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Expert Q&A

What should a parent do when a school offers a program that does not help their child?

Dear Mr. Cohen,

We disagree with the school’s interpretation of the underlying source of my 13-year-old son’s school problems. His first IEP was two years ago and identified him as Emotionally Disabled. (I think this was based on a diagnosis of Oppositional Defiant Disorder, rather than ADD, which he also had.) We were naive enough to think that this was going to be helpful. We initiated a re-eligibility process last year to have his label changed to Other Health Impaired, but they would not eliminate the ED label, even though he has continued to fail and have increasing social problems.

After a Functional Behavioral Assessment (if you can call it that) which we requested, a new IEP was proposed by the school – same two goals, no new strategies, just some rewording of the same vague language, so we have refused to sign it. The only new support was social skills class that was to start last spring. It never happened. Is the school obligated to provide the services they proposed, even though we did not sign this IEP, his second? If we refuse to sign, are they obligated to take us to due process or mediation? Thank you.

Vienna, Virginia

Dear Debbie,

Your question raises a number of issues. First, there is a growing body of judicial precedent indicating that the critical measure in assessing a child’s program is not whether they have the right label, but whether they have the right program. Even if the label isn’t necessarily accurate, the school will be less vulnerable if they are providing the appropriate program. Similarly, even if they have the right label, they will be vulnerable if they are not providing the right (appropriate) program. Of course, logically, they are most vulnerable if they are neither using the right label nor providing the right program. This may be the case in your situation.

Second, when a child fails to make progress on goals and objectives over the course of the year, the school should respond to this lack of progress by analyzing the reasons for the failure. After all, the initial goals and objectives, set by the school, were supposed to reflect goals that were reasonably attainable in their judgment. While it is not always the case, schools typically should consider whether additional services are needed if a child has not made progress on his/her goals with the existing services.

Your failure to sign the IEP serves to some degree to document your dissatisfaction, particularly if you note your dissatisfaction somewhere else in the IEP. However, other than the initial IEP admitting the child to special education, the withholding of parent signature has no legal consequence in blocking or challenging the school’s actions. This is only accomplished if you file a due process. By contrast, although the school could choose to ask for mediation or a hearing at any time, they have no real incentive to do so at the moment, as the status quo is consistent with their position.

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