Category Archives: special education law and rights

What happened to the EC teacher in middle school?

When IEP teams plan for a student’s transition from elementary to middle school, many parents are surprised to find out that their child’s special education services are going to be quite different. Children who have had pullout resource services for years may suddenly be expected to survive in general education core courses without any dedicated special education support time. It is a challenge to explain this reality to parents, while still making them aware of the IDEA requirement that a full continuum of services be made available so that IEP teams can decide what is most appropriate for each child.

There was a time when middle schools had sections of core academic subjects that were taught by special education teachers. These classes typically followed the standard course of study, but the smaller class size allowed the teacher to move at a pace that  students could handle, and to explain concepts in a variety of ways. This worked for a lot of children.

No Child Left Behind (NCLB) changed all of this with its definition of “highly qualified teacher” and requirement that core courses in middle and high schools could only be taught by a teacher who was highly qualified in that specific academic subject. Before NCLB, North Carolina, as did many states, certified special education teachers in “special education” and not each separate academic subject.  Under NCLB in-service teachers had to take specific steps in order to be declared “highly qualified” in a core subject. To make matters worse, one of the options that North Carolina had developed to accomplish this  was rejected by the U.S. Department of Education after many teachers had completed that process. All of this led to a shortage of special education teachers who were available to teach core subjects at the secondary school level.

The solution that most school systems came up with was to have general education teachers serve as the “teacher of record” for these core courses, while having a special education teacher also in the room to provide extra support for students who needed it. These courses are generally referred to as “co-taught” or “inclusion classes.” Most middle schools offer such courses in English Language Arts and Math. Some schools also include Science and Social Studies.

There is no one-size-fits-all when it comes to special education. The inclusion classes meet the needs of some students, while others continue to need additional support. Many schools also offer “curriculum assistance” or “resource support” classes as elective courses. (The actual class titles vary from one school district to the another.) These classes are taught by special education teachers who often introduce study skills, along with other content and strategies that are useful for most of the students to know. However, the chief benefit of these smaller classes is that they provide an opportunity for students to get extra help with their general education coursework as well as their IEP goals.

No Child Left Behind is no longer the law of the land, yet many schools continue to deliver special education services the same as they have for years. Schools and parents  should be aware that the new federal Every Student Succeeds Act (ESSA) provides room for a wider variety of ways that special education students can be served.

As parents begin to think about their child moving on to middle school, they should consider making contact with staff at the middle school to discuss the existing options. However, they should also keep in mind that if those options do not meet their child’s needs, they can challenge the IEP team and the school system to create additional options. With more choices, IEP teams have a much greater opportunity to create an educational program that will meet each individual student’s unique needs. At the end of the day, that is what special education is all about.


Understanding the role of the LEA Representative

In many IEP meetings one of the school system staff members is introduced as “the LEA” without further explanation. If there is a lot of discussion and debate around an issue, it will often appear that this LEA has more influence than most other members of the IEP team. This may not seem fair to parents, who usually are outnumbered in the first place. However, it is important to understand that the LEA Representative does have a unique role in the IEP process.

First, let’s clear up some education jargon. LEA is short for Local Education Agency. Each individual school system that has a central administrator, usually known as the Superintendent, and School Board is actually a distinct LEA. Some LEAs are county-wide, some just cover a particular city, and some are public charter schools. Charter schools will typically have a Board of Directors rather than an elected School Board, and their central administrators have a variety of job titles, such as Headmaster, Dean or Principal.

IEP teams are required to include someone who can represent the LEA. The person who serves in the role of LEA Representative must meet certain criteria:

  • Be qualified to provide, or supervise the provision of special education instruction;
  • Be knowledgeable about the general education curriculum; and
  • Have knowledge of the resources available to that LEA.

Every student with a disability who qualifies for special education services must be provided with a free appropriate public education (FAPE). It is the LEA (school system) that has the responsibility for delivering FAPE to its students. It is also the LEA that is held accountable when that does not happen.

To a large extent, the contents of an IEP define what FAPE looks like for that particular student. This makes the decisions of the IEP team extremely important and legally binding. IEP team decisions are expected to be based on data and the input of every member of the team. Most of the time IEP teams are eventually able to reach decisions that everyone can live with. That’s called reaching a consensus. If the team fails to reach consensus about a relatively minor issue, the matter may be put on hold until more information can be gathered.

When the IEP team cannot come to agreement about a really important proposal, the LEA Representative has the authority to make the decision. This allows the team to move forward with finalizing the IEP so that the student can be served. Having a clear decision also gives the parent the right to formally challenge that decision through one of the options available for resolving special education disputes. Those options are detailed in the Procedural Safeguards Notice* that is often referred to as the “Parent Rights Handbook.” Parents should be given a copy of the handbook at least once each year, but they can ask for a copy at any time.

In rare cases, individuals who serve as the LEA Representative over-use their decision making authority and the IEP team is not able to function properly. If this happens, a higher-level special education administrator should be notified so that corrective action can be taken.

* North Carolina Parent Rights and Responsibilities

What are surrogate parents?

Our federal special education law places a lot of importance on the role of the parent in decision making. It is understood that parents’ number one priority is looking out for the best interest of their child. But what happens to those children who don’t have a parent who can speak on their behalf?

First, let’s look at how the Individuals with Disabilities Education Improvement Act of 2004 defines “parent.”

  • A biological or adoptive parent of a child;
  • A foster parent, unless state law, regulations, or contractual obligations…prohibit a foster parent from acting as a parent (e.g. therapeutic foster parent);
  • A guardian generally authorized to to act as the child’s parent or authorized to make educational decisions;
  • An individual, with whom the child lives, acting in the place of a biological or adoptive parent, or an individual legally responsible for the child’s welfare; or
  • A surrogate parent who has been appointed in accordance with IDEA ’04

For children who are wards of the State, or for whom no parent can be identified or located, or unaccompanied homeless youth, a trained volunteer must be appointed  by the public school system, or local education agency (LEA), to protect the rights of the child in special education processes. The LEA has to develop a procedure to identify children who may need a surrogate parent, and a way to assign surrogate parents to those children. For children who are wards of the State, the judge overseeing their case also has authority to appoint a surrogate parent.

Surrogate parents are involved in the same decisions that require parent participation. This includes decisions related to evaluation, determining eligibility for special education services, development and review/revision of the Individualized Education Program (IEP), educational placement and the provision of a free appropriate pubic education (FAPE). Surrogate parents also participate in the Manifestation Determination Review meetings that look at the possible role of disability when students are facing disciplinary changes in placement.

Surrogate parents must have sufficient knowledge and skills to adequately represent the child so many LEAs provide training to volunteers. Surrogate parents have access to the child’s educational records and should be expected to have some familiarity with the child and his/her needs before attending an IEP or other school meeting.

Good surrogate parents provide an important service to children that may have no other adult who can stand up and speak up for them when critical decisions are made about their education. If you, or someone you know has the time and flexibility to volunteer as a surrogate parent, please consider this as a great way to make a real difference in the life of a child who is facing multiple life challenges in addition to having a disability.


Extended School Year (ESY) services

sunExtended School Year or ESY refers to special education and related services that are provided to eligible students beyond the normal school year, based on the student’s  Individualized Education Program (IEP).  ESY is not summer school! Services  are based on each child’s unique needs, so they range widely in terms of the type of service and how it is delivered.  ESY services are often intended to help the child maintain their skills, not make progress. For example, a child may only get physical therapy, and just enough to maintain their range of motion.

During the development of each new IEP the IEP team must decide if the student is, or is not eligible for ESY services.  In some cases, the team will note that ESY is “under consideration” and a future date will be set for the team to come back together and make a final decision.  This gives the team time to collect data or information about the student’s performance to help them determine eligibility for ESY.

Some of the key things for the IEP team to consider are:

  • Whether the student regresses, or slides backward, during long breaks from instruction, and takes an unusually long time to relearn lost skills, or
  • Whether there is a risk that a long break will erase most of the gain that the student made during the regular school, or
  • Whether the student is showing that they are beginning to learn a critical skill, and the “window of opportunity” might be lost if there are long breaks from instruction.

The great majority of students do not qualify for ESY services.  In many cases, however, the team ends up checking “No” on the IEP simply because they do not have enough information to establish that the student needs ESY services.

It’s probably too late to address ESY for the summer of 2017, but it’s not too late to start gathering information and data that the IEP team can consider at the next annual review.  Save a few samples of your child’s school work to show what they were able to do at the end of the 2016-2017 school year.  Keep progress reports, report cards, behavior reports, communication log, correspondence, assessment results, videos… basically anything that will provide documentation of your child’s functioning in the areas of concern.

Find out what kind of assessments will be done when your child returns to school.  If additional skills need to be measured, ask to have some assessment conducted in those areas.  If there are significant concerns about behavior, try to get next year’s teacher to make  written reports to you about how your child’s behavior has been each day.  Whether the teacher makes a note in the child’s assignment book, or completes a printed check sheet of some sort, this will provide information about your child’s performance over time, so that any patterns can be identified (ex. he/she has more behavioral difficulties after long weekends, or winter and spring breaks).

It’s okay to tell the teacher(s) that you want to make sure that enough data is collected during the year to give the IEP team what it needs to make the right decision about Extended School Year services.  Collect your own data by making notes about things that you observe and comments that are made to you over the course of the school year.  Hold onto (or copy) some of the school work and tests that come home.  Hopefully, what you will see is your child making steady progress.  But you will be better prepared, just in case…

Can my child keep OT if we drop his other special education services?



My preschooler has an IEP because of developmental delays. He gets one session of occupational therapy (OT) each week and speech therapy twice a week. A special education teacher also comes to our house twice a week to work with him. I was told that the speech and OT would not continue if the special education instruction was stopped at my request. Is that true?


For most children, services such as speech therapy and occupational therapy are considered to be Related Services. Here is the official* definition:

“Related services means transportation, and such developmental, corrective, and other supportive services as are required to assist a child with a disability to benefit from special education.”

Technically, a child does not need a related service if there is no special education service for them to benefit from. This is why stopping the special education instruction would cause your child to also loose the speech and OT services. This does not mean that your child is magically “cured” and no longer has delays in those skill areas.  It does, however, mean that the IEP team will probably not agree to an Individualized Education Program that leaves out the specially designed instruction that qualified your child for services in the first place.

Please note: For children whose category of eligibility for special education is Speech or Language Impairment, speech therapy is their specially designed instruction, not a related service.

If you have specific concerns about the special education service that your child is getting, it would probably be best to express those concerns to see if an acceptable solution can be worked out. For example, if you feel that the instruction is not benefiting your child, or perhaps is focused on the wrong skills, this matter can be discussed with the IEP team. It might be possible to make changes to the annual goals or other sections of the IEP  to make services more effective or more useful. If you have a problem with a particular teacher who works with your child, this would be considered a personnel matter that you can discuss with the Preschool Coordinator for your school system.

If your concerns can be adequately addressed, it should be possible for your child to continue to receive the complete package of services and supports that his IEP team determined were needed for him to receive a free appropriate public education (FAPE). That would be a real win-win situation.

Meet Heather Ouzts, NCDPI Parent Liaison

Heather Ouzts photo Heather Ouzts, Parent Liaison

NCDPI Exceptional Children Division

“The only way to do great work is to love what you do.” (Jobs, 2005)

Several years ago, I was lucky enough to find my passion —helping families of students with disabilities. I have spent most of my life caring for children whether it was at work, church, or in my own home. As a mother of four children and as an employee in the schools, I learned that ALL children have special needs; some needs are just more easily seen. As a mother of a child with a disability, I learned that ALL parents have needs as well. In my work as a parent liaison, I have the great opportunity of trying to help schools meet the unique needs of both their students and their parents.

I first discovered my love for working with families as the parent liaison for the Exceptional Children Department of Alamance-Burlington School System in 2012. For three years, I worked with families, schools, and community partners to provide educational opportunities and resources for parents and build partnerships in our community. In August of 2015, I began a new position as the parent liaison within the Exceptional Children Division at the NC Department of Public Instruction (NCDPI). As a member of the Policy, Monitoring and Audit Section, I was specifically hired to support families of students with disabilities in North Carolina’s public schools.

Along with our Dispute Resolution Consultants, I do take questions from parents regarding special education services and policies. They may be looking for resources or want to know who to talk to about a certain issue. Parents may have concerns or questions regarding how the school is implementing the IEP or what the parent can do if they have a disagreement with the school regarding their child’s special education services. Sometimes the parent wants to know what their rights are as a parent of a student with a disability. As a liaison, I work with both the parents and the schools to make sure the parents’ questions and/or concerns are addressed.

My work at NCDPI also allows me the opportunity to provide professional development and technical assistance to school districts and charter schools on parent engagement. We are currently working to increase the number of parent liaisons and parent advisory councils available in local school districts and charters across the state. I participate on committees working on issues related to transition, surrogate parent guidance, and the School Mental Health Initiative. I also support the Council on Educational Services for Exceptional Children, the advisory council to the State Board of Education.

One of the best things about this position is that I do get to collaborate across the Division and work with so many families and schools across the state. I am always learning something new. Honestly, I have been amazed and encouraged by the efforts of so many here at NCDPI to continue to improve outcomes for all students. There is a lot of “heart” behind the hard work that I witness each day and, as a parent of a child with a disability, it fills me with hope for the future as we strive to meet the needs of students and families.

We must continue our efforts to educate families. I am a firm believer that when everyone can come to the IEP table with knowledge about the strengths and needs of the student, along with an understanding of the special education process, we will have better outcomes for students. It is critical for schools and families to improve communication and build relationships in order to meet the needs of both the student and the parents. It can make all the difference.

It really is great work… and I love it!

Parents can reach me at:

Tel: (919) 807-3989 ~ Fax: (919) 807-3243

Visit us on the web at

References: Jobs, S. (2005, June 15). Stanford Commencement Address. Retrieved from Apple Matters:

Mid-year IEP check-up time

We are just about at the halfway point in the school year.  Report cards will be coming home soon.  If your child receives special education services you should also get a report on his/her progress on their IEP goals.  This is a great opportunity to think about how things are going and whether or not some changes need to be made.  Ideally, we would all like to have a happy, socially-successful child who is learning and developing at or above the expected rate in all areas.  If that describes your child, you should give a word of thanks to all who have helped make this happen!

However,check-up-bottom not everyone is going to be so fortunate.  If there are things that concern you about your child’s education, there is still time to take actions that could help.

If your child’s grades are lower than you think they should be, try to get to the root of the problem.  Is your child having difficulty learning the material being taught? Is he doing poorly on tests even though he seems to understand the work?  Is she doing fine on tests, but has a low grade average because of zeros for several school assignments that were never completed or turned in?  Has your child missed a lot of instruction because of disciplinary actions that have taken him out of the classroom too many times?

Even if the grades are okay, there may be other reasons to be concerned.  The grades may seem to be inconsistent with what you see when your child is doing home work.  The progress on IEP goals may be moving much slower than expected.  Instructional assessments may show that the gap between your child’s skills and the achievement standard for his grade is getting wider instead of more narrow.  Is your child saying, or showing, that she does not want to go to school?  Are you getting more reports about problem behavior at school?

If you do see any red flags, the first action to take is to try to understand what is working and exactly where there may be some problems.  Talk to your child and your child’s teacher(s).  Ask what you can do at home to help your child be more successful.  Work with the teacher(s), other school staff, and the IEP team as appropriate to come up with solutions to any problems that are identified.  Make adjustments in terms of instruction, materials, strategies, accommodations, services, supports, environment…whatever makes sense for your child at this time.  Keep an eye on things to see if there is improvement or a need to try something else.

Your child is the winner when his educational team is working together toward the same goal!

Placement versus Assignment for students with disabilities

questions-and-answersWhat is the difference between “placement” and “assignment” when it comes to students who have disabilities?  This topic should actually fall under the heading of: Questions parents don’t ask because they don’t know what they don’t know.

“Placement” and “assignment” are often used as though they mean the same thing in conversations about the education of typical students. However, there are some very real differences in how these words are used when talking about students who receive special education services. There are also big differences in how decisions about placement and assignment are made.

Special education placement describes the type and amount of special education and related services a student receives based on their Individualized Education Program (IEP). The IEP will also describe the location where the services will be delivered. The IEP will state whether the services will be provided within the general education setting, special education setting, or the total school environment. The team of people who create each student’s IEP includes the child’s parent(s), a general education teacher, a special education teacher, and someone who can represent the local education agency (LEA) or school system. The IEP team can include other individuals, depending on what is being discussed or when invited by the parent or school.

Students with disabilities must be educated alongside students who don’t have disabilities as much as possible, as long as their needs can be met. The IEP team has to explain why a student is removed from his non-disabled peers and why they cannot be adequately served in the general education setting, even with the use of supplemental aids and services. The least restrictive environment for each student must be determined based on the unique needs of that particular student and not factors such as age or type of disability.

Some students with disabilities stay in the general education setting all day long, some removed for a short time each day, and other students require a specialized environment for most of their day. There is a wide range, or continuum of alternative educational placements that the IEP team can consider. The amount of time that the student is removed from their non-disabled peers will determine whether their placement on the continuum is described as regular, resource, separate, separate school, residential, home/hospital, etc.  The IEP team, including the parent(s), has full responsibility for deciding special education placement.

Educational assignment refers to administrative decisions that are made by people who have been given certain authority to make them, as well as the guidance of school board or other policies. For example, principals typically have the authority to assign students to specific teachers. In North Carolina, principals also have sole authority over each student’s grade assignment or classification, including promotion and retention decisions.

Most school systems have a written policy that details how students are assigned to particular schools. In addition to a “home” school based on the student’s address, there may be other school options that parents can apply for by following certain steps. There may even be an appeal process if the request to change schools is denied.

If the IEP team has decided that a student’s disability-related needs require a specialized setting at, or beyond, the “separate” level of service, that student will be administratively assigned to the school closest to home where his or her needs can be met. School system administrators can decide where to locate various specialized classrooms, and they can be moved from one school year to the next. In most cases, parents of these children will not have a choice about which school their child will be assigned. Parents also do not have a right to pick and choose their child’s teachers.

If there are special considerations that make the standard administrative process or the resulting decision, not appropriate for your child, find out who has the authority to do something different. That would be the contact point where you should focus your efforts to advocate for your child. Communicate with the decision maker(s) to help them better understand all of the issues involved. If necessary, reach out to the school board members and others who actually create the policies that everyone else has to follow.

The IEP team process gives parents a clear role in making decisions about special education placement decisions, but parents can sometimes influence administrative decisions as well. It is important to be clear about which decisions you are talking about.


Consider the whole child when disciplining students with disabilities at school

Children with disabilities may get into trouble every now and again, just like other children. When it comes to the discipline of students who have disabilities, public schools have a special obligation to consider the possible role of the child’s disability. There are federal and state laws that provide guidance in this area.

Section 504 of the Rehabilitation Act of 1973 prohibits any program that receives any federal funds from discriminating against an “otherwise qualified” individual based on their disability, when it comes to accessing, participating in, or benefiting from that program. If a student is punished for a behavior that is caused by his disability, that could be considered discrimination.  In order to be sure that such discrimination does not happen, schools should take a look at any possible connection between the behavior in question and the student’s disability when making decisions about discipline. Many school systems use a process that is similar to Manifestation Determination Review (MDR) that is described in the Individuals with Disabilities Education Improvement Act of 2004 (IDEA ’04). Each school system must develop its own Section 504 policy so you would need to check with your local school system to learn the details about how the discipline of students with disabilities is handled.

IDEA ’04 and state special education laws, allow school officials to consider the discipline of students who receive special education services on a case-by-case basis. This allows them to consider things like the nature of the child’s disability, the functioning level of the child, the intent of the behavior and other relevant factors. This flexibility is there to help make sure that schools respond to violations of the code of student conduct in an appropriate way, especially when a change in placement is being considered.

If a decision is made to change the placement of a child with a disability (as defined by IDEA), the school must hold an MDR meeting to determine whether the behavior in question was caused by, or had a direct and substantial relationship to the child’s disability. The group, which includes the parent,  a representative of the school district, and relevant members of the child’s IEP team, will also consider whether the behavior or violation was the direct result of a failure to properly implement the child’s IEP.  If the answer to either of these questions is “yes”, then the behavior is determined to be a manifestation of the child’s disability and the child is returned to his or her previous placement and provided with appropriate positive behavior intervention and supports.

Sometimes the team that conducts the MDR looks too narrowly at the child’s disability.  They may only consider the child’s category of eligibility for special education services.  Instead, the team should review all relevant information in the child’s special education record, including the child’s IEP, along with teacher observations and any relevant information provided by the parents. As an example, a child’s category of eligibility could be specific learning disability, but consideration of the child’s “disability” should also include possible impacts of  ADHD and anxiety disorder diagnoses. The team should look at the whole child as they make a decision about whether the behavior was a manifestation of the child’s disability, just as they should consider the whole child when determining eligibility for special education, or when developing the IEP.

It’s Transition Fair time!

If you are the parent of teen-aged child who receives special education services, you have probably heard about something called Transition to Adulthood. Basically, schools are required to really think about what should happen in the last few years of school to prepare a student with a disability for their adult life.  Regardless of whether they plan to go straight into the workforce, go to college or get other training, or continue to work on independent living skills for a while, there are steps that can be taken to make the transition out of high school a smoother one.

Many school systems offer Transition Fairs to provide an opportunity for students and parents to learn more about various options for adult services, post-secondary education and other community resources, all in one place.  Sometimes the transition fairs will also include information sessions on topics that range from understanding Social Security benefits to job interview skills.  Even if your child has a bit more time before she leaves school, it is always good to know what’s out there and learn what steps you should take, and when to take them.

Unfortunately, some school systems do a better job of getting the word out about transition fairs than others. Some will target certain groups of students and neglect to inform the parents of other students who have IEPs. Students with disabilities who spend most of their time in the general education setting often don’t get notices about a transition fair that may be going on in their community. Spring is the time of year when many of these transition fairs take place.  If you haven’t heard about any in your area, ask your child’s special education teacher, case manager, guidance counselor, or the transition coordinator for your school system.  Even if there are no plans to hold a transition fair this year, your questions may give them the idea to have one next year. It’s a win either way.