The New Jersey Dyslexia Handbook

A group of smart minds in the New Jersey world of special education gathered and put together an excellent guide to assist schools, parents, and providers in helping children with dyslexia.  They recently issued “The New Jersey Dyslexia Handbook: A Guide to Early Literacy Development & Reading Struggles” (PDF) which is free to download from the NJ Department of Education website.

The table of contents shows that it covers everything from the definition of dyslexia to screening to various interventions and accommodations that can be made for the student.

If you have a student with dyslexia, you should download your free copy here:

http://www.state.nj.us/education/specialed/dyslexia/NJDyslexiaHandbook.pdf

 

 

What documents should be in your child’s special education binder?

If you are a parent of a special education student or advocating for one, do yourself a favor and . . .

PRINT OUT THIS ARTICLE (or at least the plan below).

Not only will this article save you time and lots of money, it will help you understand how best to help your child with a disability.

When clients contact me, most are armed with a box (or seven) of documents about their child’s special education.  It is wonderful that they are documenting their child’s path and what the school district is doing (or not doing) for their child.  It should be the mantra of every parent of a child with a disability: DOCUMENT EVERYTHING!

But . . .

Usually, the documents clients provide me are overkill and disorganized.  Inside the box(es) is a pile of papers, often not in order. I doubt highly that a client wants me to bill them at $375.00/hour to go through those papers to organize them and figure out what I need.  Thus, before you meet with a lawyer or advocate, you should organize your child’s special education documents first.  You should do this even if you are advocating for your own child.

Here is a plan to explain which documents you need, which documents you don’t need, and how to organize them.

THE PLAN

1. Get a 2″ 3-ring binder with dividers.  Label the dividers as follows: MEDICAL, FAMILY BACKGROUND, EVALUATIONS, IEPs / 504 PLANS, and SCHOOL DOCS.

2. Under MEDICAL, include any papers from the original diagnosis of your child.  Also include any changes to that diagnosis (e.g. ADHD -> Autism Spectrum Disorder).  Also include a list of any major medical events, such as surgeries, hospital in-patient stays, broken bones, major or chronic illnesses, and allergies (don’t forget dental events, such as tonsillectomies, baby teeth extractions, etc.)  As best you can, document the dates and locations of these medical events, as well as treatments received.  Finally, if there are any related medical or psychological disorders in the immediate family, note those here as well (e.g. grandfather diagnosed with Alzheimer’s, uncle diagnosed with ADHD, etc.)  Finally, in the front of this section, place a list of all current physicians and medical providers seen by your child – primary care physician, occupational therapist, physical therapist, psychiatrist, psychologist, speech therapist, etc.  Make sure you have their name, the service they provide, and contact information (phone number, email address, website).

3. In the FAMILY BACKGROUND section, include notes of milestones in your child’s development (e.g. date first crawled, date first walked, date first spoke, first spoken words, etc.), especially any noted delays in such development.  Also provide a narrative of your family makeup and any major changes, such as number of living grandparents, parents, child’s siblings, aunts, uncles, etc.  It is critical to be honest about family events, such as divorces or separations, geographic relocations, domestic violence, financial or other stress, etc.  Place in this section other matters of importance in your family culture, such as religious beliefs, school history including any changes in school, ethnic celebrations, etc.  If you are in a divorced family, you should include anything that changes the name of the child and also any court order regarding physical custody, visitation, and especially legal custody or who has the right to make educational decisions for the child.

4. Do not include every evaluation of the child ever performed.  In EVALUATIONS, place only the most recent evaluations of the child.  These evaluations should be no more than 3 years old.  If the evaluations occurred more than 3 years ago, do not include them.  Thus, if this section is empty, one of the things you will be requesting is a new comprehensive educational evaluation of your child.

5. Like EVALUATIONS, within the IEPs/504 PLANS section do not include every IEP or 504 Plan since your child’s birth.  (That’s supposed to be humorous.)  My recommendation is to only include the current approved IEP or 504 Plan and all approved ones going back two school years.  You should only include a draft IEP or 504 Plan if it is related to the current approved IEP or 504 Plan (to show how the school changed or omitted certain information) or it is a current proposed IEP or 504 Plan with which you disagree.  Old drafts should be discarded because approved IEPs and 504 Plans overrule those drafts. Thus, this section should be at a maximum, 3-5 documents, especially since these are typically very long documents (you may consider only including pages from prior plans or drafts that conflict with the one currently at issue.)

6. The SCHOOL DOCS section is the trickiest of all.  My rule of thumb is when in doubt, include it.  First, if you haven’t done so already, send a FERPA request to the school for your child’s records.  (Click on the link to the left to read more about FERPA requests.)  At the beginning of this section, provide a list of all contact points at the school with names, phone numbers and email addresses of the superintendent, principal, assistant principal, all teachers that see your child, all service providers that see your child, all persons involved in lunch and/or playground monitoring, and any other person that your child may encounter in school.  Also include anyone on the IEP Team (Child Study Team) that is not included in the prior list, such as school psychologist.  [Why do this? First, it will assist your attorney or advocate into knowing who the players are.  Second, it will show the IEP Team that you are more than prepared when you show up at an IEP Team meeting with the list.  Can you imagine the fear on the faces of the IEP Team members when they see their names and contact information on a list in your notebook? Make sure you turn to that page in your binder when you first sit down.]  You should include here results from your child’s standardized tests, report cards, any disciplinary reports, absent/tardy reports, progress reports (triggered by the current IEP or otherwise), and any other key documents that discuss your child’s current levels of academic achievement and functioning in the school environment (sometimes emails from teachers or among teachers and administrators provide the true story).

Your binder may be huge, but volume is not the problem.  Disorganization is the problem which the binder resolves.  You, your attorney, or your advocate will appreciate this effort.  And, as stated previously, it will help zero in on the real issues your child with a disability is facing in the school environment.

[This article and other helpful tips for your child’s IEP are in our FREE report 5 Easy Steps for a Successful IEP MeetingDownload your copy here.]

For more on this and related topics, consider purchasing the book SchoolKidsLawyer’s Step-By-Step Guide to Special Education Law: Workbook for Parents, Advocates and Lawyers available now from Amazon.com or direct from SchoolKidsLawyer.com.

Is your hearing officer competent?

When a parent disputes a decision made by a school district regarding the special education and/or services of their child, one option is to file a “Due Process Complaint”.  [See Procedural Safeguards, 20 USC 1415(b)(6) and (c)(2).]  When a complaint is filed, the state’s Department of Education assigns the case to an “Independent Hearing Officer”.  20 USC 1415(f)(1)(A).

States differ on who fills the role of Independent Hearing Officer (“IHO”).  In a few states (Pennsylvania, for  example), the DOE appoints dedicated hearing officers to special education matters.  These people tend to be experienced practitioners in special education law, whether lawyers or school psychologists or similar professions.  In several states (New Jersey, Arizona, Wisconsin, for example), the DOE relegates the cases to the state’s version of the Office of Administrative Law.  From there, Administrative Law Judges (“ALJs”) are appointed as the hearing officers of special education cases.

While true IHOs handle only special ed cases, ALJs handle numerous different types of administrative law cases.  The types of cases handled by ALJs include civil service appeals, some workers compensation cases, denials of benefits (such as social security, welfare, disability, etc.), alleged violations of environmental laws, and many others.  In other words, the scope is very wide and ALJs cannot possibly be intimately knowledgeable about the laws in all of those areas.  (Think of it this way, if you have a problem with your knee, do you go to a heart surgeon? No, you go to an orthopedic surgeon.)

The main special education law, the Individuals with Disabilities Education Act (“IDEA”) requires that IHOs meet certain requirements.  “A hearing officer conducting a [Due Process] hearing . . . shall, at a minimum . . . (ii) possess knowledge of, and the ability to understand, the provisions of this chapter, Federal and State regulations pertaining to this chapter, and legal interpretations of this chapter by Federal and State courts; . . . and (iv) possess the knowledge and ability to render and write decisions in accordance with appropriate, standard legal practice.” 20 USC Sec. 1415(f)(3)(A); 34 CFR Sec. 300.511(c).

What all that legal mumbo-jumbo means is that whomever is assigned to hear special education cases should be competent in special education law (IDEA, etc.) as well as in making well-reasoned written decisions.  Many ALJs do not have the required knowledge or experience (or time) to handle special education cases.  In my opinion, the system is broken and the blame lies with the state DOEs.

I have suggestions on how to fix this, but won’t discuss them on this blog (for now, but perhaps in the future).  But one thing you should do as a parent is consult with a special education attorney to determine if you will get a competent hearing officer to hear your dispute.

Top Ten Special Ed Law Tips

Sometimes you just need some quick tips to help you through the maze that is special education law.  Fair enough.  Here are my Top Ten tips for parents and advocates:

1.  Put everything in writing!  Document every single thing you do as it will only help your child and help if you find yourself in a dispute with the school.  Email is best because it has a date, time, and recipients noted.

2.  Make them put everything in writing!  Not only should you document everything, make the school do the same.  If they say something during an IEP meeting or agree to a service, make them put that in the IEP or in writing to you.  An old saying goes “If it isn’t in writing, it didn’t happen.”

3.  Do not sign anything until you are 100% sure about it.  If you need to consult with an attorney or expert in special education, do so.  If there is any doubt in your mind, don’t sign a document.  Make sure your child is getting the services you believe are necessary.

4.  Keep your expectations reasonable.  This does not mean that you shouldn’t demand the moon for your child; you should.  But also realize that schools have lots of kids – sometimes lots of other disabled kids – and they have limited budgets.  Talk to someone to make sure you are not being unrealistic in what you ask for.

5.  Consult a special education expert about what your child needs.  You need to be able to translate your child’s needs into concrete things a school can do for your child, whether that is different curriculum, access to the classroom, therapies, services, etc.  A good education advocate or education psychologist can often help you know what your child needs.  And don’t jump onto bandwagons, such as the 1-on-1 aide bandwagon; such aides are helpful, but only when your child actually needs that.  For example, if your child is dyslexic, an aide won’t do much for your child unless that aide is a dyslexia specialist.

6.  Be prepared!  I know I sound like the Boy Scouts, but it is a good motto for special education.  Read as much as you can about your child’s disability; make sure you understand your child’s challenges (reading? writing? math? social? behavior?).  Go into an IEP meeting or any other interaction with the school armed with tons of information – more is better.

7.  Know your rights.  Most parents don’t know their and their child’s rights under the law for special education.  First, the school should give you “procedural safeguards” that list your rights.  Read that carefully or consult with a special education lawyer who can tell you your rights.

8.  Keep your emotions in check.  I know this is easier said than done when it comes to your child, but yelling matches never accomplish anything.  This is why advocates are sometimes helpful because they can remain calm and objective.  Remember what our mothers always told us: “You catch more flies with honey than with vinegar.”  If you follow Tip #6 above, it will help you follow this Tip.

9.  Take copious notes.  Write down everything, especially at an IEP meeting.  Again, this may be when an advocate comes in handy.  Parents are often overwhelmed at these meetings and intimidated by the sheer number of people around the table “on the other side”.  You will need notes to confirm what you heard and make sure everything is in the IEP that should be.  These notes also come in handy if you end up in a dispute with the school.  Keep a journal or diary or let your advocate do that.

10.  Don’t back down.  This is an easy thing to do when you think “it’s me against an entire school district.”  But if you have followed all of the Tips above and you still feel strongly that you are asking for the right things for your child, do not let them convince you otherwise.  They are obligated by LAW to provide a Free Appropriate Public Education (FAPE) to your child with a disability.  And if you have to fight them and you win, you can be reimbursed for your attorney’s fees.  So don’t be afraid to do battle.

I hope these are helpful.  If you need more tips beyond these 10, consider getting our book “Schoolkidslawyer’s Step-By-Step Guide to Special Education Law” which also includes forms and an explanation of the entire special education process for you.

And always, you can contact me for a consultation at 856-335-5291 or info@schoolkidslawyer.com.

 

Is special education instruction by a paraprofessional legal?

Recently, I was asked this (not so) hypothetical:

“4th grade child has an IEP (high functioning Down Syndrome) and is placed in a life skills classroom. There is one special education teacher and seven aides rotating through the classroom.  Reading and math instruction is being solely taught by an aide with the teacher touching base with the child once a week for this instruction. Are there any laws or regulations that say direct instruction can be delivered by a paraprofessional?”

Here is my analysis and answer:

A State may only receive federal funding for special education under IDEA if: “The State educational agency has established and maintains qualifications to ensure that personnel necessary to carry out this subchapter are appropriately and adequately prepared and trained, including that those personnel have the content knowledge and skills to serve children with disabilities.”  20 U.S.C. Sec. 1412(a)(14)(A).

“The qualifications under subparagraph (A) include qualifications for related services personnel and paraprofessionals that— (i) are consistent with any State-approved or State-recognized certification, licensing, registration, or other comparable requirements that apply to the professional discipline in which those personnel are providing special education or related services; (ii) ensure that related services personnel who deliver services in their discipline or profession meet the requirements of clause (i) and have not had certification or licensure requirements waived on an emergency, temporary, or provisional basis; and (iii) allow paraprofessionals and assistants who are appropriately trained and supervised, in accordance with State law, regulation, or written policy, in meeting the requirements of this subchapter to be used to assist in the provision of special education and related services under this subchapter to children with disabilities.”  20 U.S.C. Sec. 1412(a)(14)(A) (emphasis added.)

So, first, paraprofessionals in the special ed environment (implementing an IEP) must be properly certified in the discipline they are teaching.  This is true for reading and math.  You must look to the State’s education code on who has the proper certification and/or licensing to meet this certification requirement.

They must also be appropriately TRAINED and SUPERVISED.

What does “trained” mean?

All special education teachers must be HIGHLY QUALIFIED.

“Each person employed as a special education teacher in the State who teaches elementary school, middle school, or secondary school is highly qualified.”  20 U.S.C. Sec. 1412(a)(14)(C); 20 U.S.C. Sec. 6319(a)(1).

This is especially true for core academic subjects.  20 U.S.C. Sec. 6319(a)(2).

For paraprofessionals (aides), specific requirements are set forth in the No Child Left Behind Act.

“Each local educational agency receiving assistance under this part shall ensure that all paraprofessionals hired after January 8, 2002, and working in a program supported with funds under this part shall have— (A) completed at least 2 years of study at an institution of higher education; (B) obtained an associate’s (or higher) degree; or (C) met a rigorous standard of quality and can demonstrate, through a formal State or local academic assessment— (i) knowledge of, and the ability to assist in instructing, reading, writing, and mathematics; or (ii) knowledge of, and the ability to assist in instructing, reading readiness, writing readiness, and mathematics readiness, as appropriate.”  20 U.S.C. Sec. 6319(c) and (d).

What does “supervised” mean?

Again, the No Child Left Behind Act explains the duties of a paraprofessional (aide).   20 U.S.C. Sec. 6319(g).

“A paraprofessional may not provide any instructional service to a student unless the paraprofessional is working under the direct supervision of a teacher consistent with this section.”  20 U.S.C. Sec. 6319(g)(3)(A).

The question is whether the special ed teacher checking in once a week is appropriate direct supervision.  This will depend on the facts of what the teacher means by “touching base” with the student.  In other words, is the teacher ever observing or monitoring how the aide is providing instruction?

Conclusion

So, can paraprofessionals teach core subjects under an IEP?  Maybe, but doubtful.  (1) They must be properly certified; (2) “highly qualified”; and (3) properly supervised.  Investigation into the facts of each case will determine if these three required elements are being satisfied.

Sorry to give the age old lawyer answer of “it depends”, but each case can be different and the only way to give a definite answer is by what the detectives on Dragnet always said, “Just the facts, ma’am, just the facts.”

 

 

How Does a Diagnosis of Disability Affect My Child’s Eligibility For Special Education?

Many parents are aware of their child’s diagnosis (or the symptoms of the diagnosis), but perhaps have never formally received a diagnosis for their child from a physician. Why is a diagnosis important? A child must have a diagnosis that fits within 13 categories of disability in order for that child to be eligible for special education services.

I’ve created a handy chart that links a diagnosis to the category under the Individuals with Disabilities Education Act (IDEA) which is the first step in determining eligibility for special education.

You can download the chart here:

IDEA Disability Categories

Please also feel free to share this information with parents of kids with disabilities.

How School Districts Have Forgotten What Their Job Is

I filed a brief in a special education case recently opposing a motion to dismiss the case. Want to share the Introduction as it spells out my view of how school districts (and their insurance companies) are treating kids with disabilities:

What is getting lost in the legal gymnastics of the pending motions to dismiss is that this case is about the education of a young disabled child, D.M., who was abused by the public school system and staff with whom he and his parents entrusted his education and safety. Yet, no Defendant in this case wants to accept responsibility or be held accountable for the tragic harm done to D.M., a little boy with Autism and other co-morbidities. Children with Autism are more susceptible to abuse and bullying, particularly in the public school environment.

Although not expressly stated in the Constitution, our highest Court has recognized that education is a fundamental right. See, e.g., Brown v. Board of Education, 347 U.S. 483 (1954) (“In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.”) Furthermore, through the Equal Protection Clause and other federal legislation, education of disabled children is also protected as a fundamental right and goal of our society. See, e.g., Board of Education v. Rowley, 458 U.S. 176, 179-84, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982).

Apparently, the Defendants in this case must feel that physically restraining and abusing a disabled child; emotionally and psychologically abusing that same disabled child; and exposing that disabled child to an unsafe, hostile education environment through the efforts of purported ‘experts’ on the Child Study Team by placing D.M. in a classroom with unqualified and dangerous personnel is perfectly acceptable by the standards of 2011-12. One must reach this conclusion by the exhibition of the extensive and ultimately futile efforts of the Defendants to dismiss this action.


Your Tax Dollars Are Being Used to Deny Education to Disabled Kids

Many of you probably don’t know there are laws that exist to protect the rights of disabled kids, but perhaps none more important than the special education laws.  I’m quite sure that even fewer of you know that your tax dollars are being used to deny those disabled kids their lawful education and thereby violating the laws.  So, your taxes are being used to violate or, at a minimum, obstruct the law.

Here is how this works:

1.  Special education laws guarantee that kids with disabilities are entitled to a free appropriate public education (FAPE) adapted to meet their individual needs.  Makes sense, right? Just because a child is in a wheelchair or has a neurological problem doesn’t mean they should be denied an education, correct? Yes, correct, because it is the law of our country and it is also our moral duty.

2.  Your taxes go to fund public education.  Thus, the public schools in your district are, partially, funded by your tax dollars.  They are also funded, partially, by federal and state government money.  Boards of education or school district administrations determine how to spend those dollars – new football uniforms? new books? supplies? building repairs? etc.

3.  School districts struggle with special education laws because they have tight budgets and sometimes it is expensive to comply with these laws.  Yet, the reality is that they simply need to redistribute that budget to comply.  Indeed, schools get extra money from the federal and state governments depending on the number of disabled kids in that school district.  So, maybe the football team can go another year with the same uniforms in order to assure that the disabled kids get an equal education.  Or maybe they have to contract with a different school supplies vendor who will offer a discount.

4.  But, instead of taking some of those cost-saving or redistribution of budget measures, many school districts elect to fight against enforcement of the special education laws.  Some school districts – either blatantly or unknowingly – violate those laws by denying services or the educational needs of those children.  The school administrations hire attorneys to represent them and battle parents who are simply trying to get an equal education for their disabled child.

Now, let me stop for a minute and focus on that fact.  The parents of children with disabilities didn’t ask to have a disabled child.  They had no choice in the matter.  Often, they have no choice on where they live – it is usually tied with where their job / source of income is.  So, they are already dealing with the stress that their child has a disability and are probably incurring substantial medical expenses to address the disability.  And, the people that they hoped to trust most with the education of their child – the local public school district – is putting up a fight with them.

5.  Now, it’s probably obvious that the school district has to pay for the attorneys they hire.  Where do you think that money comes from?  It comes from the school district’s budget.  And if we circle back to #2 above, the school district’s budget comes from, in large part, YOU – the taxpayers.  So, the legal fees being spent to fight against parents who are trying to help their disabled child is money you have given to the schools for public education.

And, this is no small amount.  Some special education cases are fought with such vigilance, that school district attorneys rack up tens (sometimes hundreds) of thousands of dollars in bills.  The other trick they would pull is when someone tried to find out how much was spent, the school districts would claim the attorney’s bills were privileged and confidential information and would not release them.

Well, that is no more.  Because those legal fees are being paid by tax dollars, the attorney’s bills are public records that must be disclosed just like other public records.  Recently, the California Supreme Court said that such attorney’s fees invoices are public records and must be disclosed under that state’s public records act.  I believe that every state’s public records act will be, if it isn’t already, applied in that same way.

It is time that you know that your tax dollars are being spent to deny kids with disabilities a free public education, the same education that non-disabled kids receive without any dispute.  This is immoral and if you want to stop it, you need to get active in your local board of education or show up to meetings and complain about this.

Take some action and stop this nonsense!


What Every Parent Should Know About Mediation

Since the 1980s, there has been a strong movement toward “alternate dispute resolution” of legal cases. Our court system is overloaded and, as a result, the U.S. Supreme Court has encouraged parties to try to resolve their battles somewhere other than in a courtroom. This is particularly true in special education matters.

After parents are involved in a special education dispute with their school district, they are usually referred to “mediation” to try to resolve the case. The term mediation strikes fear in the hearts of most parents who are not familiar with legal process. However, that fear is based primarily on myth and a misunderstanding of what happens in mediation.

The following are five things every parent should know about special education mediation. Hopefully, this should also make you feel more comfortable with alternate dispute resolution.

1.  Mediation is NOT trial.

Most people have some idea of what a trial is, either because of the news or some television shows. (Keep in mind that those versions are extremely edited and don’t necessarily accurately portray what a trial is like.) Mediation is nothing like trial. During mediation you don’t present evidence; you don’t have to question witnesses; you don’t have to make legal arguments; and, you don’t have to convince anyone that you’re right. Rather, mediation is a very informal opportunity to explain to an independent person (mediator) what you believe the problem is and how you would like to fix that problem. It’s that simple.

2.  The mediator does not take sides in the dispute.

The mediator is an independent and objective person assigned to try to get the parties to find a solution to the dispute. He or she is not interested in who wins or loses; the mediator simply wants to get the parties to agree on how to fix the problem. Thus, the mediator’s role is to facilitate discussion among the parties to see if they can find common ground. He or she is not a judge and will not make any legal decisions or provide any legal advice to the parties. If any agreement is reached, it is done so by the parties themselves and the mediator will simply formalize that agreement.

3.  Mediation is confidential.

Because mediation is essentially a form of settlement negotiation, it is completely confidential. Nothing the parties say during mediation leaves the mediation room. Confidentiality encourages open and honest dialog among the parties. Why? Often parties don’t want to “give up” anything; confidentiality assures them that even if they “give up” something during mediation, they haven’t given it up forever unless it becomes part of a settlement agreement. Thus, any such concession on facts or remedies may not be used against a party if the mediation is not successful.

4.  Mediation is (usually) free.

I can’t speak for every special education mediation system across the country, but most of them provide mediation free of charge to the parties. The only expense incurred by the parties is the cost to travel to and from the mediation. (Additional expenses may be incurred if they have to pay for their attorneys’ time.) While private mediation is not free, it usually occurs only if the free mediation fails and the parties wish to continue with mediation to avoid going to trial.

5.  Settlement reached in mediation is enforceable.

If the parties reach settlement during mediation, the mediator will help prepare a settlement agreement with the terms upon which the parties have agreed. The mediator will do this the day of the mediation so that the parties don’t have to come back again or change their minds after they’ve left. Once a signed settlement agreement is in place, it is as enforceable as a judgment from a court. If one side doesn’t comply with the agreement, the other side can take the agreement to court and have a judge enforce it. From a parent’s perspective, this is a good thing because if a school agrees to put in place certain services or accommodations for the child by a certain date, it will do so or face penalties.

As you can see, mediation isn’t as scary as it sounds. You really have nothing to lose by going and listening to how the other side views the dispute. You never have to agree to anything, but mediation may be a very effective way to resolve the problem before incurring the expense, time and hardship that a trial (due process hearing) causes.

——————

Originally published by my friends at The Special Education Guide:

http://www.specialeducationguide.com/blog/what-every-parent-should-know-about-mediation/

 

Making a Complaint About Your Child’s Special Education

Your child is not receiving the attention or services he or she needs in school. As a result, your child is doing poorly in school. You’re not even sure of the cause of the problem, but you know something is wrong. What do you do?

If you are the parent of a child with special needs, this may sound painfully familiar. But, there is a solution. Remember the old saying, “the squeaky wheel gets the oil?” Well, that is just as true in special education as it is in other aspects of life. For those who feel uncomfortable being a “squeaky wheel,” remember that you are acting for your child’s benefit.

The following is an outline of the ways you can complain about your child’s special education services.

Consultation to Discovery the Problem

A good first step is to consult with a special education advocate or attorney to discuss your options. Perhaps the biggest problem in this area is that most parents do not know their options or that they have options at all. Most parents share the sentiment, “The school will do what is right for my child.” Tragically, that is not always true.

You, as the parent acting on behalf of your child, have many options. The approach to improving your child’s services may vary depending on your child’s specific diagnosis, individual educational capacity, the school district’s resources or current individualized education program (IEP). An advocate or attorney is trained to know the best way to address the issue, so seek a consultation.

Addressing the Issue With the IEP Team Manager / Case Manager

The first approach is to bring your complaint to the person identified by the school as the point person for your child’s special education needs. In most school districts, there is a case manager or head of a “child study team” assigned to your child. This person should have the most knowledge about your child and his or her IEP; however, you may need to go to the director of special education for your school district if this approach has already failed. You need to get someone to listen. Again, you need to be the squeaky wheel that someone hears.

Due Process Complaint

If you reach an impasse with the school district or disagree over something relating to your child’s special education, you may need to file a due process complaint. This is not something to be taken lightly and I highly recommend that you consult with an attorney (not an advocate) for this approach. This is akin to suing the school district and if you don’t do it correctly, you will fail.

Essentially, a due process complaint is a complaint to your state’s department of education alleging that your school district is not complying with the law with respect to your child’s education. You will need to prove that before a hearing officer, sometimes called an administrative law judge. This is called a due process hearing and looks very much like a trial, involving presenting evidence, witnesses and sometimes an expert witness.

Each state has its own due process procedures and forms. You need to follow those procedures carefully or the case will be dismissed without any help for your child. If you win at due process, you are likely to get most or all of your attorney’s fees back. However, even if you don’t succeed at the due process stage, you have another chance (see the section on appeal below).

Other options at this stage are filing a formal state complaint or requesting mediation. Both can be done before or after filing a due process complaint.

Civil Rights Complaint

Another option is to file a civil rights complaint to the U.S. Department of Education’s Office of Civil Rights. Essentially, this is an allegation that your school district has violated your child’s civil rights, which are guaranteed to him or her as a child with a disability. Just like employers can’t discriminate against people of certain races, creeds, gender, etc., schools cannot discriminate against students with disabilities.

Filing a civil rights complaint does not necessarily preclude the filing of a due process complaint, but the two may be filed simultaneously as they involve different laws. However, like a due process complaint, a civil rights complaint is very technical and must follow its own set of procedures and forms. This is another area where a special education lawyer is critical, and pursuing it alone is not for the inexperienced or faint of heart.

Appeal / Lawsuit in Court

The losing party at the due process or civil rights stage has the right to appeal that decision to a court of law. This may be state or federal court. Although you can handle any part of this process pro se (by yourself), you risk not helping your child. I don’t meant this to be an advertisement for lawyers, but simply a caution that even though you are passionate about your child’s needs, you may get in over your head. There is a reason that lawyers went to law school, took a bar exam, take hours of continuing legal education credits each year and “practice” law; it is to ensure that they have experience and knowledge on how the court process works and are therefore in the best position to protect your child’s rights.

At the end of the day, that is the goal of any of these complaints: to enforce your child’s special education rights and to make sure your child is provided a “free appropriate public education.” Since children typically can’t do this for themselves, the parents (and their counsel) must be the squeaky wheels to get the oil that will help their child succeed.


Originally published on the Special Education Guide Blog.