"So many dreams at first seem impossible. And then they seem improbable. And then when we summon the will, they soon become inevitable."
~ Christopher Reeve

Friday, August 17, 2007

The IPP Appeal Process

"It's all knowing what to start with. If you start in the right place and follow all the steps, you will get to the right end."
~ Elizabeth Moon, The Speed of Dark, 2003



UPDATE:  Due to recent changes, a parent is now able to appeal the fact that the school has refused to provide their child with an IPP




Technically speaking, the IPP is the Individual Program Plan which sets out certain educational goals for the student, the means by which the goals are to be achieved or measured and the roles of teachers and other specialists or assistants.

But from a parent's point of view it is often the place where the rubber hits the road - if your child cannot meet grade level outcomes it is the program that he or she will follow. It lays out how and what the school will teach your child. In a sense, its your child's lifeline, from where he is now to where you hope and pray he will some day be. It is for that reason that the IPP appeal process is so important - what happens if you, as a parent, do not agree with what the school proposes to teach your child, where they propose to teach him or the methods that they propose to use? How do you get your say?

From a parental perspective its very important to know what steps you have to follow in order to initiate an appeal of your child' s IPP, how much time both the school board and Minister have to respond and set up an appeal hearing, what your rights are at such hearings and to be aware of potential pitfalls and hazards along the way.


SCHOOL BOARD APPEAL PROCESS
IPPs are to be designed and continuously modified to keep pace with the student=s development through the course of his education by the Program Planning Team. This team includes the student's teachers, educational and other specialists and the parents or guardians of the child. Therefore,as the parent or guardian of a special needs child, you are, by law, a member of your child's Program Planning Team.You are, by law, not only to be afforded the "opportunity to participate in the development of an IPP for your child"[Education Act, s.25 (2)] but also to have access to a procedure to appeal that document if you disagree with it.

The Education Act and Regulations, read together, provide that "the parent may make a request in writing to the Minister of Education asking the Minister to establish a Board of Appeal to provide a ruling on an existing or proposed IPP" where "the parent does not agree with the IPP that has been developed for the child; and the disagreement can not be resolved by a School Board appeal process."

Obviously this presupposes a school board appeal process. Policy 1.8 of the Special Education Policy Manual from the Department of Education mandates that Aeach school board shall develop and maintain "written policy and procedures to ensure that programming and services are designed for students with special needs". This policy is to include, among other things, "an appeal policy established by the board within the parameters of the provincial policy" .

In other words, each school board in this province is obligated to develop a written appeal policy which includes the appeal procedures to be followed in a case where the parent of guardian of a child with an IPP does not agree with the child's proposed or existing IPP. At the present time, it is unclear whether all of the school boards have complied with this directive or not.

The school board appeal policy must fit within the parameters of the provincial appeal policy.

These parameters are set out in a booklet entitled "School Board and Ministerial Appeal Guide" which is referred to as a "guide to help parents or guardians, students and educators understand and prepare for a school board or ministerial appeal hearing" The Guide provides that "A parent...must make the Appeal for the student under 19 years of age" and goes on to state that "the appeal process must be accessible, straightforward and fair" [pg 1], "the appeal steps must be completed as quickly as is reasonably possible" [pg.1] and "the School Board should promptly let the...parent (s)...know of each step and also provide them with the information necessary to respond fully". [pg.1] Remember these principles and compare them to your school board appeal policy if you ever see one. The results could be interesting.

The parameters for the school board appeal process are set out from pp. 2-5 in the Guide. To initiate an appeal, you must, within 30 working days of the date of the establishment or the review of the IPP, send a letter to your School Board Superintendent requesting an appeal. Included in this letter should be the reasons for the appeal and any "supporting documentation" . I would draw your attention to the fact that the Superintendent is to forward the School Board and Ministerial Appeal Guide and relevant school board policies and procedures to you within ten working days of receiving your letter requesting an appeal. It appears that, in practice, some Boards are not meeting this obligation.

At this point the Superintendent will review the appeal request to determine whether the program planning process has been followed. If the Superintendent determines that the process has not been followed, he will write to the parties and advise that he is referring the matter back to the program planning process. This means that you will once again be meeting with the Program Planning Team and perhaps a representative from the school board' s Student Services Department to attempt to resolve the issue. He may also include a directive to proceed with program planning where it has not occurred. It is recommended that this take place within 10 working days from the receipt of the request.

If he feels the process has been followed and the appeal is based upon outcomes or placement (more will be said on those terms later), he is to request an appeal committee to set a time and date for the hearing. Remember, this will be an internal school board appeal committee. The Guide provides that the hearing shall take place within 40 working days of the Superintendent receiving a request for an appeal. The school board appeal committee will hear and decide the appeal.

Who is this school board appeal committee?

That will vary depending on the school board. Some boards have followed the Ministerial process, which will be discussed below, allowing the parent to pick a representative, the school board to pick a representative and then a third party, who is not a member or employee of the Board is included. Other Boards have a "standing committee" which might include the Superintendent or his delegate, some Board members and perhaps an outside individual from the Department of Education. You have no say in who the members of the panel are unless your Board follows the policy of allowing you to pick one representative.

The Guide sets out some of the duties of the Chair both prior to and at the appeal hearing. It is stated that the Chair must ensure that proper procedures are followed that will allow members to make a "prompt, fair and unbiased decision". The parties to the appeal are to be informed in writing of the decision, and it is recommended that this is done within 10 working days of the appeal. Importantly, if the parents and guardians were unsuccessful, this written decision is to advise them of the regulations concerning the Ministerial appeal processB however, in the past, this particular provision appears to have been ignored on a regular basis by school boards.


MINISERIAL APPEAL PROCESS
The parameters of the Ministerial appeal process are set out in ss. 54-61 of the Ministerial Regulations and at p. 6 of the School Board and Ministerial Appeal Guide.

In theory, either parents or the school board can appeal the first level of decision. Of course, considering it was the Board that rendered that decision, in reality, a Board appeal seems unlikely. After receiving the decision of the school board, a party has 20 working days to make a written request to the Minister of Education. The Department will review the IPP and the school board' s decision and decide whether a ministerial appeal will be allowed to proceed. It's important to realize that the Minister does not have to allow you to proceed to the second level of appeal. However, if she refuses your request for a ministerial appeal, you should receive, in writing, the reasons for her refusal.

If the appeal is allowed to proceed, the parent will be informed in writing and a mutually agreeable date will be sought. The School Board and Ministerial Appeal Guide will be forwarded to the parents and every attempt will be made to ensure that the Ministerial Appeal is heard within 40 working days of receipt of the request for an appeal at the Department.

It should be noted that the Regulations provide that once a provincial appeal is initiated, an IPP cannot be varied until the Board of Appeal makes its decision, unless both the parties (the parents and the school board) agree.

A Ministerial Board of Appeal will consist of three members
  • one member, not an employee or school board member, named by the school board
  • one member, who is not a parent or relative of the student, named by the parent; and
  • one member appointed by the Minister. This member will be the Chair of the Board.
The Chair may request, in advance of the hearing, records and documentation that are to be submitted as evidence by either the school board or parent and the names of people who will be called to give evidence. All documents and records are to be kept confidential. The hearing is not open to the public and the only persons permitted to attend are the parties, their counsel and such other person as the Chair may allow.

As the parent, you may bring a lawyer or any other person you wish to the hearing with you, provided that the Chair agrees with your choice. A great deal of authority rests with the Chair, he or she not only decides who can attend, but he will also determine all questions arising during a hearing respecting procedure and admissibility of evidence.

Although the Regulations appear to clearly contemplate witnesses being called to give evidence, the Department of Education, who appoints the Chair, seems to take the position that witnesses, other than the parent and school representatives, cannot testify before the Board. The procedure generally works that the parent is given one half hour to present their case. In the words of the Chair, "you are talking to the Board members, not the opposite party" . The school board is then given one half hour to present their case, following which the Board members can ask any questions they wish. Each party is then given time for a brief closing statement. Although this procedure does not appear to be set down in writing, it looks to be the standard practice followed at the provincial appeal level.

But remember, just because something has always been done a particular way, does not mean that you cannot request that things be done differently. The bottom line from a legal point of view is that you must be given a reasonable chance to present your full case and respond to the school board' s case.

Following the appeal, you should receive a written decision from the Board setting out the reasons for their decision. The decision is said to be final and binding upon all parties. Although this wording is attempted to limit the right of either party to challenge that decision, there is a very limited right of review from the decision to the courts.

One final catch is that the Regulations provide that the parents can appeal to the provincial level when "the dispute [around the IPP] concernsoutcomes of the proposed plan or placement of the student". Although a school board is given the power to determine the appropriate placement of students, their obligation in the case of a student with special needs is subject to the above appeal procedure.

According to the Department, "placement"is defined as "the settings in which the student is taught". "Outcomes"are defined as referring to "what [the]student[s] are expected to know and be able to do as a result of a particular course of study" .

It should be noted that there is an argument that the right to appeal an IPP cannot be limited to only outcomes and placement but that a parent should be able to appeal any provision in an IPP that they do not agree with. However, that argument has not yet been tested in court.

And that, in a nutshell, is the IPP appeal process.

Whatever you do, you need courage. Whatever course you decide upon, there is always someone to tell you that you are wrong. There are always difficulties arising that tempt you to believe your critics are right. To map out a course of action and follow it to an end requires some of the same courage that a soldier needs. Peace has its victories, but it takes brave men and women to win them.
~ Ralph Waldo Emerson

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