Lisa McCauley Parles and Denise Rekem Special Education attorneys

SPECIAL EDUCATION FAQ'S

This article will address some of the questions and concerns you may have with respect to special education services provided by school districts and the IEP process. However, this is simply an informative article and is not intended to be a substitute for consultation with a competent special education attorney. Just like the IEP (Individualized Education Program), each case is specific to the individual student and circumstance.

What educational services is my child entitled to?

Under the Individuals with Disabilities Education Act (“IDEA”), which is a federal law, and New Jersey state law, a child is entitled to receive a Free Appropriate Public Education (“FAPE”) in the Least Restrictive Environment (“LRE”). What constitutes FAPE depends on the child’s disability and his or her individual needs. A child’s needs are unique which is why the term IEP stands for “Individualized Education Program.” This means that the program must be specifically tailored to meet the child’s unique needs. A “one size fits all” program is not appropriate because it fails to take into account the child’s individual programming needs.

The LRE is the least restrictive environment in which a child can receive FAPE. If a child can receive FAPE in the local public school, than by definition this is the LRE. However, if the child cannot be appropriately educated in his or her local public school, then the LRE can be a private day program, residential program or even home instruction. The important point to remember is that the interplay between FAPE and LRE requires that the child be educated in the least restrictive appropriate setting. If your district is unable to appropriately provide your child with FAPE in the public school setting, it may have to pay for a private day or residential placement to meet your child’s needs.

There are a range of services that a child with special needs may receive, including, but not limited to: 1:1 instruction, behavioral services, speech and language therapy, occupational therapy, physical therapy, a classroom shadow or aide, assistive technology devices, etc. There are an equally wide range of accommodations and modifications to the general curriculum that a child with special needs may receive, including, but not limited to: preferential seating, extra time on tests, modified assignments, books on tape, etc.

What is an IEP?

The Individualized Education Program (“IEP”) is referred to as the “roadmap” to the education of a child with special needs. Legally, in New Jersey, an IEP may not be created that lasts for longer than one year, although in certain circumstances, the IEP can extend beyond one year if “stay put” is invoked (this is discussed below in more detail). The IEP must be individually tailored to the child’s unique needs. Each IEP must include the child’s present levels of academic achievement and functional performance, measurable annual goals & short term objectives, transition goals & services (starting at age 14), the child’s placement and the rationale for any deviation from the LRE, and all related services, accommodations and modifications to be received. If a service, accommodation or modification is not in the IEP, the school district is not obligated to provide it, so it is critical that everything be written in the IEP.

Who is part of the IEP Team?

The IEP Team is made up of professionals who have evaluated the child and have provided input into creating the IEP as well as individuals who have been, or will be, working with your child. The IEP Team can be made up of: Director of Special Services, Case Manager, Special Education teacher, General Education teacher, Occupational Therapist, Physical Therapist, Speech and Language Therapist, and other individuals who have knowledge of your child and can aid in the creation of the IEP.

Most importantly, the parents are part of the IEP Team. It is imperative that you share your concerns, ideas and suggestions with the rest of the IEP Team and that the IEP Team in return consider your input. The law recognizes parents as key players in this process and important members of the IEP Team.

What happens if I don’t consent to the IEP and don’t want to sign it?

If the district has presented its first IEP for your child (i.e. there are no prior IEPs in place) the district cannot implement any of the proposed educational services unless you sign the IEP. Note: You can consent to the implementation of some of the proposed services while rejecting others. However, if your child already has an IEP, each year when a new IEP is proposed, the new IEP will automatically go into effect 15 calendar days after you receive a final copy regardless of whether or not you sign it, unless you file for mediation and/or due process (See below).

How do I preserve my child’s current program if the district is offering a new IEP with different services?

In order to preserve your child’s current program, what is referred to in the law as “stay put”, you must file for mediation and/or due process before the expiration of 15 calendar days after you received the final IEP. If you do not file for mediation/due process within these 15 days, the new IEP will automatically take effect even if you have not signed it and you will lose the opportunity to preserve your child’s previous IEP. Note: Writing on the IEP that you do not agree, writing a letter to the school district that you object or anything else short of filing for mediation or due process is not sufficient to invoke “stay put.”

When should I prepare for my child’s transition?

One of the IDEA’s primary purposes is to prepare children with disabilities for post-secondary education, employment and independent living. Beginning with the IEP in place when the child is 14, the school district must develop a course of study and related strategies and activities designed to assist the child in developing goals related to training, education, employment and independent living. When the child turns 16, the IEP must also include specific transition services in order for the child to reach these goals.

When should I consult an attorney?

You can consult an attorney at any stage of the IEP process. However, you will gain the most benefit from consulting with an attorney early on in the process. An attorney can help you understand your rights as they relate to your child’s needs and help you develop a strategy with which you can advocate for your child.