With the start of the New Year, families and special educators start thinking about IEP Meetings. While most school district personnel are caring individuals with knowledge of the law, some may misunderstand IDEIA obligations or simply be too overwhelmed to address your child’s needs and interpret the law to place the burden of a FAPE on you.
The Individuals with Disabilities Education Improvement Act (IDEIA) places an affirmative obligation on school districts to provide a free appropriate public education to students with disabilities. The Dignity for All Students Act also places an obligation on school districts to address bullying and harassment in school.
Here are 10 comments that school district personnel will frequently say, in frustration or ignorance. And here is how you can answer:
1.“We are not responsible for your child’s progress.”
Parent Response: Of course, we are partners in helping our child make progress. But a school district must provide a program for a student with a disability reasonably calculated to produce educational benefit and has an affirmative obligation to provide FAPE and to monitor progress. If our child is not making educational progress, please suggest more support and changes to her program.
2. “Your child does well in school when she is here (when child is absent most of the time).”
Parent Response: Our child is absent in school more than she is in school and is not making progress. We have tried everything we can to get her to go to school but cannot. She needs more support and help and perhaps a different placement. We believe that the problems are caused by school anxiety. Her doctor has confirmed this. Please suggest some interventions and services and may we consider another placement and interventions. Serious attendance issues represent a red flag that school district
3. “We have not witnessed any bullying of your child and he seems very happy.”
Parent Response: I have reported specific instances of bullying and the school district has a duty to investigate. My child may appear happy in school because he does not like to show that he is scared and upset, but he cries every night and has given us specific details about who is bullying him, where and when.
4. “Your son’s presence in school would scare the other children.”
Parent Response: This statement is completely inappropriate and insulting. The CSE has a duty to place students with disabilities in the least restrictive environment and to ensure maximum interaction with non-disabled peers. A school district may not exclude a student from the mainstream or from interaction with non-disabled peers, based on the student’s physical appearance or severe disability. .
5. “I received your request for records when I was on vacation and could not respond.”
Parent Response: We submitted the request and we need access to these records in order to meaningfully participate in the next IEP meeting. The law provides a set timeline for school districts to respond to a request for records under the Family Educational Rights and Privacy Act. The district must respond within a reasonable time and, in any event, not more than 45 days after a request. There must be other staff members in the office to respond. School districts must, pursuant to IDEIA regulations, provide records before the next CSE meeting or Resolution Session.
6. “We restrained your child because she was a danger to others.”
Parent Response: This action represents an illegal intervention and has violated our daughter’s rights. New York State law no longer permits restraint or aversive interventions. You are violating the law and we need to find another placement if the placement does not have enough support for my daughter’s behavior.
7. “Your child has no diagnosis so is not eligible for classification.”
Parent Response: A child does not need a specific diagnosis to be eligible for classification as a student with a disability. In order to classify a child as a student with a disability, if a child is not making educational progress due to a disability in one of 13 categories, based on evaluations conducted pursuant to the IDEIA, the school district must classify the child. A specific diagnosis from a physician is not required.
8. “We cannot classify your child at this time. We do not know which category she fits into.”
Parent Response: I referred my child to the Committee on Special Education and provided consent for evaluations. The CSE has 60 days to make a decision on eligibility. Courts have held that the most important inquiry under the IDIEA is whether a child requires special education services and whether the IEP meets areas of need. The specific category of classification is less important than the provision of appropriate services.
9. “You need to speak to a doctor and consider medication.”
Parent Response: The IDEIA specifically prohibits school districts from making school attendance conditional on a child receiving medication.
10. “In this school district, we do not provide speech services more than three times weekly.”
Parent response: The IDEIA requires individualized services to meet each child’s needs. A school district must not unilaterally make a policy decision, in advance, on the amount of speech services a child requires and must make an individualized determination.
About the Auther:
Marion M. Walsh, Esq., is an attorney with Littman Krooks LLP who focuses her practice on special and general education advocacy. Marion has worked in education law for almost 15 years and has been an advocate for children in many capacities. Marion is a certified impartial hearing officer for children with disabilities by the New York State Education Department. She frequently presents on special education and general education law.