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What are your rights as a student or a parent? What recourse do you have if those rights are violated or ignored? The paragraphs to follow give a broad description of the rights guaranteed to you under the Individuals with Disabilities Education Act (IDEA) and other laws.
Laws Regarding Services
The most important elements to remember when advocating for yourself or a child are that students with disabilities must have individualized education plans (IEPs) that include offers of free and appropriate public education (FAPE), and that these students are entitled to receive their education within the least restrictive environment (LRE). These rights are guaranteed under the Individuals with Disabilities Education Act (IDEA). These offers of FAPE come in the form of goals, based upon the present levels of academic performance and functional performance; description of services needed with time and location; accommodations and modifications; and some legally required check points.
The IEP Contract
If a child has a disability, the school district must write an IEP for him or her, which includes its offer of FAPE. This offer of FAPE is a binding contract for services between the school district and the parent. This means that if a school does not provide services agreed upon within the IEP, it’s in violation of the law. (More information about the IEP can be found in The IEP Process Explained.) Violation of this law does not mean that school district officials will go to jail, or be faced with extreme financial penalties. What it usually means is that the district is found to be out of compliance, perhaps pay for the student’s legal services, and be required to provide compensatory services to make up for the loss of service.
Free and Appropriate Public Education
The words “free” and “appropriate” mean that every student is entitled to an education that is based upon the child’s unique needs. It also means that under no circumstances should a parent be asked to pay for any or all of it. As a parent, you can certainly choose to supplement your child’s education with private tutors or service providers, but the school district cannot ask you to pay for the services it outlines within its offer of FAPE.
Least Restrictive Environment
The law also requires that students with disabilities be educated in the least restrictive environment (LRE). This means that the district must show that it has attempted to provide services to the student in a classroom setting that is as close to the general education setting as possible. Unless your student has severe medical or physical impairments that require specialized staff, districts should try to include him or her in the general education classroom as much as possible. If the district would like to offer services in a more exclusive environment, such as a special education classroom, it must prove that the student cannot be successful in a less restrictive environment.
Laws Regarding Evaluation and Assessment
The laws governing evaluation for eligibility for special education services are designed to ensure that students continue to receive the services they need, that students are evaluated in a fair and equal manner (without any discriminatory bias) and that parents remain informed throughout the evaluation process.
Before a student can begin receiving special education services, he or she must be evaluated and the answer must be yes to the following three questions:
- Does your child have a disability?
- Does the disability cause an educational impact to his or her education?
- Is the child in need of special education (defined as “specially designed instruction”)?
As a parent, you can request an assessment, and the district must comply by assessing your child or writing a notice of action (a legal form) denying the request. In some states you must be presented with an assessment plan within 15 days of your request, however the evaluation must be completed within 60 days (excluding holidays) in all states. If your child has a diagnosed medical need that falls under one of the special education categories specified by IDEA, you will need to provide medical records or a doctor’s note to the school district before your child can begin receiving special education services. It is important to know that the medical personnel do not identify the child for IDEA services, that is still done by the group of qualified professionals on what is called the evaluation team.
Once your child has begun receiving services, the district must reassess his or her eligibility every three years. This is called a triennial review. Generally, this involves cognitive tests administered by the school psychologist and academic performance tests administered by the classroom teacher, the results of which will be shared with you during the triennial review meeting. It is also possible that the district has enough existing data to either continue or terminate service, and in that case there is no requirement to conduct additional testing. However, the decision to continue or terminate has to be data-based—not based simply on “a hunch.”
Before a district assesses a child for a disability or for the continuation or cessation of services, it must present an evaluation plan to the parent and receive signed consent. Until consent is obtained, a district cannot evaluate a student; to do so is a violation of the law. Once the child has been assessed and the district uses the information gained to continue, alter or discontinue the services it provides, it must once again receive consent from the parents.
The decision in the landmark case Diana versus State Board of Education (1970) made it illegal to identify students as disabled unless they have been tested in their native language. This means that the district is required to evaluate a student in his or her native language before they can identify that student as having a disability and provide special education services. In addition, parents must be offered evaluation plans and IEPs in their native language before giving informed consent. The only exception is in the case where the home uses an alternative language, but the student is evaluated to be proficient in English.
Laws Regarding Disputes and Behavioral Challenges
Laws are in place to protect students and parents during challenging times. They provide opportunities for parents to have their concerns heard before an impartial mediator or judge, and prevent a district from removing a child from school without informed consent.
Special Education law allows parents or districts to ask for any of three dispute resolution processes. They are not sequential and can be completed in any order. The least complex of the three is typically tried first. In that case, the district or parent calls the state’s Department of Education, Exceptional Services Division, and files a formal complaint with a trained dispute resolution specialist. That case will be investigated and within 60 days a decision rendered. If that were not to work, or deemed not to work, a parent or district can ask for mediation. In this process, trained state employees or contractors work with both parties to mediate the situation to find a compromise. Both the district and the parent must agree to the mediation process before it can proceed. The final process is a due process hearing, which is very much like a trial. In this case, the parents and the district present their cases with witnesses, depositions, review of records, etc. and a single adjudicated law judge determines the outcome of the case. An adjudicated law judge is an attorney, trained in special education law who is not normally a judge. They are typically referred to as an ALJ.
With the reauthorization of IDEA 2004, all states are now required to have these three dispute-resolution processes at a minimum. However, parents should first attempt to resolve those conflicts within the school district processes. Typically that process starts with a special IEP team meeting where parent concerns are voiced and resolutions are explored. Sometimes it takes more than one meeting and more than one change to the child’s IEP. If it the dispute isn’t resolved by that process, then the parent may consider taking his or her case to the district special education director. If the dispute still isn’t resolved, then the parent may call for dispute resolution at the state Department of Education.
While an IEP or offer of FAPE is in dispute, the parent can request that the student remain in his or her current educational placement. In such cases, if there is a previous IEP, its offer of FAPE and its goals, accommodations and modifications will remain in place. This is often referred to as the “Stay Put” law. The student will “stay put” until an agreement is reached and the parent provides informed consent for the new IEP, or a judge issues a ruling on a due process case.
It’s worth adding that one member of the IEP team, including the parent, cannot alone hold up the implementation of an IEP if there is a strong majority of voting IEP team members who agree to it. IEP implementation is based on what the law calls “consensus,” which is a strong majority of the voting members. The only time the parent signature is required to implement an IEP is for the initial placement. Subsequent signatures on IEPs merely document that a parent or other team member(s) approve or disapprove.
As a parent, you can invoke the “Stay Put” law if a district would like to expel your child or change his or her placement because of behavioral problems. If, however, your child has been suspended for 10 or more days, the district must convene the IEP team to conduct a manifestation determination. The team determines if the behavior for which the child is being disciplined is a manifestation of (i.e., caused by) his or her disability. If the team determines that the behavior is a manifestation of the disability then the child returns to school. However, if the team determines that the behavior is not a manifestation of the disability, the child’s suspension can continue, but the district must continue to provide his or her special education services.
The reason for the manifestation meeting after a 10 day time period is that any exclusion from school for behavior that reaches 10 days is considered a change of placement; only the IEP team can authorize a change of placement. The manifestation meeting then determines if a change of placement is required. If a child’s behavior involved the use of drugs (not including alcohol); a weapon, such as a gun or knife with an inch and a half blade; or caused bodily harm, the district can put the child in a 45-day alternative placement, following the manifestation determination meeting.
Often following continuing discipline, the IEP team has to revise the functional behavioral analysis and the behavior intervention plan to attempt to decrease the incidence of disciplinary action. It is best practice to do so when a student is continually disciplined for behavior issues.