More Dyslexia Legal Rights! ft. Attorney Laura Heneghan (Part 2)

I am a firm believer in a parental spidey sense, right? A parent that thinks something is off most times is correct. And if a parent is feeling that something in school is not quite going right, one of your rights is to put in a referral for special education evaluation.

So just a quick pop in here from us, Nick and Sonja. We are so excited to share the second part of our interview with attorney Laura Hennigan. And, you know, last time she talked about her own dyslexic journey with a dyslexic child and also went into, really went into clarifying for us the rights that your dyslexic kid has and that you have a dyslexic child. As a parent. And today it's going to be a little more about case studies, getting that sense of, you know, how things might play out throughout the dyslexic journey, as well as her top tips. So I'm really, really excited to share the second part with you today.

I am a lawyer. So first I have to start with a disclaimer. So my words here are not interpreted to be interpreted as specific legal advice. It's intended to help with an understanding of parents' rights. So you can ask the right questions of a lawyer of your choice in your state and that this doesn't create any kind of attorney client relationship between us. I was realizing, as you were talking, that it might be useful to step back for a second and talk about what is required in order to qualify for, you know, under the IDEA or Section 5.0.4.

So in terms of evaluations, like, you know, I assume a parent can't just go to the school and say, hey, I think my child has dyslexia. We need an IEP. Right. You actually absolutely can. Absolutely can. And I am a firm believer in a parental spidey sense, right? A parent that thinks something is off most times is correct. And if a parent is feeling that something in school is not quite going right, one of your rights is to put in a referral for special education evaluation.

It can also be put in by any of the teachers. So your classroom teacher notices that Jane is just not quite keeping up with the peers. I would argue that the district has a duty there. There is a provision in the IDEA called child fine that says the district is responsible when they suspect that there's an issue to put in a referral for special education evaluation to determine if there's an issue.

It doesn't always happen that way. Most times it's the parent that kind of sees things progressively get worse and worse and worse and says, what can we do here? And as a parent, some districts will have a form. You can just put in a referral through an email and say, I suspect there's something going on with my child and I'm requesting that evaluations occur. What that triggers within 10 days is they have to contact you and get a meeting that you go to, one of these IEP meetings, to discuss what they're seeing.

They don't have to agree to evaluate. And this is actually a really good topic because a lot of times what you hear, every state or district has some version of RTI, SRBI, MTTS, which are interventions that they're giving to kids that they notice might have some issues, but it's in the general education setting. It might be in kind of a small group. And what they'll say is, well, we'll start the MTTS or the SRBI or whatever you're calling it in order to kind of help.

Or we're in the process of doing that. So we don't want to evaluate now because we're doing that. There is good law in place that they cannot use that process to delay this other process, right? They have to evaluate if there's some kind of suspicion that there's an issue going on. Does that make sense? Yeah. So if you, so, so let's, let's just take it, keep going as sort of as a case study here, I guess.

So let's say you did that initial step of saying you suspected something was wrong. You had that meeting and you were told, and you were told that, that, that, well, we're going to try the special reading group first or whatever it is. So at that point, I just want to make sure this is clear. So at that point, you could already say that the right, I don't know how you'd say it exactly.

Maybe you have advice on how to say it too, but like, yeah, what would be the wording to say that to indicate like, but we have this right to at the same time evaluate? So that to me could be a child find violation, which we kind of touched on that they have an affirmative obligation to kind of seek out kids who need special education services and they failed to do so. And you, as a parent pointed it out to them and they still failed to do so.

So that is something you could file due process against. The other, the other option you have is state complaints. You can file a state complaint, which is, again, we could spend a lot of time on either of these things. It's kind of a different way to get a complaint in. If there's a valid concern about a provision of FAPE, check your state department of ed. Sometimes their decisions are print all like in Connecticut, all of the due process decisions are printed.

So you can kind of read what the issues have been and see what the outcomes were. Some states have their state complaints up there. Again, we want to work toward resolution. So if you are not agreeing with what they're saying, I think you've got to contact maybe an advocate or an attorney to see what your rights are. Every state has a parent advocacy center. Some states have two if it's a large state.

There's a lot of information out there for parents on the web. I would look at, you know, valid resources like rights law, understood, those places to kind of see what your rights are and how there's a lot of sample letters in those types of websites on how to approach this kind of thing. Okay. Yeah, that's great. So it seems like, or I guess my sort of naive thought here is that maybe it's enough to go back to the school and not really threaten, but say, okay, well, I really think my child should be assessed.

And, you know, if that doesn't happen soon, I'm going to go file this complaint. Like, is that, is that ever effective? It can be effective. And to me, there's no real reason why districts shouldn't evaluate because most of the time it's done by school personnel, right? Your other option is to go out and get an independent evaluation of your own. So you go and you pay somebody to do an evaluation of your child and you present that to the school district and say, we, we didn't agree with what you said.

We got an evaluation and we want it to be considered. The issue, one of the issues with that is that the law states that the district has to consider any evaluation provided to them by the client, the parent. And there's no definition of what that means. They don't have to meaningfully consider it, right? They just said, well, we considered it and we disagree and we're not evaluating. So then you've, you do have to kind of escalate to one of these higher parent rights in terms of, but again, I'd have the conversations.

If you're dealing with a school principal, I would elevate it to a special education director of that school or of the district. A lot of parents elevate it to the superintendent. And in my opinion, that's not the right place to go. The superintendent has a lot of responsibilities and doesn't usually, I want to say they don't pay attention to, but special education is not their, their specific realm of, of knowledge. That's why they hire people to run those departments for them.

So I would elevate it to a special education director and say, document your concerns, document, document everything. And when I say document, I mean, it's gotta be in writing. And I think we run into these situations sometimes because all along we've been thanking the teachers and appreciating everything that they're doing and saying, oh, Jane is so happy in your classroom. And then all of a sudden we're saying, oh, wait, wait, there's a problem.

And, I, I know that teachers are an integral part of every child's life and parents' life, but parents need to stop thanking them for everything in my legal opinion. Because it kind of sets this precedent that the parents are happy with what's going on. And then when you have a problem, everything they have in documentation says, parents happy, parents happy, Jane is happy, everybody's happy. So as you're having concerns, email the teacher, if you've, if you've gotten emails from the teacher that say, you know what, Jane is not really up to where her peers are, save that, use that as the documentation to prove not only are you concerned, but somebody in the district is concerned about your child.

Yeah, that's really important to remember about documenting and keep, well, you know, just, which sometimes simply means keeping those emails, making sure they don't get deleted.

Let's take it just one step further in the process. So let's say that the evaluation happens, and you kind of don't believe their evaluation, whatever that was. I mean, we had a case where there was some sort of very tiny evaluation, I think that happened at one point and, you know, that it wasn't a real evaluation, but anyway, so, so that would be an extreme case if they didn't really do an appropriate evaluation.

But what if, what if you, you know, don't believe it and you feel like it wasn't extensive enough or, you know, possibly like in our case, also what can happen is sometimes if it's not the right certain kind of testing, particularly for bright children, then, then it's not showing the discrepancy properly or that kind of thing. So what is your request at that point, including potentially having the district pay for an outside evaluation?

Sure. So when they, when you don't agree with what they've done, we have to look at, well, what, what did they do? What, what evaluations that they, did they do? And when you're looking at a child, you've really got to kind of look at all the realms. You've got to look at cognitive and achievement and academics and, maybe speech, especially if dyslexia is concerned and, you know, kind of executive functioning and attention, because there's a lot of things that can look like dyslexia that maybe are other things.

And when you get your, sit down with your team and you look and they did, you know, they did a simple cognitive test and that's all they did, which sometimes that's what happens. They didn't really dive deep enough into that and you're disagreeing with what they did. So a really strong parent right is the right to an independent educational evaluation. We call it an IEE because we need an acronym for everything.

and so when you ask for an IEE and how this would look is you're, you at, it doesn't have to be at the PPT meeting, but a lot of times it is. You're at the meeting, they review it and you said, we just don't agree. We think there's more going on here. We are requesting an independent evaluation in the area of a comprehensive literacy evaluation of a neuropsychological evaluation, whatever it may be.

They have two choices legally. They can agree to it or they can file for due process against you in order to defend their evaluation. And as I say those words, people are probably going, they can what? You know, yes, they can file against you, which is incredibly scary. And it's a tactic, unfortunately, that can be used that what they can't do is say, well, you know what? We'll pay for half of it, which you see happen a lot.

That's not one of those two choices. They can say yes, or they can, you know, file for due process. That being said, I'm going to go back to, I always try to collaborate. If we can, if we can kind of figure it out, then we figure it out. an important piece here is that, so I'm in the second circuit, the country is broken into circuits and it's grouped by states. And I'm in the second circuit, which is Connecticut, New York and Vermont after you have an initial evaluation.

So you, you have that, I put a referral in the team agreed to evaluate. I don't agree with their evaluations. They, they are not finding, my child eligible for special education and related services. We here, because of a bad case law case, don't have the right to an IEE on those initial evaluations. So what are our options? We wait, we gather more information. We submit another referral. We get a private evaluation, those kinds of things.

In other states, you can file on that initial, evaluation that's done. The same holds true for your child is in special education and you're just, they're not making progress. You're not feeling things are going right. The district does their, their, they're required to evaluate your child every three years, their triennial evaluations. If based off those evaluations, you don't agree with something, you also have the right to request an IEE. and when you're requesting an IEE, you, you don't have, you don't legally have to tell them why you disagree.

To me, it's a good idea to have some legitimate reasons. And especially if you're going to try and kind of figure it out. Sometimes they did very limited testing. They are required to test in all suspected areas of disability. Maybe they didn't do that. sometimes when that happens, they will say, you know what, we'll do that additional testing that you're, that we didn't do. And we'll go back to what are their options.

That's not one of their options. And we don't want to give them another bite at the apple. If they're agreeing that more testing needs to be done, they've already had their chance. if they agree to an IEE, there are parameters around which it will be kind of approved. So it has to be within a certain distance, except for extenuating circumstances. There's always exceptions. They may require, certain evaluators to hold certain certificates in this state.

So you want to ask them for their guidelines and policies. That being said, when I see them, a lot of them are problematic and not legal. And we will file state complaints or those things against those parameters that they're setting. So you've kind of just always got to be aware of, what your rights are. Again, read your procedural safeguards, check out these other websites and things like that. Okay. And then I guess one final one along this case study trajectory, you started to mention this, you know, that they're supposed to be evaluating every three years.

And what about the progress as a parent? you know, let's say you see that they're not making progress or perhaps they're even telling you, but there's nothing being changed about it. Like, can you go in and like make a suggestion for the kind of, you know, kind of, learning help that they should be getting or like what, how specific can you be there? Like, so as we mentioned before, as a parent, you are an equal member of that team.

it is not always presented to you that way. And especially here where we're mostly virtual, in the older days where we used to go into meetings and a parent would walk in and there's already 15 people seated at the table. You don't feel like an equal member, right? They can make a decision that you don't agree with and the decision stands. So again, it doesn't feel equal, but you have the ability to say whatever you want in there in terms of what you think your child needs.

If they were to say no to it, then you need to document that, right? So in the case that they're, they're doing the evaluations, hopefully again, it would, it would include a full cognitive assessment because in, especially in kids with dyslexia, processing speed, working memory, those types of things can cause issues. You may need more evaluative information. You may need a neuropsychological, which gets more into brain function. you may need a comprehensive literacy evaluation with an expert, not a special education teacher, nothing against special education teachers, but there are people that have more diagnostic levels of expertise than a special education teacher.

you know, I think a good argument is if, if a kid's not making progress and you think they're doing the right thing, things like ADHD or auditory processing issues can mimic dyslexia in a lot of ways. And that's only going to be really parsed out with one of these, more strategic evaluations. So I would point to my child's complex profile in requesting additional, testing. And in terms of requesting it, I said, sometimes it happens in a PPT, you can go home, you can think about it and you can be like, you know what, I, we want to, we want to request this.

You put in, an email, you have two to three years, depending on your state from the evaluation that you disagree with to request this. So in Connecticut, if you're doing triennials, it's basically until the next triennial, you can disagree. I would say in practice, the closer you are to disagreeing with it, probably the better. and I think too, if you're, if your child's not making progress, you've got to look at what's being delivered.

What reading instruction is being given many districts are still clinging to these programs that have really been debunked as not helpful for our dyslexic struggling readers. and this is where you need data. What, what is the teacher's training? How intensive are the services? Has your child been stuck in this RBI S, SRBI RTI for extended period of time? That's meant to be a short term, intervention. And if it doesn't work, you got to move on.

So I think there's a lot of pieces to kind of point to or look at if you're not seeing progress. And so at what point, and I hate to ask it this way, but at what point should you give up on the public school and consider an alternative? so like in our case, we did send our daughter to, to a private school. sounds like you did the same with your son. and you know, obviously that's not financially viable for a lot of families.

so I guess it was kind of twofold. Like one is at what point should you consider those other options? And then two, is we've heard that, that sometimes the school district actually will pay for a private education. Can you explain how that works? Yeah. So it really is kind of fact specific. You as a parent, all we had always have the opportunity to remove your child from public education and put them in a specialized school.

And I, as you mentioned, a lot of parents don't have the financial means to be able to do that. in terms of when you kind of are looking to give up, it, it really is very facts. Like I do see trends. I'll, I'll, I'll generalize to that extent that much like my son, fourth graders is a, is a big area. They still aren't reading well. The academic requirements are getting harder. The gap is increasing and they are becoming cognizant that they are different.

The anxiety sets in. They start not wanting to go to school. And as individualized as this is, that is a very frequent fact pattern that I see in clients. I also see a lot that, you know, the research is there that once a child gets the third grade, if they're not reading well, they may always struggle. So you get parents who know this and their first or second graders struggling and they want to address it before we get to this period.

And then we've got the high schoolers who have never been adequately programmed for, but I've been able to constant compensate. so it's really when you should give up. I think some really red flags are when you ask about the program, the school is using the training of the teacher, implementing it, and you're not getting the answers that you want. They are using one of these debunked programs. Your teacher has a special education certificate, but they have no additional training in, any of the structured literacy programs.

And around here in Connecticut, we, we have a lot of teachers that go to like a 30 hour introductory course, and then, the district will present them as trained. And in order to really be trained in any of these and be able to remediate dyslexia, we're talking about at least a 60 hour course, and then a hundred hours of observation under a fully trained person and then additional hours. So it is, you know, a year's process, not a weekend warrior, kind of, kind of thing.

So if, if you're pushing back against those kinds of things and you're not getting anywhere, it is absolutely time to consider another location where they may have, specifically trained teachers. And, you know, dyslexia in most kids, 95% of children can learn to read. It can be remediated. We may be talking about going to a private school for a year or two or three, depending on how far behind your child is. And then your intent can be to re enroll them in the public school system and have them finish out their education.

So we're certainly not, you know, condemning public schools for everything. but those, those early years are really important. And I think it's becoming clearer to parents that they, they need to move. the lack of ability of, of access to these schools, is a problem. So then you mentioned, you know, schools paying for it. There's, there's kind of two ways you approach the, the private school sector. There are state approved special education schools that are approved by the state to implement programs, through school districts and a child can be placed at these schools through the IEP team and the home district remains ultimately responsible.

The private school implements the IEP at the private school and the district is responsible for all tuition, all transportation costs. and in this case, you continue with all of the rights you had as a student who receives special education and related services. In the alternative, there are private schools that are not state approved where the parents enroll the student. We call these unilateral placements. So if you hear that term, that's what that means.

It means you as a parent are enrolling the child in a private school. The public school may agree to contribute to the cost, usually through a settlement agreement and in exchange for that contribution that they make, the parent has to waive some of the rights that they have. generally they're waiving that they won't come again. They won't come out after the school district. So you're not going to, you're not going to place your child in a private school and the district's going to agree to contribute to the tuition.

And then you're going to file for due process. You're waiving that right to file for due process against them in exchange for the monetary compensation that you're going to get. So the settlement agreement is a contract and it outlines all of the terms. When you are in that private school, the, the home district has no responsibility. You're a, you're absorbing the appropriateness of that program. private schools do not have to follow the IDEA.

They will not implement an IEP. They will probably have some type of service plan. if they receive federal funds, they would have to, you know, follow the 504 accommodations. Not all private schools receive, federal funds. So yeah, there, there are a couple of different ways to get there. And if you're, if you're at a P, if you're at an IEP meeting and you as a parent can replay, you can request outplacement.

You can say, this isn't working. I want my child outplaced. If they disagree with you, that needs to be documented. And then you can continue to look at the private schools that are available. And then you can approach your district about whether they would be willing to contribute. So that you do not file for due process against them. So you've got to be ready to file for due process. That's kind of the carrot on the stick.

And then in the process of collaborating and settling, you generally can end up potentially with an agreement depending on what their position is for their program. That was really helpful. Yeah. I hadn't really understood how that all plays out at all between the funding or even the rights and, you know, in private education. So thank you for saying that. So well, clarifying it for us. we're coming to the end of our time.

We could talk to you forever about all this, but, but I guess what are your top, either your top tips for parents or a top takeaway? What, what would you like to leave us with here before we'll let people know how to contact you as well? So, I mean, I think I've said it a few times that if you disagree, you want it documented. we don't want to see the parent agreed to everything in the IEP, the whole purpose.

So when you, when you get an IEP, there is a 15 day implementation period before it kicks in. That time is for you to raise concerns, that you might have with that program and document your concerns. And if the team declines to include your concerns in the IEP, a really important thing is to write a parent's statement and submit it and ask that it be attached to the IEP as part of your child's record.

I think that you want any data that the team has. You want before the PPT, you want to, if you have a PPT on Friday, on Monday, you want to say, we have a PPT as an equal member of this team. I need access to all of the documentation that's going to be reviewed at that meeting, including classroom screeners, assessments, standardized testing, anything proposed goals and objectives that we are going to talk about.

And I think that that is key in order for you to being able to participate and use those words. I think that, you know, being informed of these rights is a really great step and kind of specific to dyslexic students when you're looking at the data. so there, there's two areas, there's mastery measures. So how is your child measured against their themselves? So in, in, in September, Jane has three out of 10 closed syllables with blends.

And in June, she's got 10 out of 10. And the district says, woohoo, look at that progress, right? That's a mastery measure. She's being measured against herself. The other area, which a lot of times they don't do, and they really need to do are called growth outcome measures. So how is your child progressing in comparison to their peers? All right. She's, she's gained seven closed syllables with blends, but she's dropped two grade levels in reading comprehension.

So incremental progress is not meaningful progress. And I think it's only been very recently that I've come to really understand how important this is because we're talking about progress. So you want a dibbles is a good example of something that you want your team to be doing on your child, in order to see what that growth is relating to their peers. So I could go on forever with tips, but that's kind of my top.

Yeah, I know that's really important. And what is a dibbles again, just for anyone who might not know. A dibbles is an assessment. You can Google it. You can get the chart that shows where your child should be. It measures several different things. One of the very important things is words correct per minute by grade level. And you will probably get data in some form from your school district that says what level your child is at.

It may say that last year your child was at 50 and now they're at 75 and yay, they're doing great. But the grade level standard might be 120. So that's where you've really got to dive into what the data looks like. and not just accept that progress is an increase in any number. Yeah, that's so helpful taking those terms and really digging into how that looks, you know, and what we really want to be looking at in it.

This has been so wonderful and so helpful. So how can people contact you specifically if they'd like to get legal advice or assistance from you? So I can only provide legal advice in Connecticut. I'm admitted in New York, but I'm busy enough. I don't practice in New York and, but I'm always happy to answer kind of general questions, absolutely get feedback from people, point you in a direction of a resource that I have, might have mentioned or something like that.

So I don't want people to not reach out. I just want you to know, I'm not going to answer specific questions on, you know, your child's issue, but I can be reached at, Laura at sped.esq. And my website is sped.esq. And if you now need to look for an attorney or advocate, the first place I would really recommend that you go is copa.org, C-O-P-A-A. It is the council of parents, attorneys, and advocates.

Most of us in the country are members there. and there is a directory by state or location where you can look for somebody that might be able to help you in your location. Fantastic. And we will definitely put that in all the informational areas as well, description box and whatnot. So thank you so, so much. I mean, it's been so wonderful to dig in with your expertise. Yeah. Again, I feel like we could keep talking to you for hours, but I think probably an hour is enough for our listeners to, digest it.

I know it's legal. It's a lot, but yeah. Well, anyway, thank you so, so much. I really appreciate the opportunity to kind of reach out and help people. So thank you.