OTS 47: Notes From a Special Education Attorney Feat. Tony Tai Nguyen, PC
- Jayson Davies
- Apr 19, 2020
- 42 min read
Updated: Jun 2
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Welcome to the show notes for Episode 47 of the OT Schoolhouse Podcast.
In this episode, Jayson hosts Tony Tai Nguyen, a Special Education Attorney based in Southern California. Together we discuss why parents seek out attorneys and what attorneys are looking for in a good IEP meeting. We will also discuss why parents do not always agree with IEPs and what he is preparing for as a result of the COVID-19 Pandemic.
This podcast does not qualify as a Professional Development Podcast. You can learn more about how to earn professional development credits through the OTSH Podcast for your OT/COTA renewal certification here!
Links to Show References:
Visit Tony's website K12EdLaw.com
Special Education Rights and Responsibilities (SERR)
This is a resource that Tony commonly shares with parents and special education providers alike.
Be sure to subscribe to the OT School House email list & get access to our free downloads of Gray-Space paper and the Occupational Profile for school-based OTs.
Have any questions or comments about the podcast? Email Jayson at Jayson@otschoolhouse.com
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Episode Transcript
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Jayson Davies
Hey everyone. Jayson here. OT schoolhouse podcast. Thank you so much for joining me today. As you can tell, things are already starting off a little bit different with some music in the background. I really just wanted to start this episode off by acknowledging all the hard work that you are putting in right now. I just want to let everyone know we're all doing our best. We're all staying strong. We're all trying to help the kids that we work with, as well as the kids that are in our home, the dogs that are in our home, while we're trying to provide tele therapy, all that good stuff. And so I just want to say thank you, and stay strong. Keep doing what you're doing. The parents of the kids that you are helping are going through a lot as well, and just know that they appreciate every single video that you're creating for that student, every single worksheet that you're sending home, every single zoom Google meets call whatever way that you are getting to your parents. They are appreciating that. I also want to give a huge thank you to all the healthcare professionals. Of course, us as OTs are healthcare professionals, but for the most part, we're working in education. I want to give a huge shout out to all the OTs and other healthcare professionals working on the front line in the hospitals, in the nursing facilities that are seeing difficulties, just all those people that are taking care of our loved ones and putting themselves at risk. Right now, that can't be easy. But again, I just want to say thank you to all of those, and maybe you're in a school based OT and on the weekends you're working at the hospital. Thank you so much. Thank you for taking care of everyone's loved ones, and thank you for taking care of your own loved ones as well. I really appreciate it, all right, so we're gonna go ahead and make this a little bit lighter and jump into the episode. But first, here is the intro.
Amazing Narrator
Hello and welcome to the OT school house podcast. Your source for school based occupational therapy, tips, interviews and professional development. Now to get the conversation started, here is your host, Jayson Davies class is officially in session.
Jayson Davies
Hello, hello and welcome back. Thank you for bearing with me on that little bit of a somber intro. But I really just wanted to say thank you so much to everyone. All of you are doing a fantastic job. I've heard so many people reach out to me on Instagram, Facebook, everywhere, and everyone's just trying to do their best. I just wanted to acknowledge that today we have on a very special guest. His name is Tony Nguyen, and he is a special education attorney for parents. Very awesome. And he's going to be joining me in just a moment. You're going to want to stay tuned, if that's anything that you've ever been interested in, yeah, just being able to hear why parents go to him, and then also what his job entails and what he's expecting when he sits in on an IEP meeting, or when he is kind of summarizing what's going on in an IEP and has to decide with the parent how to move forward. So we're going to get into all of that in just a minute, but first, I just want to give you guys a quick update. I know people are interested in teletherapy and kind of what I'm doing. I know everyone's doing something different, but I just want to let you all in on what I'm doing, and what that is actually is a combination of asynchronous and synchronous. Teletherapy, asynchronous meaning that I'm actually creating videos of activities and sending them out to parents. These videos range anywhere from 10 to 20 minutes. Some have even gone slightly longer, like my zones of regulation PowerPoint that I put together. But yeah, it's just basically I looked at my kids goals and kind of and their skill ability, and basically put them into kind of like a category. And so I'm sending out videos that are specific to the skills that they need to work on to them. They might not be individualized, but they are very specific to the skills that that student needs to work on to meet their goals. So that is the asynchronous version. The synchronous version is that I'm using zoom to meet with students live, if you want to call that virtually live, right? And we're working on some sort of activity. Oftentimes it's the same activity that I'm sending out as a video, but I am doing it there with the parent, coaching the parent and this and the child through the activity. Sometimes the the students and the parents, they don't have all of they all the tools that I would hope that they would have in their in their home, like shaving cream or something. And so we we adapt, and we use what they do have for some students that looks like looking at what toys they have and saying, Okay, well, how can we make this toy that they have in their house acceptable to or not acceptable? But how can we make this toy that they have in their house developmentally appropriate so that they can improve their skills? So that's kind of what it looks like right now. I'm excited to keep on going. Actually, it does take a lot of time, a lot of effort, a lot of planning, but it has been rewarding so far. All the parents are super appreciative of both the asynchronous and the synchronous teletherapy. So without further ado, I do want to introduce Tony Nguyen again. He is the special education attorney at K 12 ed law dot. Com, that's where you can find him. If you want to learn more about him. I've had the pleasure of sitting in on a few IEPs with him, and he is just a class act guy, and he's doing a lot of cool things. So stay tuned. Here is Tony win from K 12 ed law.com Hey, Tony, welcome to the OT school house podcast. How are you doing this morning?
Tony Tai Nguyen
Hey,I'm doing well. Doing well, finally getting used to this work from home, or this COVID 19 thing so, so finally getting used to to the run of things around here.
Jayson Davies
Yeah, I think we all are now. I mean, the time that we're recording this, we're about two weeks into quarantine, just over two weeks into quarantine now, and people are starting to do some therapy. It sounds like schools are starting to figure out kind of what they're going to do, but yeah, we'll talk about that as we get further in. But to start off, I want to give you the opportunity to quickly introduce yourself and share how you got to where you are today as a special education lawyer.
Tony Tai Nguyen
Yeah, so my name is Tony Winn. I am a special education attorney, like you said. And how I got into this was actually an interesting story. It had to do with a girl, actually. And when I was in law school, I was dating a special day class teacher for a mild mod class. And you know, we had some distance between us because I was out, I was down in San Diego, and she was up here in Orange County. And you know, phone calls can be a little monotonous if you have, if you have a long distance relationship. So I decided to take up on an externship for a special education law firm, representing districts, I'm sorry, representing students at that time and and I didn't know anything about it, but I thought, You know what, let's, let's kind of dive into her world and see what she does on a on a regular basis. And from an externship, turn into a law clerk, turn into a paid position. And then, after my first year of law school, there was no turning back. I completely dedicated my my entire time in law school, to studying this and and you know, the other reason why I kind of delve into it and made my decision of going this route is I'm Vietnamese American, and I speak Vietnamese, and unfortunately, there aren't any Vietnamese attorneys doing this, so I'm the only Vietnamese speaking Special Ed attorney in the state. Wow. And actually, possibly the US. So I have yet to meet one. I'm for sure, in the state of California, but outside, I'm not sure, but I have not met one yet. So it's kind of interesting. It's kind of interesting.
Jayson Davies
Yeah, and we do have a pretty big Vietnamese population out here. One of my best friends is Vietnamese. And yeah, especially Orange County.
Tony Tai Nguyen
Yeah, yeah. Orange County is, if I read it correctly, we're the largest Vietnamese population outside Vietnam. So yeah, and California has has to the top that the top three locations. So it's here. It's in San Jose. Is the other location with with the abundance of Vietnamese residents. So Wow.
Jayson Davies
So then have you had quite a few clients then that it really helps having the language or being able to speak Vietnamese and knowing the culture.
Tony Tai Nguyen
Yeah, yeah. So, so when I first started the one of the barriers of all this is raising awareness, and this was about 2013 so there was still a lot of awareness that still needs to be raised culturally, and that had to pick up before I started gaining a lot of clients who were Vietnamese American. And now I would say about a fourth of my client base is Vietnamese, and the rest of them come from all all different ethnicities.
Jayson Davies
Gotcha. All right, I think I already know the answer to this. But are you licensed only in the state of California.
Tony Tai Nguyen
Yes, yes. For now, I'm only in state of California. I have plans of possibly going to other surrounding states, but right now it's a lot of work here in California.
Jayson Davies
Yeah. Okay, and so if you do get licensed in other states, then can you kind of do virtual type of stuff? Yeah?
Tony Tai Nguyen
So, so most of my clients, so I have clients all through the state, from from here in SoCal as well as up in the bay area. So the Bay Area in Santa Clara County, I have a lot of clients, and most of it is actually done virtually now. And I think, like every other profession, the legal profession, is kind of shifted to the virtual, you know, meeting, meetings over zoom meetings over, you know, video conferencing is very normal now. So working on a state, I imagine the same thing, the only thing that you would have to do in person would likely. We have to be one. I like to meet the kiddos a lot. All the kiddos I represent actually meet them in person. So that's one.
Jayson Davies
I appreciate it.
Tony Tai Nguyen
Thanks. And you know, the other thing is, is, you know the court systems, you got to be you got to be there in person. You know, whatever court proceedings or administrative law proceedings that they have, you have to be there in person.
Jayson Davies
Yeah, I really appreciate that. You do meet the kids. I feel like a lot of people, a lot of times, we're sitting in an IEP, and we have an advocate or a lawyer, and it sometimes becomes very clear that the person that we're talking to doesn't know the student. And I mean, yes, you can probably do your job without knowing the student, but, I mean, I wouldn't want to go to an IEP without seeing a kid recently, and I'm a professional that works with a kid, and so I think that's kind of just across the board, everyone should know the kid.
Tony Tai Nguyen
Yeah, I agree. You know everybody that comes to the IEP meeting you become a team member, right, part of the IEP team. And I feel that everyone needs to know the kid, and the more personal you have interactions with him or her, the better it is. And I think the more, the more your input carries carry some weight.
Jayson Davies
Yeah, definitely. All right, so before we get into the specifics about being a special education lawyer, can I ask, what's your day to day activities look like pre Coronavirus? Days? Of course, you mentioned a little bit of traveling, potentially zoom meetings. What are you doing day in, day out?
Tony Tai Nguyen
So I actually get this question quite a bit, and believe it or not, the majority of my day is fielding phone calls. If, in this area of law, I think that the really interesting part about it is that, you know, kids are by law, and by a lot of parents preference for them to go to school every day, right? Right? And if parents have concerns about a schooling issue or special ed issue or anything relating to to education, they see it every day, because every day their kid goes to school. And so potentially every day, I have to field a lot of phone calls because every day there's a new concern. And so that's majority of my day, believe it or not, is being on the phone with parents, being on the phone with with service providers that talk about the kiddo, the other parts of my day kind of I guess you can say it's a lot of the clerical side of things, and then I would say that the third of my day is actually doing record reviews, writing due process complaints, if that's a route that we're going for that particular family. But I would say a majority of the day is is hearing, hearing parents out, because there's so many updates that happen every day, every week and and to lend an ear for that, and to know more about the students most update info, as well as providing, I guess you can say a little bit of emotional support is really important. Is really important for those parents.
Jayson Davies
Yeah, I can imagine. So before we get into the specifics, you don't represent Me, you, or any person, or anyone that's probably listening to the show. But as we get kind of more into some detail, is there any sort of disclaimer that I know, oftentimes with lawyers, there's some sort of disclaimer.
Tony Tai Nguyen
You know what? It's such a lawyerly thing to do, but, but it's important. It's important for, I guess, everybody's protection. So anything that we discuss on here is, is, is my experience. A lot of it is storytelling and but any information that's provided here is, is intended as general information that that sometimes you can access through other meaning, through other means, but it's not, it's definitely not intended as as legal advice for any parents or any particular OTs or any other service professionals that that are listening to this for their particular situation. I mean, you're, we're going to be talking about a lot about IEPs and the I and IEPs individualized, so it's hard to talk generally about those kind of things. So, so, yeah, every kiddo is different. Every situation is different. So to the information that we discuss here is, is mostly general information.
Jayson Davies
Absolutely, so OTs, obviously, we work with a lot of kids, but some of us also have some of our own kids with special needs. I personally do not, but I know several who do first of two questions, I guess, what's the difference between an advocate and a special education lawyer? And then going a little bit further, why do people seek out advocates or special education attorneys?
Tony Tai Nguyen
Yeah, so you know the difference, the major difference, to be honest with you, that. And that's more noticeable, it's just the degree in the license, you know, for for a JD, and then your bar license outside of that, as far as experiences, I've seen a lot of excellent advocates out there who are very knowledgeable, and a lot of them, you know, carry experiences as either, like you said, parents, and they're also professionals. Some of them were previous special education administrators, special education service providers, things like that. So they do carry a lot of experience. The only I guess you can say some parents are are would select one over the other is advocates, because they're not licensed. As far as lawyers, they tend to be a lot more, more or less taxing on on the fees and the cost. But on the flip side, on the flip side of that, you know if, if you're successful in a claim, let's say you have a claim against the district and you're successful, that success also could come with attorneys fees. It doesn't come with advocate fees. So whatever advocates you may have brought to various proceedings, various meetings and things like that, with the district, those fees are not recoverable if you hire an advocate, you know, so the parent hires an advocate and and sometimes the advocate costs can be fairly high. I've heard advocates cost upwards to 150 plus per hour. And you know, some attorneys are just barely over that threshold. So is so it sometimes is definitely wise to bring an advocate, because it's more cost effective and things like that. On the flip side, a lot of parents later on discover that that those fees aren't recoverable, while attorneys fees could be recoverable. So that's that's one major difference. The other one, to be honest with you, is, is some parents tell me this, I haven't experienced this myself. Some parents say, you know, I've hired an advocate and I've hired a lawyer. It seems like when I bring the lawyer, I get more of a successful result than when I brought the advocate. And you know, when I hear those stories, I can only think of, you know, I guess from from a district, stand for point, or a public school standpoint, it's just seeing the the threat of litigation possibly bring an advocate. So, so that's those are some of the differences, but, but I'll tell you, in this state, particularly in California, advocates can represent you out of due processing. Um, so, so as far as going up to the to the due process, hearing or layman's term would be like a trial in this type of of a matter, bringing advocate or brain attorney can be equally as effective depending on their experience. Here is, I would say, is the biggest hurdle that a lot of parents have to get over when, when, when they do hire an advocate is because there's no licensing for them right now as an advocate, and because there's no licensing requirement, there's no regulations as well. So if, if a parent decides one day to say, look, you know, I've had a lot of parenting experience. I'm going to go out and open shop. There's no regulations right now in the state of California, there's nothing. There's no oversight by the state of verifying if these individuals have actually some type of an experience as a baseline to carry on these services, and so that parents are are fearful of that because they don't know the true experience of the minimal experience of some of these advocates.
Jayson Davies
Very true, good point. And so then going along that, when do you see parents seeking you or advocates out? Why are they coming to you usually?
Tony Tai Nguyen
So, so there's, I would put them into like, maybe three major categories. So for the very first one is that they're just starting off in special ed, so you're looking at early intervention, and you're, you're on the cusp of about three years old, and parents go through their very first initial IEP, or the initial assessment, actually. And they're like, what's going on? What am I getting myself into? Right? Yeah, what's going on here? I thought, you know some parents, they get an earlier diagnosis from from a medical provider, and they're like, Well, why isn't this enough? Why is there so much testing? The process is unfamiliar to them, so sometimes they'll seek me out as as a guidance or as a coach, if you will, to kind of just mandate them through the process without any type of legal representation. Most of them have zero violations and zero claims. It's just something that makes them a little a lot more confident to make parent decisions. In the same in the process. So that's, I would say, that's the that's the first set of set of parents. The second set of parents would be parents that that are asking for assessments or asking for to start something and there's a disagreement between them and the public school. So a parent might come there and say, Look, I have a medical diagnosis. I have suspicions that my kiddo might have some difficulties in school. Can you assess and the public school denies it for one of one reason or another, so the kiddo doesn't have an IEP yet at all. Okay, the third set of parents are the ones that that have IEPs ready. And in their opinion, the and their perspective, the IEP went went wrong at some point, whether it be that they don't agree with an assessment services are not are not adequate for this student, or if year to year goes by and there's they're seeing no progress and so so issues surrounding an existing IEP already. So I would say early intervention, and then just the start of IEPs, or the denial of even the IEP process, and then, and then students with an IEP. So those are the main, main categorical reasons why I think.
Jayson Davies
Yeah, and I often find that I don't know. I mean, I've been in, I've been in schools now for about eight years, and I find that oftentimes there's a miscommunication prior to an advocate or a lawyer showing up with an IEP team, and I really feel like that's where I try to always try to be transparent and stay in communication with the parent, whatever means it takes. Because I just feel like oftentimes, when you leave an IEP and things just aren't settled. Sometimes a few days later, a few weeks later, that's when we get a notice of an advocate or lawyer be on the team.
Tony Tai Nguyen
Yeah, you know, it's, it's, it's great that you bring that up, that that your willingness to follow up with possible miscommunications. And a lot of times it is just that, you know, not every phone call that I get, and not every initial consult I have with parents end up in me representing them. A lot of times I say, You know what it seems like, like there may be a miscommunication here, like you said. Or can you check to see if this is correct? Because I don't want to dive into something where, where, you know where there was a miscommunication that could be easily resolved. But a lot of times I would say, I would say, is that the feeling that they get is either one, a lack of effort from the IEP team or any of its members, a lack of effort, and two, the lack of response or something relating to truthfulness and something that that there's a disconnect, whether it's not somebody who's like, particularly lying or anything like that, but maybe parents asked for I had a recent situation where parents are like, Hey, can I get some of his schoolwork and and this particular educator could not provide any schoolwork, and so parents are like, well, what is he doing there all day? Can't you give me even one or two worksheets? And they could not. And that's where it gets really difficult for parents. So I guess you could say the mistrust is there, and that's when, that's when they would would kind of seek my help as well.
Jayson Davies
Gotcha All right. Cool. So I want to kind of move now into the quote, unquote IEP room, if we can and talk a little bit about evaluations. When you're stepping into an IEP, it's an initial or it's a try, what type of things are you looking for in the evaluations? What kind of things are just kind of in your head that you're looking for either this is great or this isn't great.
Tony Tai Nguyen
Yeah. So the very first thing about evaluations, regardless whether it's OT or any other areas, is whether that assessment covered all the areas of suspected need. So if a parent writes a letter or make some type of an email to say, my kiddo has a, b, c, 123, these are the difficulties that he or she is showing. The assessment should cover all those suspected needs. You know now, if the obviously, if the public schools not seeing any of that that can be, that can be repeated to parents, hey, we're not seeing this. But, I mean, I'm speaking from a parent's perspective. They're seeing it at home. They're not at school with the kiddo, you know, for the entire time period. So they're like, Well, if I see it at home all the time, he or she must do it. Sometimes at school. But you know, from my experiences, I'm sure from yours, kiddos act very differently between home and school. Yeah, sometimes better in one environment or the other, right? But most kids very similar in all those environments. So I would say one, make sure all the areas of of the educators, what the educators see as as potential issues, and what the parents see, that's one, the second one is, is the lack of data. So I'll give you an example. Let's say you have a certain testing protocol or testing procedure that you're going to use. The testing procedure has multiple sub tests. Okay, if I see a, if I see a testing procedure that I know have, let's say, four or five different sub tests, and I only see one or two as as the report that's gonna, that's gonna really, really make me alerted. Because, okay, why? Why wasn't it completed? Now, if there's a, if there's a legitimate explanation for it, absolutely, you know, a lot of times, is the child is, is too low functioning, or for whatever reason that that test may be excluded, then great. But if there's no explanation about that, that's problematic, that's really problematic. Or if I see blank grids, believe it or not, I see blank grids all the time for for sub tests, for multiple areas, I will see some, some using a percentage or a grade equivalency, and then others using a scaled score or standard score. But they don't report all areas. They don't report all of it. And I'm going beyond ot testing. Yeah, there's other areas of testing, of course. The third one I definitely look at is whether or not the assessments interact with the other assessments. Okay, so let's say you have an OT and the OT assessment says, you know, we couldn't perform all the testing because of behavioral issues, okay, and that's very common. That's very common, especially for sensory seekers, kiddos on the spectrum, things like that. But the testing, when they say that the kiddo has a lot of behaviors, it doesn't relate to the beat that maybe a functional behavior analysis. So so a recent case, I had a kiddo who had the tendency of throwing things and slapping, slapping educators or staff's hands okay when he or she didn't get what they wanted. And so from from that particular targeted behavior, that behavior of slapping and throwing things, never made its way on another assessment, like an FBA as a target. Okay, so while it's identified done greatly by the OT, you look over at the FBA and you're like, Huh, why? Why did it not make it its way over there? And so the interacting between testing and assessments is is really important for me going with behaviors. And that reminds me of a recent situation as well, where I had a kiddo with behavior. So there, the OT had literally two pages. The OT report had two pages. And while I can't speak to how lengthy a report should be, the first half a page just had the kiddos demographics, but what it said was the kiddo had such severe behaviors that we had to discontinue testing and then, but, but the assessment only made one trial of doing that. The the assessments.
Jayson Davies
Yeah, and so to be able to state, okay, well, the student wasn't able to do it. And then, like you said, try again, potentially. But then even if, even if you can't do that, you can still get into the classroom, do up some observations, go out to recess, go out to whatever, get observations on multiple occasions. So that's what I would expect to see.
Tony Tai Nguyen
Yeah. I mean, you hit it on the nail. I actually, if that's not possible, at least observe. At least observe. And when you observe, one of the things I look at is where you observed, how long you observed for, and what date you observed. Just like adults, we have good days and we have bad days, and so the kiddos are the same way. We have good days and we have bad days. And if you've only made one attempt, it's really hard to show that that's that's a true. Indication of the kiddos, ability of the students, ability. So doing your observations is extremely important, especially if their difficulties surround unstructured activities, structured activities, classroom settings, things like that. I think observations need to cover all those areas. Okay, I
Jayson Davies
want to move on. But one, I want a quick answer for this one, number one reason for IEE request,
Tony Tai Nguyen
parents disagreement that the IEE reports show difficulties and there was a denial of services somehow, okay?
Jayson Davies
And just for everyone out there, in case, IE is in the nationwide term, it's an independent educational evaluation. All right, so again, I want to, really want to get to goals and services, because I know that's what our OTs listening are going to want to hear about. But the present levels really quickly. What are you looking for? What are you not looking for?
Tony Tai Nguyen
Yeah, so a lot of present levels right after usually a triennial. I know a lot of districts practices is cutting and pasting from your assessment reports and dragging it right into the present levels. But assessment reports don't test every skill within the classroom setting or even an unstructured setting, right standard scores don't relate to an actual skill level sometimes. And so what I'm looking for in present levels are specific skills that's expected during that age group. And where's the kiddo at then? Okay, so if a kiddos in kindergarten and typical peers, you know, perform this way, you know, how is this kiddo doing in in, in that certain area? So present levels, what I look for is not just standard scores, because that doesn't cover anything, yeah, because, because standard scores don't always convert to goals, right? They should not so, so putting just standard scores on present levels alone in the IEP doesn't really cover the entire the entire skill set that the student has.
Jayson Davies
All right, So let's move on to goals. Then I talk a lot about smart or smart e goals on the podcast, the E being educationally relevant, but one thing I remember you noting is the baselines when it comes to goals. And I sometimes think baselines get overlooked. So what? What do you think should be in those baselines if you're writing a goal?
Tony Tai Nguyen
Yeah, so baselines are, that's the first thing I look at when I look at goals truly. Just think of baselines as starting points, right? And starting points is, you know, we all write goals, usually from from an annual basis, so for the following year and but we need to know where we're at today, okay, so going relating back to the present levels and using today or standard scores, what I see sometimes our problematic baselines are using standard scores as a as a baseline. You know, the student standard score for this skill is this, yeah, and, but in your goals, you always have either a four out of five times or you have a percentage accuracy, right? Yeah, those two have to relate to one another. If we're saying, I'll give you an example. We want a child to hit a student to hit a certain skill at 80% right? You can't give me a standard score on the baseline, because there's no way to indicate where they're at. Yeah, right. You have to give me likely a percentage. What I generally say is the baseline needs to be almost as specific as the goal.
Jayson Davies
Yeah. Recently, yeah, it's just making sure that. I mean, you basically have to rewrite the goal into the baseline and say where that student is. And if you're going to do four out of five, four out of five attempts for your goal, then in your baseline, if you can try and say how many times the student can hit the ball or whatever, in five attempts, maybe right now they're at one out of five attempts.
Tony Tai Nguyen
I think what you just said is an excellent tip. It's pretty much writing the goal, but where they're at right now, and that's it. So that's that's a really good tip. The other thing I really see problematic in baselines are really vague terminology. So going back to the student performing a certain skill at 80% and in the baseline, I'll say Johnny is having a hard time throwing a ball. Johnny is having a hard time gripping a pencil. Johnny doesn't like holding a pencil. Things like that that have no specificity to the to the goal is. Is, is could be really problematic, and I'll tell you why it's problematic. And this is, I'll be honest with you, this is how I present it to parents when they come to me and I'm looking at their goals. So let's say you have year number one, you don't have a baseline, you don't have a legit baseline, and your goal is at 80% okay, year number two comes around, and the student, let's say, doesn't meet the goal entirely. A service provider might say, Hey, can we continue this goal? And parents are like, Great, let's continue it. But what happens the goal, just by habit, gets copied and paste into the new IEP of year two along with the baseline, the baseline doesn't get renewed. Oh, man, so you now you have two consecutive years with bad baselines, but the same goal, right? Yeah? Well, parents really don't catch on sometimes until the third year, and that's when there's like, wait a second, same goal, yeah, with no renewed baseline. So from from a from a parent standpoint, they feel kind of like, Wait, so how is how's my kid, ot doing? How's Johnny doing? But on the flip side, from from a district standpoint, it may be really hard to even demonstrate progress if your baselines never get renewed.
Jayson Davies
I agree. Sometimes I sit in IEP meetings, and I personally like to say a goal is either not met or it's met. I don't really like using the partially met term. I will say a goal is not met, but progress was made, and this is what that progress was. But I feel like a lot of times you get that vague progress was made, but it wasn't met. Well, what does that?
Tony Tai Nguyen
Yeah, yeah, you know, I mean, we, we've all seen it. I'm sure you've done it. I've done it a certain skill. You've seen a certain skill that that that a student needs, and the student is just having a hard time meeting it right, and you want to continue it, because the skill is so important, it's so foundational, it may be, but if you don't renew the baseline, it's actually really hard for you to know whether or not the kid made progress as service providers, right? And then what if? What if you get transferred from one assignment to another? You know your, your, your, the following OT is going to come in there and go, What? And go, wait, what? Like, where was this kid, OT? And what might happen is you start duplicating the same services as far as, like, how you do things that maybe didn't work before. And so sometimes that that happens as well. So, so, so, yeah, I would say baselines are, are so critical. That's the first thing I looked at in a goal. Actually, I don't care what the goal looks like. I actually care what the baseline. I care what baseline looks like and and I think it's one of those things where I look at to really see progress or not. And remember, if you continue to goal update the baseline, yeah, because it's the present level, right? That you got to update it.
Jayson Davies
Absolutely alright. So one more thing with goals, I want to ask you, because in the OT world, there's kind of this. We are educationally based, right? We're not working at a private practice, and in a private practice, we often have very ot specific goals, but in the classroom, a lot of it is educationally relevant, and we're trying to help that student do educational skills. Do you have a take one way or the other on? I don't want to even just call it ot specific goals, but service provider related goals versus IEP team goals as a whole or collaborative goals? I don't know if you want to speak to that.
Tony Tai Nguyen
Are now by collaborative goals. I'm guessing, working with either the gen ed or the special ed teacher.
Jayson Davies
Yeah. So instead of a specific ot goal to write or to maybe, like, write individual letters, we might tag on to a teacher goal that is for the student to create a sentence, and it's a teacher, it's an educational goal, but we are doing our part to support that goal.
Tony Tai Nguyen
Yeah. So what I usually do, I know exactly where you're getting that. What I usually do is look at it from a skill standpoint. So if a student just going off of your example, the student has organizational difficulties on writing a sentence or writing a paragraph, right? That organizational difficulty is a different skill set than possibly legibility. Yeah, right, if you can, and I've seen it done where you can merge those two into one goal, okay? But the problem is, is that your goal is going to be very lengthy. It's going to be very lengthy because you're going to have to get specific on what legibility is, and then you're going to have to get specific on what the rubric for a structure. Paragraph, let's just say looks like. What I would say is just split those into two goals. Yeah, split those into two goals. And what you can write down under the notes section is it relates to each other. You know, goal number one from the academic writing. Goal relates to goal number one from the OT legibility and fine motor goal or something like that, so it interacts with each other. When I see those goals are so difficult, I would split up. And here's another reason why, because a student's organization, let's say, for example, the organization is absolutely met by the following year, but the legibility is still horrendous. Technically, if you combine those two goals together into one goal, it's not met, right? And when that happens, you know, I'll relate it back to your miscommunication, right? Where parents are like, Wait, my kid's not making progress. Well, the kiddo might have made progress in the organizational sense, but unmet on the legibility sets. So that's why I say, you know, splitting them is, is, is a benefit. The last benefit of actually splitting these goals when you're when you're thinking about it, is two years from now, if, let's say, there's some dispute between the district, and an OT gets called in for as a witness, you know, for for some type of a hearing, you'll know which goals you're absolutely responsible for, yeah, right. Instead of seeing a big, a big goal that has multiple skills, and then you're confused of what was your part,.
Jayson Davies
I never thought about it from that way. That's a good way to think about it. Always, what would happen when you get to due process?
Tony Tai Nguyen
Yeah? You know, it's one of those things where I think looking from the other lens, it's like taking ownership of of your specialty, of your expertise, right? And that's, that's, in this case, fine motor, or, you know, with that goal, gotcha so?
Jayson Davies
Yeah, no. Thank you. This question wasn't on our little list of things that I wanted to ask you, but according to the law, what is the IEP team's responsibility when it comes to meeting goals? And I don't know this because I've heard it over the years, it's like, well, the kid needs to meet their goals. Well, no, they need to make progress on the goals. No, it doesn't matter if they make progress on the goals. Progress on the goals, as long as we're doing our job to try and help them make progress on our goals. But you might have a better idea.
Tony Tai Nguyen
Yeah, so it's clear as mud as many times as as courts go through this. But technically, they they don't have to meet every single goal they have to make the meaningful progress in it and and, you know, the latest case was a couple of years ago on the standard of what's what's appropriate and what's meaningful and all these things. But what at the end of the day is that the Kittle has to make progress. You know, no doubt about it. Now that doesn't mean this either. You know, you go from one annual IEP to another and they don't make progress. It doesn't mean that, oh man, something that the world's gonna fall apart. No, you reassess it, right? You reassess the situation, maybe through formalized testing, or maybe through less formalized testing, and you may add more goals. You may adjust certain goals. You may adjust methods of implementation, accommodations, supplementary aids, services, so you have this big toolbox of how to adjust them. You know, the law doesn't require everybody to get this stuff perfect. That's why I think that a lot of people call the IEP like a living document, right? Like it can be changed at any point. And so with that said, you don't have to get it perfect on the first try. It's just on that day when you guys met at a particular IEP meeting, what was appropriate right then and there. It's a snapshot of that meeting, yeah, and then, and then, anything that happens after that, whether it be changes in whatever circumstance, from a district standpoint, from a kiddo standpoint, um, changes can be made. The the I guess, where things sometimes go wrong is when changes are not made right, and the kiddo still hasn't made progress. So so you have a lot of tools in in your toolbox for both from a parent side, from a district side, to to really make changes, to get to get it as right as possible, but at the end of the day, kiddo has to make progress.
Jayson Davies
Yeah, yeah. So has to make worse. And you don't know, again, going back to those baselines and the goals, you don't know if they're making progress, if you're not putting in baselines and then updating those, and it's all a big circle, right? And I.
Tony Tai Nguyen
Yeah, so that's, I think, I think you're right with that. But if you don't have those baselines, those are the things that you can show for yourself and for for the parents, of where, of where the student is, as far as progress goes. And let's get real. Every year is a kid who going to make some progress, possibly, but is it enough to say, Yep, the kids making progress? No, that doesn't happen all the time. And when that doesn't happen, it's okay to say he didn't make progress. But this year, these are the changes we were going to make. There you go. And if those changes are agreeable and parents feel that's appropriate, then then you're not gonna have any problems.
Jayson Davies
Yeah, yeah. All right, so let's jump into services a little bit. I'm gonna try and ask you some sort of question about this. I don't know how it's gonna come out. Gonna come out, but services are so dynamic, right? And we already talked about plops the present levels. We talked about goals. And as you know, plops lead to goals, and goals lead to services. So now we're getting to near the end of the IEP. What are you looking for in those services?
Tony Tai Nguyen
Okay? So the first thing is that, you know, when, when parents, when parents come to me, the first thing they they ask me is, like, hey, my services page, like, why are these lacking? Yeah, right. They don't think about what you just said, of of the goals, and then the present levels, or even, you know, assessment information. Sometimes they just look at straight at the Services page and go, This is what I got. Now, when that happens, you're right, you have to look at everything that comes before that. I usually tell parents. It's called, you know, when you when you want to get where you want to be, you need a GPS. And so needs right are shown in Present Levels and assessments. And then G stands for goals. P stands for placement, S stands for services. So you need a GPS, and when you get to the s part, when you get to the services part, the service provider has to be able to realistically say that given the amount of needs and goals here, this kiddo can make progress on this much of service or this style of service, okay? And a lot of times, um, it doesn't match at all. On its face, it doesn't um. One of my worst cases was, was actually for a speech service, a kid o was a student was non verbal, and get 50 minutes of speech, 5o minutes of speech per year, per year, okay? And it's not a typo, because it was written in for year after year, and obviously on its face, no educator, no specialist, can look at that and say, Yeah, that's legit. But I think the more important thing is, from year to year, if the kiddo has more goals or more difficult goals that he or she is not making. Something's got to change. Something's got to change, whether it be the method delivery, whether it be the amount, the frequency of it. A lot of a lot of public schools like to write things in a yearly sense, to have more flexibility for a certain service. So let's say, like, 1000 minutes for an entire year, versus you shrink it down per week. Sometimes writing it per week makes more sense to to the IEP team, because now you're, you know, you're committed to consistency. Yeah, you're committed to consistency. Because if you write it in a year, technically, you can load it all to one month or two months, and you're actually covered. But it doesn't really change, um, I'll tell you where, where services kind of, nowadays, kind of fall apart. There's a lot of classes and a lot of programs where services are embedded. Okay, so we're an autism month here, so a lot of it has to do with these autism specific classes. So autism specific classes, or special day classes, sometimes offer a social component, a behavioral component, and an OT component all all embedded in the class. So the speech pathologist, the OT and the behavioral specialist would come in for an X amount of time every week, because that's the that's the bare minimum for that program. Okay? But here's the thing, while it may be appropriate, let's say that the OT comes in through a collaboration model, working with that special ed teacher and working with the students in the classroom for, let's say, an hour a week. Some schools don't write it into the service grid. Okay? And a school might. Call one like, let's say this autism specific program is called program number one. If a child moves from that district to a new district, their programs are not going to be named the same. They're not going to be named. The Autism Program might not be named program number one. It might be named program number two, but nobody knows what's embedded. Yeah? What worked in district number one, let's just say, let's say there's no ot component in program number two. Then how is a parent supposed to know so the parent knows that it was working in the first district moves the second district still an autism program, but maybe that autism program doesn't have an OT component, does that make sense? Yeah. So, so even through a if it's embedded in a certain program, it needs to be specific enough, or else parents are gonna think, and this may be a miscommunication, that there's no service.
Jayson Davies
Yeah. So let's go back to that then. So then you would like to see, using the example, the OT goes into that classroom an hour a week to collaborate. You would like to see on that IEP, then that service basically one hour of OT per week going into in the classroom, collaboration.
Tony Tai Nguyen
Correct, correct. And then the reason why is, and you can write, there's always a note section in every service grid to say, you know, why are you choosing this model or this this frequency? You can write, oh, this is part of the district's autism program. Okay. You know, this is embedded in districts off, yeah. So, and going back to the dangers of that, is actually it from, from, I guess, from a district standpoint, they might look at it of a parent coming in and go, there's no OT. Why is there no ot in my service grid, I have ot goals, but when they've never heard it's been embedded in the program, and then they hear it after they raise the concerns it, it could lead to a mistrust or a miscommunication. Yeah, yeah. Versus if you write it in and you say, this is the embedded program. And you know, as more and more specific programs come up, these are the issues that seeing, especially if parents move away, they don't know what that program entailed that worked for their kiddo, and so their kiddo moves and and everything falls apart, because now.
Jayson Davies
Gotcha, yeah, we always have to keep in mind that a parent or a student could up and move the next day and be in a whole new environment. So all right, so we're through the IEP, we went over the Plop services, all that good stuff. What is your role after that parent? Now you're already with the you are already with that parent or the student. What's your role if the parent then decides they don't necessarily agree with the services and everything?
Tony Tai Nguyen
Yeah. So you know when, when a parent leaves an IEP, they have the right to either not sign for the IEP, not consent to it, they can partially consent to to it, or they consent to the entire thing, right? A lot of times, if they don't agree, what I think all of our experiences is, is they don't sign it all, right? They don't sign it all they don't want anything changed. My goal at that point is to talk to the parent, and I'll be candid with you. I ask them, you know, what are you looking for? You know, what is it that that you feel is lacking from these IEPs? Now, if they say, Well, you know, I know that I have a special day class, I have ot services and have speech and I only have problems with my ot service. Well, if that's the only thing you have problems with, then personally, you might want to think about considering signing for the other two right for your special day class and for your speech at least. I think what parents come to me and hear a lot is a lot of districts somehow getting the message across. And this could be a miscommunication or not, that if they don't sign it, they don't get the services. And that's what the parents hear. If you don't sign you don't get services. But a lot of times what what teachers and case managers mean to say is, if you don't sign it, you're not going to get the current services that we proposed in in in this particular IEP, it's not like your IEP gets cut. Yeah, right. So when they come to me, that's the feeling that they usually get. Okay, they have a feeling that services are not going to be provided because it's not adequate. What I usually do is engagement and discussion, a really in depth discussion of what is it that they think that could make this to be the appropriate IP it should be? And this conversation usually starts there and it ends somewhere. Of, you know, he hasn't been making progress, or she hasn't ever gotten any of these, any of these services, really, you know, be. Has failure to implement, or whatever that the cases may be. So my role immediately afterwards is, is try to come up with a with a method of conflict resolution. And sometimes it's it's just reaching out to the administration and saying, Hey, do you want to talk about this? And trying to resolve it without any type of formalities, and sometimes that doesn't work, and we have to seek a little bit more more formal means. But really, most parents come to me and they go, Look, I just want what's right for my kid, and I want to resolve this in the quickest and least painful way possible. Because when, when you start going through the formal litigation route, it takes a lot of time, it takes a lot of money, it takes a lot of stress, heartache, things like that, from both sides. You know, parents didn't become parents to to file lawsuits or anything like that, and educators didn't go into their field, especially in special education, knowing that there'll be a witness in something like that, and so. So my general personality and the way I usually handle things is, hey, what's the easiest way on, on, on the parent side, that's my that's my top interest for the student, where the student needs something right away. They don't have time to litigate, you know. And then also, you know, thinking about the IEP team afterwards, after the conflict is resolved. How does that work? And so all those dynamics play together, and it's usually a very successful outcome. My, my, my success rate for reaching some time in agreement with the district is very high because I think there's that working relationship.
Jayson Davies
Yeah, and that's one thing that I respected about our meetings together, is just how, how respectful you are, how you kind of have a way to see things from all points of views, all points of view, and and it seems like you have a good rapport with your parents and even with the IEP team, so it's nice to have you on board. All right, so we'll dive into this just a little bit that is the Coronavirus. I There's so much that we could go on and on about this. I'm sure you are talking to many people about this, and you probably have parents asking you a lot of questions. I just want to ask you, in your perfect world with everything going on, obviously, we can't take Coronavirus out or social distancing out, but what would you like to see as far as how the students are getting their education and services?
Tony Tai Nguyen
If To be frank, I think that you know, sometimes school providers, school employees, have different rights than private service providers, you know, because they work for essentially the government. And a lot of times, as far as my understanding goes, a lot of non public agencies and private providers are still working to this very day, I have ABA companies that are still working, and things like that. So interesting. I think, in a perfect world to finding those those resources for those kiddos is really important. The downside of that is that it's very costly to outsource things. It's very costly, and everybody's aware of that. Yeah. The thing is, is that for for your most, particularly for your most vulnerable, severe populations, that's still needed, you know? So I still think, for the extent that you can access private parties to still provide this in a direct sense, that still needs to happen. I've had a lot of phone calls from this from parents after the first week where, where the shock wore off. I've done a lot of phone calls. And the phone calls, from a parent standpoint, is that they're very understanding. I haven't had a parent that I think you described in one of your podcasts is like the helicopter paragraph, where, where, where. You know, if they're very upset, they're not, they totally get it. No, they totally get good to hear. They totally get it. But I think the more upset ones are going to be the ones where there are school districts out there locally in Southern California that I flat out said, you know, students doing this online thing, everybody's voluntary, because when they don't make it mandatory for for the gen ed population, then special ed rights are limited right, and so those parents are are more and more upset, because what happens is that in the special ed population, they're more vulnerable to regression. Yeah, no, and you. Even though I totally get, you know, the high responsibilities that that school districts have, and particularly in our state of California, where executive orders are coming out that that that you you've got to continue providing this, I think it makes it a very difficult responsibility. It's it's a true responsibility, but it makes it very difficult. So I think whatever, in a nutshell, whatever private providers can, whatever direct service you can still provide, you gotta find a way to provide, yeah, you've got to find a way to provide it, because that will, um, in my opinion, what that does that it mitigates regression. It mitigates against these kiddos losing skills. Because what happens is, let's say right now, I know the superintendent schools is anticipating the school year being over, but there's nothing that says es y or extended school year is over, and there's nothing that says, you know it from right now it looks like the start of the next school year is when things when things are going to go you're going to have a lot of kiddos coming back with IEPs that are the same, that won't get revisited when the students present levels have dropped severely true. And so to mitigate that right now and through potential summers, through private providers, is something I think needs to be heavily looked into. And I think incentives for private providers to to ask their employees to come in and work, from my experiences of friends and family who do work in the in the private sector of special needs. They're still working. A lot of them are still working. So are they with that said, Sorry.
Jayson Davies
Are you hearing them as doing you're saying they're still working? Are they doing it directly in the house, or are they doing it teletherapy or variation?
Tony Tai Nguyen
Some of them are still doing it in the house. Some of them are are still doing any house. It's very limited. But like I said, I think that the most vulnerable populations need to, yeah, those things need to be in place. If that, I would say at all costs, at all costs that needs to happen. And you know, from a protection standpoint, I think, you know, those private companies, and I don't know this in the legal sense, but obviously they can't price gouge either in these so, so I think, yeah, while it might be a little bit of a premium, I don't think it's going I think it's worth it, given the fact that if you wait essentially five to six months before school starts, you're looking at a half of half a year, annual year That's gone by and these kiddos are not receiving services. And to be frank with you, that's what I'm setting up for, from, from, from my, my service. I have to set my, my office, up for that, yeah, because I know that it's going to be a lot, and I know it's going to be very difficult for everyone, including the schools. It's going to be very difficult.
Jayson Davies
Oh yeah. And personally, I mean, this morning, I was kind of going through my caseload, trying to figure out, okay, which students do I know will be able to benefit if I send home worksheets, what students will be able to benefit if I create a video for a parent and kind of say, okay, parent, this is an activity you can do. Try doing it this way. And here's an accommodate, a way to accommodate it. And then other students, it's like, okay, well, what students will benefit from me doing it live? And let's be frank, there's some students that just, I mean, they barely attend, yeah. I mean, they, they can't attend to me when I'm in the room with them. And so virtual is going to be difficult. And that's where, I think what you just said, if school districts may or may not be looking into that, the private route, or however it's going to happen, because, I mean, they're going to have to provide the service at some point or another, or offer the service at some point or another. I mean.
Tony Tai Nguyen
Yeah, yeah. And I think what you're doing is, is awesome. I think all it took for you to do that was effort, right? Yeah, like, and, and parents, they would love to hear it in that sense of of that you're trying versus I. Most the parents have called me that said, you know, I got this worksheet. I don't even know how to do it. My kiddo is non verbal, why is he or she getting this worksheet with nothing else, like with even no instructions sometimes, and I think that to to a parent, that the parents that I've spoken to, they don't feel that that's that that pushes the I in IEP, yeah, it doesn't push them. It feels like, okay, so they're they're making mass copies of this worksheet or whatever, and there's hand it to everyone. For the kiddos that are higher functioning, some of them literally tell their parents, you know, Mom, Dad, this online program that they're telling us to go on. I skipped this during the regular school day because I can't do it. This is not a. Appropriate for me, yeah. And so hearing that, it makes it very difficult for parents. And so you know an OT like you that that effort is, is is beyond words. It's awesome that that that you can do that for for your set of students.
Jayson Davies
Thanks. I know a lot of us OTs out there. We've been very active on Facebook, Instagram, trying to help each other, trying to figure out what we can do, how to make zoom work, how to set up a meeting on Zoom, how to do all this stuff. I mean, we're trying to learn. I mean, we're learning more than our students right now.
Tony Tai Nguyen
I think, and I think with with this, with this, I guess, declaration from the superintendent school saying, Hey, be prepared. The school year is likely over. I think that's going to shift a lot of thoughts and and to be honest with you, I look, I try to look at things from very positive light. I think after this, these things are going to be seamless. I think after this, if a kiddo goes, I'll give you an example. The kiddo goes in home instruction because of some catastrophe or something that that made them be more appropriate at school, everyone will know exactly what to do, because now they shift everything to a virtual to a whatever type of technique and delivery method, and they do it. So I'm thinking about the HHS give the home hospital instruction kiddos who need all these services, who might not be able to go to school because of a medical condition or something like that. Now the HHI program are going to be, are going to be a lot more fruitful. So from a positive standpoint, I think the logistics for for that will be, would be super cool. I I'm really looking forward to that.
Jayson Davies
Yeah, no matter which way you look at it, the world has been forever changed. There's no doubt about that. I mean, things are virtual now, and we're learning that they can be virtual. So, yeah, yeah, all right, man. Well, thank you so much for coming on. I want to give you the opportunity real quick to share whatever resource you might have for people that might be interested in learning a little bit more about you.
Tony Tai Nguyen
Yeah, for me, my website is www, dot k 12. So k1 2e, D, L, A, w.com, so K 12, Ed, law.com, you know, I have, yeah, majority of my phone calls are with parents, but I have a lot of teachers and educators and service providers calling me. And most of the times I defer for them to listen to to the public schools Council, but a lot of times it's something of a quick concern or a quick question, I'm more than happy to answer anything I can with that, I think the other, the other resource that that I recommend a lot of educators and and service providers and even parents, is called the Special Education Rights and Responsibilities manual. If you it's a really easy read. It's a Q and A read, and it's put on by one second. Here it's put on by Disabilities Rights California. And if you Google Search special education, rights and responsibilities and disabilities rights, California, that's a publication that you can access, and it's called the Special Education Rights and Responsibilities manual, and it's a PDF file, Q and A form, super easy to navigate, and it'll answer a lot of your questions, and it'll actually lead you to sections and codes in the law that talks about that.
Jayson Davies
Gotcha? You need to access that, perfect. Yeah, we'll put a link to both of those resources in the show notes for ot school house, so you'll be able to access those if they go to our website. Great, man. Well, thank you so much for coming on. I really appreciate it.
Tony Tai Nguyen
Hey, Jayson, thanks. Anytime, anytime, anytime. Let's, let's do this again soon with other topics or or something, something more fun, even.
Jayson Davies
Drink in hand next time. All right, man, have a good one.
Tony Tai Nguyen
I'll see you later. Cool. Thanks, man, bye.
Jayson Davies
Alright, everyone? Well, I hope you enjoyed. Tony Ty win from K 12 ed law.com he's a really chill guys. You can hear he has a lot of knowledge. He's amazing. If you do have any questions, reach out to him. I want to thank him so much for just giving such thorough answers. I mean, he was open for any question I had. I really appreciate that. So yeah, I hope you all are doing well, enjoy the rest of your week, and we will see you next time on the OT school house podcast, take care and thank you. Bye. Bye.
Amazing Narrator
Thank you for listening to the OT school house podcast for more ways to help you and your students succeed right now, head on over to otschoolhouse.com Until next time class is dismissed.
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