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June 2019 Cover Story - Learning Your ABCs, 123s, and IEPs: Special Education in Public Schools

by Meldie M. Moore

Staggering Statistics: The Need for Special Education

Who needs special education? According to national statistics, perhaps the better question is, who doesn’t? According to the Centers for Disease Control and Prevention (CDC), approximately one in six children in the United States has a developmental disability, ranging from mild disabilities, such as speech and language impairments, to severe developmental disabilities, such as autism, cerebral palsy, and intellectual disability.

In 2018, the CDC reported the estimated prevalence of autism among the nation’s children to be 1 in 59 children, a fifteen percent (15%) increase from 1 in 68 children two years prior.

In the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5, 2013), the American Psychiatric Association reported that five percent (5%) of children have attention-deficit/hyperactivity disorder (ADHD). However, three years later in 2016, a parent-reported study on ADHD diagnosis and treatment, approximately 6.1 million or nine point four percent (9.4%) of children ages 2-17 had been diagnosed with ADHD. Further, nearly two-thirds (64%) of children with ADHD also had another mental, emotional, or behavioral disorder such as conduct disorder, anxiety, depression, autism, or Tourette syndrome.

According to Paediatrics & Child Health, five to ten percent (5% to 10%) of the population is considered to have dyslexia. Linda S. Siegel, Perspectives on Dyslexia, Paediatrics & Child Health (Dec. 2006), at 581-87.

In February of this year, CNN reported data from the 2016 National Survey of Children’s Health. Of the 46.6 million children ages 6 through 18 whose parents completed the survey, 7.7 million had at least one mental health condition such as depression, anxiety, or ADHD. Dr. Edith Bracho-Sanchez, Nearly 1 in 7 U.S. Kids and Teens Has a Mental Health Condition, and Half Go Untreated, Study Says, CNN Health (Feb. 11, 2019), https://www.cnn.com/2019/02/11/health/children-teens-mental-health-untreated-study/index.html.

With the epidemic incidence of developmental disabilities in school-age children, as well as the constant demands on school budgets, there is inevitable tension between families seeking special education services for their children and school districts trying to work within their budgets. Too often, children are the casualties of this conflict. A study reported in the Los Angeles Times showed that “warrior” parents who advocated for their children received better services. Alan Zarembo, Warrior parents fare best in securing autism services, Los Angeles Times (Dec. 12, 2011), https://www.latimes.com/local/autism/la-me-autism-day-two-html-htmlstory.html. Education on their child’s rights to a public education prepares parents to advocate for their children.

What Is Special Education?

California law and the federal Individuals with Disabilities Education Act (IDEA) provide that children with disabilities are entitled to a free and appropriate public education (FAPE) that emphasizes special education and related services designed to meet their unique educational needs and prepare them for employment and independent living. 20 U.S.C. § 1412(a)(1)(A); Cal. Educ. Code §§ 56000, 56301. FAPE consists of special education and related services available to the student at no charge to the parent or guardian. 20 U.S.C. § 1412(a)(10)(B)(i).

Board of Education v. Rowley, 458 U.S. 176 (1982), was the seminal case in which the Court held that the provision of FAPE must ensure that a school district develop and provide a student with an educational program that is tailored to the student’s unique and individualized needs, and that the program is one from which the student may derive meaningful educational benefit.

In 2017, the United States Supreme Court revisited the issue in Endrew F. v. Douglas County School District RE-1, 580 U.S. — (2017). In a unanimous decision, the Court further clarified that the provision of FAPE requires that the school district provide an educational program that is “reasonably calculated to enable the child to make progress in light of the child’s circumstances,” reversing the 10th Circuit (Colorado) court that applied a “merely more than de minimus” standard. The California 9th Circuit court has applied a “meaningful benefit” standard.

It is important to note that special education provides appropriate services and accommodations reasonably calculated to enable a child to receive educational benefit. An appropriate education does not mean the best education, but one which provides some meaningful benefit or progress. The Supreme Court declined to elaborate on what “appropriate” progress will look like from case to case. The adequacy of a student’s Individualized Education Plan (IEP) turns on the unique circumstances of the child for whom it was created. Therefore, there continues to be no bright line rule as disabled children’s needs vary greatly depending on their unique circumstances.

How to Start the Special Education Process

In order to begin the process, a parent must request in writing an assessment for their child, listing their concerns and reasons why they think their child may need special education. Within fifteen days of receiving a written request, the school must provide the parent with an assessment plan outlining the areas in which the school thinks the child should be tested. IDEA states that a child must be assessed in all areas of suspected disability. 20 U.S.C. § 1414(b)(3)(B). School districts have the obligation to assess comprehensively, both in terms of the types of evaluations it must conduct, as well as the manner in which it must conduct each evaluation. 34 C.F.R. § 300.304(c)(6). After receiving parental consent to assess, the district has sixty days to complete the assessment and hold an IEP meeting to discuss the results. Cal. Educ. Code § 56043; 20 U.S.C. § 1414(a)(1)(C).

Who Qualifies for Special Education?

IDEA defines disabling conditions for purposes of special education as follows: intellectual disability; hearing, vision, orthopedic, speech and language impairment; emotional disturbance; autism; specific learning disability; and other health impairments—a catch-all category, including conditions such as ADHD and epilepsy. 20 U.S.C. § 1401(3); 34 C.F.R. Parts 300.304-300.311.

Having a disability does not necessarily qualify a child for special education. The disability must impair the child’s ability to learn or benefit from their education.

Children at the age of three may request special education assessments and services. 20 U.S.C. § 1414(d)(2)(B); 34 C.F.R. § 300.323(b). Children who qualify may continue to receive services up until the age of twenty-two in order to receive a high school diploma or certificate of completion. 20 U.S.C. § 1414(d)(2)(b); 34 C.F.R. § 300.320(a).

The IEP Meeting

At the initial IEP meeting, the team reviews the school district’s assessments as well as any private assessments and/or medical diagnoses that have been provided by the parent. The first issue to be decided is whether the child is eligible for special education under IDEA; and if not, alternatively under Section 504. The IEP team consists of an administrator, the school psychologist, a general education teacher, a special education teacher, the parents, and any other school professionals who have completed an assessment, such as a speech therapist, occupational therapist, or autism specialist. The parents may invite relevant persons such as private assessors, a family friend, doctor, advocate, or attorney. 20 U.S.C. § 1414(d)(1)(B); 34 C.F.R. § 300.321(a). Under IDEA, every child who is eligible for special education must have an IEP. Each year, the school district is mandated to hold an annual IEP meeting, with a full re-assessment every three years, called a triennial. 20 U.S.C. § 1414(a)(2)(B)(ii).

Once the child is found to be eligible for special education, the team then identifies the areas of need and drafts the goals for those areas. For example, goals may be developed in the areas of academics (reading, writing, math), social emotional (coping skills, anxiety, behaviors), speech, or occupational therapy. Once the goals are drafted and agreed to, the team discusses accommodations, modifications, services, and placement. Accommodations and modifications may include frequent breaks, smaller class sizes, reduced or modified work, or additional time to complete assignments and tests. 20 U.S.C. § 1414.

An IEP may consist of services such as speech, occupational therapy, physical therapy, or behavior modification therapy. Resources may also include counseling, special education classes, adapted physical education, social skills, nursing services, an aide, or assistive technology. Related services may include transportation and parent training. Many special education services can be provided in the general education classroom, or as a pull-out for portions of the day from the general education classroom. For example, this might be a “pull-out” for speech or occupational therapy where the child would leave the general education class to see the therapist for 30-60 minutes. At other times, the services are “pushed-in” during which the therapist may support the student and/or teacher in the general education classroom. Some children may need to be placed in special schools, or in a special education class separated from the general education population for a part, all, or most of the school day.

Each child is entitled under the law to the least restrictive environment, with mainstreaming being the priority. 20 U.S.C § 1412(a)(5)(A); 34 C.F.R. § 300.550(b).

504 Plans

Children who do not qualify for an IEP may qualify for a 504 plan under the Rehabilitation Act of 1973. 29 U.S.C. § 794. Section 504 plans do not provide comparable procedural safeguards and typically only provide accommodations, not services. It is more beneficial for a child to obtain an IEP if the child qualifies.

When Should Parents Consider Special Education?

Parents may want to have their child assessed to see if they qualify for special education services if their child falls behind without explanation, fails to meet grade level standards, constantly gets into trouble, or is overly anxious about school.

When children are failing or constantly getting into trouble in school, they often feel insecure, anxious, and either withdraw or act out. They may be labeled as troublemakers or being unmotivated. Parents who do not seek special education services often do so out of fear of a perceived stigma associated with being a special education student. However, in my experience, children who do not have their special needs met develop secondary problems such as depression, anxiety, and low self-esteem. Such problems may lead to failing or dropping out of school, drug and alcohol abuse, criminal behavior, and even suicide.

Once the cause of the problem is discovered and the appropriate services and placement are provided, children should be able to learn, get along in their school environment, and benefit from their education.

Privacy and Confidentiality

A student’s school records, which includes special education records, are confidential under the Family Education Rights and Privacy Act (FERPA) (20 U.S.C. § 1232g) and California law (34 C.F.R. Part 99). No one other than the IEP team and the IEP service providers should know that the child is being assessed for or qualifies for special education. FERPA is found under section 444 of the General Education Provisions Act, as amended.

Parental Rights in the Event of a Dispute

IDEA and California law provide for safeguards and rights in the event of many different types of disputes.

(1) Independent Education Evaluations

Following an assessment, if the school district determines that the child does not qualify for special education or the parent does not agree with the assessment, the parent has the right to request an independent education evaluation (IEE). The parent may choose a private, qualified assessor to repeat the assessment, and the assessment would be funded by the school district. The district may challenge this request and defend its assessment by filing a due process complaint. 20 U.S.C. § 1415(b)(1); Cal. Educ. Code § 56329(b),(c); 34 C.F.R. § 300.502.

(2) Due Process Complaint

If the parent disagrees with the IEP, the parent has the right to file a due process complaint with the Office of Administrative Hearings (OAH). 34 CFR § 300.507. This disagreement could pertain to placement, services, accommodations, or the issue of eligibility. The hearing will be held within sixty days from the date the parents filed the complaint. Typically, mediations are held during which many cases are resolved.

(3) Compliance Complaint

If the parent believes that the IEP is appropriate, but the school is failing to follow the IEP, the parent may file a compliance complaint with the California Department of Education (CDE). The CDE will investigate and file a decision within sixty days. 34 C.F.R. §§ 300.151,300.153; see also California Department of Education, cde.ca.gov.

(4) Discrimination

If a child is being discriminated against, parents may file a complaint with the Office of Civil Rights (OCR), or file a civil lawsuit. Examples of such discrimination may include the school’s failure to follow the 504 plan, IEP, or other discrimination based on the disability or any protected class designation. See U.S. Department of Health and Human Services, www.hhs.gov. It is important to note that the statute of limitations to sue a public school district is generally six months. A civil litigation attorney with experience in suing government agencies should be consulted immediately where there may be a civil lawsuit pursued.

(5) Privacy Violations

If the school violates student confidentiality laws or maintains inaccurate or misleading records, the parent may file a complaint with the United States Department of Education under Family Educational Rights and Privacy Act (FERPA). 20 U.S.C. § 1232g; 34 C.F.R. Part 99.

(6) Student Records

The right to confidentiality and the right to inspect a student’s records are addressed in several statutes, both federal and state. FERPA protects the privacy of parents and students. 20 U.S.C. § 1232g; 34 C.F.R. Part 99. IDEA provides that parents of a child with a disability have the right to: (1) examine all records of the child, and (2) participate in meetings with respect to identification, evaluation, educational placement, and the provision of a FAPE. 20 U.S.C. § 1415(b)(1). California Education Code sections 49069 and 56504 outline the parents’ right to review and receive copies of student records within five days of their request. Education Code section 49069 provides that the parents’ right to review all records relating to their child is “absolute,” and “the withholding of any of those records . . . is prohibited.” 34 C.F.R. section 99.10 establishes the parents’ right to review and inspect student records.

(7) Misleading or Inaccurate Records

FERPA, 20 U.S.C § 1232g, and California Education Code § 49070 provide that a parent or student may request the amendment of the student’s education records if the parent or student believes that the education records contain information that is inaccurate, misleading, or in violation of the student’s right to privacy.

(8) Expulsion or Change in Placement

Students identified as children with special education needs under IDEA receive extra protections in disciplinary proceedings, including a change in placement or expulsion. A “change in placement” is a fundamental change in, or elimination of, a basic element of a child’s educational program. 20 U.S.C. § 1415(k)(5); 34 C.F.R. § 300.536(a). Expulsion or suspension for more than ten (10) days is a “change of placement.” Honig v. Doe, 484 U.S. 305 (1988).

Within ten school days of any decision to change the placement of a child with a disability because of a violation of a code of student conduct, the IEP team must first conduct a manifestation determination IEP meeting to determine if: (1) the conduct in question was caused by, or had a direct and substantial relationship to, the child’s disability; or (2) the conduct in question was the direct result of the local educational agency’s failure to implement the IEP. If the answer is yes to either of those questions, the child may not be expelled or their placement changed. 20 U.S.C. § 1415(k)(1)(E)(i); 34 C.F.R. § 300.530(e)(1).

Top Ten Tips for Parents in Special Education

In order to effectively advocate for their children, parents need to be educated on the laws and procedural rights related to special education under state and federal law. Then they need to advocate. Based on my experience, my top ten non-legal tips for parents include:

  1. Be a good historian. Document everything in writing, use emails instead of phone calls, record IEP meetings, and keep a chronological log of actions.
  2. Keep organized records. Use a three-ring binder for everything from the school, the doctors, and therapists, as well as parent observations, concerns, and communications.
  3. Educate yourself. Speak to other parents, join organizations specific to your child’s disability, get on list-serves, go to parent trainings, read books, research the web, talk to your pediatrician, consult with an advocate or attorney.
  4. Check health insurance benefits. Many services are covered. Parents should supplement school services as the district does not have to provide the best for your child, but you should.
  5. Be an active participant and advocate for your child.
  6. Ask questions. Insist on answers.
  7. Don’t assume that the school is right. You know your child better than anyone.
  8. Listen. You may learn something. You have one child, but the school deals with thousands.
  9. When in doubt, get a second opinion and ask for help.
  10. Stay professional, even when you are emotional. If you can’t stay professional, hire one.

Meldie M. Moore practices education and family formation law at Moore Law for Children, A Professional Corporation in Laguna Beach. She can be reached at meldie@moorelawoc.com.