Each school district has the legal responsibility to provide a free appropriate public education for students with disabilities who live in the area served by that district. This requirement, set forth in the federal Individual with Disabilities Education Act, entitles a student who is eligible for special education to receive an individualized education that is designed to enable the student to progress in the general curriculum.
The Program Must be Individualized for Every Eligible Student
The school district is required to convene a Team meeting to develop an Individualized Education Plan (IEP) for each eligible student at least annually. The parent is an important part of that Team and should be present for the meeting. The meeting should focus on the needs of the child and the Team should put in writing in the IEP the specific services, interventions and aids that the student is going to need in order to meet his or her annual IEP goals and to progress in the general curriculum.
As the parent of a student with special needs, it is important to know that the district may not use the following excuses to deny a student a service that is necessary for the student to achieve his goals or make adequate progress. Below are some common excuses that may be heard by school districts and the reason which each excuse is unacceptable:
- This is what we offer to everyone: No! The law is specific in its requirement that services be individualized.
- We don't offer that kind of service: No! The law requires the district to provide the necessary services for each student.
- We don't put that information in the IEP: No! The district may not circumvent its responsibilities by failing to write something down in the IEP.
- We have handled situations like this before: No! Each student is an individual with individualized needs. What worked for one student may not necessarily work for another even if the students have the same documented disability.
- If we give this to your child then we will have to give it to other children: No! Each program must be individualized. If a district provides services to your child it does not create an obligation to provide the same services to a child with a similar disability.
- We always place children like yours in this class: No! There is no such thing as an "autistic class" or an "emotionally disturbed class." While a district may have substantially separate classrooms, it may not place all children with the same disability in those classrooms without consideration for each child's individual needs. For example, some children with emotional disabilities may need to remain in a substantially separate classroom all day while others only need it for unstructured times such as art, physical education, recess and lunch. Each IEP Team must make that determination for each student.
- Extended school year only applies to certain students: No! Federal law is clear that extended school year must be considered for every special education student and provided if that student is likely to demonstrate substantial regression during the summer months.
The Financial Responsibility is on the School District, Not the Parent
The law is clear in this regard. Special education services are to be provided to the student at no cost to the parent. They are to be free. Therefore, a parent should not accept any of the following excuses from a school district:
- It costs too much.
- We don't have the staffing to do that.
- You have to pay for that.
- If you pay for it, we will provide it.
- Your insurance carrier can pay for it. While this option may sound agreeable, it should be avoided. Your insurance carrier may have a ceiling on the amount of services it will provide to your child in a given year or over a lifetime. Therefore, you do not want to use your insurance to pay for services that your school district has the legal responsibility to provide.
- We are waiting to hire staff to provide that service. While there may times when there is a short delay in hiring staff due to the logistics of finding a qualified person, the district may not wait to initiate the hiring process. Further, even if the delay is for legitimate purposes (such as the time it takes to interview, conduct background checks etc.) your child is entitled to compensatory services for any services that were missed as a result of the delay.
The Parent Has Certain Legal Rights
The parent has certain rights in the special education process that are provided by law. The school district cannot limit nor eliminate those rights. While there are many such rights, below are three ways in which a district may try to limit parental rights:
- The district may say that they are waiting to evaluate your child. Do not accept this answer. If you have made a request for a special education evaluation, then the district must comply with that request.
- The district may request that you sign a blank form. This is not a good idea because you will then be bound by whatever the district fills in on that form. Instead, work with the school district to fill out the form and then sign it.
- The district may claim that you cannot take an issue through due process. Do not accept that claim. You may always file for due process and it is up to the person handling the complaint, mediation or hearing to decide if the issue is appropriate for due process.
Special education is an important right that is provided to students with disabilities who meet the eligibility requirements. It is important not to let the school district use excuses, such as those described above, to deny your child that right.