Does your child need an IEP?

Does your child have any of the following disabilities: autism, Asperger’s, ADD/ADHD, Down syndrome, Tourette’s, or an intellectual disability, developmental delay, learning disability, speech or language impairments, emotional disturbance, learning disability, visual or hearing impairment, physical impairments, traumatic brain injury, epilepsy, diabetes, sickle cell anemia, asthma, tuberculosis or any disability that adversely affects your child’s social or educational performance?

 

If so, your child may qualify for an individualized education program, under the Individuals with Disabilities Education Improvement Act (IDEA). Advise the special education coordinator for your public school system (in writing by correspondence or email) that your child has a disability that may qualify him or her for free special education services and related services such as physical therapy, occupational therapy, or speech therapy. It is important to keep a copy of any correspondence between yourself and representatives of the school system.  You may need it later if an issue arises or if a due process complaint must be filed for your child.

 

The IDEA

The IDEA was enacted by Congress in 1975 to ensure that children with disabilities receive a free and appropriate public education just like their peers who are not disabled.  To accept funding under the IDEA, each state is required to enact the IDEA into law. Alabama’s IDEA law is located in the Alabama Administrative Code at section 290-8-9-.00. 

 

The IDEA requires states and local education agencies to locate, evaluate, and identify children from birth to 21 years of age that are in need of special education services (a process under the IDEA known as “Child Find”).  Child Find also includes children with disabilities who are home-schooled, attend private schools, including children attending religious schools, migrant children, homeless children, and children who are in the custody of the state.

 

If your child is born with a disability, you should immediately contact Early Intervention with the Alabama Department of Rehabilitation Services so special education services can begin.  If the disability is discovered after three years of age, you should notify your school system as soon as possible and provide its representatives with a copy of any medical or psychological diagnosis. You should request that your child immediately be tested to determine if he or she is eligible for special education services.

 

The IEP

If your child is eligible for special education services, an IEP must be developed by the school district.  An IEP is a written individualized education program that specifies the needs of your child including present levels of educational performance, annual measurable educational goals, behavior goals, special education services and related services like physical and occupational therapy and speech, so that your child can advance both socially and academically in the school environment. An IEP is essentially your child’s agreement with the school district that school personnel will act in good faith to achieve your child goals.

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Parents generally place too much trust in the school district’s representatives to provide an IEP compliant with the IDEA.  Parents should read the Alabama Administrative Code or contact an attorney familiar with the IDEA, to determine if the proposed IEP meets your child’s unique needs.

 

However, as a general test to know if your child’s IEP complies with the IDEA, make sure the IEP has (1) correctly identified the disability (ADHD, autism, etc); (2) determined how the disability impacts the child’s ability to progress through school (the challenges that are created); and, (3) prepared annual goals and special education and related services which address the child’s unique needs and characteristics.  If the IEP does this, then you are probably on the right track. If not, do not sign the IEP and ask the IEP team to revise it so that it does address these basic items.

If your child’s needs change during the school year or the school’s representatives are not following the IEP, you can always request an IEP meeting to make changes. If the school’s representatives still fail to follow the IEP, then you need to contact an attorney that is familiar with handling these type cases.

 

Educational Benefits
The child’s IEP must be reviewed at least once each year. It also must be “reasonably calculated to enable the child to receive educational benefits.”

 

The IDEA requires that IEPs include a reasonably accurate assessment of students and meaningful goals.  Furthermore, the IEP must meet the child’s “unique” needs.  The IEP team is not to assume that all children in special education are capable of meeting state goals for a particular grade. The point of requiring measurable goals in an IEP is to measure the child’s progress and determine if the program did what it was intended to do and whether the child met that goal.

 

Challenging the IEP and Requesting an IEE

If a parent disagrees with the school’s evaluation and findings, the parent can request an independent education evaluation (IEE) at the school system’s expense. The evaluation is conducted by a qualified examiner not employed by the public school system that is responsible for the education of the child.

 

After the IEE has been completed, the school system will review the results (often with the individual that conducted the IEE) and conduct a meeting with the child’s parents.  If the results are favorable, the parent should request that the expert’s recommendations for goals and services be included in the child’s IEP.

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Filing a Due Process Complaint
The parent also may file a due process complaint if he or she disagrees with the IEP, evaluations, or findings by the school district.  The due process complaint must be requested within two years of the date the parent knew or should have known about the alleged action that forms the basis of the complaint.  A due process complaint is usually filed by an attorney hired by the parent to represent the child. The Alabama State Department of Education provides a model form for filing a request for a due process hearing should the parent choose the option of filing the request without an attorney. 

 

Either the parent or school system has a right to challenge or appeal the decision of the Administrative law judge or hearing officer in state or federal court. 

 

Remember…
If your child has a disability which adversely affects his or her social/emotional or academic performance, request (in writing) that the special education department for your public school system conduct an evaluation to determine if he or she qualifies for special education services.  Also, forward the results of any testing and current diagnoses from your child’s private physician, psychologist, or psychiatrist to the school district.

 

If your request for special education services is ignored, denied, or the test results seem skewed, consult with an attorney in your state that is familiar with special education law to assist your child in obtaining special education services.

 

Shane T. Sears is an attorney who practices in Birmingham in the areas of civil litigation and special education. He is a frequent lecturer. He recently taught a seminar on How to Avoid Traps and Pitfalls in your Child’s IEP. He can be reached at 205-886-0991 and at ssears@me.com.