The information provided below is only a snapshot of the requirements of the IDEA and issues that can arise for students with disabilities. For more information about your child’s rights, please contact us for a consultation.
Identification, Initial Evaluation, and Eligibility
Under the IDEA, school districts are required to identify and evaluate children with disabilities, including children in private school, children who are being homeschooled, and homeless children. 34 C.F.R. § 300.111.
After identifying a child with a disability, the school district must convene a referral meeting and determine whether the school district should evaluate the child. The evaluations must include assessments to determine if the child is a child with a disability under the IDEA and to determine the educational needs of the child. 34 C.F.R. § 300.301.
After the evaluations are completed, a meeting is convened with the parents and school staff, and a determination is made as to whether the child is eligible for services under the IDEA.
In order to be eligible for services under the IDEA, a child must meet the eligibility criteria for one (or more) of the following disabilities:
- Intellectual disability;
- Hearing impairment;
- Speech or language impairment;
- Visual impairment;
- Serious emotional disturbance;
- Orthopedic impairment;
- Traumatic brain injury;
- Other health impairment;
- Specific learning disability;
- Deaf-blindness; or
- Multiple disabilities.
34 C.F.R. § 300.8(c).
The disability must also affect the child’s academic performance. 34 C.F.R. § 300.8(a). If the disability does not affect the child’s academic performance, the child still may require accommodations under Section 504.
Some common issues that we see arise related to identification, evaluation, and eligibility:
- Failing to timely identify and evaluate a child with a disability;
- Waiting for a child to fail before referring for an evaluation;
- Keeping a child in RtI too long without sufficient progress;
- Failing to respond to a parent’s request for evaluations;
- Refusing to evaluate a child after a referral; and
- Refusing to find a child eligible for services.
Individualized Education Program (IEP)
Once a school district finds a child eligible under the IDEA, it must develop an Individualized Education Program (IEP), a document that describes the child’s strengths and challenges, sets forth annual goals, details the services the school will provide, and indicates how the child’s progress will be measured and reported to the parents.
The members of an IEP team include parents and school staff, including teachers of the student (both regular education and special education), any related service providers, a representative of the school district, and an individual who can interpret evaluation results. 34 C.F.R. § 300.321.
The team must consider certain special factors, including whether the child’s behavior impedes the child’s learning or that of others and whether the child needs assistive technology devices and services. 34 C.F.R. § 300(a)(2).
The school district must review and revise the IEP at least annually. 34 C.F.R. § 300.324(b).
Some common issues that we see arise related to IEP development:
- Refusing to provide adequate specially designed instruction and related services;
- Failing to develop appropriately ambitious IEP goals;
- Developing IEP goals that are not measureable;
- Vague present levels of performance that do not provide a baseline for measuring IEP goals;
- Lack of sufficient supplemental aids and services; and
- IEP goals that repeated from year to year.
Placement & Least Restrictive Environment
During the IEP meeting, the team must determine the educational placement where the child will be educated. Placements include the regular education classroom, special education classroom, separate school, private school, and homebound instruction. 34 C.F.R. § 300.116. The placement must also be as close as possible to the child’s home.
The school district is tasked with ensuring that children with disabilities are educated in the least restrictive environment (LRE):
To the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are nondisabled; and
- Special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only if the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.
34 C.F.R. § 300.114(2).
The IEP team may not remove a child from the regular education classroom “solely because of needed modifications in the general education curriculum.”
34 C.F.R. § 300.116(e).
Some common issues that we see arise related to placement and LRE include:
- Failing to consider less restrictive placements. For example, a school district may have a separate class for students with Autism and place all students with Autism who attend the school, or a neighboring school, into the Autism class. Another example may be a school district that automatically places students with Down syndrome, or other disability, in a segregated (separate) setting without even considering the regular education classroom first);
- Failing to consider providing supplemental aids and services to a student with a disability in the regular education classroom and, instead, deciding the student must be educated in a segregated (separate) setting; and
- Deciding that a child cannot be educated in a regular education classroom, because he or she is educated on the Extended Content Standards (Adapted Curriculum).
The school must implement the IEP as written, including the specially designed instruction, related services, and any accommodations, modifications, and supports. The school must also provide parents with progress reports on the IEP goals, as often as nondisabled children receive progress reports (typically every 9 weeks). Upon request, the school should be able to provide the parents with copies of all data collected on the IEP goals.
Some common issues that we see arise related to implementation include:
- Failing to provide the services as written in the IEP;
- Failing to provide services for what amounts to weeks during the school year (e.g., during End of Grade (EOG) testing, benchmark testing, beginning and end of the school year);
- Failing to collect data on IEP goals; and
- Failing to monitor if a child is actually progressing on goals and adjusting instruction accordingly.
Disagreements Between the Parents and the School System
When issues arise between parents and the school system regarding the above issues, parents have several options, ranging from informally raising the issues with the school district to filing due process, a formal lawsuit filed against the school district in the Office of Administrative Hearings.