Please understand, what we’ve witnessed happen all too many times is that parents, uninformed of their federal and state safeguards, assume that their Local Educational Agency (LEA) is best suited to help them and their children with disabilities. They trust their child is receiving the best possible educational program afforded to them. Unfortunately, this is not the case for our special education system as it stands today and now more than ever, parents need to ensure their child’s civil rights.
Lack of knowledge in knowing how to navigate special education places parents at a disadvantage, leaving them vulnerable to misinformation. Many unaware parents innocently trust the so-called educational experts to do what’s best for their children. Other parents are fully aware of school district agendas that seek to deny services and mislead parents, but parents are left at a loss to know how to combat these types of disingenuous tactics.
The Individuals with Disabilities Education Act (IDEA) provides certain procedural and substantive rights under the federal law that applies to all LEAs within our nation. The IDEA, unlike Section 504 and the ADA, provides federal funding to states specifically for special education. Any LEA that accepts federal funding under the IDEA, is obligated and has the duty to provide children with disabilities certain civil rights. Sadly, these statutes are disregarded every single day across the nation.
The IDEA was amended in 1997 to allow students to participate to the “maximum extent possible” in general education curriculum. Once again, inclusive practices are overlooked and violated all the time as evidenced by the scores of students misplaced in severely handicapped classes. These students are forced to forfeit the general education curriculum to receive a “functional” curriculum alleviating the district’s obligation to meet the general education standards. These students will not receive a high school diploma but instead a piece of paper called a “Credential of Completion” which is not even equivalate to a GED.
The IDEA was again amended in 2004, bringing about numerous changes to enhance parent rights as an equal IEP team member in the decision-making process. However, parent requests, concerns, and dissent issues continue to be disregarded while IEP teams dictate decisions about a student’s educational outcomes, incorporating intimidation tactics to force parents to agree.
Here are just a few mandates that school districts are obligated to adhere to under IDEA.
• LEA’s must seek out and assess children suspected of having a disability.
This is known as “Child Find” and includes students who are not enrolled in public school. Child Find is one of the district’s obligations under IDEA that is consistently blatantly violated. In fact, most parents must fight to have their child assessed and identified as a student with a disability to qualify for an IEP. Yet, there is absolutely no accountability for districts unless parents write a state compliance complaint or file for due process and even then, many states will side with the school district and fail to find them in violation of the Child Find obligation.
I have a current compliance complaint filed with the CDE regarding this very issue. The district misinformed the parent whose child is currently attending a private school, stating that the parent must enroll their child in public school in order to be evaluated. This is not in accordance with the Child Find requirement. Stay tuned for the CDE decision which I am confident will rule in favor of the parent allegation.
• Children with disabilities are to be offered a Free Appropriate Public Education (FAPE).
FREE Appropriate Public Education means that parents are not required to pay for anything, however, parents are often asked to fund or partially fund IEEs or asked to utilize their medical or private insurance to partially fund services to the child.
• Teachers and aides educating students with disabilities must be trained and skilled.
I have had many clients in which a special education class was taught by a general education teacher who did not hold a special education credential. Many district aides are not trained, yet are expected to provide support to students with autism, mental health challenges, and learning disabilities.
This is the Code of Federal Regulations which outlines the training requirements for teachers and aides.
• Education provided in the “least restrictive environment” with typical peers to the maximum extent possible.
LRE means that students are given the opportunity to learn alongside typical developing peers. I can’t tell you how many times I have seen districts inappropriately misplace children in segregated, self-contained special education classrooms, violating their civil right to be educated in the LRE. Some self-contained functional classes deny students the opportunity to eat lunch or participate in recess with the rest of the school population.
• Education must be individualized and appropriate to meet each child’s unique needs.
It is very common for districts to offer a “one size fits all” class, which is a far cry from meeting a child’s individual unique needs. When a parent requests specific goals, specialized instruction, or individual services, i.e., Speech and Language or Occupational Therapy, the IEP team will respond, “Those things are embedded into the class model and curriculum.” Thus, the “one size fits all” violation of IDEA.
• The word “education” includes appropriate “related services” or designated instructional services” (DIS), to meet the child’s unique needs and to receive an educational benefit.
Educational benefit means the child is progressing from year to year and adequately making progress toward meeting their goals. Goals must be individualized, specific, and measurable and are written to address all areas of deficit as evidenced by Present Levels of Performance and Standardized Assessment.
Some of these Related Services or DIS may include:
- Speech and Language Therapy
- Behavioral Therapy including ABA
- Occupational and Physical Therapy
- Social Skills Training
- Counseling and Psychological Services
- One-to-one trained Aide Support
- Transportation to and from school and therapy
- Parent Training
Under IDEA, you have the right to request, and the LEA is obligated to provide the following:
- If your local LEA is not able to provide your child an appropriate placement in the least restrictive environment, they are obligated to fund a private school or a Non-Public School (NPS).
- Parents have the right to disagree with any LEA’s assessments of your child and the LEA is obligated to fund an outside independent educational evaluation (IEE).
- The LEA is obligated to fund any service necessary for your child to receive an educational benefit, to meet goals and to ensure educational progress.
- If your child is not making adequate progress toward their goals or is regressing, your LEA may be obligated to fund instructional and related services all year, including time outside of ESY and the traditional school year.
- Your LEA is obligated to fund transportation for your child with special needs to and from their educational placement and instructional services and therapy.
- You have the right to file a state compliance complaint and/or file for due process if the district fails to provide your child an appropriate educational program to meet their specific and unique needs.
With the advancement of the internet to access information, many parents have educated themselves and have a good understanding of what school districts should be doing. However, parents continue to find themselves at a disadvantage when it comes to learning the advocacy skills necessary to argue the district’s denials and delay tactics or hold them accountable to the mandated obligations placed upon the LEA by utilizing legal evidence through documentation.
Sadly, we find that many parents of children on an IEP are unaware of their rights and the obligations of their local school district as mandated under both federal and state law. This hinders parents’ ability to advocate for their children in securing them an appropriate educational program. These fundamental civil rights are violated daily thousands of times across our nation at the expense of our children and to the detriment of their future after high school.
The state of the broken special education system leaves parents no choice but to employ a qualified advocate expert to ensure their child receives FAPE. It is important to ensure that you hire an advocate who is qualified, experienced, and holds a good reputation for winning cases in favor of the student. But most of all, the advocate should believe in and include parent training in the services they provide and offer to parents. This will ensure that once the advocate is no longer needed, the parent has the knowledge and skills to sustain the program the advocate was able to secure for the child.
Whether a parent is unaware or is knowledgeable about their parent rights and the district’s obligation under IDEA, there remains a lot of uncertainty and reluctance on the part of schools to provide an appropriate education for students on an IEP.
Making sure schools are following the law is a responsibility that should not have to be left to parents. The reality is that in addition to parenting a child with a disability, you also have the job of being a watchdog over the school’s obligation to adhere to IDEA and supervise the implementation of your child’s education. This is something that parents must understand and be prepared to deal with.
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Valerie Aprahamian is a special education advocate, IEP strategist, and speaker. She speaks on behalf of parents to protect the rights of neurodiverse children to receive the supports they need in public school.