10 Things Never To Say

How many of us have had a perfect summer ruined by finding ourselves knee deep in a special education due process hearing? How many times have we thought we would not even be here if we (or heaven forbid I!) had not said that at the individualized education plan meeting?In individual education plan meetings, educational administrators can almost guarantee a parent appeal by making misleading or unintentional comments by Kimberly Croyle

How many of us have had a perfect summer ruined by finding ourselves knee deep in a special education due process hearing? How many times have we thought we would not even be here if we (or heaven forbid I!) had not said that at the individualized education plan meeting?

Face it — some IEP meetings are grueling for parents and educators alike, and too often things are said that have unintended consequences or that we really do not mean. Unfortunately, if enough of those incidents occur, it tends to make parents believe we are intentionally misleading them and trying to deny their child a free, appropriate education.

Slips of the tongue can lead to bigger problems, such as due process hearings and complaints to the state education agency, not to mention accusations of discrimination and the legal action that follows. As an education lawyer who has spent plenty of time on special education matters, including a summer or two in due process hearings, I’ve compiled 10 things one should never say during an IEP meeting and why those verbal miscues will earn an invitation to a due process hearing. Alternative ways exist for getting your message across effectively.

Cookie Cutters
• No. 1: “This is what we do for every student.”
You’re probably thinking you have seen students like this, with this same diagnosis, and this is what works. While your heart may be in the right place in wanting to find something that works, your words have it all wrong. Remember, state and federal laws require the IEP be “individualized.”

When you say to parents “We do it for every student,” you revert back to a cookie cutter IEP. Quite simply, the school system’s mandate is to consider the student’s individual and unique abilities in drafting an IEP and failure to do so may result in the denial of a free, appropriate public education.

Instead, say what you really mean — “We have tried this approach before with other students who have had similar abilities and have been very successful. This is why we think it is appropriate for your child.”

• No. 2: “Let’s wait and talk about that some other time.”
What you really mean is you have been in the meeting for hours and have more that you have to get to! Patience, my friend. Although this may be your third IEP meeting of the day, it is the one and only meeting — and certainly the most important — for the parents sitting with you.

If you find yourself replowing the same ground again and again, instead of putting it off for another day, take a soda break or, better yet, try putting the issue aside for later in the meeting and returning to it at the end of the meeting. Remember, timelines for eligibility and developing the IEP must be scrupulously followed and the failure to do so may result in a finding adverse to a school system. Consequences for violating the timelines could include compensatory education, if you’re lucky, or residential placement if you are not.

• No. 3: “They may do that in Perfect School District, but we don’t do that here!”
While it can be extremely frustrating to have a bygone IEP held up as the perfect IEP, take a deep breath and remind yourself that each state and each year is different. Remember that your state may not require the IEP to be a Cadillac, just a serviceable Chevrolet. Your obligation is to develop an IEP that meets the individual needs of the child, not parrot what has been done in the past.

Take the time to explain to the parents the differences in your state’s regulations and those with which they may be familiar. In addition, explain that the IEP process must be followed each year and that while you cannot just rely on past IEPs, neither can the parents. You’ll be pleasantly surprised how that simple explanation will often make a big difference in their understanding.

Lofty Prices
• No. 4: “We can’t afford that piece of equipment.”
What you really mean is that you can’t afford that piece of equipment. Unfortunately, there is no escaping the bright line rule handed down by the U.S. Supreme Court that prohibits a school district from considering cost as a factor in determining whether a piece of equipment needs to be provided to a child with disabilities. Rely on the cost of an item to exclude it from the IEP and you will surely spend a few days with an independent hearing officer in a due process hearing.

Instead of asking the cost, ask whether the piece of equipment is necessary as a related service? Does it need to be used in all environments, such as the home, or is it something that stays at school? If you find you do need to list a piece of equipment on the IEP, be careful how you list it. If you list the brand name, that is what you need to supply, even if that brand is no longer manufactured or is obsolete.

• No. 5: “We never provide one-on-one aides for students.”
Although this may have been drilled into your head at numerous training sessions, this should not be part of your IEP meeting lexicon. Instead, ask what the parent is really asking for. If it is constant adult supervision, then say so. If it is someone to provide individual instruction to the student, then consider a change in placement or pull-out services. Throw out the negatives and start telling the parents what you do provide and how you can address the educational needs of their child.

• No. 6: “We cannot hire another nurse just for your child.”
I know it seems as if this response would be preferable to explaining to the board of education that it now must hire a full-time nurse. If you choose to handle it this way, you won’t be spending your summer by the pool. Instead, you’ll get to spend your time with the school district’s attorney preparing for direct and cross examination.

While it is often difficult to draw a distinction between nursing services and medical services, that is precisely what you must do. If the student needs nursing services to assist him or her in taking part in the educational process, then that is what must be provided — period.

• No. 7: “We’ve spent too much time on this already, let’s move on.”
Face it, sometimes you are not going to be able to agree. While the development of the IEP is supposed to be a collaborative process where, ideally, the team reaches consensus on each and every item contained in the IEP, sometimes that is not going to happen.

When it becomes clear consensus will not be reached, remember that a decision still needs to be made. Instead of being argumentative, explain to the parents it appears the team is unable to reach agreement and that, as the administrator, it is your responsibility under the law to make the final decision, and then do it.

Do not forget to provide the parents with their procedural safeguards and prior written notice.

Momentary Lapse
• No. 8: “We don’t think that is appropriate, but if you want it, we’ll put it in the IEP.”
This comment by a school district administrator is a natural consequence of not making the decision required in No. 7. Too often we add items to the IEP we know are inappropriate in order to appease the parents.

When faced with this temptation, remember the first rule in school law — nice guys and gals finish last. You have an obligation to the child to develop an appropriate IEP that will provide educational benefit to him or her, not to appease the parents, as appealing as that may be during a tense moment. If it is on the IEP, anyone (including the due process hearing examiner) who looks at it will have no legal basis to ignore your peace offering and will expect it to be implemented.

• No. 9: “That behavior has nothing to do with your child’s disability. We don’t need to address it in the IEP.”
At this point, you are probably thinking that working in the personnel department cannot be all that bad. Relax and remember you need to view the child as an individual, not just through the lens of his or her disability.

Failing to assess how the child behaves, regardless of his or her disability, will almost always result in a skewed picture of that child. It is only through good observation and management of these behaviors that you can gauge whether the child is obtaining meaningful benefit from the IEP. Failure to consider this simple proposition may lead to inappropriate placement and will surely cause undue stress in any classroom.

• No. 10: “I cannot authorize that. We’ll have to get approval from the board of education.”
Oh ye of little faith! It’s not so bad. While it may be difficult for the school board to understand, it has no say in whether anything on the IEP stays or goes. Simply put, it is the IEP committee’s job to determine what is and what is not appropriate and, if it is appropriate, the school system is obligated to provide it.

As a result, you must keep the IEP process collaborative as problems mount when dissension arises as to what is or is not appropriate. Although everyone on the team does not need to agree, each at least needs to buy in to support the decision of the team.

Above all else, the key to making special education work is developing an open and honest line of communication with the parents of a special education student. What you say and how you say it can make all of the difference.

Kim Croyle is an attorney with Bowles Rice McDavid Graff & Love, 7000 Hampton Center, Suite K, Morgantown, WV 26505. E-mail: kcroyle@bowlesrice.com