Category Archives: special education law and rights
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 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…
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:
Visit us on the web at www.ncpublicschools.org
References: Jobs, S. (2005, June 15). Stanford Commencement Address. Retrieved from Apple Matters:
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!
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!
What 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.
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.
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.
We often have to remind parents of children who receive special education services that it is the school district as a whole that is responsible for providing a free appropriate public education (FAPE) for their child. They are not limited to the resources within their child’s specific school building. This would seem like a no-brainer, but it is surprising how often that detail is missed when an IEP team or other school staff are trying to address the needs of a student who has a disability.
School staff will sometimes only think about the personnel that is currently assigned to that school when they are considering instructional strategies, adult-to-child support, equipment and assistive technology, behavioral interventions and supports, etc. Sometimes good ideas are dismissed because “we don’t have the resources for that.” Lack of resources is not a legitimate reason to fail to meet a child’s educational needs, but it is also a reality that resources are not unlimited.
One of the qualifications to serve as the LEA Representative on an IEP team, is for that individual to have knowledge of the resources of the entire school district or Local Education Agency (LEA). The LEA Representaive should be able to tell the team about LEA staff with special expertise who can be brought in as consultants who can provide ideas, training or help create a plan of action. Behavior Specialists and Psychologists can lead the functional behavior assessment (FBA) process and help develop positive behavior support plans. Reading specialist can help identify which reading program might be a better fit for a particular student. Specialists can also help staff better understand a particular disability, how it may impact the child in question, and offer research-based interventions and strategies that have been proven to be effective. Many school systems have staff who can conduct assistive technology assessments and help identify devices or equipment that might be appropriate for a specific child. Other specialist have much to contribute as well. Somebody just needs to invite them in!
There may also be specialized programs offered within a school system that not everyone knows about. In a worst-case example of that, there was child who received only very limited home bound services for months due to his behavior. The school had told the parent that they had tried “everything” before removing the child from the school. After the parent sought help from the Parent Training and Information Center, an IEP meeting was held with several Exceptional Children’s Department central office staff members present. It turned out that the school district had three different alternative education programs that could have provided this child with a full-time education in a less restrictive setting. These programs were not considered because the people in the school building were not aware of them.
Many state education agencies also offer consultants who can be called on for help, often at no cost to the school district. There may be centralized funds that can be used to meet a student’s disability-related needs. There may also be clinicians and programs available within the local community that can help either during or outside of school hours.
The bottom line is that school teams should keep looking and asking questions until they find something that will work for the child. When they have tried everything in the school building tool box without success, they should go out and get more tools. Giving up or settling for anything less than true FAPE is not an option.
In order for many students with disabilities to be educated in the general education setting, some adjustments are required as far as what each particular student will learn or be able to do. The student should not be denied the opportunity to be in classrooms with typical children just because modifications are needed. This concept is part of the IDEA requirement that students with disabilities be educated in the least restrictive environment where their needs can be met.
Q: What about children who spend most of their day in an exceptional children’s classroom where their skills are at the top or bottom of the range for that class?
A: The instruction can be modified, as needed, for students within an EC classroom to ensure an appropriate amount of challenge and progress.
The “I” in IEP means that instruction can be individualized to address the unique needs of a student with a disability. The child’s learning should not be put on hold until lower-functioning classmates catch up. We expect typical students to make a year’s worth of progress over a year of school. We should also expect that students who have disabilities will make as much progress as they are capable of over the course of each school year. We would be doing the student a disservice if we settled for “some” progress if the child is capable of much more.
If you are the parent of a child in an EC classroom who you feel is not being challenged, try to get as much information as you can about what is being taught in that class. Ask whether, or how, the lesson planning and instruction accounts for the fact that the students are probably not all on the same level with any of their skills. The answer to the question should not be that “there is one curriculum and I have to teach the same things to all of the children.” One size does not fit all, and is not an appropriate approach to special education. Instruction should be differentiated to meet the needs of each individual child.
In some schools there may be multiple EC classrooms, either self-contained or resource rooms where the kids switch in and out. It is possible for a student at the separate level of service to get instruction from teachers in different rooms. For example, a child may get most of her instruction from a primary EC teacher, but go work with another EC teacher in a subject area where she has skills that are much higher than her classmates. On the flip side, a child can be assigned primarily to one classroom, and also go to another classroom for instruction at an appropriate, but lower level of difficulty.
Flexibility within and between EC classrooms can offer students with significant disabilities the opportunity to benefit from an educational experience that adequately addresses their strengths as well as their weaknesses.