eligibility.

But I think that for those parents who are dealing with a child with specific learning disability, with dyslexia, it’s going to be very important to talk about the struggles at home as well. You’re right, Jill.

So when you have your IEP meeting, it’s going to be all the experts sitting on one side of the table telling you everything that’s wrong with your child. It’s very intimidating and I was a litigation attorney for 14 years before my son’s first IEP and I cried through the whole thing. I was just like, “This is awful. I hate this. I don’t want to do it anymore.”

But yeah, it is a process and I guess what I should tell you is that I’m also a lawyer and I’m a lawyer with the law firm of Vanaman German and when my son was having problems way back when in school, I was like, “Who’s this Valerie Vanaman person I’m hearing about?” 

All the parents were saying, “Oh, you need Valerie. You need Valerie.” So I contacted Valerie and I said, “I need you,” and she said, “Dina, you’re a lawyer. You can do this.” I said, “No, I can’t represent my own child.” She said, “Well, if you need me, let me know.”

Turned out that I was able to represent my own child in one matter and that followed him all the way through school. So they were kind of a little bit afraid of me. My husband used to make the joke that on my son’s file it says, “Preexisting condition. Mom is a special education attorney.”

Then clients would come to me and they would be really surprised that school was giving me a hard time because of my background. I know what I’m doing, right? But when it comes to your own child, you’re so emotionally involved. It can be really overwhelming. So when you go to an IEP meeting, stack the deck on your side a little bit. Bring your spouse. Bring a friend. Bring somebody who knows about your child that can sit there and be your second set of eyes and ears. It's going to be very important.

Two other things that are very important. One is ask that they give you copies of the assessment reports prior to the IEP meeting, preferably a day or two so you have a chance to read them over because if you go to the IEP meeting and they sit there and hand you a document prior – you know, at the start of the meeting and start reviewing it, I don’t know, but I can’t read and listen at the same time. So it’s going to be very important that you at least know what that document says and are able to participate and listen.

Very frequently schools will say, “Well, we don’t have to give you the document before the IEP.” That legally is true. They have to give it to you at some point, not necessarily before the IEP, but my response is in order to be an equal participant in the IEP process, you need a copy of that document or those documents prior to the IEP meeting.

I’ve done things like, you know, OK, you’re giving me this document at the time of the IEP. I’m going to go out in the hall and read it. We’re going to postpone for an hour and then I will come back in or they will agree to reschedule the IEP which is not the best option for most parents. You want to get it done as soon as possible. So I think it’s really important to at least ask that they provide you with copies of the assessment reports prior to the meeting.

Two other things. I keep thinking of things. Two other things that are important. One is you have the right to audio record your IEP and you don’t have the right to video record but you can audio record and there’s an app that I recommend that parents get. Jill, maybe you could put this in the notes as well.

It's called Otter like the animal, little A, little I like artificial intelligence. It’s a free app that you can get 600 minutes a month for free. I have the professional version. I get like 6000 minutes a month. What it does is it audio records and transcribes at the same time. The transcription is not perfect but if I see the transcription and I’m thinking, “What did they say exactly,” I can click on the words and play the recording. I use it all the time for hearings, for meetings all the time. It's a great app to have.

Jill Stowell: Yeah, that’s really helpful because there is so much information and we think we’re going to remember it. I mean it’s important to us but it’s a lot and of course there’s a lot of emotional overlay when we’re talking about our child. So, yeah, I think that’s a great idea. 

Dina Kaplan: OK. Now I have to remember what the other one was. I said there were two other things. One was audio recording. Oh, now I remember, thank you.

The other thing is you do not have to sign the IEP at the time of the IEP meeting. I recommend nobody sign an IEP at the time of the IEP meeting because I’ve never seen an IEP document that doesn’t have mistakes.

So it’s very important to get a copy of the IEP, have them send it to you virtually, so you can go through it. You can review it. You can talk about any changes that need to be made and then you can sign it whether you agree or disagree. So that’s going to be very important. 

So what happens if you go through this whole process and the district says your child is not eligible or the district says, “We’re not going to assess because your child has good grades and so we don’t think they’re qualified”?

So what we do is what we call “dispute resolution” and it’s called “due process” which is administered by the Office of Administrative Hearings in Sacramento. OAH, more acronyms to learn and they provide the administrative law judges for all the proceedings throughout the state.

So what would happen is if you came to me and you said, “They did not find my child eligible,” we would talk about what the next step would be. Oftentimes if the district has assessed the child and not found them eligible and it’s an initial IEP, I often tell the parents to ask the district to pay for an independent assessment. It would be called an IEE, independent educational evaluation.

So if you do that and the district has – again, one of two choices. They can say, “Great, we will pay for it,” but it has to be within the cost – I think they call it cost cap of the SELPA. I think in the Ventura County SELPA, it’s about 7000. Same thing with LA Unified right now. So finding an independent assessor to do an assessment for that amount of money might be difficult but there are those that will. If the district wants to defend their assessment, then they have to file for due process against you to defend their assessment.

If that happens, I always tell parents to withdraw your request for the independent assessment most of the time. I don’t want to say always because what happens is if they file for due process against you, then you have to go and pay for your own independent assessment. Take it and have that assessor testify in a due process hearing. If you win, then the district pays for it.

So it gets a little complicated. This area of the law was initially when it was passed in 1975, they envisioned that it would be something that parents could do, dispute resolution on their own. It has grown into a hugely litigious area of the law and so I would never recommend that parents go to due process without an attorney.

There are some informal dispute resolution processes. LA Unified has a specific one that’s pretty good depending on the issues. The other districts have just an informal meeting with the special education director as a possible means of resolving without going to formal due process.

So if things are not resolved informally, then what I would do is gather all the information when the parent comes to me. Look at the assessments. Look at any records that the parent has. Look at records from the school district. I draft the due process complaint that has identifying information, a statement of facts, a statement of what our issues are and then what we’re looking forward to resolve. 

Once I file that with OAH, three things happen. The first thing is what they call it “early resolution session”. Just between us and the district where they try to resolve informally before moving on to mediation. If we can’t resolve informally within the first 15 to 30 days, the next step is to go to formal mediation which is myself and my client, the district and their attorney and an administrative law judge from the OAH that acts as the mediator.

Right now things are being done via Zoom so it’s all virtual, which has been interesting because now we’re taking cases up and down the state that we weren’t able to take previously when we had to travel to different school districts for mediations and hearings.

Jill Stowell: Right, right. So I want to ask you something. If a student has a diagnosis, say ADHD or they come in already with a diagnosis, does that automatically mean that they qualify for special education services?

Dina Kaplan: Not necessarily. One thing I want to point out or one point I want to make is if you as a parent have gone and got independent assessments on your own or have gotten some kind of outside assessments, you should always share those with the school, while they’re considering whether or not they’re doing their assessment.

The thing that you have to realize, what the law requires is you have to be eligible under a specific eligibility category and there are 13 of them and Specific Learning Disability is one of them. The Speech and Language Impairment SLI. OHI, Other Health Impairment, those are going to be the ones that are most common for people that are on this podcast. Possibly autism, AUT. The interesting thing is autism under the education code is not a medical diagnosis of autism but it’s autistic-like so that a student has characteristics similar to the categories that would qualify them as autistic. So it’s not a medical diagnosis. It’s an educational eligibility.

So we have to have one of those eligibilities and then the big question is – and be in need of special education and related services in order to access their education. So there are lots of kids who have disabilities that are not eligible for special education and it’s really going to depend on the assessments and the facts of the situation. How much help the parents are giving the child. Very frequently I have parents come to me. I’m paying for outside assessors. I’m paying for outside therapy. I’m paying for all this stuff. My kid is doing OK. 

So the district does their assessment and they don’t find the child eligible. So that can be a problem but, you know, I would never tell parents not to help their children.

Jill Stowell: Right, right. You know, I think what you’re talking about especially affects the twice exceptional population, the 2e kids. They’re so bright but they do think differently and they truly have some special needs particularly often with executive function and social comprehension but they’re just so smart that they manage academically. So they don’t necessarily look like they need help. Do you have any thoughts for that population?

Dina Kaplan: I have a lot of thoughts for that population and I will tell you why. I have five grandkids, two of them are twice exceptional on the autism spectrum. They’re both brilliant and they both have some pretty serious social deficits.

They both have IEPs. One of them is in Iowa and that system is very different than our system in California. So it has been interesting for me to learn that system and he’s so bright that they ended up skipping him from third grade to fifth grade and he’s doing OK and socially I would have thought that it would be problematic but he seems to get along with the older kids better.

But the districts are responsible for not only educational issues but also socioemotional, getting along with other students. The law says that you being the district have to prepare your child, children for a functional life outside of school.

What that means is they have to have life skills. They have to be able to get along with their peers. They have to have the educational background, right? They have to have the education. So you’re looking at the whole child, not just grades, and that’s so often I see districts say, “Well, he’s getting As and Bs, so he’s not going to qualify.” That’s not the right answer. So …

Jill Stowell: And that’s where a parent’s observation of what’s going on with their child can be really helpful. 

Dina Kaplan: It can be really helpful and I will tell you this. While I – you know, caveat. I would not tell you not to help your child. You may have to stop providing all that help for a week or two or maybe three, so that they can see what the struggles are and what they look like because if the school is not seeing these struggles and your child is consistently getting As and Bs, then they’re not going to qualify.

Jill Stowell: You know, I remember a student that he was quite profoundly dyslexic but he was really gregarious and he talked to his friends and everything during class. He never did any work and then he would go home and take his work home and his mom would help him with all of the work. So it would go back to school, correct, and the teacher really thought, you know, that he had attention and behavior problems because he was – I mean he was so chatty and he just – you know, it looked like he just would rather – you know, wasn’t interested and would rather talk to his friends. The truth was he couldn’t do the work but he was pretty great at covering it.

Dina Kaplan: Yeah. I see that happen and it’s unfortunate and sometimes the mom or dad or both need to stop for a little while so that the school can actually see what’s going on. But if he’s acting like a behavior problem, I think it’s really important to request that testing because theoretically the testing should show what the struggles are and …

Jill Stowell: That are really at the root, yeah.

Dina Kaplan: The interesting thing is, is that – and Jill, you can probably talk more about this. The specific learning disability eligibility has changed a bit. It used to be you needed to have a severe discrepancy between your ability and achievement. That’s still one of the ways that they look at eligibility but they’re also looking at strengths and weaknesses and determining a specific learning disability based on strengths and weaknesses. So it’s not an all-or-nothing anymore.

Jill Stowell: Right, and definitely with a learning disability, that’s – again one of the things that’s so tricky about those kids is not only do they have average to above average intelligence, often well above average intelligence, but they have this really up and down pattern of strengths and weaknesses so they have some real strengths but they also have some real weaknesses and that are getting in the way of them functioning as comfortably and independently as they could and could be causing a lot of anxiety for them.

Dina Kaplan: I do see that frequently. I see a lot of kids who are struggling academically but they’re covering it up. That causes a lot of anxiety and it looks like a behavior problem or it looks like the kid is not – or the child is not paying attention or can’t get along with other people. That comes out in a lot of different ways. Class clown because like you said, the child couldn’t do the work. So he was covering it up by being silly. I see that frequently.

But just parents need to know that no is not the right answer. The right answer is, “What can we do to help my child?” and if it means assessing your child for special education, then that’s what you want to ask for. If the school assesses him or her – I always say him – and says that your child is not eligible but your child definitely needs some kind of accommodations or supports in school, the next option is to look at what a 504 Plan would provide and what that means is a 504 Plan, it’s referring to section 504 of the Rehabilitation Act of 1973.

What that was, was the precursor to the Americans with Disabilities Act and it was the first anti-discrimination act that basically says you can’t discriminate against a person because of his or her disability. It applies in education. It also applies in employment and as an adult in the real world.

What a 504 Plan will do is provide what they call reasonable accommodation. So if your child needs extra time on tests or needs to have special seating close to the teacher or needs to have less problems on an assignment or needs more time on an assignment or needs some kind of technology, like be able to do their assignment on the computer as – well, most of the kids are doing that these days but maybe needs to do that because they can’t write very well.

Things of those like that, it’s reasonable accommodations. There’s not usually things that cost the school money that are associated with a 504 Plan, although there can be things like counseling, school-based counseling to help your child deal with the anxiety. That is the possibility through a 504 Plan.

Jill Stowell: And the thing to know about a 504 Plan is that that follows your student into college and adulthood, right? I mean that’s a thing that kind of sticks with them even when they’re exiting high school.

Dina Kaplan: Yes. That’s an important point. The thing to know is that if a child is eligible for an IEP, those accommodations that they would be eligible for under a 504 Plan would be rolled into the IEP. 

When a child exits the school system depending on their age and if they’re getting a diploma or getting a certificate of completion. But let’s assume they’re getting a diploma and they’re going on to a two-year or four-year college. You will come out of the high school with your IEP and some of the schools are doing 504 Plans at the last IEP with the exit IEP to take with you into college. Every two-year and four-year college has a disability office that you would take your IEP and/or 504 Plan to that disability office and say these are the accommodations that I’ve been given in school. I want these accommodations. Sometimes they won’t have all of them but they will have several of them and I think that’s important.

Jill Stowell: Yeah, and, you know, I want to talk just a little bit about transition plans before we take questions. But I will say to people we do want you to have the opportunity to ask questions. So be sure and put those in the chat if you are anxious to give your question to Dina tonight. 

So a lot of times it seems like this may not be a fair assessment but it often seems like the transition plan in the IEP that you see in high school kids’ IEPs, it often seems like it’s almost an afterthought. I mean there are so many other things to think about in high school but that transition plan is really important because that’s going to prepare them for what happens when they get out of high school. 

Can you just talk about that a little bit, what parents maybe ought to be thinking about or what’s required with the transition plan?

Dina Kaplan: Definitely. Transition plans are actually an afterthought. I think most school districts treat it like that. They don’t think about it until the child is in high school and then it’s like, “Oh, what do you want to do?” OK. Go to college and they don’t do a comprehensive transition assessment, which I think parents should be asking for. They do have people in districts that can do a comprehensive assessment for transition and I think that’s important.

Some of the districts do like a checklist transition plan where they have, “What are you interested in? What do you need to do to find out more about that?” and OK, so do that. That’s not a transition plan. It has to be much more specific and much more helpful and to have transition goals.

So what is your goal going to be when you graduate from high school? Are you going to be going on to a four-year college or going to a two-year college? What do you need in order to get to those colleges? In California, we have the A to G requirements if you’re going to a UC school or a California school. So what are those? What do they look like?

Oftentimes the school counselors will talk to the students and say, “OK. What are you looking for? Put it down,” and basically that’s it when it comes time to talk about the transition plan at the time of the IEP. They’re like, “OK, you’re going to go to a four-year college. You need these things to graduate. Have a good time.”

I think that parents can and should ask for a comprehensive transition assessment that will look at what your child’s abilities are and what they’re good at and what they should be. You know, the kinds of areas where they should be focusing and also what they can be working on between now when they’re 16 and when they graduate.

The law used to be it was – I think 14 that the districts had to look at transition plans. Now it’s 16. I always tell parents start early. Ask your school to do an early transition plan so you can start looking at what’s required and you can put together something that your child can make progress with and have goals set so that when they do graduate, they’re prepared to move on to a college or even a job.

Jill Stowell: Yeah, and I just think that something that gets off of our radar, you know, because there are so many other things. So thank you for talking about that. I would like to see if we have questions because we did promise that we would do some questions live. So Megan, I would love for you to come in and join us. Megan De Leon is our community liaison with Stowell Learning Centers and she is fielding questions for us tonight. Hi Megan.

Megan De Leon: Hi Jill. Yes, thank you and Dina, thank you so much for this incredible information and it’s a lot. So I’m really happy that our viewers and our listeners are going to be able to watch this back on repeat or recording this. So I think it’s just amazing information and we’re gaining a lot of positive feedback and questions. But we will start with the first one here.

We have Shirley. She’s saying, “Hello Dina and Jill. Nice to be listening here tonight. I have a question for you. How is a public charter school different from a standard brick-and-mortar school district? We are currently doing homeschooling with the public charter school. My students both have IEPs and have been told that parent is the teacher and they insinuate that if that’s not what I signed up for, to bring them to a regular school district.”

Dina Kaplan: OK. So a charter school, a public charter school is the same thing as a public school. They are responsible for educating your child. If your child has special needs and qualifies for an IEP, they’re responsible for following the IEP.

When you’re doing a homeschool charter program, it’s a little bit different. What I always tell parents is to – before you sign up for one of those programs, make sure that they have special education through a SELPA, through a Special Education Local Plan Area.

A lot of the homeschool charter programs have their special education through the – oh gosh, now I can’t remember the name of the SELPA. It’s a SELPA in Northern California. What they do or what any SELPA would do that’s providing special education through a homeschool program is provide – like if your child needs speech therapy, it provides speech therapy through a local speech therapist. It might be virtual because that’s typically what I see that they don’t get in-person services in a homeschool program. So I hope that answers your question.

Megan De Leon: Thank you and we have another question from Nala. She says, “Hello ladies. I would like clarification. I have heard that when it comes to the eligibility, it doesn’t matter what criteria is under as long as a child has the right services.”

Dina Kaplan: Yes. That is true. Eligibility does not drive services. What drives services are the child’s needs. What the child’s needs are based on is their present levels of performance. We like to refer to those a PLOPs, present levels of performance, which are determined from the assessments. What are your child’s present levels of performance? In other words, where are they at with reading, writing, math, whatever other goals they’re looking at? Where are they currently? 

So the goals are written for one year and so what progress they expect your child to make within one year and then most of the time they will do some incremental objectives. So if your child is eligible for example under AUT, but has learning challenges, then they would still be addressed in the IEP. So it really doesn’t matter what eligibility your child is as long as they’re addressing your child’s needs.

I will say there – most of the time because there are a few times when it’s important that your child has a specific disability but in our particular case, it’s not applicable. So you basically look on the child’s needs.

Megan De Leon: OK. And then Ely has a question. What is the California law code that protects/helps students from receiving that support for social emotional life skills?

Dina Kaplan: That protects/helps students. Oh, OK. You’re looking at the California education Code and you’re looking under Special Education. I would tell you to get the Special Education Rights and Responsibilities book from Disability Rights California. I sometimes even refer to it myself because it’s written so much in plain question-answer format and it has a list of all the education code sections, the California Education Code sections and the federal law, the IDEA code sections.

So you can see what those code sections are and you can actually look at them online in the California Education Code. You can do a Google search. You can find it. 

Jill Stowell: Yeah, and that’s really helpful because I’m sure we do have listeners who are not in California and of course every state has their own laws but IDEA is federal and so there are also a lot of laws that apply just in general across the country.

Dina Kaplan: Right. So let me give you a little Law 101 education and that is the federal law controls. So IDEA is the controlling law. All the states have laws that mirror the federal law. If the federal law provides more than what the state law provides, then it’s the federal law that controls. If the state law provides more than the federal law, then you argue for the state law. So basically you’re looking at federal law and the supporting state law.

Jill Stowell: Good to know.

Dina Kaplan: That’s your law school education for tonight.

Megan De Leon: I feel so much smarter. Thank you Dina. And we will also post the websites in the show notes as well for those that are watching and listening and we have another question from Nala. What percentage of due process cases are won by parents when parents have expert witnesses?

Dina Kaplan: Oh, boy, that’s a good question. So we monitor all the decisions coming out of the hearing office and while it’s very important for parents to have their own experts, the judges are pretty biased in favor of school districts and even when parents win, they don’t get a lot. What I tell my clients all the time is if we have to go to hearing, we go to hearing, which is just like a trial. We have our experts. They have their experts. We have our evidence. They have their evidence. We give it to the judge. The judge makes the decision.

It's not at all in our hands other than what we present evidence-wise. What I always tell my clients is I’m almost always able to negotiate a better settlement for you in mediation than I think you would get in a hearing. If you have a good expert to support your position, I’m almost always able to get a good settlement.

Oh, one other thing that’s important to know. If parents have their – if they want to go to trial, right, we call it a hearing but I always tell parents if you hear the word “hearing,” think trial. It is just like a trial. The only difference between the trials in this area of the law and some civil trials is on some civil trials you get a jury. 

We don’t get a jury in this area of the law. We get a judge. So one thing that’s important to know is that if you are going on to a trial, parents have to pay for their own experts and those fees are not reimbursable. If you win any hearing, you’re still responsible for paying for those fees.

One thing that I didn’t talk about is there’s a fee shifting statute in this area of the law, meaning that if we settle favorably or we win in a hearing, we can ask the district to pay for our attorney’s fees and there’s a whole bunch of different ways that that works, but it’s more incentive for school districts to settle when they can pay less in attorney’s fees, if we have a good case.

I will tell you this. We evaluate our cases very much. We make sure that we’re fairly certain we can win the case before we take it on and there are many times when I tell a client, “You may be eligible for due process case but you’re not there yet. You need to do this or that,” or sometimes I tell parents, “You don’t have a case.” Maybe in a year or two you have a case but with the pandemic and how far behind so many of our children are, we are swamped and so we’re careful about the cases that we do take.

Megan De Leon: That’s great information. We just got another question in from Dipti saying, “Hello Dina. Can you please elaborate more on why do you recommend parents withdraw IEE requests if district files due process to dispute IEE request?”

Dina Kaplan: The only reason I do that is because if you don’t withdraw your request and the district files for due process, you’re going to trial. You have to have your expert come in and testify. If you lose, you not only have to pay for your IEE, your independent evaluation, but you also have to pay for your expert.

So if you have an IEE request and the district files against you, you have to have your own expert do the assessment. You have to pay for it. You have to take your expert to the hearing and prove why their assessment is not appropriate. So it ends up causing families quite a bit of money.

Megan De Leon: Thank you and parents are just eager to ask you questions, Dina. We just got another one in from Nala. My district’s policy for class observation states I can only do two hours per semester. Is there a federal law about this topic?

Dina Kaplan: No. This is a policy decision that every school district makes and it really depends on their policies. If there’s a particular reason why you have to or you want to observe for longer than what their policy is, you would have to take it up with the school and sometimes I tell parents – you know, parents want to observe but maybe the school says, “OK, you’ve done enough observation. If you have other experts that you work with outside of the school, you can have those experts go in and do observations.”

Megan De Leon: And Dina a question that comes up often when I’m doing outreach within our communities is other than of course asking you to help then, when they’re looking in their community for somebody to help be an advocate, be a special ed attorney, is there anything you would recommend that they’re asking in that interview process with the attorney or with the advocate?

Dina Kaplan: Yes. First of all, there’s a difference between advocates and attorneys. OK. So even though I’m an attorney, I’m an advocate but that’s not my role. I don’t usually go to IEP meetings unless clients really want me there. But what I do recommend is if they want an expert, they should take an advocate. There’s no licensing requirements for advocates like there are for attorneys.

So when you’re looking for an advocate, I always tell parents make sure you know what their background is and I would not work with an advocate that has not got an education background, that’s not a teacher, that has a degree in education or educational psychology. Make sure that person has that degree or that experience in education.

One of the advocates I work with has both. She has a teaching credential. She was a general ed teacher but then she has a degree in educational psychology. There’s an advocate that we work with that has got a PhD in education. He’s very knowledgeable about education.

So while I’m a lawyer, I’m not a teacher. So I know the law but I don’t know the education aspect of what the teachers are doing on a day to day basis. So I think that’s important.

One other point I wanted to make is that so often parents will come to me and say, “My brother-in-law is a lawyer. So he said he could represent me but he does real estate law.” This area of the law is completely different than any other area of the law and I know because I did civil litigation for many years before I had my child. 

I would tell you do not go to a lawyer who is not a special education attorney, who has had the experience. There’s a lot of attorneys out there right now who happen to be attorneys that happen to have a kid that has an IEP so they said, “OK, I can hang out my shingle and I know what I’m doing.”

Well, that’s not necessarily the case. I will tell you this. I am a little bit biased but our firm is the oldest and probably the best in the state doing what we do. Valerie Vanaman is literally a pioneer that wrote this law and she is now 80 years old and going strong and we have a great support system and just so you guys know, we do free virtual consultations. All you would need to do is request a consultation on our website and you would be assigned to one of the attorneys in our firm.

Megan De Leon: That’s great information. Thank you. OK. We have some last minute rapid fire questions here for you, Dina, just for purposes of time here. Ely is saying, “For mainstreaming a bright kid who is autistic, struggles with social interaction and expressing his needs, is a one-on-one required or school should provide an aide for this if there is only one hour per example into science class?”

Dina Kaplan: That really depends on the needs of the child and usually a one-to-one aide is going to be based on the child’s behavioral needs or safety needs. Not usually academic needs per se. One thing I tell parents all the time, if your child is in specifically middle school and high school but also in elementary school, if your child is in general education and they have somebody following them all the time, it’s a little bit stigmatizing.

So parents are always asking for one-to-ones and they want one-to-ones all the time. But I always tell parents think about what a one-to-one would do for your child and is it something that’s really necessary? If you’re asking for a one-to-one, the schools always have to do an assessment to determine the need. You’re not going to get a one-to-one that just helps with education. It’s always going to be based on behavior and safety.

Megan De Leon: OK, thank you and then Megan Marie, I love your name, is asking, “Can you touch a little bit more on those challenging situations where schools don’t see challenges/masking, example, social anxiety, selective mutism which effects initiation, friendships, self-advocacy and dyslexia? What has worked for your clients to get the right supports?”

Dina Kaplan: I think making sure that the school knows what’s going on socially is going to be really important and what they’re masking. Oftentimes I have parents videotape your struggle with your child doing homework and take it to the IEP meeting and show them what’s going on every night and maybe your child is working three hours a night doing homework. Well, that’s not supposed to be the case. They’re not supposed to have to work three hours a night to do homework. So I think being honest with your team and showing what the struggles look like is going to be very helpful.

Megan De Leon: Jill definitely knows all about that.

Dina Kaplan: Yes, and I mean I can’t answer more specific questions in this format. If parents have specific questions, they can definitely sign up for a consultation with our firm and we can look at – what we will do is we will look at records. We will look at IEPs. We will look at assessments and we will make a determination as to whether or not there’s a due process manner.

Jill Stowell: But I think that sometimes parents feel really intimidated going to the school. It’s not their territory and the teacher may say, “Hey, he really is doing fine. He’s hanging in there all day. He’s trying really hard,” and then you see the child coming home and falling apart over homework or spending hours and hours and hours and our kids want to be good. They want to do what’s expected and it takes so much energy all day long to do that and then they get home where they’re with you. It’s safe and they fall apart.

So you just might have to really kind of develop a relationship with the teacher and the team and help them really understand what it is you’re seeing and why you are so concerned. I mean there is even something now called “stealth dyslexia” which is exactly what it sounds like where individuals are truly dyslexic and suffering the self-esteem issues and identity issues that go along with that but it’s stealthy. It flies under the radar.

So more and more I think parents, you may have to step out there and help educate and really share what it is that you’re seeing because yeah, they may be holding it together at school but it doesn’t mean that they’re not suffering because of it.

Dina Kaplan: I see this both ways, Jill. I see them holding it together at school and completely falling apart at home and vice versa, falling apart at school and being fine at home. 

Jill Stowell: Yes.

Dina Kaplan: And sometimes you’re like – I remember going to observe my child when he was young in school and I was like, “Who is that? That’s not my kid. He doesn’t do that at home.” It’s really important. I think videotaping is a really good idea as long as your child is not opposed to it. If you can take a videotape thing, this is what it looks like every night for us really trying to get our homework done.

If your child is opposed to it, just write down a start time, what you worked on, how long it took, what was going on at that time. One thing I think is really important to know is that – and if you take nothing else away from this podcast, the one thing that you need to know is every communication you have with your school needs to be in writing. If you have a verbal conversation with the teacher, follow it up with an email. If you have a telephone conversation with the teacher, follow it up with an email.

Texting is good but keep those texts. Don’t erase them. What we are looking at is evidence and this is an evidence-based system and they’re going to look at what data do we have that supports what you’re alleging. So it’s going to be really important to be able to support that by continuing to communicate in writing.

Megan De Leon: Awesome. Well, thank you Dina for that. Those are all the questions we have for tonight and I’m sure our listeners will have more to follow up. So I’m sure we will have information for that.

Jill Stowell: You know, I think I see one here. Either we missed it or I missed it somehow was explaining how you calculate compensatory hours because that is something especially since the pandemic and all the confusion. That is definitely a thing that parents are asking about.

Dina Kaplan: Let me take a couple of minutes to explain that. It’s not only with the pandemic but it has been magnified by the pandemic. So in this area of the law, there are no money damages. So you don’t go to due process and get $50,000 to make up for what the district did wrong.

What you’re entitled to is compensatory educational services to make up for what the district failed to do. What that looks like for every child is going to be based on his or her needs. So it’s going to look different for every child. But for example you may say, “District, you failed to educate my child in reading and my child is three grade levels behind. Now I want you to pay for Jill Stowell to provide the therapy,” and what happens is you negotiate a block of hours to make up for what the district failed to do.

This is not minute for minute, hour for hour. What the law says is something reasonable and what that’s going to mean is based on your child’s needs and also based on the negotiation process. 

Jill Stowell: You know, you have said several times and I think this is really important that so much is really based on the child’s needs, as it should be. I just have one thing that I want to make sure we get in here and that is thinking about the parents’ needs because raising a child is – you know, that’s challenging on many levels, amazing and challenging and raising a child with special needs adds a whole other layer to that and Dina, I know that you also have a support group and I would love for you to talk about that a little bit.

Dina Kaplan: OK. One of the things that I did way back when, when my son was little, I said, “Oh my gosh, I’m having trouble finding out what the laws and where it is and I’m a lawyer. I’m sure that there are other parents out there that are having trouble.”

So I started an organization called the KEN Project, which stands for Kids with Exceptional Needs and we have a virtual support group that meets once a month where parents can come and ask me and the advocate that I work mostly with, who has got the educational background, questions about their child and what’s going on in school and we try to help you answer those questions, refer you to experts if you need them and talk about what your child’s needs are.

I would tell parents, you know, if you want to participate in our support group, great. I’m not a psychologist and my associate is an advocate. She’s also not a psychologist. There are support groups out there that are run by psychologists and what I would tell parents is there’s a lot of online groups that I would make sure you’re comfortable with before you join an online group and also keep in mind that not all the information in those groups is going to be accurate.

So I would tell you a support group is a great thing but I also think that like Facebook groups, everybody joins in and gives you their two cents but you don’t know what their background is and what their experience is. So I think it’s really important for parents to – if you hear something on one of those groups, to validate it on your own.

Jill Stowell: Yeah. That’s really good advice. Being the parent of a special needs child or young adult can feel very isolating and so I do think it’s really important to get some support for yourself because as parents we put so much energy into getting support for our kids and thank goodness we do. But also get some support for yourself and so checking out the KEN Project.

We have a private Facebook group which certainly is more educational-based and not legal-based but it is called Mom Squad and it is a place where you can connect and ask questions and get resources and we answer questions and we post resources and things for you there. We also have a monthly in-person parent support group called PEACE that meets at our Irvine Center. So if you are local, be on the lookout for that. That is another support for you. So …

Dina Kaplan: Oh, another thing. Massages are great.

Jill Stowell: They are, aren’t they?

Dina Kaplan: Monthly massages do wonders.

Jill Stowell: Absolutely. Well, thank you everyone for listening and participating. This has been a special IEP edition of the LD Expert Podcast and I’m Jill Stowell with our guest special needs attorney Dina Kaplan. Dina, I am just so delighted that you are able to join us. You’re so knowledgeable and gracious and it’s really obvious that you love helping other families and you’re really invested in this work. So thank you so much. What last thoughts would you like to leave us with this evening?

Dina Kaplan: Well, thank you for inviting me and yes, you know, my son has multiple special needs but I will tell you he has changed our lives for the better in so many ways. My husband and I are giving back in so many ways and I would not have found my passion were it not for him. 

Is it an easy life? No. Does it require a lot of juggling plates? Absolutely. But I would tell you taking care of yourself is really important and getting support in a support group, in an online group, whatever works for you, is also really important and thank you so much Jill because I think that point is really important.

Jill Stowell: Yeah. Well, thank you Dina for taking the time to be with us, for sharing your story and just really talking from the heart and for all the hats you wear to help kids and parents. Amazing. So …

Dina Kaplan: Well, I love what I do and one of my colleagues said to me, “You’re not thinking about retiring?” I said, “Why? I would just be doing the same thing, only not getting paid for it.”

Jill Stowell: That’s right. Hey, that’s a great way to live. So …

Dina Kaplan: Yeah.

Jill Stowell: Thank you so much.

Dina Kaplan: You’re welcome. Thank you.

Jill Stowell: At Stowell Learning Centers, we help children and adults eliminate struggles associated with dyslexia, auditory processing and other learning and attention challenges so that students can thrive in school and people can live their best lives.

If you would like a free consultation for yourself or your child, give us a call or visit our website at StowellCenter.com. Just a huge thank you to Dina and all of you who joined us. Please pay it forward and share this episode with other parents. Good night everyone.