Memories are Short; Create a Paper Trail

Mon, January 04, 2016

The following article is by Bonnie Spiro Schinagle, Esq., a parent and special education attorney. She will present on "The Legal Landscape of Educational Placement: Preparing for CSE and Exploring Options Including Private School Placement," as part of YAI's free Autism Family Support Series on Thursday, Jan. 14, 2016, from 10 am.-12:30 pm, at YAI's Central Office in Manhattan.

This article tells you about the basics of the Individuals with Disabilities in Education Act (IDEA),  the Federal law that plays the greatest role in protecting the educational needs of children with disabilities. Before we address that statute, I have to tell you that the most important thing you can do as a parent is to maintain records of all communications you have with any school administrators or teachers. If your child is producing academic work, please keep copies of that work and hold onto those documents for at least two years. If you have any concerns about your child, it is perfectly OK  to have a conversation, but please document your understanding of what was said in an email. All requests for meetings should be made in writing, as well. Also, save your child's report cards for each term. Records are really important! 

The IDEA protects children from birth until high school graduation or age 21, whichever is sooner. That statute has provisions that directly address a child's educational needs.The trigger for protection is a disability that adversely impacts learning, the way a child functions in school and social/emotional development.

The path to protection under the IDEA begins with an evaluation

A school or parent can ‘refer' a child for 'evaluation'  and the child must be evaluated for all suspected disabilities. Parents have the right to ask for an independent educational evaluation at public expense. After evaluation, a determination will be made whether to classify your child under the IDEA. Classified children are entitled to be re-evaluated every three years. These are called triennial evaluations. Even if your child has never attended public school, the child is entitled to an evaluation and classification under the IDEA, if they qualify. 

Re-evaluation is conducted as children advance from early intervention to preschool and from preschool to the k-12 system. A child who has qualified for protection in the early intervention or preschool phase is not guaranteed to qualify for protection as they become older.

Rights Conferred by Classification
Once classified, a child is entitled to a free, appropriate public education in the least restrictive environment in accordance with an Individualized Education Program (IEP).IEPs must be reviewed annually and must track progress, among many other things. IEPs are developed by ‘teams' and parents are essential team members. It must include annual goals and periodic reporting to the parents. Children must be mainstreamed to the greatest extent possible.

Parents have a legal right to meaningful participation in creating their child's program. That means that parents have the right to visit programs offered by public school districts, to obtain information about the other students in proposed classes — not names or other identifying information, but general information, like IQ, classification, gender, whether the children have aides or are verbal.

Relief for IDEA Violations
If it can be shown that a) the district failed to provide a FAPE (Free, Appropriate Public Education), b) that the private school selected by the parent is appropriate, and c) the parent attended meetings, considered options offered by the public school district and objected to the program at the IEP meeting and gave written notice of their rejection of the public school program. 

"Equitable relief" can be requested in the form of ''compensatory education” — payment for related services a parent secures outside of school to make up for services that the school failed to provide or should have provided. Plus, attorneys fees can be awarded to the ''substantially prevailing party.” Expert witness fees and fees charged by other non-attorney consultants are not reimbursable.