Navigating your Child’s Special Education Program: A Guide for Parents and Guardians

by Michael S. Kutzin and Allison Landwehr Goldfarb Abrandt Salzman & Kutzin LLP

Far too often, parents and guardians of children with disabilities are confused and overwhelmed when faced with decisions regarding their children’s educational future. The sheer breadth of acronyms alone can be intimidating, even though school districts are required to provide parents and guardians with a booklet detailing their rights under Federal and state law, known as their “Procedural Safeguards.”[1] This article seeks to shed light on many confusing terms and phrases used in the area of special education, to explain what a child with special needs is entitled to in the New York school system, and how to obtain these services.

An Introduction to the IDEA

The Individuals with Disabilities Education Act (“IDEA”) is a Federal law requiring all children with disabilities from ages three to twenty-one to be provided with a public education free of cost.[2] All states receiving Federal funding under the IDEA are required to identify and evaluate children with disabilities to determine whether they are eligible for special education and/or related services.³ There are thirteen recognized classifications of disability under the IDEA, ranging from Autism to Other Health Impairment (“OHI”).[3] To better guide parents and guardians, the following is a list of the remaining eleven classifications of disability under the law:

  1. Deafness;
  2. Deaf-Blindness;
  3. Emotional Disturbance (“ED”);
  4. Hearing Impairment;
  5. Learning Disability (“LD”);
  6. Mental Retardation (“MR”);
  7. Multiple Disabilities;
  8. Orthopedic Impairment;
  9. Speech or Language Impairment;
  10. Visual Impairment and
  11. Traumatic Brain Injury.[5]

Once a child is classified, the school district must determine what special education and/or related services the child needs.[6]

Evaluating your Child’s Educational Future

Once a child is suspected of needing special education services, an evaluation must be conducted. The school district is required to obtain permission from a parent or guardian before performing any examinations.[7] These evaluations are free of charge, and are performed by experts affiliated with the School district. If a parent or guardian disagrees with the evaluation, they have the right under the IDEA to request an Independent Education Evaluation (“IEE”) at public expense.[8] Nevertheless, only one IEE may be performed in conjunction with the school district’s evaluation.[9] A parent or guardian may pay out of pocket for their own IEE at any time, however, the evaluation must follow the criteria used by the school district.[10] If sufficient notice is provided to the school district prior to the evaluation, then a refund may be requested for their IEE.[11] In general, it’s smart to obtain an IEE when you think you need additional information, or would like a second opinion.[12] An IEE is truly necessary when you believe the school’s evaluation is incorrect or incomplete, because it will be heavily relied upon during the creation of your child’s educational program.[13]

Is my Child Eligible for Special Education?

Following the school district’s testing, a determination will be made as to the student’s eligibility under the IDEA. If the child is deemed eligible, i.e., classified under one of the thirteen categories of disability, then a Committee on Preschool Education (CPSE) or Committee on Special Education (CSE) will be convened to develop an Individualized Education Program (IEP) uniquely tailored to fit his or her needs. Members of the CPSE/CSE include, but are not limited to the following: one or more regular education teachers, an additional parent member, one or more special education teachers, a school district representative, a school psychologist, the parent of the child, other persons having knowledge or expertise regarding the child, and a school physician if requested in writing within 72 hours of the meeting.[14]

Defining the Role of Parents and Guardians

The CSE, whose members are appointed by the board of education or trustees of the School district, design each child’s IEP, determining the related services that they will receive.[15]  In New York, school districts are required to take affirmative steps to ensure that parents and guardians can adequately participate at all CPSE/CSE meetings. [16] In addition, parents and guardians are entitled to bring an attorney, as well as other interested parties to join the CPSE/CSE, to achieve greater equality. Such help is frequently necessary because “[p]arents are typically outflanked by a number of school personnel and professionals attending the IEP…meeting.”[17] As a result, parents and guardians may be too intimidated to share their thoughts and opinions effectively, or become too emotional to express them in a cogent and persuasive manner. Yet, it is at this meeting that they need to advocate effectively for their child.

Although parents fail to hold any greater authority then their fellow CPSE/CSE members, they must be granted a “meaningful opportunity to participate” in the development of their child’s IEP.[18] While parents and guardians cannot mandate that certain educational services be provided to their child, they can “veto a recommendation.”[19] According to the regulations issued by the U.S. Department of Education, parents and guardians are entitled to have “an active role…with other participants in deciding… what services the agency will provide to [their] child and in what setting.”[20] As a result, the involvement of parents and guardians in the design of the IEP is critical, because once it is approved, the school district must follow it and provide the required services to the child.[21]

What Should my Child’s IEP Say?

An IEP contains a classification of the child’s disability, his or her present levels of academic and functional achievement, and measurable annual goals.[22] Furthermore, every IEP includes detailed information concerning the instruction of the student, stating the types of related services they will receive, their classroom makeup, and subjects of study. Moreover, each IEP recommends a specific placement for the child, as well as an annual review date, at which point its contents will be re-examined and assessed.[23] Nevertheless, both parents and guardians, and the school district may request a meeting at any point in time to discuss the child’s IEP.[24]

Describing basic educational components, the IEP lists social, physical, academic, and management needs, but it fails to present parents and guardians with an educational map that provides their children with the best possible education.[25]  The IDEA only ensures an “appropriate education, ‘not one that provides everything that might be thought desirable by loving parents.’”[26] For that reason, parents and guardians have to be cautious when discussing their child’s IEP, recognizing that the school district does not need to provide an optimum education. The IDEA merely makes certain that students with disabilities receive “meaningful benefit” from their educational program, known as a “Free Appropriate Public Education” or “FAPE.”[27] Nevertheless, the law does prohibit school districts from using a child’s “trivial [educational] advancement” as proof that they are in compliance with the IDEA, because an IEP must produce more than minor progress to be considered lawful.[28]

In reaction to society’s deplorable history of warehousing the disabled in facilities like Willowbrook, the IDEA requires children with disabilities to be “educated to the maximum extent appropriate with students who are not disabled,” referred to as the Least Restrictive Environment (“LRE”).[29]  The Second Circuit has developed a two-part test to determine whether a school district is in compliance with this aspect of the law: 1) using aids and supplemental services, can this child be educated in a general education classroom; and 2) has the school included the child to the “maximum extent appropriate.”[30]

Education, Preparation, and Advocacy

Ascertaining whether a school district is in compliance with the IDEA is often difficult for parents and guardians; however, it is through the recognition of these flaws that your child’s education will benefit. As a result, lots of parents and guardians choose to speak with an attorney and evaluation specialists before meeting with the school district, some even prior to the beginning of the formal evaluation process. By reviewing potential placement options and classroom goals, along with acceptable alternatives, parents and guardians place themselves in a far better position when they attend the CPSE/CSE meeting.[31] Not only will they be prepared to face opposition from the school district, but their attorney will inform them as to whether they should be “gearing up for a fight or approaching the meeting in a more collaborative spirit.”[32] While retaining an attorney is optional, more often than not, parents and guardians are unaware of their procedural rights and requirements under the IDEA and New York state law, unfortunately leaving them vulnerable, along with the child’s education.

Frequently, school districts avoid making expensive recommendations for children with disabilities even though they are not allowed to use cost as a reason for denying services; instead, they fail to mention to parents and guardians these options because they are pricey.[33] The IDEA provides for a school district to supply developmental, corrective, and transportation supports, as well as any of the following services if deemed necessary: speech-language pathology and audiology, psychological, physical and occupational, orientation and mobility. [34] Additionally, further aids, not included within the above list, may be added to help students benefit from their special education.[35] All the same, many parents and guardians remain in the dark regarding such services and supports, yet with the aid of an attorney and evaluation specialists, they can become informed participants, working effectively with their child’s school district.

The Rights of Parents and Guardians

Admittedly, the presence of an attorney might not always be necessary when the school district is inclined to provide the special education and related services that parents and guardians believe to be needed, nevertheless, the expertise, and objectivity of a special education attorney, even under such circumstances, may be useful to ensure that the IEP is properly worded and that all concerns are addressed. If parents and guardians are not satisfied with what the school district proposes, there are a host of ways in which parents and guardians can formally express their dissatisfaction with their child’s special education, whether it be via a letter, complaint, impartial hearing, or appeals process.[36] A complaint may be filed against the school district pertaining to any aspect of the child’s special education, including their “identification, evaluation, educational placement or…FAPE,” but it must be made within two years of the action in disagreement.[37] The IDEA provides parents and guardians with mediation services to resolve issues or concerns they have, however, participation is optional. [38] If either the school district, or the parents or guardians turn down the option to mediate, and a complaint has been filed, then a resolution session must be held within fifteen days of its receipt, unless both sides agree to waive this requirement.[39] The resolution session is meant to provide an environment where parents and guardians can discuss their complaint, but it also affords the school district an opportunity to resolve the contested matter.[40] If no such resolution occurs within thirty days of the complaint, then an impartial hearing will occur, though either side may appeal the decision if they disagree with its outcome.[41]

Private School Placement and Tuition Reimbursement

If the school district cannot provide an appropriate education for your son or daughter, you may be eligible to move your child into a better environment and seek tuition reimbursement for all associated costs.[42] Due to the fact that the burden of proof is on the school district to prove the lawfulness of its IEP, [43] hearings and cases often settle or are found in favor of parents and guardians. Parents and guardians are entitled to tuition reimbursement for the private school placement of their child when the following three conditions are met: 1) the IEP offered by the school district was inappropriate, thereby denying the student a FAPE; 2) the parent or guardian placed the child in a private school that provides appropriate special education supports and services; and 3) the parent or guardian acted reasonably and in good faith when dealing with the school district.[44]

Tuition reimbursement is obtained through a hearing, one of the many procedural rights given to parents and guardians subsequent to filing of a complaint. Prior to the removal of the child from public school, adequate notice must be given to the school district by parents and guardians of their intent to do so.[45] Notice must be received by the district either at the last CPSE/CSE meeting or by written notice ten business days before the removal occurs.[46] The written notice must state that they are “rejecting the placement proposed by the public agency to provide FAPE to their child, including stating their concerns and intent to enroll their child in a private school at public expense.”[47] Not only may parents and guardians receive reimbursement for their private school placement, but they are also entitled to collect compensation for any expenses they incur as a result of their child’s inappropriate IEP, such as summer services, tutoring, etc.[48] Thus, parents and guardians are afforded a variety of remedies if their child is not provided with a FAPE.

Concluding Remarks

Unlike many other areas of law, special education law allows attorneys to use a wide range of methods to help their clients,  providing them, at certain points, with the ability to remain non-adversarial while achieving results. Whether a parent or guardian simply needs advice on the special education process, assistance during a CPSE/CSE meeting, or aid in filing a complaint, an attorney can fulfill all of these roles. With the passage of the IDEA, children with disabilities are required to receive an appropriate IEP suited to meet their unique needs; however, school districts sometimes fail to follow the law. As a result, parents, guardians, and attorneys need to advocate for these children and to hold school districts accountable.


Footnotes

  1. 20 U.S.C. § 1415(d) (2011); 8 NYCRR 200.5(a)(3)(vi) and (vii)(2011).
  2. 20 U.S.C. § 1412(2)(B).
  3. Andrea F. Blau, Advocating for “Appropriate” Special Education Services: Focusing on the IEP, 21 NYSBA Elder and Special Needs Law Journal 20, 21 (2011); see 20 U.S.C. § 1412(a)(3)(A); see also 8 NYCRR 200.2(a)(1).
  4. 34 C.F.R. 300.8; 8 NYCRR 200.1(zz)(3).
  5. Id.
  6. 20 U.S.C. § 1401(8).
  7. 20 U.S.C. § 1414(a)(1)(D)(i) and (ii).
  8. 20 U.S.C. 1415(a); 34 C.F.R. 300.502; 8 NYCRR 200.5(g).
  9. Id.
  10. Education Law Center, Getting Your Child an Independent Education Evaluation, available at http://www.elc-pa.org/ pubs/downloads%202011/GettingYourChildIndependentEducationlEvalualuation4-09A. pdf (last visited 9/8/2011).
  11. Blau, supra note 3.
  12. Supra note 10.
  13. Id.
  14. Under the IDEA, a parent member is not a required CPSE/CSE participant; however, New York State mandates that an additional parent member be present at all CPSE/CSE meetings. 20 U.S.C. § 1414 (d)(1)(B); 8 NYCRR 200.3(a)(1).
  15. 20 U.S.C. § 1414(d)(1)(B); 8 NYCRR 200.4.
  16. 20 U.S.C. § 1415(b)(1); 34 C.F.R. § 300.345(a); 8 NYCRR §200.5(d).
  17. Blau, supra note 3.
  18. M.C. ex rel. B.C. v. Rye Neck Union Free School district, WL 4449338, 7, 13 (S.D.N.Y. 2008) (citing Straube v. Florida UFSD, 801 F.Supp. 1164, 1175-1178 (S.D.N.Y. 1992) (quoting Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192-193 (2nd Cir. 2005)).
  19. Blau, supra note 3.
  20. 34 C.F.R. § 300.
  21. School Comm. of Town of Burlington, MA. v. Dept. of Educ., 471 U.S. 359, 368 (1985).
  22. 20 U.S.C. § 1414(d)(1)(A)(i); 8 NYCRR 200.4(d)(2).
  23. 20 U.S.C. § 1414(d)(4); 8 NYCRR 200.4(e) and (f).
  24. Blau, supra note 3, at 21.
  25. Stephanie M. Roebuck & Sheryl R. Frishman, Knowing Your ABC’s When Your Child is Having Difficulty in School: A Legal Primer For Parents (2008); Rowley v. Hendrick Hudson School Dist., 458 U.S. 176, 203 (1982).
  26. Walczak v. Florida Union Free Sch. Dist., 142 F.3d at 132 (quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2nd Cir. 1989)).
  27. Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); 20 U.S.C. §1401(9)(D).
  28. Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186,195 (2nd Cir. 2005) (quoting Walczak, 142 F.3d at 130).
  29. 8 NYCRR 200.1(cc); 8 NYCRR 200.4(d)(4)(ii)(c); see 34 C.F.R. § 300.116; Blau, Supra note 3, at 20.
  30. P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008).
  31. Blau, supra note 3.
  32. Id.
  33. Id.
  34. 20 U.S.C. § 1401(26)(a).
  35. Id.
  36. 20 U.S.C. § 1415(i)(2); 8 NYCRR 200.5(j) and (k); 8 NYCRR 200.5
  37. 20 U.S.C. § 1415(b)(6).
  38. 20 U.S.C. § 1415(e).
  39. 20 U.S.C. § 1415(f)(1)(B)(i).
  40. Id.
  41. Id.; 20 U.S.C. § 1415(g).
  42. 20 U.S.C. § 1415(f)(1)(B)(i).
  43. Chapter 583 of the Laws 2007.
  44. Sch. Comm. of Town of Burlington, 471 U.S. 359 (1985); Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993).
  45. 20 U.S.C. § 1412(a)(10) (C)(iii); see C.F.R. 34 § 300.148(d).
  46. Id.
  47.  Id.
  48. Application of a Child with a Disability, Appeal No. 05-048.