What is the purpose of special education and the Individuals with Disabilities Education Act (IDEA)?
IDEA is a federal law. This law ensures that:
• all children with disabilities have available to them
• a "free appropriate public education?" ("FAPE")
• that emphasizes special education and related services
• designed to meet their unique needs
• and prepares them for employment and independent living. 20 U.S.C.1400(d)
IDEA is based on the following six principles :
1. free appropriate public education
2. appropriate evaluation
3. individualized education program
4. least restrictive environment
5. parent and student participation in decision making
6. Procedural due process
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What is a Free and appropriate Public Education?
It is important to understand that the right to FAPE does not guarantee a child the best education possible. A child is entitled to an appropriate education.
The term "appropriate" has been extensively debated by the federal courts. In Hendrick Hudson District Board of Education v. Rowley, 458 U.S. 176 (1982) http://laws.findlaw.com/us/458/176.html the US Supreme Court identified two areas of inquiry in determining whether a state has met its requirement for FAPE under IDEA.
• First, is a procedural right (Link to procedural rights in FAQ) requiring that the state comply with the procedures set forth in IDEA. i.e., has the school followed the right procedures? Congress was explicit in articulating procedural protections for parents. Included in those procedural protections is the requirement that parents have "meaningful participation into all decisions affecting their child’s education." 34 C.F.R. 300.505 The importance of this right was reaffirmed by the Supreme Court in Honig v. DOE.
• Second, is a substantive right that the child’s individualized educational program (IEP) is reasonably calculated to enable the child to receive educational benefits i.e., is the child benefiting from their educational plan. The Court in Rowley disclaimed any one test for determining what an adequate educational benefit is, but the Supreme Court did hold that a school system satisfies the requirement by "providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction." Obviously, the substantive component of FAPE is ambiguous and confusing. However, the Supreme Court was clear that the educational program must be individualized to the student.
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II. Eligibility and Evaluation
Who is eligible for special education?
Your child must meet two criteria to be eligible for special education:
• First, your child must be a "child with a disability"; and
• Second, your child must need special education and related services because of that disability. 20 U.S.C. 1401(3)
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Who is "a child with a disability?"
If a child fits into one of the following categories they are deemed to have a disability for the purpose of receiving special education services 20 U.S.C. 1401(3):
• Mental retardation: Significantly sub average general intellectual functioning, existing concurrently with deficits in adaptive behavior and manifested during the developmental period, that adversely affects a child's educational performance. 34 CFR §300.7.
• Hearing impairments (including deafness): A hearing impairment that is so severe that the child is impaired in processing linguistic information through hearing, with or without amplification, that adversely affects educational performance; or 2) a hearing impairment, , whether permanent or fluctuating, that which adversely affects a child's educational performance, but is not included under the definition of deafness. 34 CFR §300.7.
• Speech or language impairments: A communication disorder such as stuttering, impaired articulation, a language impairment, or a voice impairment that adversely affects a child's educational performance. This includes children in regular education classes receiving only speech or language instruction or children in a self-contained speech and language class whose primary disability is speech or language impairment. 34 CFR 300.7(c) (11).
• Visual impairments (including blindness): Includes both partial sight and blindness, and means an impairment in vision that, even with correction, adversely affects a child's educational performance. This may also include children receiving sight-saving materials. 34 CFR 300.7(c) (13).
• Serious emotional disturbance: A condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree that adversely affects educational performance--
(A) An inability to learn that cannot be explained by intellectual, sensory, or health factors;
(B) An inability to build or maintain satisfactory interpersonal relationships with peers and teachers;
(C) Inappropriate types of behavior or feelings under normal circumstances;
(D) A general pervasive mood of unhappiness or depression; or
(E) A tendency to develop physical symptoms or fears associated with personal or school problems.
• Orthopedic impairments: A severe orthopedic impairment that adversely affects a child's educational performance. The term includes impairments caused by congenital anomaly (e.g., clubfoot, absence of some member, etc.), impairments caused by disease (e.g., poliomyelitis, bone tuberculosis, etc.), and impairments from other causes (e.g., cerebral palsy, amputations, and fractures or burns that cause contractures). 34 CFR 300.7(c) (1).
• Autism: A developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age 3, that adversely affects a child's educational performance. Other characteristics often associated with autism are engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences. The term does not apply if a child's educational performance is adversely affected primarily because the child has a serious emotional disturbance. 34 CFR 300.7
• Traumatic brain injury: Acquired injury to the brain caused by an external physical force, resulting in total or partial functional disability or psychosocial impairment, or both, that adversely affects a child's educational performance. The term applies to open or closed head injuries resulting in impairments in one or more areas, such as cognition; language; memory; attention; reasoning; abstract thinking; judgment; problem-solving; sensory, perceptual and motor abilities; psychosocial behavior; physical functions; information processing; and speech. The term does not apply to brain injuries that are congenital or degenerative, or brain injuries induced by birth trauma. 34 CFR 300.7(c) (12)
• Other health impairments: Means having limited strength, vitality or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment, due to chronic or acute health problems such as asthma, attention deficit disorder or attention deficit hyperactivity disorder, diabetes, epilepsy, a heart condition, hemophilia, lead poisoning, leukemia, nephritis, rheumatic fever, and sickle cell anemia, and that adversely affects a child's educational performance. 34 CFR 300.7(c) (9).
• Specific learning disabilities: A disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, that may manifest itself in an imperfect ability to listen, think, speak, read, write, spell, or do mathematical calculations. This term includes such conditions as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia. This term does not include children who have learning problems that are primarily the result of visual, hearing, or motor disabilities; mental retardation; or environmental, cultural or economic disadvantage. 34 CFR 300.7
• Mental retardation;
• Hearing impairments (including deafness);
• Speech or language impairments;
• Visual impairments (including blindness);
• Serious emotional disturbance;
• Orthopedic impairments;
• Autism;
• Traumatic brain injury;
• Other health impairments, such as attention deficit disorder; or
• Specific learning disabilities.
Is it my fault that my child has a disability?
• Absolutely not! Thousands of children have disabilities and receive special education services. In the vast majority of cases disabilities are caused by inherent medical conditions.
Whom can I contact to get support?
• Call Scott Wasserman & Associates, LLC at 913-438-4636 for answers to your specific questions or use our link to contact us to send e-mail.
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Is my child with a disability destined to fail in school?
• No! With the right services, advocacy and plan your child can succeed both academically and socially. The following is a list of people with disabilities who have been immensely successful in their chosen fields:
• Whoopi Goldberg (Learning Disability)
• Business leader Charles Schwab (Learning Disability)
• Olympic diver Greg Louganis (Learning Disability)
• Thomas Edison (deafnes)
• Albert Einstein (Dyslexia)
• Dr. Temple Grandin (Autism)
• Charles Dickens (Epilepsy)
• Franklin D. Roosevelt (Mobility impairment resulting from Polio)
• George Washington (Learning Disability)
• Helen Keller (Deaf and Blind)
• General George Patton (Dyslexia)
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If the school has not informed me my child has a disability then is it safe to assume he or she does not?
• No, It is the responsibility of the state to identify "All children with disabilities residing in the State, including children with disabilities attending private schools, regardless of the severity of their disability, and who are in need of special education and related services, are identified, located, and evaluated." 34 CFR 300.125. Unfortunately, many students with disabilities are never identified and parents must notify the school that their child may have a disability.
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What are some red flags that my child may have a disability?
• If you have any suspicions that your child has a disability you should immediately contact your family physician and develop an appropriate assessment plan. The following are indications that your child may have a disability :
• Despite his or her best efforts, your child's grades are failing.
• Regardless of how long your child spends on homework, it’s neither complete, nor well done.
• Increasing lack of confidence and motivation.
• Your child experiences school anxiety.
• Repeated teacher reports that your child behaving badly or disrupting the work of others.
• Your child's teacher reports that your child seems to have special difficulty in retaining and understanding lessons.
• Your child begins to use phrases such as "I'm stupid. I'll never understand this subject."
• Your child admits that he or she is simply ready to "give up." Or worse, you begin to feel that way.
• Inattention at school.
• Inability to follow directions.
• Suspensions or expulsions.
• Frequent outbursts for no apparent reason
• Difficulty expressing ideas verbally or in writing
• Experiencing significant medical problems
• Demonstrating little interest in toys or stories for children of that age
• Demonstrating puzzling behaviors
• Inability to play with other children
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If I think my child has a disability what should I do?
• First, take a deep breath and realize you are not alone. Thousands of children have disabilities and succeed both academically and socially.
• First, request an initial evaluation in writing. This request for evaluation starts the ball rolling and forces the school to either assess your child for special education services or deny your request within thirty days.
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What is the school going to do when they assess my child?
Before your child receives special education services, the Individuals with Disabilities Education Act (IDEA) require that he or she have an evaluation. An evaluation includes information from parents, any special medical concerns, interviews with parents and school staff, and may include specific tests.
The results of an evaluation will be used to determine if your child needs special education and related service help in school. You must give your consent in writing before the first evaluation can take place. The evaluation:
• must be done by trained and knowledgeable persons
• must be in all areas related to the suspected disability
• is more than just one test or assessment procedure
• must be in your child’s native language unless clearly not possible to do so, and
• must not discriminate against your child.
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What can I do if I disagree with the school districts assessment?
• You might have the right to a free Independent Educational Evaluation (IEE) by someone outside of the school district.
• You might also have the right to help select the person who will do the evaluation.
• The IEE may include the evaluation of any skill related to your child’s educational need. Many times the IEE may include neurological tests, psychological evaluations, sensory needs, technological or adaptive needs and even the needs for various therapies associated with a specific disability.
Once the IEE is completed the school is required to consider the results. This does not mean the school must accept the conclusions of the IEE, but it must review the finding and recommendations. The failure to consider the findings of an IEE can result in a finding that the school denied your child a free and appropriate education.
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If after considering the IEE the school still denies services to my child what can I do?
• If the school district ultimately denies your child the right to special education services you should immediately demand prior written notice of the denial.
• At this point we would advise you to contact an experienced special education attorney as your case may need judicial resolution. You can contact Scott Wasserman and Associates, LLC at (913) 438-4636 or use our link to contact us to send e-mail.
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Is my child ever entitled to another educational evaluation?
An evaluation must take place at least every three years.
However, a parent or teacher may request a reevaluation sooner, and a reevaluation should be conducted sooner than every three years if conditions warrant. 34 C.F.R. § 300.536.
For example if you disagree with a suggested placement change or there are discrepancies in the IEP a reevaluation may be proper.
I got a form telling me about my rights.....What does it all mean?
The Notice of Procedural Safeguards: Rights of Parents of Students with Disabilities explains the specific rights and responsibilities of the parent in the special education process.
Title 34 Code of Federal Regulations (CFR) Section 300.504 requires that public schools, which include district and charter schools, provide parents of students with disabilities a copy of the procedural safeguards, at a minimum, upon:
(1) Initial referral for evaluation;
(2) Each notification of an admission, review, and dismissal committee meeting;
(3) Reevaluation of the child; and,
(4)Receipt of a request for due process hearing under 34 CFR § 300.507.
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III. The IEP Process
Once the school determines that my child has a disability what are they required to do?
Once your child has been found eligible for Special Education Services you should be notified that the Individualized Educational Plan (IEP) team plans to convene to develop an IEP for your child.
An IEP is a written statement for each student developed by a team whose membership is the same as the evaluation team. 20 U.S.C. § 1414 (d)(1)(B).
The IEP is the centerpiece of your child special education program.
YOU are the most important part of your child’s IEP team!
You are not a "guest" begging the IEP team to provide service to your child. You have the right to be respected as a member of the team.
To get the respect of the team and the service your child deserves, we strongly urge you never to attend an IEP team meeting by yourself. For advocacy services, call Scott Wasserman & Associates, LLC at 913-438-4636 or use our link to contact us to send e-mail.
The IEP team consists of:
• You;
• One regular education teacher;
• One special education teacher;
• A school representative who is qualified to provide or supervise the specially designed instruction your child needs;
• An individual who can interpret the evaluation results;
• At the parent’s or schools discretion an individual who has knowledge or special expertise about the student; and,
• When appropriate, your student.
An IEP should be developed at this meeting. Because your input is critical an IEP should never be developed prior to the IEP meeting. Every IEP must include:
A statement of the student’s present level of educational functioning
A statement of measurable annual goals including benchmarks and short-term objectives
A statement of (a) the specific special education and related services and (b) supplementary aids and services to be provided to, or on behalf of, the student.
An explanation of the extent, if any, to which the child will not participate with nondisabled children in general education and other general curriculum activities
A statement of any individualized modification in the administration of state and district wide assessments of student achievement.
The projected dates for beginning the listed services and modifications and the anticipated frequency, location, and duration of those services and modifications
A statement of transition plans beginning at age 14
A statement of how (a) the students progress towards annual goals will be measured and (b) how you will be informed regularly of their child’s progress towards the annual goals.
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Do I need a lawyer or an advocate at an IEP meeting?
You do not necessarily need an attorney, but you should never attend an IEP meeting by yourself. It is critical to understand that an IEP is a legal document which may have implications throughout your child’s academic life.
At the very least you should contact a parent advocate to attend the IEP meeting with you. Scott Wasserman and Associates, LLC has a parent advocate that can attend an IEP meeting with you. We can also refer you to other agencies that provide parental advocacy services.
You can contact Scott Wasserman and Associates, LLC at (913) 438-4636 or use our link to contact us to send e-mail.
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Should I do anything to prepare for an IEP meeting?
Yes! Meet with your parent advocate to develop a comprehensive plan for your child.
Remember, YOU are the expert on your child and your input is more valuable than any other person’s input on the IEP team. You should go into the IEP meeting with an understanding of what services are appropriate for your child and what goals you think are appropriate for your child.
I feel intimidated by the school...
Many parents feel intimidated by the entire IEP process. Many times the feelings of intimidation are exacerbated by entering an IEP meeting filled with educational “professionals.”
Remember you have the most important credentials of anyone in the room: PARENT. Congress has been explicit that you must be given the opportunity to participate meaningfully in the education of your child.
You might want to share your feelings of intimidation with your advocate. Rely on your advocate to help you advocate for your child.
I feel like the school thinks I am an inferior parent...
Unfortunately, many schools attempt to blame parents for their child’s struggles. Your child’s disability is nobody’s fault. You are doing the best you can to help your child be successful.
If you feel you are being denigrated as a parent this may be a red flag that you need to contact an advocate who is experienced in dealing with adversarial schools. You can contact Scott Wasserman and Associates, LLC at (913) 438-4636 or use our link to contact us to send e-mail.
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How can I best advocate for my child at an IEP meeting?
Tips on how to be an Assertive Advocate with a solid voice for your child
by knowing when and how to advocate.
1) Be informed:
a. Become well informed about your child's disability.
b. Know and understand your parental rights.
c. Know and understand your child's rights.
d. Request information from your child's doctors.
e. Join a parent support group.
f. Attend local, state and national conferences.
g. Check the internet.
2) Don't go alone:
a. Create your team and educate them.
b. Bring advocates (persons that know of your child's disability)
c. Bring relatives, Friends.
d. If age/emotion is appropriate ask your CHILD!!
e. Have a strategizing planning meeting before you go to the IEP meeting.
f. Create a Parent Agenda. Make copies for all team members to hand out at
the IEP meeting. This shows organization.
3) Know the difference between Assertive and Aggressive advocacy:
a. Create/Form partnerships with your child teachers.
b. Always put it in WRITING! Create file for all the data. Arrange the data in
chronological order. Place a Picture of your child on the front of the
file. Take the file with you to EVERY meeting.
c. If age/emotion is appropriate ask your child to put what they feel will
help them it in writing.
d. Always follow up a meeting, conversation and written correspondence in WRITING!
e. Discuss the IEP meeting with your child.
f. Provide educators and other team members with important information
before each IEP meeting.
g. Ask/Know who will be attending the IEP meeting.
h. Request ahead of time if you want a particular person to attend the IEP
meeting. IN WRITING!
i. If your child is having problems with meeting the goals on the IEP, ask
ahead of time to bring data, progress and reports to the meeting to be discussed.
j. Ask for all data ahead of time to review before you go to the IEP
meeting. This will help you have MEANINGFUL PARTICIPATION.
k. Aggressive Advocates are demanding with ANGRY voices.
l. Aggressive Advocates assume the other person understands their child.
m. Assertive Advocates state their child's needs with a calm and sincere voice.
n. Speak with confidence and assurance. Don't be afraid or intimidated.
o. Asks questions anytime you need clarification.
p. Repeat question until it is satisfactorily answered.
q. Insist that all personnel who should be at the IEP meeting are there.
r. Keep paper trails of all communication regarding your child's
education. All correspondence should be in WRITING!!
s. Monitoring the IEP for assurance that the IEP is being followed and
that there is progress being made by your child.
t. Find out who the right person is to talk to and know who the KEY
players are. Try all avenues.
u. Letting people know that you are a FULL team member and that you intend
to resolve issues and that you are willing to go to mediation or due
process, if necessary.
v. Know all available resources and USE them! FBA, BIP, PBIS
w. PRAISE and THANK people when appropriate.
x. Never say "I am just a parent"
y. Remember you are the expert on your child.
z. Remember to keep dreaming and reaching to achieve the goals that you
feel are appropriate for your child to receive FAPE (Free Appropriate
Public Education) and prepare your child for further education, employment
and independent living.
Do I have to sign an IEP I don’t understand or agree with?
No. It is the policy of Scott Wasserman and Associates, LLC never to sign an IEP on the day of the meeting. Remember the IEP is a legal document and it is doubtful you would sign any other legal document without carefully looking it over. You should review the document at home or at your advocate’s office, away from the pressure of the school.
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The school is suggesting my child with a disability be separated from his or her non-disabled peers at school. Is this appropriate?
No, your child’s placement should be in the school where he or she would be placed if there were no disability. 34 C.F.R. § 300.522.
Additionally, to the maximum extent appropriate the educational placement must educate the child with children who do not have disabilities. 34 C.F.R. 300.550.
The requirement applies to nonacademic and extracurricular activities. For example, your child should share lunch and recess, as well as academic activities, with his or her nondisabled peers. 34 C.F.R. 300.553.
Specifically, IDEA requires your child to be educated in the Least Restrictive Environment (LRE) possible in which educational progress can be made.
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The school told me I can sign their proposed IEP as “attendance only.” Is that true?
No, a signed document is a signed document! Do not sign any portion of the IEP without carefully examining the contents.
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How often does the school have to hold IEP meetings?
IEP’s must be reviewed annually to determine whether the annual goals are being achieved. 34 C.F.R. § 300.343.
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IV. Educational Records
Do I have a right to get a copy of my child’s IEP and other educational records?
Yes. You have the right to inspect and review all records with respect to the identification, evaluation, and educational placement of your child, and the provisions of FAPE to your child.
Your right to access includes all records relating to your child which are collected, maintained, or used by the agency. 34 C.F.R. § 300.562
If I don’t agree with something in the educational records what can I do?
The Family Educational Rights and Privacy Act (FERPA) gives parents the opportunity for a hearing to challenge the content of the records and have the inaccuracy’s changed. The minutes of an IEP meeting are subject to FERPA regulations.
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Can the school release my child’s educational records to anyone but me?
Under FERPA disclosure without the consent of the parent or child over 18 may only be made if:
It is to school officials;
It is to officials of another school which the child intends to enroll;
It is to state or federal accrediting authorities for audit;
It is to agencies or organizations involved in developing, validating or improving instruction or programming;
The disclosure is in connection with a application of student financial aid;
The disclosure is by court order; or
The information is necessary because of a health or safety emergency.
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V. Conflict and the IEP
If the school insists on services I do not want or refuses a service or placement I think is necessary what should I do?
If a school insists on a service or placement at the IEP meeting you do not agree with you should demand prior written notice.
If the school continues to insist on the service or placement you can file a due process complaint. (see below for specifics of filing a due process complaint).
Do not pursue due process on your own! Before filing a due process complaint, you need to contact an attorney who is experienced in special education law. Call Scott Wasserman and Associates, LLC at (913) 438-4636 or use our link to contact us to send e-mail.
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The IEP has been implemented and it is not working. What now?
Often developing an appropriate IEP is an ongoing process. It is not unusual to have to re-write the IEP on several occasions.
If you feel the IEP is not appropriate you should immediately send a written request for an IEP meeting.
Remember to prepare for this IEP meeting as you would the initial IEP meeting and not to sign anything until you are sure that the IEP is appropriate.
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The school is not providing the services on the IEP. What now?
If you feel the school is not providing the services outlined in the IEP you should immediately send a written request for an IEP meeting.
Remember to prepare for this IEP meeting as you would the initial IEP meeting and not to sign anything until you are sure that the IEP is appropriate. If your concerns are not resolved in the IEP meeting you should contact an experienced special education attorney as your case may need judicial resolution. Call Scott Wasserman and Associates, LLC at (913) 438-4636 or use our link to contact us to send e-mail.
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When do I need to get legal advice?
If you feel uncomfortable with your child’s special education program you should get the advice of an experienced special education attorney. The attorney you contact must have extensive experience in special education law. Special education law is a complicated federal law and one needs a thorough understanding of the law to appropriately advocate for you. Call Scott Wasserman and Associates, LLC at (913) 438-4636 or use our link to contact us to send e-mail.
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VI. Discipline and Your Child with a Disability
I don’t agree with the way the school is disciplining my child with a disability. What can I do?
The school cannot discriminate against your child because of their disability. If you feel your child is being punished for behaviors influenced by your child’s disability you should immediately call an IEP meeting.
At this IEP meeting you should focus on developing a behavioral plan for your child. Contact an experienced parent advocate or attorney before attending this meeting.
Decisions made at IEP meetings involving discipline questions can have long term effects on your child’s education. Your child needs a Functional Behavioral Assessment (FBA) and a Behavioral Intervention Plan (BIP). Call Scott Wasserman and Associates, LLC at (913) 438-4636 or use our link to contact us to send e-mail.
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Can the school suspend or expel my child with a disability?
Your child cannot be discriminated against due to behaviors influenced by their disability. However, students with disabilities may be disciplined if the school follows the correct procedures.
The law limits their ability to discipline your child if the discipline results in a change of placement. Cumulative suspensions for longer than ten days in one school year result in a change of placement under IDEA and trigger procedural protections. 34 C.F.R. §§ 300.519-.529.
Suspensions for more than 10 days:
A change of placement for more than ten days can only occur if:
(1) your child has committed a weapon or drug violation. 34 C.F.R. § 300.520(a)(2); or
(2) Maintaining the current placement is substantially likely to result in injury to the child or others. 34 C.F.R. § 300.521;
(3) Parents of the child with a disability do not object;
(4) the behavior of the child is not a manifestation of the child’s disability and the child is being disciplined in the same manner as his or hers non-disabled peers. 34 C.F.R. §300.525.
If your child is removed for more than ten days the IEP team is required to perform a functional behavioral assessment (FBA) and a behavioral intervention plan (BIP) within 10 days of the removal.
o Manifestation of Disability (MDR)
A manifestation determination review (MDR) determines if there is a connection between your child’s behavior and his or hers disability.
An MDR must be held when discipline results in the child’s educational placement being changed. 34 C.F.R. §300.523(a).
The parents of the child must be notified of their right prior to the action being taken. An MDR review must also be held if a child is placed in an interim alternative setting for drug or weapons violation. 34 C.F.R. §300.523(a).
The MDR team (IEP team) must meet within 10 days of the removal to conduct the MDR. 34 C.F.R. §300.523(a).
The MDR team must consider all relevant information from the parents and the school including observations, evaluations and diagnostic results. 34 C.F.R. 300.523.
The team must find that the behavior is a manifestation of the child’s disability if it is determined that the IEP is not appropriate and that the services and intervention strategies were not provided consistent with the IEP and the placement. 34 C.F.R. 300.523(d).
If the team determines the behavior was not a manifestation of the disability then the child is subject to the same disciplinary procedures as his or hers non-disabled peers.
The school is still mandated to provide FAPE to a child with a disability who is suspended or expelled. 34 C.F.R. § 300.121(d).
If the parents request a hearing to challenge the MDR decision the child shall remain in the current educational placement until that hearing is final. 34 C.F.R. §300.523.
o Functional Behavioral Assessment (FBA)
An FBA is simply assessing the student through observation and evaluation to determine why a certain behavior is occurring.
Specifically an FBA is a process, through observation, of identifying problem behaviors and why a student engages in behaviors that impede or interfere with learning, and understanding the behavior in the context in which it is observed, and how the behavior relates to the environment guiding the development of Positive Behavioral Interventions that are relevant, effective, and efficient.
• Behavioral Intervention plan
A behavior intervention plan [BIP] is a written, individualized support plan based on a functional assessment (FBA) of the child's challenging behavior. BIPs include positive behavioral support to address identified academic and behavior concerns.
Removal for 10 consecutive days or less:
A student with a disability can be removed for up to ten days when the student commits any violation of school rules and if nondisabled students are subject to the same discipline. 34 C.F.R. 300.520
The school is threatening to call the police on my child. What should I do?
This is a giant red flag that you need to contact an experienced special education attorney as soon as possible. Many times this may be the beginning of the school trying to transfer your child from the educational system into the juvenile justice system. Ultimately, this may lead to your losing the right to raise your child. The state may take custody of your child. You can contact Scott Wasserman and Associates, LLC at (913) 438-4636 or use our link to contact us to send e-mail.
The school is refusing to let my child with a disability attend unless he or she takes medication. Can they do this?
Parents have the exclusive legal right to determine if their child should receive medication. Special education services can not be predicated on your agreement to have your child take medication.
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VII. Due Process
I have tried everything to make progress with the school and nothing is happening. What should I do?
If you have not already done so you need to contact an attorney who specializes in special education law. If you have tried everything and the school is not providing your child with FAPE you may need to consider filing a request for a due process hearing.
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What is a due process hearing?
A due process hearing is an opportunity for an impartial judicial hearing officer to resolve complaints relating to any matter concerning the provision of FAPE.
The hearing must be held and a final decision reached within 45 days of requesting the hearing.
Do not be fooled, because due process hearings are no less than adversarial trials. At a due process hearing you and the school will present argument before a due process hearing officer, who then decides how the dispute will be resolved.
Before the hearing, the school and the parents have the right to review a list of hearing officers and select an officer. You have the right to cross-examine witnesses, obtain a written or electronic record of the hearing, and receive a written copy of the hearing officer's decision within 45 days. You can contact Scott Wasserman and Associates, LLC at (913) 438-4636 or use our link to contact us to send e-mail.
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How do I initiate a due process hearing?
To initiate a due process hearing you must file a written request. Each state has different procedures for filing a request.
It is strongly advised that you let an experienced special education attorney file the request for due process. You can contact Scott Wasserman and Associates, LLC at (913) 438-4636 for use our link to contact us to send e-mail.
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Do I need to have an attorney at a due process hearing?
Yes, you should bring your lawyer to the due process hearing. You have the right to have an attorney present, but an attorney is not required. Nonetheless, it is strongly advisable that you are represented by counsel at a due process hearing. Special education law is complex federal law requiring legal expertise to understand and argue your case. You can contact Scott Wasserman and Associates, LLC at (913) 438-4636 for use our link to contact us to send e-mail.
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What will the school say about our family at a due process hearing?
In many due process hearings the school will attempt to blame the parent for the child’s educational struggles. Remember, it is the school’s duty to educate your child.
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Is the school district responsible for paying my legal fees?
If a parent prevails at a due process hearing the school district is responsible for the parents’ legal fees. This only applies if you prevail at due process. If you agree to settle with the school your legal fees are not reimbursable.
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Can I receive monetary damages at a due process hearing?
Generally due process is about the provision of a free, appropriate public education. Although monetary damages are not usually part of due process, you might receive reimbursement for tuition at a private placement or other forms of compensation.
If I lose at due process is that the end of the road?
Decisions of a hearing officer can be appealed in federal court.
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VIII. Special Education Acronyms and Definitions
1. BD (Behavior Disorder): Describes students who have an unexplained inability to learn, have problems relating to other children and adults, continually exhibit inappropriate behaviors such as extreme anger, are severely depressed or who have a tendency to develop physical symptoms or fears about personal and school problems.
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2. BIP (Behavioral Intervention plan): a written, individualized support plan based on a functional assessment (FBA) of the child's challenging behavior. BIPs include positive behavioral support to address identified academic and behavior concerns.
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3. CFR (Code of Federal Regulations): The federal government’s official "books" for the publication of federal regulations.
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4. DP: (Due Process): A due process hearing is an opportunity for an impartial judicial hearing officer to resolve complaints relating to any matter concerning the provision of FAPE. The hearing must be held and a final decision reached within 45 days of requesting the hearing
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5. ED (Emotional Disorder): A disability category within the Individuals with Disabilities Education Act for students whose inability to control their emotions adversely affects their learning and social interactions with others.
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6. FAPE (Free Appropriate Public Education): See "What is FAPE" above
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7. FBA (Functional Behavioral Assessment): a process, through observation, of identifying problem behaviors and why a student engages in behaviors that impede or interfere with learning, and understanding the behavior in the context in which it is observed, and how the behavior relates to the environment guiding the development of Positive Behavioral Interventions that are relevant, effective, and efficient.
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8. FERPA (Family Educational Rights and Privacy Act): Federal law governing the right to confidentiality and dissemination of your child’s educational records.
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9. IDEA (IDEA): IDEA is the federal law that ensure that all children have access to FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for employment and independent living.
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10. IEP: (Individualized Educational Plan): The Individual Education Plan developed for each child eligible for special education, based on the child's unique needs, with parent participation, containing a statement of the child's present level of performance, educational needs, goals and measurable objectives. Is reviewed at least annually.
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11. LD (Learning Disability): A term used in special education to describe a disorder in one of the basic psychological processes. LD students may have difficulty in listening, thinking, speaking, writing, spelling or doing mathematical calculations.
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12. LRE (Least Restrictive Environment): A special education term meaning the placement in which a student has the best opportunity to achieve with the least amount of restriction, based on individual student needs and abilities.
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13. MDR (Manifestation Determination Review): A manifestation determination review (MDR) is held to determine if there is a connection between your child’s behavior and his or hers disability. An MDR must be held when discipline results in the child’s educational placement being changed.
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14. MR / DD: (Mental Retardation) (Developmental Disability): Significantly sub average general intellectual functioning, existing concurrently with deficits in adaptive behavior and manifested during the developmental period that adversely affects a child's educational performance.
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15. OHI (Other Health Impairment): Means having limited strength, vitality or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment, due to chronic or acute health problems such as asthma, attention deficit disorder or attention deficit hyperactivity disorder, diabetes, epilepsy, a heart condition, hemophilia, lead poisoning, leukemia, nephritis, rheumatic fever, and sickle cell anemia, and that adversely affects a child's educational performance.
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16. SED (Serious Emotional Disturbance): A condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree that adversely affects educational performance--
(A) An inability to learn that cannot be explained by intellectual, sensory, or health factors;
(B) An inability to build or maintain satisfactory interpersonal relationships with peers and teachers;
(C) Inappropriate types of behavior or feelings under normal circumstances;
(D) A general pervasive mood of unhappiness or depression; or
(E) A tendency to develop physical symptoms or fears associated with personal or school problems.
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17. TBI (Traumatic Brain Injury): Acquired injury to the brain caused by an external physical force, resulting in total or partial functional disability or psychosocial impairment, or both, that adversely affects a child's educational performance. The term applies to open or closed head injuries resulting in impairments in one or more areas, such as cognition; language; memory; attention; reasoning; abstract thinking; judgment; problem-solving; sensory, perceptual and motor abilities; psychosocial behavior; physical functions; information processing; and speech. The term does not apply to brain injuries that are congenital or degenerative, or brain injuries induced by birth trauma.
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18. U.S.C. (United States Code): An official Government publication that consolidates and codifies the general and permanent laws of the United States arranged by subject under 50 titles, the first six dealing with general or political subjects, and the other 44 alphabetically arranged from "agriculture" to "war and national defense.'' The code is revised every 6 years, and a supplement is published after each session of Congress by the Office of the Law Revision Counsel of the House of Representatives.
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WEB RESOURCES
Community Resources in Kansas and Missouri
Scott Wasserman & Associates, LLC www.yourchild1st.com 913-438-4636
Call Scott Wasserman & Associates, LLC at 913-438-4636 for answers to your specific questions or use our link to contact us to send e-mail.
Scott Wasserman & Associates, LLC provide advocacy at your IEP meetings for a sliding fee scale based on your household income.
If you require litigation, our lawyers can represent you at due process and court proceedings. If you prevail, the school district might have to reimburse your attorney fees and costs.
KEYS for Networking http://www.keys.org
A Kansas parent information and resource center.
Families Together http://www.familiestogetherinc.org
Families Together is a statewide non-profit organization serving families in Kansas which include a son or daughter with a disability.
Community Disability Network 913-648-2317
Provides advocacy, support and education to children and adults with developmental disabilities and their families.
Mpact http://www.ptimpact.com/index.htm
“MPact” stands for “Missouri Parents Act.” Their mission is “to ensure that all children with special needs receive an education which allows them to achieve their personal goals.”
Missouri Protection and Advocacy http://www.moadvocacy.org/
Missouri Protection & Advocacy is a Federally mandated system in the state of Missouri which provides protection of the rights of persons with disabilities through legally based advocacy.
Disability Rights Center of Kansas http://www.drckansas.org/
The Disability Rights Center of Kansas (DRC), formerly Kansas Advocacy & Protective Services (KAPS), is a public interest legal advocacy agency empowered by federal law to advocate for the civil and legal rights of Kansans with disabilities.
RESOURCES ON THE WEB
www.wrightslaw.com
“Parents, advocates, educators, and attorneys come to Wrightslaw for accurate, up-to-date information about special education law and advocacy for children with disabilities.”
www.reedmartin.com
“Educational resource where parents, advocates, attorneys and school personnel come for accurate up-to-date information & strategies to secure rights of children with disabilities!”
http://www.ideapractices.org
Home page for the Council for Exceptional Children. “The Council for Exceptional Children (CEC) is the largest international professional organization dedicated to improving educational outcomes for individuals with exceptionalities, students with disabilities, and/or the gifted. CEC advocates for appropriate governmental policies, sets professional standards, provides continual professional development, advocates for newly and historically underserved individuals with exceptionalities, and helps professionals obtain conditions and resources necessary for effective professional practice.”
http://www.copaa.net
The Council of Parent Attorneys and Advocates, Inc. (COPAA) is an independent, nonprofit, §501(c)(3) tax-exempt organization of attorneys, advocates and parents. Our primary mission is to secure high quality educational services for children with disabilities.
COPAA is premised on the belief that the key to effective educational programs for children with disabilities is collaboration -as equals- by parents and educators.
Kansas Council on Developmental Disabilities http://nekesc.org/kcdd.html
“To ensure the opportunity to make choices regarding participation in society
and quality of life for individuals with developmental disabilities”
