Transcript has been slightly edited/ formatted for readability

michelle_she_her]: hey everybody welcome back to another episode of the empowered to advocate podcast michelle here and i'm with dana marie

[dana_marie]: hi everyone

[michelle_she_her]: and today we want to have a conversation with you about something that comes up, i want t say not super frequently but frequently enough that we think it's really important for caregivers and their children to recognize their rights, in this case this is when you refer your child for evaluation and the team comes together including you and the school district says the child is not eligible and this doesn't sit right with you either because your child is continuing to struggle in school or you just really feel in your gut that your child needs specialized instruction services in order to progress. And this can always feel a little sticky because one a lot of caregivers don't want to be adversarial with the team. There is a lot of trust between a school district and families and there should be! Because in most cases, everybody is on the same team right? And always coming to the table we talk about this a lot coming to the table believing that everybody at that table has the best interests of your child in their frame of mind when making decisions and the thing about special education eligibility, especially for students with less visible disabilities sometimes there is a fine line where there can be some subjectibility in the decision making, and hear me out on this because it's not always a direct line: 

So as a little review of the eligibility process in order to be eligible for an individualized education plan or special education a child needs to have a disability: so autism, specific learning disability, health disability, a physical disability, intellectual and so on. The next question that teams are looking at when determining eligibility is if the child is making progress in school. So sometimes a child can have a disability and identify disability say adhd and that would fall under the health category but they're progressing. They have friends, they're regulating their attention and their emotions well, they're doing well in class,right? They're making progress so the child would not be eligible. But let's say they are not making progress. The next question is is the lack of progress due to the disability? So this is where teams are also looking at what was the impact of covid instruction (unfortunately, that's a reality that's made things real tricky made things real tricky because it's a reality.) Has the child had a lot of absences and nobody is like “your kid hasn't been in school you're a bad parent” right? But if your child hasn't been in school whether it's for illness or appointments or cheer leading vacations or like whatever, that's something that's going to impact their progress in school because they're not there to get their instruction right? So that's something else.

So, 1. child has a disability 2. are they making progress if they're not making progress. 3. is it due to the disability and then 4.the last question is does the child require specialized instruction and/or services make progress. So specialized instruction would be something like wilson reading, orton gillingham, specialized math instruction in a small group. speech and language services, occupational therapy services things like that. That is then if the child is falls to all those categories they are then eligible for special ed. So sometimes when teams are looking at testing especially for our young friends specially for our younger friends who missed instruction due to the covid shut down in their foundational educational years and or have had some interrupted instruction either due to moving or from absences or whatever it can be a little bit trickier to kind of tease out like is it a disability? Is it lack of instruction? Is it and sometimes kids are not a disability sometimes they're just a slower learner. And when we're thinking about school and how it is structured is not always an ideal structure for all learners right? So not every human being is an A plus student in that learning style and that's okay. Right? So your child have Cs and you might be thinking they should be a faster learner that just might be how they like how they demonstrate their skills in this type of setting it so because there's all different types of learners so um and they might excel in like another way and it may not be a disability. So there's all these things that the team, including you, are looking at. So that being said, really concerned about your kiddo they mean they're not making progress or they're really struggling they might be particularly struggling in one area and you come to the meeting and the team says well they're not eligible and you don't agree you don't agree.  

With that i'm going to turn it over to Dana Marie now to talk about what are the next steps for you as a caregiver that should be discussed at the meeting or if you need a few days to kind of process that happening doesn't have to be something that's talked about at the meeting with that turn it over to dan marie to talk about next steps.

[dana_marie]: and I think that you brought up a good point earlier that I want to highlight, which is that most people come to the meetings wanting resolution right. They want to support the child that the meeting is for so before you get to even the next step I do think it's worth leaning into the conversation at the actual meeting and bringing it up at the time and saying . I don't agree. I disagree and see if there's a conversation that can ensue during the meeting to come to some sort of resolution of course that does not always happen like michelle said. And so after the meeting there are things that can happen. I should note at this point we are going to talk specifically, in the next couple of minutes, about the state of Massachusetts. But each state has their own process and their own sort of guidelines and procedures around this this next piece and so if you are not in Massachusetts a quick google search should be able to help you bring up the procedures and guidelines for your state and if you have questions reach out to us we do we do know the guidelines and regulations for other states well, but it's too much information to put in here. So a quick google like i said we'll get you that brochure or guideline sheet or whatever.

So in Massachusetts there is what we call the Bureau of Special Education Appeals and so it's sort of the governing body that oversee special education in the state of Massachusetts and helps to mediate these decisions and conversations between parents care give us school districts et cetera. So there are two different kind of approaches and two different ways to go if you are, whether it's about eligibility or another part of the process, could be placement it could be services, if you've gone through multiple iterations of conversations with the school district school team, if you have attempted on multiple occasions to come to an agreement, if the school is still proposing something that you just do not agree with. Like i said, whether that's not eligible or something else and you've really tried and now you're you're losing time

right and now time has gone by and you're losing time and you just don't feel like you can get to an agreement with the school district, that's probably the time when you want to bring in the BSEA, or the Bureau of Special Education Appeals.

And there are two routes the parents, caregivers and families can go. They can go the mediation route (which i'll come back to in a second) the mediation route with the school district or they can go the route of a hearing which is a little bit more involved and might not be necessary in all cases i should know that most situations conversations can be and have been solved for lack of a better term with mediation without having to go to to a hearing. A hearing usually involves lawyers and like i said, more sort of intense process.

Mediation is exactly what it sounds like. So you will be assigned a mediator to help you, your family and whoever is on your team, outside service providers, advocate and so forth, mediate the conversation with the school district. This person's role is not to make a decision. It's not to tell either side what to do or what not to do. It's really sincerely to help facilitate the conversation and see if there's a way that the school team and you can come to an agreement. Generally that's the first kind of approach in the first step and like I said, generally mediation can be helpful. It can help the parents and the school teams come to an agreeable decision. That said it doesn't always happen that way and so there is due process and there is a hearing process in each state for special education.  

Like i said, this looks a little bit more like a true hearing with lawyers on both sides where the school team in the school district is equipped with their lawyer and where you as a parent are also equipped with your lawyer as well this tends to be like i said for cases where you are not able to come to an agreement through mediation. It depends. Each case is very very different and you may have a lawyer that you're working with now and that is the best person to ask about your specific case and what route is the next best route. If you are working with an advocate, whether it's us or somebody else, this is the best person to ask what the next best step is, but just know that there are those two sorts of different routes to get to an understanding. To get to an agreement

I should note that in Massachusetts but in other states as well, right on the website the appeals website there are forms that are pretty simple that you fill out that helped to jump start the process. So you can go to Massachusetts for instance. It’s the Bureau of Special

Education appeals, like i said, and there are forms to request mediation. You can request

a mediation as a parent or caregiver. Just know that the school district can also request a mediation if they're feeling on their side like an agreement can’t be can be made at this point.

I should also note that in the iep, usually in the letter that comes at the beginning of the iep, the N1 letter, there should be some sort of statement of your rights as a parent. So the school district should be informing you of your rights all along but one of the things that they should be informing you of your rights about is an appeal process. Whether like i said that's about eligibility or another part of the iep, they should also, we talked about this in another episode, they should also be providing you yearly annually with the parent procedural safeguards, which is just your rights as a parent and student in the special education process. And so there's a little bit more information, there is a conversation for another day, is requesting an independent evaluation to get more information to help lead to some sort of outcome agreement between you and the school district. But quite frankly that's a whole other that's a whole other episode and a whole other conversation. But just know that that is part of the process and that that might be the next best step for you as a parent is to request an independent evaluation something to support what you're seeing with your child's challenges, but also something to just get more information about what's going on with with your child

So there are there are many different routes to take when there is disagreement; whether it's about eligibility or any other part of the special education process and just know that it really sincerely i know we say this all the time but it really sincerely is individual and it really depends on what the process has looked like up to this point and what is going on for your child and with the school team and so whomever you're working with if it's anyone that's a great person to start asking and it might just be worth a reach out to the bureau in massachusetts or whatever the governing body is in the state that you reside in and say here's what's going on what's my next best step and they can sort of help guide you. Whether it's into mediation or into something different.

[michelle_she_her]: and i think the last thing to really note here is even if your child was not eligible at one time that doesn't mean that they're never going to be eligible. So like i said at the beginning the episode, sometimes we test kiddos when they're really young, kindergarten, first grade, second grade and the testing, the standardized testing that is utilized then, well it can be a great oh data point, it can be one tool to use, sometimes doesn't accurately catch more of those specific learning disabilities per se or even things like ADHD and stuff. It can be really hard to determine a disability for certain disabilities at that young age especially where we now have a generation of kids coming up who maybe didn't go to preschool who maybe kindergarten was interrupted. Their testing may just not give us the most clear picture there. So you might have some concerns about your kid. The teacher might have concerns about your kiddo when they're in first grade and the testing might really not show a very clear picture of who they are as a learner and it might not be until the end of second, middle of third grade where we can get a more clear picture for them

So even if your child was not eligible at one time, if a year, two years, three years, four years down the road you're still concerned, you can re-request an evaluation. You can Re- request your evaluation and sometimes and i've been on teams like this it might be the beginning of the school year and there may not be enough information or maybe the child was out a lot

[dana_marie]: I have

[michelle_she_her]: and it might be, you know, we know something is happening here, we need to give them some more time and the team will then come back and re convene with the same testing but with updated progress measurements from response to intervention strategies from improved attendance, from things like that and then it makes the picture much more clear for if the student - it's a disability that's impacting them in school or if it's something else. So, it's a fluid process, so don't feel like it's one and done.

[dana_marie]: For sure. So that's a lot of information for today. I think a couple of takeaways, i meant to actually note this earlier, i think this is really an important piece of information in the year of 2022, the BSEA in Massachusetts conducted five hundred and eighty eight mediations with an 82% agreement rate. And so, like I said before, if you're thinking of trying to bring someone in to help you and the school district come to some sort of an agreement, mediation has worked in the last year 82% of the time and i think that's that's really important and sometimes it's just helpful to have a third party there to help facilitate the conversation if you're wondering if that's the right move for you or if requesting a hearing is the right move.

Your one tangible take away from today's episode should be to head to the BSEA website which is on mass.gov There you can find the reference manual that was just updated actually within the last calendar year i believe and it has a table of contents at the beginning and will bring you through the difference between mediation and hearing how to request do process hearing what it looks like who the hearing offers are, how to withdraw all the different

Pieces of this process and i think that's super helpful if you're thinking that it might be the next move for you

[michelle_she_her]: awesome and we'll link that in the show notes as well so that you have easy access to that.

All right So that was a lot of information to digest so if you have questions or you have concerns or you're not quite sure what the next step is go ahead and schedule twenty minute consult with us and we can try to answer the questions that you have in that twenty minutes or discuss how we can support you going forward and so grateful to have you here and hope this was helpful for you.

If you have any other questions or topics you would love for us to address in upcoming episodes please email us at empowered2advocate@gmail.com

Until next time friends.