Monday, September 20, 2010

Does fear of litigation make educators act like this?

I just need to share a recent conversation.

I just found out that, although I signed an IEP authorizing a Non-Public School, they have not been providing services because the contract has not yet been board-approved.

Our School-Board meets twice a month: once for report outs, and once for actionable business - like approving contracts. There are also legal deadlines to get items on the agenda due to laws regarding public meetings. Therefore, it can sometimes take 6 weeks before you can get a contract reviewed by the Board.

Here was my conversation:

Eric:        Is there anything that you need in addition to the IEP to authorize her going to school while we wait for the contract and ISA? We have always honored our IEPs, but I want to make sure we provide this kid FAPE!

(FAPE = Free & Appropriate Public Education. The legal entitlement to services under special education.)

NPS:      No, it needs to be the Contract and ISA per Ed Code. In case, you know, someone comes and asks why we are serving this kid, we can get in trouble, per Ed Code, if we do not have the contract and ISA.

Eric:        I don't think I am understanding… It is your intention to deny FAPE, the foundation of special education law, so that you can comply with the billing portion of the Ed Code?

NPS:      Yes.

Eric:        I was never expecting to hear that. I have no idea how to respond. I will need to go and talk to my chain-of-command and figure this one out. Bye.

Full disclosure: I think there was more behind the scenes than the stated issue.

However, I do find the disturbing trend in the litigious world of special education.
As silly as this conversation seems in writing, I am amazed at how many similarly-themed conversations like this that educators have.

The paranoia of legal action forces people to lose sight of the forest because they are so focused on the trees.
Procedures, compliance, check-boxes, and lists stop being the means to educate the child, and become the ends in of themselves.  Not that I ever saw a checklist teach a child a new skill.

Those of us that have had to defend ourselves on the witness stand can attest that attorneys may drill us on procedural details, but, ultimately, we are judged on whether or not we provided a plan reasonably calculated to provide an educational benefit in the Least Restrictive Environment possible.

Based on this, I would like to issue two challenges:

To educators:
Follow the rules, but do not blindly follow them.
Understand why the rules exist, and how you can use them to educate the child.
If you do not see the connection, find out!

To parents and advocates:
Understand that the threat of litigation may provide a short-term gain, but it has a long-term consequence.
In the disability chat-rooms, the prevailing theme is, "You need to fight to get anything done!"
Even if you have been burned in the past, please try to treat every new school year as a fresh collaboration.
You want the IEP to be about your child, not the lawyers and advocates.
I guarantee you, if a lawyer or advocate are in the room, that is where the staff's attention will be.



  1. I remember my internship site mentor telling me that if you always work for benefit and best interest of the student, you would be safe from legal concerns. I don't think he was naive. After nearly 40 years as a school psychologist, I know he wasn't naive.

    On the other hand, we have state monitors that come in and check out paperwork and cite us for things like not having certain parts of the LRE statement filled out properly yet never defining what is proper.

    There is a definite disconnect between the law and the practice. I'm sure some of it is justifying the existence of certain government bodies (the state monitors).

  2. To thy self be true...I fully agree that if we behave always in the best interest of the child, we'll come out ahead at the end of the day! During the "day" however, there will be those who are unreasonable or have hidden agendas that will make our lives difficult. But those few should not deter us from doing what is the right thing to do and why we're in this business in the first place...heck, it's certainly not for the money!