Why use an advocate?
Being faced with the possibility that your child may have a disability can be a frightening revelation. Even more frightening is having to learn to maneuver through the educational system, and finding the best services for your child. It is important for parents to not only be well versed in their children’s disability/disabilities, but they must be knowledgeable about the federal and state laws that govern the educational rights of students with disabilities, and the services and resources available to them. This can be a very complicated and confusing process. A knowledgeable Educational Advocate will assist you through this process. We will assist you in understanding diagnoses, seeking out local and state resources, interpreting laws and regulations, and helping you through the process of securing the best educational setting and programming for your child in the least restrictive environment possible. An advocate will review documents, help you understand the process, assist in coming up with a plan, and even attend meetings with you. A well versed and experienced advocate can help advocate for your child’s rights if you reach an impasse with a district about the belief of what is best for your child.
What is an IEP?
Short for Individualized Education Program, an IEP is the legal document that defines a child’s special education program. An IEP includes the disability under which the child qualifies for Special Education Services (also known as classification), the services the team has determined the school will provide, yearly goals and objectives and any accommodations and/or modifications that must be made to assist learning.
What is a 504 plan?
The 504 Plan is a plan developed to ensure that a child who has a disability identified under the law and is attending an elementary or secondary educational institution receives accommodations that will ensure academic success and access to the learning environment.
How do an IEP and a 504 Plan differ?
An Individualized Education Plan, or IEP, is a document created for a child with an identified disability that interferes with their ability to access the curriculum. To be eligible for an IEP, a student must not only have a documented disability, but it must impact them educationally. For example, a child who is deaf or hard of hearing may not meet the requirements for an IEP, unless the condition affects their ability to access the general curriculum without specialized instruction. Specialized instruction needs to be delivered by a special educator, and can happen in a variety of settings, depending on the severity of the disability/disabilities. In general, modifications (changes) to the curriculum may be needed, or special accommodations must be made to support a student in the classroom. An IEP is federally defined as being for students between the ages of 3-21 (inclusive). Each state must adhere to the bare minimum of the Federal Regulations (titled Individuals with Disabilities Education Act or IDEA). Some states choose to extend the term of the IEP up to the ages of 22-25. An IEP covers the current performance of the student, strengths and areas of need, goals and objectives for the student to reach during the term of the IEP. IEPs run for one year, but can be changed or amended, and even rejected, by the parents at any time. IEPs are for school-aged children only and do not continue past your state’s maximum requirement. Although a disability does not “go away,” all states have adult services that cover the individuals after they age out of the school system; the school should work with you on a 688 referral (Massachusetts specific) and a transition plan. Getting an IEP for your child is a team process. Testing will be completed with your consent, and a team will meet to determine eligibility. You are an integral part of this team.
A 504 plan is an accommodation plan written for a child for a variety of reasons. To obtain a 504 plan, your child must have a documented disability or a diagnosis from a professional practitioner. This could be a medical doctor, a psychiatrist, a psychologist, or a licensed social worker. Once you receive this documentation, the school will work with you to create a 504 plan to address the needs of your child. This process is not as complicated as the IEP process, and is covered under the Americans with Disabilities Act (ADA). Unlike an IEP, a 504 plan makes accommodations for your child to be able to attend school while having their diagnosis or disability needs met. It does not include specialized instruction. A 504 plan can follow a person throughout their lives and does not end when the child exits school. There is no regulation prohibiting a child from having both a 504 plan and an IEP, but it is not a common practice, and is usually unnecessary.
When do I use an Attorney or Mediator instead of an Advocate?
An advocate’s role is to avoid the need for a mediator or a costly attorney. Attorneys, especially those who specialize in Educational Law, are outstanding resources when you need assistance with formal Due Process procedures (following a failed “Resolution Meeting”) or within the context of serious legal implications addressing special education services.
When an attorney enters the room, you are clearly moving into adversarial territory.
As an advocate for your family, we are there as experienced and knowledgeable partners to guide you through the process, and advocate for your child’s rights as needed. We are educators first and foremost, with a team of professionals with extensive knowledge and experience in instruction, curriculum, and special education. Some of us also have children of our own with special needs from mild to severe, and have sat at both sides of the table. This gives us the ability to take an empathetic and collaborative role, backed up by knowledge and experience. Together, our years of administrative experience as Special Educators, Special Education team Leaders, Special Education Directors at the district level, and parents of children with disabilities provides insight to the inner workings of a school. We are here working on your behalf. Most importantly, we are seeking agreement, collaboration and resolution to facilitate improved communication between parents and staff. Attorneys are best in legal matters requiring short-term solutions to intensive conflict; education advocacy is for the long-haul and supports collaboration with a purpose driven perspective.
Mediation is based upon neutrality. Advocacy differs from mediation because an advocate works as a conduit between the parent and the school, not from a neutral position within the IEP or 504 process. As your advocate, we are representing your perspective.
By sending our kids to a “private school”, can we access Special Education Services through our local public school district?
Yes. Through the CHILD FIND process required through all school districts, the identification process of children with special needs is not limited to public school students alone. Give your district a call and specifically ask for “CHILD FIND.” If you need assistance with this process, we can assist you. If at any point during your child’s educational process a disability is diagnosed or identified, it is your home district’s responsibility to conduct the eligibility process with you. This includes all evaluations that are suggested or required. If your child qualifies for an IEP or 504 plan, it is the district’s responsibility to go through this process, but it will become the private school’s responsibility to implement the plan.
What is FAPE?
Individuals with Disabilities Education Act (IDEA) and its regulations require school districts to provide a free appropriate public education (FAPE) to meet the unique needs of a child with a disability. FAPE refers to special education and related services that are provided at no cost to the parent, meet state education standards, and are consistent with your child’s Individualized Education Program (IEP). Eligible students, ages 3 to 21 (in most states) or until they graduate from high school with a regular diploma, have a right to FAPE.
FAPE doesn’t mean the best possible education is offered at public expense to your child. Courts have defined “appropriate education” as a basic floor of opportunity. In other words, while IDEA guarantees equal opportunity, it does not guarantee a specific level of achievement or even a regular high school diploma.
When you and the school disagree on the meaning of “appropriate,” communication becomes extremely important. Because appropriate is based on your child’s IEP and the progress he or she has made, along with a myriad of other indicators, FAPE is determined on an individual basis. When making this decision, the following will be considered: growth on standardized tests from year to year, classroom performance, attendance, behavior, progress on goals and objectives, and report card grades.
Aren’t all kids with learning disabilities entitled to FAPE?
Yes. ALL children are eligible for FAPE, whether they have a disability or not.
What does LRE mean?
Federal special education laws and regulations require FAPE to be provided in the least restrictive environment (LRE). Since LRE is a relative concept, what is considered LRE for one child may not be LRE for another.
The IEP team must consider how to educate your child alongside their typically developing peers to the maximum extent appropriate. The IEP team identifies the services your child needs to reach his or her goals and objectives, and how these services will be provided, and in what setting.
How can I get the district to pay for private school?
As a parent, you want the best for your child, to maximize his or her potential. However, since there’s no “cure” for most disabilities, your child may struggle throughout school and progress at a different rate from his or her peers. The effect of a disability on a child’s rate of learning, coupled with high parental expectations, can cause a child to feel pressured and home-school relations to be strained.
If a district does not have the services that your child requires, the school may consider a specialized out of district placement for your child, funded by the school district. This is a process that our service can walk you through.
In order to get placement in a private school at public expense, you’ll need to show your child was denied a FAPE. In 1982, the Supreme Court of the United States set the standard that a child must receive “meaningful” (more than “trivial”) benefit from his education. Public schools are expected to provide some benefit, not maximize your child’s potential or offer the best services available. This has been referred to as the requirement to “provide a Chevrolet, not a Cadillac” education. In other words, school districts have to provide basic services — access to general education curriculum — within a clearly stated budget that comes from public tax dollars.
Deciding how much benefit your child has received from school can be difficult because you and the school may have different standards and expectations. The outcome of a case heard before the 5th Circuit (affecting Louisiana, Mississippi, and Texas) in 1997 encouraged a look at these questions to decide if your child’s IEP is “reasonably calculated to provide educational benefit”:
- Is the program individualized on the basis of assessments and performance levels?
- Is the program in the Least Restrictive Environment?
- Are services provided in a coordinated and collaborative manner?
- Are positive academic and nonacademic benefits demonstrated?
Parents always have the right to enroll their child in a private school at their own expense. Some independent schools may offer partial scholarships or other financial assistance.
Why won’t the school use the teaching method I want?
As a parent, you may have heard of a specific methodology that sounds just perfect for your child. Perhaps a friend gave a testimonial or you saw an advertisement about a certain program. But the school turned you down when you asked them to use this method to teach your child. Generally, this is because courts have given schools the authority to choose the methodology for educating children with IEPs. If your child is making progress in school, then the teaching methods being used are considered to be appropriate.
If you can show that your child has not received a FAPE, then the district may have to consider using the methodology you favor. But you’ll probably need to have independent assessment data showing your child is not receiving educational benefit and recommending the specific methodology.
When is the district required to provide an IEE?
By definition, an independent educational evaluation (IEE) is conducted by a qualified professional who is not an employee of the school district. Parents may request an IEE paid for by the school district when they disagree with the school district’s special education evaluation.
These steps are necessary prior to asking for an IEE:
- You agree in writing to allow district staff to assess your child.
- Results of the assessment(s) are reported to you.
- You disagree with those results.
In response to your request for an IEE, the district must take one of two actions:
- Provide the IEE at public expense, or
- Initiate a due process hearing to show the district’s evaluation was appropriate.
In the first situation, if the school district agrees to provide an IEE at no cost to you, they may do so in a variety of ways, e.g., give you names of individuals who are qualified to assess, suggest a state-supported agency (such as a diagnostic school), or even arrange to have an employee of another school district do the evaluation. In any case, certain conditions, qualifications of evaluators, and standards spelled out in IDEA must be met. If the district agrees to provide an IEE at public expense, it doesn’t necessarily mean they will pay for an assessment by a professional whom you heard about from friends or one linked to a specific methodology or program.
In the second instance, the district requests a due process hearing to show its assessment followed standards for evaluation and was conducted by qualified individuals. The Hearing Officer has an option to order an independent evaluation. However, after hearing testimony from both sides and reviewing records, if he decides the district’s evaluation was appropriate, then the district does not need to pay for an IEE.
Parents always have the option of obtaining an independent evaluation at their own expense. The school district is obligated to consider the results of such an assessment at an IEP meeting. However, giving consideration to the report doesn’t mean the school has to agree with the results or accept the recommendations made by the professional who did the assessment. Often there may be agreement or overlap between school and independent evaluation, and this should be pointed out to you.
Should I consider filing for due process?
If you feel you’re at an impasse with the school district, you may think about your right to due process. Usually it’s wise to consult with a trained advocate or attorney knowledgeable about special education law to help you evaluate the case before filing for due process.
Are there any other steps you could take first? Is your case based on facts or on feelings and frustrations? What are you trying to achieve for your child? Are these goals realistic? Do you want to commit the time, energy, and expense to go forward?
To make these decisions, a thorough review of all of your child’s records is important. You may already have copies of this information, but if not, you can ask the school district to review and/or provide copies of your child’s educational records.
If you decide to proceed with mediation and/or an administrative hearing, be prepared for a somewhat demanding process.
All states have mediation available at no charge to parents. After you and the district have each presented your side, a trained mediator will help you reach agreement — generally some sort of compromise. By prioritizing objectives ahead of time, you’ll be able to focus on what is really important for your child. Each side may have to give a little, but you’ll both have control over the final decision because it has to be mutually agreed upon by you and the school district.
An administrative or “fair” hearing resembles a court proceeding. One at a time, you and the school district will be asked to present your side of the case to an Independent Hearing Officer (IHO). There are specific rules to follow regarding inclusion of written documents, testimony and cross-examination of witnesses, and other procedures. Because the final decision is made by the IHO on points of law, not emotion, it’s usually best for you to be represented by an attorney.
The process can last much longer than the 45-day timeline — often 90 to 200 days — because of delays related to getting additional assessments and finding mutually convenient times for lawyers. The cost can run into the thousands of dollars per day for attorney fees and experts. If the IHO rules in your favor, you may recover some or all of the fees you’ve paid. However, if the IHO rules in favor of the district, you are responsible to pay your own costs. And remember, with either decision, the school district pays for its attorney and experts and that money comes from the general fund – monies which are used to provide for all children in the school district.