Parents, know your special education rights

Here’s what your school district might not be telling you about your child’s IEP, and what you can do about it

Excerpted with permission from “Your Special Education Rights” by Jennifer Laviano and Julie Swanson. Copyright 2017, Skyhorse Publishing. Available for purchase on AmazonBarnes & Noble and IndieBound.

It all seems very simple. A special education law, the Individuals with Disabilities Education Act (IDEA), was enacted by Congress in 1975 (originally called the Education for All Handicapped Children Act) to ensure that children with disabilities have the opportunity to receive a free appropriate public education, just like other children.

But nothing is ever simple.

At least once a day, a parent we represent asks us, “Why would they do that? It doesn’t make any sense.” Sometimes, the decisions that school districts make don’t make sense. In those cases, we remind our clients that you can’t use logic to talk someone out of a position they didn’t use logic to get into.

However, more often than not, there are reasons for what may seem like totally arbitrary decision making. It’s just that those reasons are unknown to most parents, who don’t have the benefit of dealing with numerous school districts every single day. When you have that perspective, as we do, you start to realize that there are multiple agendas and competing interests operating within a school district that motivate the decisions made at Individualized Education Program (IEP) meetings. (IEPs are legally required documents, generated by a team of educators and the parents of the child, which serve almost like a contract between the school and the parents. They outline what the school intends to provide the child.) This perspective includes understanding that each of the educators has her own perspective, job, role, and sometimes, fears. As a parent, you would understand why someone responded a certain way at your child’s meeting if you knew that one of the people there is another person’s direct supervisor. Or that regular education teachers often don’t feel the same pressure to follow the orders of the special education administrator as someone who reports directly to that administrator. Or that the behind-the-scenes politics of the building are influencing how the educators around that table are interacting with one another. Or that the way your state sets up certain funding mechanisms is, in fact, a huge barrier to getting what you want at the meeting. But nobody around the table is likely to tell you all of this.

Let’s use an example from our state to illustrate what we mean. In Connecticut, as in most states, our Department of Education has a process of approving private special education schools, which thereby authorizes it to provide special education services to students who have IEPs. The state maintains a list of approved programs, and school districts can place students at these programs through their IEPs. Connecticut also has a funding structure for school districts whereby the state will contribute significant monies to a child’s program if the district goes over their “excess cost threshold” for that student. Basically, the state will defray costs for a student whose program becomes extremely expensive. But here’s the kicker: the state will only defray those costs if the program the child is attending is on the state approved list. It will not contribute to a private special education program that is not approved by the state. Connecticut, like many states, has a number of private special education schools that elect to remain independent. Those schools aren’t on the approved list. Therefore, the districts can’t get the excess costs for them covered.

This funding structure can have really strange results. We’ve seen cases where a child is placed at a non-approved, private special education school, and is thriving. The district team members observe the child and agree the program is the perfect fit for him. The parents agree that program is the appropriate program for him. Everyone on the IEP team says, “Yes, this is the right school for him.” But because the school is not on the approved list, the district denies the request for the placement (and subsequent funding), instead offering an approved program that is even more expensive than the non-approved program! Rightly so, the parents say, “Everyone agrees this is the right school and that he’s doing beautifully there, but the answer is no?” The IEP team in this case is making a decision that defies logic—until you understand that the state is pulling the strings here just like Oz behind the curtain.

Once you understand the hidden motivators and obstacles to special education decision making in public schools, the seemingly mysterious answers you have been getting will start to make sense.

Your Special Education Director May Not Know Who You Are

Many parents assume that, simply because their child has a disability, the Director of Special Education in their district is aware of the case. That is just not so, especially in a larger district. It would be impossible for one administrator to be aware of every child with a disability in, say, Los Angeles or Chicago. Even in much smaller cities than that, usually there is a structure of administration, and the Special Education Director entrusts her team to handle the day-to-day obligations of the district to the children in each building. In many cases, there are building-level administrators who are responsible for convening special education meetings; sometimes they aren’t even special educators! For this reason, we strongly advocate that parents find out who the Director of Special Education is in their district, and work toward meeting and ultimately building a relationship with her.

Directors manage a very large budget. In many school systems, the director reports directly to the superintendent, and in most systems, the Director of Special Education is a district-wide administrator. This means that your child’s building principal is under the Director of Special Education, not the other way around. According to SalaryExpert.com, the average special education director in the United States makes $94,184.00 per year. That’s an average. In many states, directors of special education make well over six figures a year. It’s an important job, and it should be.

And yet, we have found that some special education administrators do not have even a basic understanding of their legal obligations. In some situations, this means that they are failing to follow the procedures outlined by federally mandated regulations. In others, it means that if a parent brings in a non-attorney advocate to an IEP meeting, the district brings in its lawyer because the director doesn’t know how to navigate the complex laws involving special education.

Think about that: in these cases, parents are expected to go up against an administrator who has at her disposal an attorney to bring in when things get even a little bit complex. That should tell you something about how imbalanced the power between parents and their school districts can be and often is. Unless a parent has the means and ability to hire a lawyer or good non-attorney advocate, he will be facing a Herculean task in the event of a legal dispute.

Let us give you just one example of where we see administrators making a basic legal error that will ultimately cost their district far more than if they understood the law. The IDEA states that a parent has the right to ask for an Independent Educational Evaluation (IEE) if they disagree with their school district’s testing. If the parent asks for the IEE, the district has the right to say no, and refuse the evaluation at public expense. However, if it does that, it must, without delay, file for a due process hearing defending its own testing before a hearing officer. (Read more about IEEs in chapter 14.) This is a requirement under federal law. Yet many directors have no idea that they are required to file for a hearing, even when we tell them so. They simply say no to the IEE and then do nothing. Eventually, many of these parents figure out that the district was required to act when it denied the request, and at that point, if the director is getting even decent legal advice, the school district will just go ahead and pay for the outside evaluation. But by then, the district is incurring legal fees on top of the IEE, as well as eroding the faith and trust of the parents in the competence of the district.

Wouldn’t it be better if the director knew what she should have done the first time around?

As we have acknowledged, we have a very cynical view of many issues because of the nature of the cases we see. However, we do know that the Director of Special Education is typically the person with the most authority in your district to make decisions about your child’s special education program. Unless you plan on moving out of your school system, you may be working with this person for many, many years. Building a good, respectful, cooperative relationship with him early on in your child’s education may make an enormous difference in the outcomes for your child.

If you are in the unfortunate position of residing in a district where your Director of Special Education is not discharging her obligations in accordance with the law, speak up! Make your district hold your director accountable for its obligations to students with disabilities. Go to your school board meetings, point out the problems, and ask administrators to fix them. Ask for regularly scheduled annual training on the IDEA, Section 504, and other legal obligations of school districts, and continuing education for the director and all educators, staff, and administration.

Who’s Chairing the Meeting, Anyway?

We often receive phone calls from parents right after the wrong decision has been made for their child at an IEP team meeting.

Among the first questions we ask parents is, “Who was chairing the IEP meeting?” All too often parents don’t know the answer to this simple question. It’s important to know the answer and here’s why. The IDEA is clear about the specific roles that must be filled at an IEP team meeting for your child. In fact, on the list of required members of the IEP team is “a representative of the public agency [usually the school district] who is qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of children with disabilities; is knowledgeable about the general education curriculum; and is knowledgeable about the availability of resources of the public agency.”

This should be the person who is chairing the meeting because he is knowledgeable about the availability of resources of the public agency. Should available resources drive all decisions? Of course not. But it’s critical to know that money factors into the decision making process (so much so that we devoted chapter 3 to it). Key decisions live and die over the resources available to the school district. Your school district carefully protects its resources and knows exactly just how far they can be stretched before they impact the special education budget.

Back to the point about who’s chairing the meeting. This is one of those requirements of the IDEA that is often not followed and, unfortunately, can impact the outcome of a meeting and services for a student.

So here’s the bottom line. Pay attention to who is chairing the meeting on the invitation you receive. Every school district is different, so this person may be referred to as the administrator, supervisor, chair, or coordinator. Confirm that this person—regardless of title—is knowledgeable about the district’s resources.

There are other required members of the IEP team meeting as well:

General. The public agency [usually your school district] must ensure that the IEP team for each child with a disability includes:

  1. The parents of the child
  2. Not less than one regular education teacher of the child (if the child is, or may be, participating in the regular education environment)
  3. Not less than one special education teacher of the child, or where appropriate, not less than one special education provider of the child
  4. A representative of the public agency who:
    1. Is qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of children with disabilities
    2. Is knowledgeable about the general education curriculum
    3. Is knowledgeable about the availability of resources of the public agency
  5. An individual who can interpret the instructional implications of evaluation results
  6. At the discretion of the parent or the agency, other individuals who have knowledge or special expertise regarding the child, including related services personnel as appropriate
  7. Whenever appropriate, the child with a disability

What Your School District Isn’t Telling You

Chances are that the school team is not going to tell you who is authorized in your district to allocate funds and other resources. Why not? Money; the staff may change; or they may not realize that parents are unaware of who makes these decisions in their district. So how do you figure it out? A good place to start is with the notice of the meeting, which is typically the written invitation you get to the IEP meeting. If you’re reading this and asking yourself, “What invitation?”, you’ve got bigger problems, because the IDEA requires that school districts inform you of the IEP meeting in writing, including who is invited to attend, what their roles are, and what the purpose of the meeting is. You must receive a written notice in advance of the IEP team meeting. Check the number of days of advance notice the state requires that you must be given to receive it prior to the meeting; your school district isn’t legally permitted to just spring an IEP meeting on you without giving you advance notice, and usually enough time to prepare. Pay attention to the invitation. You may be expecting someone to attend who is not on the invitation, or someone is on the invitation you don’t know. Reviewing the invitation attendees prior to the meeting allows you to ask questions if something seems off to you, or to ask your school to invite someone they have left out.

 

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