Parent Rights in Special Education

Parent Rights in Special Education The Individuals With Disabilities Education Improvement Act of 2004 Michelle Fattig, Ed.S.

IDEA 2004 “I think the thing that you can pass along better than anything else is your passion for kids that need somebody to care about what they need outside the system rather than how they simply need to fit into the system. Once somebody has the heart for kids that are different, they won't break any sort of law because they will be taking such good care of what makes their own life special.”

IDEA 2004 The new authorization of special education law, which became effective in July 2005 called the Individual with Disabilities Education Improvement Act or IDEA 2004, allocates money for Parent Training and Information Centers. The reauthorization changes the original language of the act to include the partial statement, “strengthening the role and responsibility of parents and ensuring that families of such children have meaningful opportunities to participate in the education of their children at school and at home.”

IDEA Reauthorization 2004 • House Bill passed in April 2003 • Senate Bill passed in May 2004 • Conference Committee appointed in October 2004 • Conference Bill passed in November 2004 • President signs the bill into law on December 3, 2004 • Provisions took effect on July 1, 2005 except personnel requirements

NEW THEMES • Access to the general curriculum in the regular classroom • Strengthening the role “and responsibility” of parents • Coordinating IDEA with “improvement efforts under the Elementary and Secondary Education Act of 1965” and NCLB • Scientifically based instruction

NEW THEMES • “Parents and schools should be given expanded opportunities to resolve their disagreements in positive ways.” • Understanding and involvement for parents! “Meaningful participation” • Providing incentives for whole school approaches, to reduce the need to label children as disabled in order to address the learning and behavioral needs of such children.

Parent Advocacy • School can be a difficult place for any student regardless of race, socio-economic status, disability, or gender. Advocating for a child with a teacher or school can be a daunting task for any parent. When a child has a disability, the experience can be exponentially greater. Some parents are upset about difficulties faced in advocating for their child. This can be a very trying situation!

Parent Advocacy • Understanding the law, navigating “the system,” or questioning the professionals can leave a parent feeling overwhelmed and under qualified.

IDEA IDEA is founded on the principle or ideal that what a child requires in order to be successful to the greatest extent appropriate with regular education peers may not necessarily be a “cookie cutter” service plan. IEP teams should closely evaluate, consider, and monitor services determined appropriate for each child.

IDEA Schools are required to offer a continuum of services or alternative placements in order to best meet the special education needs of all children. These services or alternative placements may include, but are not limited to: supplementary aids and services; curricular adaptations and accommodations; medical, speech language, psychological, or social work supports; and resource rooms, special classes, and special schools.

FAPE • A school must clearly demonstrate that a free and appropriate public education (FAPE) cannot occur within a regular education classroom before alternative settings may be considered. • The courts interpret appropriate services in meeting FAPE, not as the “Cadillac” of services to meet all needs and wants fully, but to be “reasonably calculated to enable the child to receive educational benefits”

LRE IDEA requires that children with disabilities be educated in their Least Restrictive Environment. LRE requires that children be educated with their non-disabled peers to the greatest extent appropriate. Students should be provided with the LEAST amount of special education services and supports needed in order for them to progress with regular education peers in the regular education setting and curriculum.

LRE • The tricky part in determining LRE, is the term appropriate. Each child has unique and individual needs. What may be most appropriate for one child may not be appropriate for another child. • Sometimes a child needs a MORE restrictive environment to meet his or her Least Restrictive Environment mandate. In other words, sometimes a child is unsuccessful with minimal supports and requires more supports or a different placement in order to be successful in his or her educational placement.

Meaningful Participation IDEA maintains emphasis on parental involvement and participation. Parents generally understand and know the child better than anyone else on the team. Schools are expected to encourage and enable active and meaningful involvement of parents.

Parental Safeguards • Parents of children with special education needs have many federally protected rights. • These rights are an important part of the federally protected mandate and it is important to read the packet fully and to ask any questions you may have about these rights. • As a parent, if you have any questions but are intimidated to ask in front of a table surrounded by professionals, consider asking other parents, the school psychologist, principal, teacher, view online forums, or call the state department for clarification.

Parent Rights • Parents have the right to receive a written notice within a reasonable amount of time before the school district PROPOSES or REFUSES to initiate or change the identification, evaluation or educational placement of your child or the provision of a free appropriate public education to your child.

The notice of meeting shall include: • a description of the action proposed or refused by the school district; • an explanation of why the action is proposed or refused; • a description a of each evaluation procedure, test, record, or report used as a basis for the action proposed or refused; • a description of any other factors relevant to the school district’s decision; • a statement that you have protection under the procedural safeguards set forth in the federal law, and the means by which you may obtain a copy of a description of those procedural safeguards; and • sources for you to contact to obtain assistance in understanding your rights.

A copy of the procedural safeguards must be given to the parent, at a minimum: • one time per year, • upon initial referral or parent request for evaluation • at parent request; and • upon filing for a due process hearing. The school district must take steps to ensure that the parent understands the information provided in the notice.

Consent means: • That a parent has been fully informed in his or her native language or other mode of communication of all information relevant to the activity for which consent is sought; • that a parent understands and agrees in writing to the activity for which his or her consent is sought; • there is a description of the activity and lists of records (if any) which will be released and to whom; and • that written consent is voluntary and may be revoked at any time.

Consent • Written consent must be obtained before a school district conducts an initial evaluation or reevaluation for a student and before the district makes an initial placement into a special education program

Consent • Consent for an evaluation will not be construed as consent for initial placement. • Consent may be withheld, withdrawn, or revoked at any time.

Reasonable Effort If a school district has attempted to obtain your consent for a reevaluation with no response, the district may conduct the evaluation without consent, provided that the school district can demonstrate that it had taken reasonable efforts to obtain consent and failed to gain a response to the requests.

Records Parents or guardians have the right to inspect and review all education records with respect to the identification, evaluation, and educational placement of their child and the provision of a free appropriate public education.

Parent Rights Forms Individual states may have slightly different language. Most will probably be revised following the implementation of IDEA 2004.

ELIGIBILITY, IEP, & PLACEMENT Evaluation -60 school day timeline for completion of evaluation from time of consent for ages 3-21 -Timeline relaxed for transfer students as long as receiving district is making sufficient progress to insure a prompt completion of the evaluation and parent knows when it will be completed.

ELIGIBILITY, IEP, & PLACEMENT Reevaluations -Conducted in language and form most likely to yield accurate information Frequency -Not more than once a year (unless school and parent agree otherwise) -At least every 3 years unless parent and school agree that a “reevaluation is unnecessary”

ELIGIBILITY, IEP, & PLACEMENT Evaluations before change in eligibility -When exiting for purposes of maximum age eligibility or graduation with a regular diploma a reevaluation will not be required -LEA shall provide a summary of the student’s performance and academic achievement to assist in meeting the student’s postsecondary goals.

ELIGIBILITY, IEP, & PLACEMENT Individualized Education Programs (IEPs) -Present levels of “academic achievement and functional performance” -Annual goals must include “academic and functional goals” -Short-term objectives/benchmarks not always required -Only for those children who take alternative assessments to be aligned to alternate standards

ELIGIBILITY, IEP, & PLACEMENT Contents of IEP -Description of how progress toward goal will be measured and when reported -Statement of Special Ed Services -“Based on peer-reviewed research to the extent practicable” -Appropriate accommodations in district-wide assessments -Why students can’t participate in regular assessments -Why alternate assessment is appropriate -What alternate test the student will take

ELIGIBILITY, IEP, & PLACEMENT Contents of IEP (cont.) -Statement on participation in regular classes and curriculum -Transition Services “Appropriate measurable post-secondary goals” based on age-appropriate transition assessment must be included in the first IEP to be in effect when the child is 16”

ELIGIBILITY, IEP, & PLACEMENT IEP Team Attendance • A member of the IEP team may be excused from the meeting if the parent and district agree in writing that attendance isn’t necessary because the member’s area of curriculum isn’t being discussed or modified. • If a member’s area of curriculum is being modified or discussed, that member may be excused, provided they submit written input prior to the meeting. • Their excusal must be agreed to in writing by the parent prior to the meeting.

IDEA 2004 Changes • IEP may be amended between the annual review meetings without calling an IEP Team meeting if agreed to by the parents and LEA • IEP Amendment shall be in writing • The parent shall be given a revised IEP with the amendments incorporated

Behavioral Intervention Plans • If behavior impedes his/her learning or that of others, IEP must include: • Positive behavior interventions • Strategies • Supports

Functional Behavioral Assessment • IEP Team, after 10 school days of disciplinary removal, meets to either: • Develop a functional behavioral assessment plan if a FBA was not previously conducted Or - Review the behavioral intervention plan as part of the IEP to determine what, if any, revisions are necessary

Change of Placement Procedures (Behavioral) • Notify parents of their rights • Conduct a manifestation determination • Plan for services starting no later than the 11th cumulative school day of removal

Manifestation Determination • IEP Team convened with school psychologist as a member • Determination made no later than 10 school days after determination of disciplinary sanction • Review information provided by parents and other evaluation information

Manifestation Determination • Manifestation if behavior is caused by or directly resulting from the disability or failure to implement the IEP • If manifestation, revisit FBA, implement/revise BIP, return to last placement unless otherwise agreed to • Disciplinary removals not permitted • Services are provided

No Manifestation • Student is subject to the regular disciplinary process of the school • Services must be provided no later than the 11th cumulative school day of removal in the school year

Students Not Yet Eligible • Basis of Knowledge: • Parent expressed concern in writing regarding need for special education • Parent requested an evaluation • Behavior/performance demonstrated need for special education; or • School personnel expressed concern about behavior or performance in accord with the special education referral system

IDEA 2004 Changes • Procedural Safeguard Notice provided: • Once per year • Initial Referral • Request from Parent • Due Process Complaint

Independent Educational Evaluations • Anytime at parent expense • At public expense if parent disagrees with district’s evaluation • District must pay or initiate a Due Process hearing • Team must consider the IEE

Stay Put • Unless otherwise agreed to, student remains in the last current placement • Exceptions • Dangerousness • Final Hearing decision agrees with parents that a change of placement is necessary

IDEA 2004 Changes • Interim Alternative Education Settings are up to 45 school days unless parents agree to extend • Adds “inflicting serious bodily injury” as grounds for IAES • Showing of substantial risk of death, extreme physical pain, protracted/obvious disfigurement, protracted loss/impairment of a bodily member or organ/ mental faculty

Interim Alternative Educational Setting (IAES) • Student possesses or carries a dangerous weapon to school or a school function • Student knowingly possesses or uses an illegal drug • Student sells or solicits a controlled substance

IAES for Safety Reasons • Determination by Hearing Officer or Court • Standard Burden of proof on the school to show by a substantial evidence that: • Student’s return is substantially likely to result in injury to self or others; • Current placement is appropriate; and • School made reasonable efforts to minimize the risk of harm to self/others

IAES IEP Team determines services and placement • Services that afford opportunity to participate in the general curriculum • Services called for in the IEP as adapted by team • Services to address the behavior

In School Suspensions Does not count as a day of suspension if: • Student is afforded the opportunity to progress in the general education curriculum • Student is provided their special education/related services • Student participates with non-disabled peers to the extent they would in their regular placement

Other Disciplinary Considerations • Portions of a day in which the student must be removed must be accounted for (cumulative counts!) • Bus suspensions are deemed a removal if: • Transportation is listed in the IEP • No alternate transportation has been offered

Curriculum Based Decision Making with Response to Intervention (RTI) • Focus on early intervention and prevention in general education • May be used at the district, school, grade, class, small group and individual level • The process may or may NOT lead to special education referral • Assessment and data-based decision-making are critical components

Additional Information Parent Training and Information Centers are designed to serve families of children with disabilities from birth to age 22. The centers work with families in obtaining appropriate education services and in training parents and professionals. Each state has at least one parent center. The centers help resolve conflicts between parents and other agencies or schools, and provide a connection for children with disabilities to the community resources needed. http://www.taalliance.org/centers/

Parent Rights in Special Education