Category Archives: special education law and rights
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?
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:
- Either the school or the parent can request a Facilitated IEP (FIEP), but both must agree to it before a facilitator will be assigned.
- The FIEP Request Form and other information about the FIEP process is available on the NCDPI EC Division website: https://ec.ncpublicschools.gov/parent-resources/dispute-resolution/facilitation
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.
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.
Parents 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.
Q: 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.
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.
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…