Written by Special Education Law Attorney: Casandra Ringlespaugh
All children are different, and each child’s education experience will be unique to that child. The federal government has created some guidelines that all states must follow when educating children. For purposes of my area of practice, there are a few laws I want to briefly highlight. They are the Free and Appropriate Education Act (FAPE), and the Individuals with Disabilities Education Act (IDEA). The Individuals with Disabilities Education Act (IDEA) is a four-part (A-D) piece of American legislation that ensures students with a disability are provided with a Free Appropriate Public Education (FAPE) that is tailored to the child’s individual needs. If you have a child who you believe has a disability which is affecting the child’s ability to achieve academically or has been diagnosed with a disability which does effect the child’s ability to function at school, I implore you to educate yourself of these laws, and how it effects your child.IDEA was first passed in 1975.
IDEA requires federally funded schools to find and evaluate students suspected of having disabilities, at no cost to parents. Once kids are identified as having a disability, schools must provide them with an Individual Education Plan (IEP) and related services (like speech therapy and/or counseling) to meet the child’s specific needs to achieve progress academically while in school. IDEA covers kids from birth through high school graduation or age 21 (whichever comes first). It provides early intervention services up to age 3, and special education for older kids in public school, including certain charter schools.
IDEA, as codified in Indiana’s Article 7 of the Indiana Administrative Code provides protections, guidelines, standards, and procedures, for schools to following in locating and educating students with disabilities. This law, and its federal counterpart, IDEA, covers the framework for educating students with various disabilities, when the said disability impairs the child’s ability to make progress in school.
The disabilities listed are:
- Emotional disturbance
- Hearing impairment
- Intellectual disability
- Multiple disabilities
- Orthopedic impairment
- Other health impairment (including ADHD)
- Specific learning disability (including dyslexia, dyscalculia and dysgraphia, and other learning issues)
- Speech or language impairment
- Traumatic brain injury
- Visual impairment, including blindness
Where I come in- is when the school isn’t doing what they are supposed to do under federal and state laws.
It is up to the parents to enforce these laws. You read that right. If the school is not providing an appropriate program or has failed to identify the student, is up to the parent to enforce these laws; Neither the state nor federal departments of education actively look for violations.
The issue often becomes that parents frequently do not know or understand what their children’s rights are in terms of the education and services offered by the schools, and they often can feel intimidated by school staffs, be afraid of retaliation, or just the general belief that the schools are inclined to work in their child’s best interest. In an ideal world, of course all schools would be working with the goal of the best interest of children, but unfortunately, I have come across several situations where this simply was not the case. What most parents don’t realize (and sometimes schools as well), is just how far reaching the protections of Article 7 are when it comes to the educational services that need to be provided to students with special needs.
Sometimes enforcement means going to a due process hearing in order to force the schools to comply with the federal and state protections afforded to children with special needs.
I file due process cases on behalf of parents for their children. It means I am essentially “suing” the schools for services for the child(ren), and ensuring the schools are complying with federal and state laws in regard to educating children with special needs (i.e. enforcement). In general, if a school has committed violations and not complied with IDEA/Article 7, the parents may be entitled to an award of their attorney fees and expenses.
Common educational issues that I represent parents on are listed below:
- Failure to find child eligible for services despite evidence that the child was struggling academically or behaviorally.
- “What we have is what you get” is not what the federal and state laws provide. The schools are required, by law, to devise an IEP for each child qualified for services based on that child’s individual needs (not on the school’s staffing or budget problems) that is reasonably calculated to confer a meaningful educational benefit; Anything less than that does not comply with the federal law, and is actionable through a due process proceeding.
- Failure to develop an appropriate IEP based on the child’s individual needs.
- Failure to implement the IEP as written.
- Failure to involve the parents to meaningfully participate in the IEP development process/ also predetermining placement and services before the case conference committee meeting.
- Failure of proper personnel to be present during the case conference committee meetings.
- Failure to give notice of rights.
- Failure of the school to prevent punishment of the child for actions or inactions that are manifestations of the child’s disability (caused by the child’s disability).
- Failure to train staff and aides in the child’s areas of disability.
- Failure to maintain proper records.
- Predetermining placement and services before the case conference committee meeting.- Failure to conduct necessary evaluations of the child.
- Failure to provide education and services in the least restrictive environment, based on that child’s individual needs.
- Failure to offer extended school year services to the child, resulting in regression of skills during the summer vacation that cannot be recouped quickly.
- Failure to provide records within 45 days when requested by parents.
- Failure to allow the child with special needs to participate in extracurricular activities to the same extent as his non-disabled peers when the child could participate with accommodations provided by the school.
- Punishing a child for behaviors that are caused, either directly or indirectly by the child’s disability that results in removal from the school (change of placement) for a period of 10 cumulative days in a school year.
***The information in this post is for general information purposes only. Nothing in this post should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.***