Category Archives: special education law and rights

Avoid Special Education Misunderstandings: Choose words carefully

Vector member chat iconEffective communication is important to good working relationships between parents and schools. This is especially true when it comes to communication about special education. Parents are often the first to express concerns about their child’s development or learning. Parents are also required members of any group that makes decisions about special education evaluation, eligibility or development of the Individualized Education Program (IEP) for an eligible student with disability. Whether you are at the beginning of the special education process or an IEP team veteran, it is important to use words that express your thoughts accurately.

Remember that communication is a 2-way street. There is a message that is sent and a message that is received. Unfortunately, they are not always the same thing. The chart below gives examples of words or expressions that may seem similar, but could mean something very different when used in special education-related conversations. Using the wrong term can lead to confusion, frustration and/or an unintended result.

Asking for extra help or tutoring for a struggling student.

This could lead to adjustments by the general education teacher, a referral to the school’s intervention team, or the parent might be told about tutoring available through the school or how they can find a private tutor.

Request for a special education evaluation or special education services.

This will trigger a formal process to gather information and determine if the student is eligible for special education services.

 

Home Bound

The student is enrolled in a public school that typically provides limited educational services either in the home or another community setting.

Home School

In N.C., home schools are considered private schools. Public school systems are not required to provide instruction except under certain circumstances.

Revoke consent for special education services.

All special education services will stop. Parents cannot hold school system responsible for providing FAPE.

Refuse a specific special education service while keeping other services and supports.

IEP Team must consider options and decide how to ensure that the student receives FAPE. There should not be an automatic “all-or-nothing” threat.

Making progress

Student is improving their academic or functional skills.

Catching up

Student is improving at an accelerated rate that will close the skill gap with typical peers over time.

If you are communicating with others and the response is not what you expect, check to make sure that they understood you correctly. It may be necessary to clarify what you mean. Consider using different words or giving an example.  Words do matter!

Transportation and the IEP

School BusIn North Carolina, traditional public schools usually offer transportation to all students who live a certain distance away from the school that they attend (i.e., outside the “walk zone”). The majority of school-age children with disabilities in those public schools use the same transportation options as their typically developing peers.  However, some students with disabilities require something a little different to be transported to and from school safely and appropriately. Like most matters related to students with disabilities, the details determine how things are handled.

Some students require a seat belt, harness or a car seat for stability or safety. Others may need preferential seating near the bus driver or other adult. There are students who must be transported in a climate-controlled vehicle. Some need constant monitoring due to health conditions. In some situations, it might be necessary to change the pick-up and drop off location. It is possible to make any of these adjustments and still have the student ride a regular school bus with their typical peers. Accommodations like these should be documented on the student’s Individualized Education Program (IEP) in the section for supplementary aids and services.

Changes that take a student with a disability off the regular school bus will usually involve Transportation as a related service. A related service is a developmental, corrective or supportive service required to assist a child with a disability to benefit from special education.

As a related service, Transportation includes:

  • Travel to and from school and between schools;
  • Travel in and around school buildings; and
  • Specialized equipment (such as special or adapted buses, lifts and ramps), if required               to provide special transportation for a child with a disability.    (34 CFR 300.34; NC 1500-2.27)

There is no list that includes all possible options for what transportation can look like as a related service. It could mean a specialized van service, or reimbursing parents for mileage when they transport the child to and from school. It could mean using a golf cart to transport a student across a large school campus. Of course, it could also mean the classic “short bus” that carries students with disabilities on an alternate route.

Whether it is included on the IEP as a related service or an accommodation, the specific needs of the student should be described in clear detail. This will help avoid problems as the student moves from one school or school year to the next. As always, the IEP can be changed if the student’s transportation needs shift over time.

It is worth noting that some students with Section 504 Accommodation Plans also have special transportation needs. The range of possible options for meeting those needs is almost as broad as it is for students that qualify for special education services, even though schools do not receive any extra funding for those students.

What is a Facilitated IEP Meeting?

Did you know that the Exceptional Children Division of the North Carolina Department of Public instruction (NCDPI) has a group of trained individuals who can serve as independent facilitators for IEP meetings?

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You will not find IEP meeting facilitation mentioned in the N.C. parent rights handbook because it is not a requirement of the federal special education law, IDEA. However, North Carolina is among many states who offer facilitation as a way to help IEP teams work through challenging situations. Facilitators are often able to help keep problems from getting to the point where formal dispute resolution steps are necessary.

IEP Team members are expected to work together and make good decisions on behalf of children who have disabilities. Sometimes, however, IEP team members have different ideas about what is in the child’s best interest. At other times, emotions, personality conflict or past experiences make it difficult for teams to have serious discussions without meetings becoming uncomfortable or unproductive.

NCDPI has cross-trained selected individuals who have backgrounds in special education or professional mediation to serve as IEP meeting facilitators. These independent facilitators are not employed by NCDPI or by any school district, but NCDPI does pay them for their services.

When to consider requesting a facilitator:

  • It has been difficult for the IEP team to make decisions, even after much discussion
  • Previous IEP meetings have been tense; Team members feel they are not being heard
  • The IEP meeting will have many participants, and complex issues to address.

 

How to request a facilitator:

 

What to expect:

  • The Facilitator will contact the school and family to identify the issues and create an agenda for the IEP meeting. They make sure that the meeting time is long enough to address each issue.
  • Ground Rules are established and the Facilitator will “run” the meeting. Facilitators do not have a say in IEP team decisions. They keep the team focused on the child, and the purpose of the meeting. They make sure that everyone has a chance to ask questions, provide information and offer ideas for consideration.
  • If necessary, the Facilitator will create a list of follow-up Action Items. Individual team members take responsibility for each item on the list, and a target date for completion is set.

 

If all goes well, the FIEP process can serve as a model of how the IEP team can work together effectively to help each student get the free appropriate public education that they deserve.

What counts as a disciplinary removal?

Grunge black answer word round rubber seal stamp on white background IDEA requires schools to take certain steps when students with disabilities face a disciplinary change of placement. At that point, schools are required to hold a meeting to conduct a Manifestation Determination Review (MDR). The purpose of the MDR is to determine whether the behavior that the child is being disciplined for is caused by, or substantially related to their disability. If it is, the child returns to their current educational placement, a Functional Behavior Assessment is conducted, and a Positive Behavior Support Plan is either developed or revised.

Sometimes, the disciplinary change of placement is very clear. A decision was made to move the student to an alternative school, give them a long-term suspension, or restrict them to homebound services.

An unofficial change of placement occurs when students have missed more than 10 days of school due to disciplinary removals. Most schools do a good job of documenting out-of-school suspensions. However, many schools do not keep an accurate count of the days when students are sent home early, given in-school suspension (ISS), or forced to sit in someone’s office for hours at a time because of their behavior. In each of these situations, students are removed from their normal educational placement for disciplinary reasons. When these shorter removals happen again and again, they can eventually add up to a disciplinary change of placement.

Principal school. Parents kids teacher meeting in office. Unhappy mom, son talk with angry principal. School educationParents should keep track of the number of times that they are called to pick up their child from school early because of behavior. Be sure to note the time of day. Ask your child to tell you when they are sent to the office or ISS. When the total removal time reaches the equivalent of more than 10 days, ask for a Manifestation Determination Review.

The MDR requirement exists so that students are not repeatedly punished for having a disability. Instead, schools are supposed to look for better ways to support each student and help them develop the skills needed to function more successfully. Learning appropriate ways to get needs met is critical to long-term success in school and in life. Frequent undocumented removals also cause students to miss valuable instructional time, which places them at an increased risk of falling behind academically.

Poor record keeping is not an excuse to deny students the behavioral support and instruction that many of them need to receive a free appropriate public education.

Be informed before giving consent

cheerful young brunette business woman customer inviting to sign contract

When it comes to special education, there are several points at which parent consent is required before things can move forward. Some school teams do a better job than others at making sure that parents fully understand the documents that they are asked to sign and what they mean for their child. Before you sign anything, make sure that you have all of the information you need to make a good decision. You have a right to have this information provided to you in a way that you can understand. This could mean using an interpreter or having documents translated into your primary language.

Evaluation:

Parent consent is required before schools can do any testing on a child that goes beyond what they normally do with all students. When a child is being evaluated for special education, the Consent for Evaluation form should list every area that the evaluation will include, such as Psychological, Educational, Motor or Speech-Language. Each of those areas can involve a variety of assessments. Parents have a right to more details about their child’s evaluation.  For example, will the psychological evaluation include social-emotional/behavior and/or intellectual assessments? Will the motor evaluation focus on fine or gross (large) motor skills, or both? Will the educational evaluation only look at the academic skill area where there is the greatest concern, or will it assess all of the basic skill areas so that academic strengths can also be documented and other possible weaknesses identified? It is better to ask questions before giving your permission, than be surprised or disappointed after the evaluation is completed.

Release of Information:

Sometimes parents are asked to give permission for schools to get information from professionals who work with your child outside of school. Make sure that you read any release form carefully so that you know what kind of information is being shared and under what conditions. Sometimes the school may only need to have your child’s doctor complete a form, or to get a written evaluation report from a private psychologist. There may be other situations where the school nurse may want to be able to talk to a medical provider to clarify details about the child’s healthcare needs while at school. A good guideline is to make sure that the school is able to get the information that is needed to serve your child, while still protecting your right to privacy.

Consent for Special Education Services:

Schools cannot provide special education services to a child without parent consent. Parents are only asked to give written consent for special education services one time unless the child moves into another school system. That one consent form gives permission for the school system to provide the services and supports on the child’s IEPs for as long as they continue to be eligible for special education. Parents do not have to consent to each separate service. In fact, parents cannot pick and choose which services they are willing to accept. They must work with other members of the IEP to create an educational program that is appropriate for their child. If necessary, there are many ways to try to resolve special education disagreements.

Providing consent is a choice. The very fact that you are asked to provide permission for something means that you have the option of saying “yes” or “no.” You also have the option of revoking, or cancelling, your consent if you change your mind later. However, you should make sure that you understand what will happen if you revoke your consent and what it could mean for your child. It is best to become as informed as possible before making any major decision about your child. Their education is no exception.

FAQ: Private Schools and Students with Disabilities

questions-and-answersQ: What are private schools required to do in order to serve students with disabilities?

A:  Unlike public schools, private schools (K-12) are not required to follow federal and state special education laws. If parents make a decision on their own to enroll their child in a private school, they should understand that the school has a lot of power to decide how much they are willing to do in order to serve that child. This is true whether the child has a disability or not.

Private schools do have to comply with the Americans with Disabilities Act (ADA). The ADA requires basic access to a private school’s buildings and programs. Students cannot be discriminated against, treated unequally, or isolated because of their disability. Private schools can set admission requirements, but they cannot intentionally screen out applicants with disabilities who are otherwise qualified to attend.

Private schools must make “reasonable modifications” to policies, practices and procedures to provide equal access. They are required to provide aids and services to allow people with vision, hearing or speech impairments to communicate effectively. Private schools are not required to provide modifications, accommodations, aids or services that would create an excessive burden for them. When deciding exactly how to meet the needs of a student, parent or employee with a disability, factors can be considered such as how the cost of the aid or service compares to the overall resources available to the school. If resources are very limited, a school can choose less expensive options.

Private schools do not have to provide special education instruction or services like speech, occupational or physical therapy.

Private schools do not have to fundamentally alter their program in order to accommodate a student’s disability. For example, a school that has an identity based on having an advanced curriculum can remove a student who was working well below grade level. A school that focuses on hands-on learning in the natural outdoor environment can refuse to serve a student who is extremely fearful of most animals and insects.

We are often asked about what private schools are required to do by law. However, there are many private schools that voluntarily go beyond the minimum requirements. Some offer extra academic instruction for struggling students. Some will try hard to work with a student who has behavior challenges. If your child has a disability and you are thinking about private school, you should look at more than test scores or college acceptance rates. Ask if they offer additional support for students who need it. Pay attention to body language and other clues when you speak with school staff. Those may tell you a lot about how willing the school is to make an extra effort to help all of their students succeed.

“School Safety” and Students with Disabilities

Columbine, Newtown and now Parkland. We knew this would happen… again.  The tragic shooting at the high school in Parkland, Florida was bound to trigger heightened sensitivity to anyone and anything that seems to be even remotely threatening.  While we should all be thinking about what can be done to keep our schools safe, we have to be careful that we do not react in a way that produces, rather than prevents, harm to students.

Some students with disabilities are at particular risk of becoming victims of hyper-vigilant policies and practices.  Recently, a distressed parent called because her son’s school was planning to conduct a “threat assessment” on her son after he drew pictures of guns during class.  My guess is that this was not a new behavior for that child, but it was now considered to be a potential threat after being viewed through post-Parkland “school safety” lenses.  This child had been diagnosed with an Autism Spectrum Disorder (ASD) and the parent was (rightfully) worried about what he might say when questioned by the school’s guidance counselor and principal.  There are several things about that situation that raise questions, but I will approach the topic at hand with recommendations rather than criticism.

The very first thing to do is talk to your children about school safety concerns and how the behavior of individuals can be seen as a sign of problems or threats.  We want them to recognize danger when they see it. We also want them to avoid doing things that others may see as dangerous. Even if the child does not fully understand why someone would consider their comment, joke, writings or drawings to be threatening, you have to give them specific examples of behavior to avoid.  Mention or representations of guns, knives, bombs, explosions, killing, etc., are topics to be avoided just about every place except home.  Even if the child is studying a particular time of war in a history class, they should limit their comments to the specific questions being asked. For example: DO NOT speculate about what could have happened if the good guys had a super hand-held weapon that could wipe out hundreds of people with the press of a button).  We can encourage other forms of imagination, as well as broader interests for those children who seem preoccupied by violent themes.

If you have a child that likes to carry or use a pocket knife, sticks, rocks or anything else that could be considered to be a weapon, check their pockets and backpacks frequently to make sure that they don’t accidentally or intentionally end up bringing something to school that will get them in trouble.  Keep in mind, when weapons, drugs or serious bodily injury are involved in a disciplinary situation, a student can be moved into an interim alternative educational setting even when the behavior is found to be a manifestation of the child’s disability!  Such removal is not required though, and school administrators have the authority to look at each incident on a case-by-case basis. You may need to remind them of that.

Be proactive! Review your school system’s Code of Conduct and disciplinary/school safety policies.  If you see glaring problems with the policies, address them with your School Board. If the policies include the possibility of a required “threat assessment”, make sure that the assessment must be done by qualified individuals with expertise in mental health and any identified disabilities that a child may have. Even if your school system’s policy does not clearly state such a requirement, you should raise the issue if your child becomes involved in this type of situation.  Some disabilities can impact the child’s ability to truly understand the questions that will be asked during this type of assessment, and how his answers might be interpreted by others.  The disability may also have contributed to the behavior itself.

Those making decisions about how to respond to a potential threat should have enough knowledge and experience to understand all of the factors involved, and take actions that are appropriate to each specific situation.  One-size-fits-all does not work for special education, and it also does not work for discipline or school safety!

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.