The laws governing Special Education can be confusing for parents who are just beginning the process with their child. All too often parents do not even know where to begin. I wrote this article in the format of commonly asked questions when parents are thinking of starting the process or have already started the process of getting their child Special Education services.
The IDEA heavily regulates the process and can be confusing for parents who have never dealt with it before. Please use this article as a reference point for highlighting some of the important features of the IDEA. As always, if you have any questions or concerns, please do not hesitate to contact me.
What is the IDEA?
The IDEA stands for the Individuals with Disabilities Education Act, 20 U.S.C. §1400-1482. This is the federal law regulating the Special Education process.
How do I start the Special Education process?
The process starts with a referral, meaning someone notices that something just is not working with the student and recommends that the school take a closer look to figure out what is going on. A referral can be made by a parent, a teacher, a doctor, etc, and is the first step in the process.
What happens after a referral is made?
Once the referral is made, then the school district must get consent from the parent or guardian to conduct an uation. The uation is done at the school’s expense, and the school cannot refuse to do an uation.
Note: if the parent disagrees with the school district’s uation, then the parent has a right to an independent uation (see my blog entry called Parents’ Right to an Independent Evaluation).
What will happen in the uation?
The school district will have uators with the appropriate training and credentials to conduct the uation. They will use a variety of tools and strategies to define the student’s needs. Also, the uator(s) will make recommendations on appropriate types of placements for the student, but the ultimate decision on the child’s services, accommodations, and/or placement is with the IEP Team.
How do they determine if my child is eligible for Special Education services?
Once the uation is done, two criteria must be met in order for the child to receive special education services. First, the child must have a disability; the IDEA sets forth several categories of disabilities that allow a child to be eligible. Second, because of the disability, the student must need special education and additional services (this is often where parents and school districts disagree). If there is no link between the disability and the need for services, then the child will not be found eligible for special education services.
What if my child is found not eligible for Special Education services?
If after the uation is complete the school determines that your child is not eligible for Special Education, read my article: What if my Child is Not Eligible for Special Education? to see what additional options you may have. Your child still may be eligible to receive services.
How often must the school conduct an uation?
After the initial uation, the school must conduct an uation at least every three years but not more than once a year. This occurs because children change quickly as they grow up, and the school wants to be sure they are providing the right services for that student’s needs. Also, when the school district decides that the student no longer needs Special Education services, the school must also conduct an uation before terminating eligibility.
Once the uation is complete, what happens?
The Team will then come together to a “Team Meeting” to figure out what is going to happen with all of the information they have on the student. The Team consists of several people who can provide valuable insight on the student (the IDEA sets forth the required people who must be at the Team meeting).
What is the role of the Team?
The Team must develop the IEP and review the progress of the student. They must also meet at least annually to revise the IEP to ensure that the services and accommodations are appropriate for the student. If the current placement of the student is not appropriate, then the Team must determine where the student belongs to ensure the services and accommodations are meeting the child’s needs.
What is an IEP?
An IEP is an Individualized Education Program. It is an agreement between the parents and the school district that sets forth the goals for the student, the services and accommodations the school district will provide, the concerns of the parents, etc. Once approved by all parties, the school has an obligation to follow what is set forth in the IEP.
I hear the term FAPE a lot. What is FAPE?
FAPE stands for “Free Appropriate Public Education.” It is the standard that all school districts must provide to eligible students. FAPE must be individualized for each student, and the services and accommodations must be provided at public expense. The biggest issue concerning FAPE is that parents always want what is best for their child, but the school district does not have to provide what is best- they only have to provide what isappropriate.
What does Least Restrictive Environment mean?
Least restrictive environment, or LRE, is the standard that every school district must follow for every student. The school has an obligation to include every student in regular education classes as much as possible, placing them in the least restrictive environment. Therefore, students should only be removed from regular education classes and placed in special education classes when, due to the student’s disability, that student cannot receive a satisfactory education in regular education classes with services and accommodations.
What if I don’t agree with the IEP?
Parents have the right to reject the IEP, in whole or in part. Therefore, if you do not agree with a specific section of the IEP, then you have the right to reject that section. Once the parent rejects the IEP or a portion of it, the rejected portion goes into negotiation between the school district and the parent. If the parent accepts the IEP and then changes his/her mind, the parent is free to reject the IEP at any time. IEP’s are written for one year and then the Team will come together and create a new IEP for the following year.
At what point should I hire a Special Education Law attorney?
Special Education Law attorneys can help parents at any stage of the process, including right from the very beginning. At KCL, we often help our clients by remaining in the background at first; parents come to us to answer questions, give advice, review letters and documents from the school, and offer opinions on responses, etc., all without school districts even knowing we are involved. This helps keep expenses down for parents too because they are the ones doing the work but are checking in with us along the way. We can also be more upfront and assist only when the parent feels he/she cannot go further. School districts are at an advantage because they have attorneys that they work with on a daily basis, so parents often feel overwhelmed when dealing with the school’s attorney.
If you are thinking about starting the process or are already into the process but need help, please contact me and we can discuss your options.