web analytics

You are browsing the Blog for education law.

Avatar of dianaglick

by dianaglick

Wading Through the Alphabet Soup: An Introduction to Federal Special Education Law

December 11, 2010 in Ask the Special Ed Lawyer by dianaglick

One of the first things I explain to clients during an initial intake appointment is the basic federal standard for educating students with disabilities. This is frequently referred to as the “alphabet soup” of special education: the IDEA mandates that schools provide FAPE in the LRE according to the child’s IEP. Keeping in mind that talking in acronyms is just job security for attorneys, let’s break it down:

IDEA = Individuals with Disabilities Education Act

This is the federal law ensuring that special education services are provided to children with one or more qualifying disabilities, whose disability interferes with their ability to receive an education. The IDEA originated in 1975 under President Ford and has been reauthorized and changed several times, most recently in 2004. While the IDEA is federal law and applies to all public school children in the country, each state also has its own education laws that may be slightly different than the federal requirements; states may provide more protections than those available under federal law, but may not provide fewer or less than the federal standard.

FAPE = Free Appropriate Public Education

The IDEA defines a free appropriate public education as special education and related services that are provided at no cost to parents and are in accordance with the child’s Individualized Education Plan (IEP), among other requirements. 20 U.S.C. 1401(9) (2009). The majority of legal disputes are about the meaning of “appropriate” for a child’s particular circumstances. In 1982, the Supreme Court issued a decision in Board of Education v. Rowley, which provides a working definition of FAPE as “a basic floor of opportunity” providing “some educational benefit.” Bd. of Education v. Rowley, 458 U.S. 176, 200 (1982).

What does “a basic floor of opportunity” mean in real terms? Because children who are eligible for special education have such a wide range of disabilities and needs, it cannot be defined as a specific set of services. However, most children who have passing grades or are making progress towards their IEP goals will be found to have received a basic floor of opportunity.

LRE = Least Restrictive Environment

This is one of the major improvements that the IDEA has made for students with disabilities. No longer does the law allow disabled children to be warehoused or educated exclusively in a special education setting, as long as their IEPs indicate some mainstream time during the school day. The LRE requirement has led to better outcomes, both academically and socially, for disabled students. It can also be a double-edged sword in some instances when parents are seeking a more restrictive environment for their child.

IEP = Individualized Education Plan

All students who are eligible for special education are to receive services in accordance with an IEP, which must be developed to meet the child’s individual needs. Those of you who already have some experience with special education have probably spent many hours at IEP meetings and have a sense of what they entail. We will talk more about IEPs in future columns.

I am excited to be included in this new community of families supporting children with special needs and look forward to sharing more of the legal perspective with you all. In future columns, I will address such topics as the difference between IEPs and 504 plans, discipline issues, assessments, the fair hearing process, private placements and knowing when to seek out legal help, among others.

We are also interested in hearing from you! Feel free to suggest topics for further discussion; just keep in mind that I cannot provide legal advice for your specific situation.

Author Diana B. Glick

Disclaimer:

This column reflects the views of Diana B. Glick in her individual capacity. It does not necessarily represent the views of her law firm or her clients, and is not sponsored or endorsed by them. The purpose of this column is to assist in dissemination of information about federal special education law, but no representation is made about the accuracy of the information. The information contained in this column is provided only as general information for education purposes, and topics may or may not be updated subsequent to their initial posting.

By using this column you understand that this information is not provided in the course of an attorney-client relationship and is not intended to constitute legal advice. This blog site should not be used as a substitute for competent legal advice from a licensed attorney in your state. This column is not intended to be advertising and Diana B. Glick does not seek to represent anyone desiring representation based upon viewing this blog site in a state where this blog site fails to comply with all laws and ethical rules of that state.

Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , ,
No Comments »

Avatar of dianaglick

by dianaglick

What Your Future Attorney Will Want to See

September 9, 2010 in Ask the Special Ed Lawyer, Insider Insight by dianaglick

Mom and SonThis is a rather cynical title. But, in case you ever need to seek the advice of an attorney or bring litigation against the school district over your child’s special education program, there are certain documents that you will want to be able to locate and present to an attorney. On a less cynical note, it’s always good to have an organized binder with your child’s important documentation. There are professional organizers who comment on this blog about organizing your life when you have a child with special needs and nothing in this column should be construed as going against their advice. This is more of an attempt to piggy-back on the concept of organization from a legal perspective.

Some of my clients have saved every scrap of paper related to their child, but somewhere along the way became completely overwhelmed with trying to keep it all sorted. I can sympathize with this—you start by throwing a few IEPs in a folder, they multiply when you’re not looking, and suddenly you have paper coming out your ears and no sense of how to organize it.

What to Save

My recommendation is to save the following for the duration of your child’s K-12 education:

* Official report cards and progress reports (computer printouts from online grade programs can also be helpful if you regularly consult these services for updates on your child)
* Assessment Plans
* IEPs
* Assessments
* Written communication with the school or school district (including emails)

Other items of that may or may not be important, depending on the case:

* Notices of Meeting—only if the District is continually canceling meetings on you, or has a habit of convening meetings with very little notice. If you have regular, timely meetings, a notice of meeting itself is not going to be important.
* Procedural Safeguards—Districts are required by law to provide you a copy of these and some people have enough for several bird cages. I do advise parents to read these and ask questions about anything that is unclear. However, as long as you have a recent copy from the District, there is no need to continue accumulating them. Sometimes, you can even save a tree and decline them at the IEP meeting. Just remember that you will be held to knowing and understanding your rights whether you accept or decline a copy.
* Mental Health records—including progress notes from treatment, any Discharge Summaries if your child has experienced a psychiatric hospitalization, and statements, receipts and cancelled checks for your out-of-pocket expenses.
* Record of any outside services—if you seek out private tutoring or educational services for your child, keep a record of the services received, including any pre-tests or progress summaries, as well as statements, receipts and cancelled checks.

How to Save It

A simple three-ring binder with tabs separating out the school years is great way to keep your documents organized. Within the section for each school year, you can group the documents as I’ve outlined above (assessments, IEPs, report cards, etc.). Another alternative is to have a separate binder for each group of documents and then organize them according to date within each binder. Either one of these solutions will work well over the long term and will allow you easy access to documents as you need them.

What to Bring to an Intake Meeting

Special education lawsuits have a two-year statute of limitations, unless your state law specifies a different time period. State statutes of limitations prevail over the federal two-year statute and there are states with longer and shorter timeframes. California’s statute of limitations is two years, so in most cases, our office wants to see all the documentation described above from the last three school years—documents from the period covered by the statute of limitations, plus one year before that. This allows us to see what services were in place when the statute of limitations began and will usually allow us to see a triennial assessment and review.

If your attorney suspects that you have a case for pleading additional school years outside of the statute of limitations, he or she can ask for additional documentation from you and from the school district.

Disclaimer:

This column reflects the views of Diana B. Glick in her individual capacity. It does not necessarily represent the views of her law firm or her clients, and is not sponsored or endorsed by them. The purpose of this column is to assist in dissemination of information about federal special education law, but no representation is made about the accuracy of the information. The information contained in this column is provided only as general information for education purposes, and topics may or may not be updated subsequent to their initial posting.

By using this column you understand that this information is not provided in the course of an attorney-client relationship and is not intended to constitute legal advice. This blog site should not be used as a substitute for competent legal advice from a licensed attorney in your state. This column is not intended to be advertising and Diana B. Glick does not seek to represent anyone desiring representation based upon viewing this blog site in a state where this blog site fails to comply with all laws and ethical rules of that state.

Tags: , , , , , , , , , , , , , , , , , , , , ,
No Comments »

Avatar of dianaglick

by dianaglick

To Sign the IEP or Not to Sign — this is the question!

August 20, 2010 in Ask the Special Ed Lawyer, Insider Insight by dianaglick

Whew! You made it through the IEP meeting and are still standing. Now that the meeting is over, you are being asked to sign the IEP so the District may implement the proposed services, accommodations and goals. Should you sign or not? And, why does it matter?

Your Rights

The District must obtain your consent before providing the services indicated in the IEP. However, parents are under no obligation to sign the IEP, particularly if they disagree with its terms. Parents may sign, refuse to sign or authorize certain services without agreeing that the IEP provides your child a free appropriate public education.

The Ideal Scenario

Student raising her handIn the ideal IEP meeting, each of the following occurs:

* The designation makes sense and is back up by appropriate assessments
* Each of the professionals has given a report and there are offers of services that address all of your child’s areas of need
* There are measurable, understandable goals for each of your child’s areas of need
* If necessary, there are modifications and accommodations to the curriculum (homework, class work, testing) that will allow your child access
* The District has presented you with a written document reflecting all of these items, plus a narrative that contains the main points of discussion during the meeting.

When this kind of a meeting has occurred and you feel good about the outcome, by all means, give your consent. It is when one or more of these items is missing or has gone awry that you should consider not signing and instead developing a strategy to address the unresolved issues with the IEP team.

Your Options

Option 1: Sign the IEP. See you next year for the annual review!

Option 2: Authorize the implementation of goals and services, but do not agree that the IEP provides a free appropriate public education.

This is a very helpful middle option that can serve to move the process forward and extend protections to parents and student without compromising any potential legal claims in the future. It also serves to keep the conversation alive if there are items pending resolution. This response can be made with a simple sentence written on the signature page, or can be written up in a “Parents’ Addendum to the IEP,” which lays out your concerns in greater detail while still providing authorization to implement what the District has proposed.

Option 3: Do not sign at all.

Some parents opt to take the IEP home and review it carefully before signing it. This is a great idea if you would like some time to digest the information presented at the meeting and make sure you understand everything before signing. If you are satisfied with the document, make sure to sign and get it back to the District as soon as possible.

In other situations, parents fully disagree with some aspect of the IEP and do not want to provide their consent or authorization. If you find yourself in this situation, you will want to consider your next steps. Would you like to have another meeting to discuss specific aspects of your child’s program? Would you like to see revisions to the goals, more goals or perhaps fewer goals? Are there assessments necessary to determine what your child needs? Let the District know, preferably in writing, what you would like to see happen next and emphasize the importance of collaboration in getting an appropriate document with a plan to address your child’s needs.

Some Pitfalls of Not Signing

While not signing your child’s IEP is a right you have and one that can be exercised in the face of an inappropriate plan, there are some potential pitfalls you’ll want to be aware of as you are making your decision.

First, if this is an initial IEP finding your child eligible for special education, refusing to sign or authorize implementation means that your child is not yet considered eligible for special education. This may be important if your child is experiencing significant behavioral difficulties. As I will describe in greater detail when we talk about discipline, the IDEA provides special protections for children with IEPs when they have committed disciplinary infractions. If your child is racking up multiple suspensions, the safest course of action is to authorize the implementation of the IEP and agree in writing that your child is eligible while you continue to hammer out the details of the plan.

Second, if you decline to provide consent or authorization (no signature at all), the District is not legally able or required to implement the services offered in the IEP. For example, if the District is offering speech therapy for 30 minutes per week and you believe your child should get 60 minutes per week, it might be better to authorize the District’s offer of service while you continue to negotiate, instead of rejecting all services by not signing. If you refuse to agree to your child’s annual IEP, the District is required to provide the placement and services offered in the last IEP that you signed and that was implemented. If this is an initial IEP, there is fallback IEP to implement.

Finally, refusing to sign an IEP can create an atmosphere of tension among the members of the IEP team. The District wants and needs your signature in order to move forward and some of the team members may feel insulted or offended that you have refused to sign. This should not deter you from advocating for your child, but it’s good to understand how your actions could be perceived by the District. The most important thing you can do once you decide not to sign your child’s IEP is to keep the lines of communication open with the District and indicate clearly what you would like to see happen to resolve the conflict.

Disclaimer:

This column reflects the views of Diana B. Glick in her individual capacity. It does not necessarily represent the views of her law firm or her clients, and is not sponsored or endorsed by them. The purpose of this column is to assist in dissemination of information about federal special education law, but no representation is made about the accuracy of the information. The information contained in this column is provided only as general information for education purposes, and topics may or may not be updated subsequent to their initial posting.

By using this column you understand that this information is not provided in the course of an attorney-client relationship and is not intended to constitute legal advice. This blog site should not be used as a substitute for competent legal advice from a licensed attorney in your state. This column is not intended to be advertising and Diana B. Glick does not seek to represent anyone desiring representation based upon viewing this blog site in a state where this blog site fails to comply with all laws and ethical rules of that state.

Tags: , , , , , , , , , , , , , , , , , , , , , , ,
1 Comment »

Avatar of dianaglick

by dianaglick

Everything You Need to Know About Your Child’s IEP

August 6, 2010 in Ask the Special Ed Lawyer by dianaglick

IEP Basics

When people reference your child’s IEP, they may be speaking about the meeting (“Are you going to the IEP today?”), the document (“Here is your copy of the IEP.”) or the process as a whole (“Your child may need an IEP.”). There is also an IEP team that is the decision-making body for your child’s services and supports. Because this term seems to be everywhere you turn, you’ve probably already guessed that the IEP process and the document generated by this process are the basis for your child’s experience in special education.

I’ve discussed the general IEP process in my prior columns, starting with the initial assessment. Remember that the legal obligation of the school district is to provide “FAPE”—a free appropriate public education—to students who are eligible for special education. Once the eligibility determination has been made, the District must offer whatever combination of placement, services and supports that are necessary to allow children with disabilities a basic floor of educational opportunity. While the District and parents may agree that the child is eligible for special education, there may be significant differences of opinion regarding the child’s placement, service and accommodations. These are the issues that are worked out through the IEP process.

The IEP Team

There are a few main points to remember about the IEP team. First, as a parent, you are an integral part of the team and should be involved in all the major decisions during the process.

Federal law also requires the presence of the following team members at the IEP meeting: your child’s mainstream teacher, at least one special education teacher and/or support professional (such as a speech-language pathologist or occupational therapist), and an administrator with decision-making power. The presence of the administrator as key—you want to make sure that someone who can offer special education services on behalf of the District is present at the meeting.

The IEP Meeting

KindergartenerSometimes, parents are intimidated by the committee of experts facing them in the meeting (those kid-sized chairs don’t help either!). I try to empower my clients and remind them that they are the parents—who knows their child better? No one! It’s always important to listen to the assessors, teachers and other service providers who are working with your child, but let your gut be your guide. This means that you should feel confident about asking questions and expressing any disagreements you have about your child’s abilities and needs. For example, an IEP will indicate your child’s “present levels of performance.” If a blanket statement is made such as, “Sam is a delightful child with many friends,” and you happen to know that Sam is a delightful child with such a severe language disorder that he cannot participate in age-appropriate conversations and therefore does not have many friends, speak up about this.

Parents are allowed to invite others to the IEP meeting for personal support or advocacy. I encourage this if you believe you will feel intimidated or overwhelmed by the District personnel in the room. It’s always good to have another set of eyes and ears with you and it may boost your confidence to have more support in the room.

In addition, state law may allow you to make a tape (or digital) recording of the meeting. In California, parents may record if they have given 24 hours written notice to the District of their intent. This is recommended in situations where there have been misunderstandings in the past about statements made during the IEP or when you anticipate hearing a lot of evaluation reports that you may need time to digest and want to hear again after the meeting.

The IEP Document

It is often said “If it’s not in the IEP, it doesn’t exist.” This is a good maxim to keep in mind. If someone offers a service during the meeting, but it’s not written down as part of the formal offer of FAPE, it may not happen and there will be no written record of the discussion.

The “service page” of the IEP describes your child’s placement and the services (including amount and frequency) the District is offering to provide. This section is the heart of the document and you’ll want to make sure you understand its terms before signing your consent.

Other important sections of the IEP document include your child’s designation, any accommodations and modifications to the curriculum and the goals. I’ll discuss with greater detail these sections of the IEP in future columns.

At the end of the document is a place where parents can sign their consent to the IEP. Your signature means that you agree that the District’s offer provides your child with FAPE and that you authorize the District to implement the services specified within. In the ideal scenario, you understand the terms of the IEP and agree that they are designed to help your child access the curriculum; therefore, you provide your consent and the District moves forward on the basis of what is written in the IEP. When there is disagreement about any element of the IEP, parents have the right to withhold their consent to the document and seek other avenues to resolve the conflict with the District. Next month, I will continue this discussion and describe the various options parents have when it is time to sign the IEP.

Disclaimer:
This column reflects the views of Diana B. Glick in her individual capacity. It does not necessarily represent the views of her law firm or her clients, and is not sponsored or endorsed by them. The purpose of this column is to assist in dissemination of information about federal special education law, but no representation is made about the accuracy of the information. The information contained in this column is provided only as general information for education purposes, and topics may or may not be updated subsequent to their initial posting.
By using this column you understand that this information is not provided in the course of an attorney-client relationship and is not intended to constitute legal advice. This blog site should not be used as a substitute for competent legal advice from a licensed attorney in your state. This column is not intended to be advertising and Diana B. Glick does not seek to represent anyone desiring representation based upon viewing this blog site in a state where this blog site fails to comply with all laws and ethical rules of that state.

Tags: , , , , , , , , , , , , , , , , , , , , , , , , , ,
No Comments »

Avatar of Admin Dawn

by Admin Dawn

Vermont special education system flunks

July 15, 2010 in Special Needs News by Admin Dawn

Vermont’s special education system has been found to be non-compliant with federal education law, according to an annual performance report for the 2008-09 school year.

The U.S. Department of Education, as part of the Individuals with Disabilities Act, looks at the special education departments of every state to see if the states are meeting the requirements of the law.

Vermont was one of 11 states that failed to meet the requirements for two years or more, and must now receive technical assistance from the federal education department.

Vermont was also required to notify the public about its determination after failing to meet the federal requirements for two years in a row for students between the ages of 3 and 21.

via Report: Vermont special education system flunks – Bennington Banner.

Tags: , , , , , , , , , ,
No Comments »

Avatar of dianaglick

by dianaglick

Getting Started in Special Education: The Initial IEP Meeting

May 25, 2010 in Ask the Special Ed Lawyer, Insider Insight, Latest Articles by dianaglick

In my first “Getting Started” column, I described the process for getting your child assessed for special education. Once the assessment is completed, the District will convene an Individualized Education Plan (IEP) meeting to discuss their findings and allow the IEP team to determine eligibility and services, if necessary. The initial IEP meeting is an opportunity for parents and professionals to come together, identify your child’s strengths and challenges and determine a course of action, including services, accommodations and supports, to provide educational access.

The key determination of the initial IEP meeting is whether your child is eligible for special education. Eligibility hinges on two factors: 1) the child must have a qualifying disability and 2) the disability must interfere with the child’s ability to access his or her education, making special education services necessary to provide a basic floor of educational opportunity.

Qualifying Disabilities:

Federal statutes and regulations describe twelve specific disabilities that will make a child eligible for special education. These twelve are:

1) mental retardation

2) hearing impairment

3) speech or language impairment

4) visual impairment

5) serious emotional disturbance (also known as “emotional disturbance”)

6) orthopedic impairment,

7) autism

8.) traumatic brain injury

9) specific learning disability

10) other health impairment

11) deaf-blindness

12) multiple disabilities

States have also been given the option to include developmental delays for children ages three to nine as a separate category.

Interference with Educational Access:

This is a tricky provision. If your child has a problem articulating certain sounds but is doing just fine in school, the District will likely determine that she is not eligible for special education. However, it is important that the team not interpret your child’s school performance too narrowly. For example, if your son is passing his classes, but is calling you crying every afternoon and asking to come home, that is not educational success.

Typically when there is a disagreement, it is because parents believe their child to be eligible while the District asserts otherwise. If you find yourself in this situation, here are some good questions to ask and areas that deserve further scrutiny:

1. Was the assessment appropriate? The law contains a series of requirements for assessments, including that they be conducted in the first language of the student, that the determination not rely on a single testing instrument and that assessments include parental input. These are all areas to explore if you are faced with an assessment that you believe does not accurately reflect your child.

2. What are the qualifications and credentials of the person conducting the assessment? For example, if there is a dispute about whether a child has a speech or language impairment, you will want to make sure that the person conducting the assessment was a licensed speech and language pathologist. States have different licensing requirements, but many also have an online directory of licensed professionals, which can help you confirm the qualifications of your child’s assessor.

3. Is the District considering the full educational experience of my child? This includes not only grades, but standardized testing and peer relationships as well.

4. Parents can ask themselves: have we been the glue holding this whole operation together? Sometimes parents go to great lengths to make sure their children pass their classes, including hiring private tutors, paying for expensive private therapies and even doing homework for them. While I can certainly understand the desire to help your child, this approach tends to backfire if you are seeking a special education designation for your child. Unfortunately, there are situations in which parents have to “let their child fail” in order to establish that he truly does need the intervention.

If the team remains at an impasse on the issue of eligibility, there are many things parents can do to continue advocating for their child, including requesting an independent assessment, working with the school on a 504 plan and seeking out legal advice, among others. I will touch on each of these approaches in future columns.

Author Diana B. Glick

Disclaimer:

This column reflects the views of Diana B. Glick in her individual capacity. It does not necessarily represent the views of her law firm or her clients, and is not sponsored or endorsed by them. The purpose of this column is to assist in dissemination of information about federal special education law, but no representation is made about the accuracy of the information. The information contained in this column is provided only as general information for education purposes, and topics may or may not be updated subsequent to their initial posting.

By using this column you understand that this information is not provided in the course of an attorney-client relationship and is not intended to constitute legal advice. This blog site should not be used as a substitute for competent legal advice from a licensed attorney in your state. This column is not intended to be advertising and Diana B. Glick does not seek to represent anyone desiring representation based upon viewing this blog site in a state where this blog site fails to comply with all laws and ethical rules of that state.

Tags: , , , , , , , , , , , , , , , , , , , , , , ,
No Comments »

%d bloggers like this: