Evaluations vs. IEP Meetings – A Very Important Distinction

A client recently told me they received a notice for an “evaluation meeting”.  Huh?  I asked, do you mean an IEP meeting?  The client wasn’t sure because the notice said just that – evaluation meeting.


Since I figured school districts are trying to confuse parents by using the terms “evaluation” and “IEP meeting” interchangeably, let me clarify the difference between the two for everybody.

What the law says

IDEA is very specific about what an “evaluation” is and what an “IEP meeting” is.  And they are in separate sections of the statute.  Here is what that law says:

Evaluation, 20 U.S.C. §1414(a), (b), and (c)

Initial evaluation: “A State educational agency, other State agency, or local educational agency shall conduct a full and individual initial evaluation . . . before the initial provision of special education and related services to a child with a disability under this subchapter.”  20 U.S.C. §1414(a)(1).

In other words, before a student can receive special education and related services for the first time, the school must conduct an initial evaluation of the child.  This is part of their “Child Find” responsibility if someone suspects that the child has a disability that impacts their education.

The next few subsections discuss the procedures used and the purpose of an initial evaluation (“to determine [eligibility]  within 60 days of receiving parental consent for the evaluation”) and parental consent.

Reevaluation: “A local educational agency shall ensure that a reevaluation of each child with a disability is conducted . . . if the local educational agency determines that the educational or related services needs, including improved academic achievement and functional performance, of the child warrant a reevaluation; or if the child’s parents or teacher requests a reevaluation.” 20 U.S.C. §1414(a)(2).

Thus, re-evaluation of a child must occur if the school believes a change in services is necessary or if a parent or teacher requests it.  Here is a very important part:

Reevaluation MUST occur at least every three (3) years, but not more than once a year, unless the parents and school agree that reevaluation is not necessary.

20 U.S.C. §1414(a)(2)(B).

What does an evaluation involve? “In conducting the evaluation, the local educational agency shall use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information, including information provided by the parent (to determine if there is a disability and what will be necessary in an IEP); shall not use any single measure or assessment as the sole criterion for determining (disability or the education program); and use technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors.”  20 U.S.C. §1414(b)(2).

What the heck does all that mean?

It means that the school must use valid testing methods and get input from the parents and others who know the child in performing the evaluation.  The school can’t simply rely on what the teachers say.

This is where the trouble starts, because schools think that they can conduct an “evaluation” or “reevaluation” by simply having a meeting.  They can’t.

Let’s continue.

IEP Meeting, 20 U.S.C. §1414(d)

IEP Meeting:  The IEP Team (parents, at least 1 gen ed teacher who knows the child, at least 1 special ed teacher who knows the child, a representative of the school district who knows the resources available, a person who can interpret evaluation results, and possibly others) must assemble to develop an IEP for the child.  20 U.S.C. §1414(d)(1)(B) and (C).  This is an IEP meeting.

The Team must meet to ensure that an IEP is in effect for each child with a disability in the school district by the beginning of the school year in the Fall.  20 U.S.C. §1414(d)(2)(A).    The IEP meeting must occur “periodically, but not less frequently than annually, to determine whether the annual goals for the child are being achieved.”  20 U.S.C. §1414(d)(4)(A).

So, hopefully you’re still with me.  And you can see that the law is crystal clear that an evaluation is something different than an IEP meeting.

So why are schools getting this mixed up (maybe on purpose)?

One sentence in IDEA may be the culprit:

“To the extent possible, the local educational agency shall encourage the consolidation of reevaluation meetings for the child and other IEP Team meetings for the child.”  20 U.S.C. §1414(d)(3)(E).

The statute doesn’t explain what a “reevaluation meeting” is, but I think it refers back to the section quoted in Reevaluation above, namely a meeting to determine if a reevaluation is needed.  It is not a meeting where an evaluation takes place, but rather to decide if one is necessary.

Nevertheless, ASK the school what they mean by an “evaluation meeting”.  Ask them if they mean a meeting to decide whether reevaluation is necessary or if they mean an IEP meeting or a combined meeting.  And, as always, DO IT IN WRITING!

If you want further information on this, get our book SchoolKidsLawyer’s Step-By-Step Guide to Special Education Law or contact us for a consultation.



Bullying and the Gebser Letter

You probably know what bullying is. You may not know what a Gebser Letter is or what it does. Sit down, grab your cup of coffee and read on.

The Effects of Bullying

First things first. It is now widely accepted as fact that children with disabilities are more likely to be bullied than their neurotypical and able-bodied peers.  About 20% more likely, to be precise.  A study was performed by Chad Rose of the University of Missouri College of Education and Nicholas Gage of the University of Florida examining 6,500 students from K-12 during the years 2011-13.  Although the study did not include online bullying (which has now become more pervasive through social media), it found that students with disabilities were bullied more than other kids particularly in grades 3 through high school graduation.

More about the study can be found in this excellent article “Disabled children more likely to be bullied during school years, study says” by HealthDay News.  There is even more helpful information on the statistics on bullying and harassment of students with disabilities at the National Bullying Prevention Center’s website.

It is also now widely accepted that bullying negatively affects a student’s ability to learn.  It directly impacts that student’s education.  The U.S. Department of Education’s official blog published an article called “Keeping Students With Disabilities Safe from Bullying” that highlighted a 2013 Guidance Letter on bullying.  A year later, the USDOE’s Office of Civil Rights issued an even stronger Guidance on how schools should handle bullying.

What is a Gebser Letter?

In 1998, the U.S. Supreme Court issued its opinion in a case titled Gebser v. Lago Vista Independent School District, 524 U.S. 274 (1998), in which Justice Sandra Day O’Connor wrote the opinion for a divided court.  The Court decided that under Title IX, you cannot sue a school district for damages for bullying or harassment unless you have notified a school official who has the ability to take corrective measures on the district’s behalf of the misconduct and the school district is “deliberately indifferent” to the notice.

Out of that case came the very simple concept of preparing a letter – a so-called Gebser Letter – to provide the proper notice to the school.  The only question was whether the school then acts with deliberate indifference to the conduct.

This case emphasizes our constant mantra in special education law – If it ain’t in writing, it never happened. Document everything!

We strongly urge you to consult with a lawyer on the proper format and language of a Gebser Letter and/or if your child has a disability and is the victim of bullying.  We have provided a form Gebser Letter in our packet of special education legal forms, which are FREE to download, but remember that these forms do not constitute legal advice and are not a replacement for consultation with a lawyer in your state.  But the letter could get the ball rolling for your child and you.

Free Special Ed Legal Forms on SchoolKidsLawyer.com.

You can also have a 30 minute consultation with us for $100 to discuss your child’s case.


Public Schools Have Made Your Child the Enemy and You, the Taxpayer, Are Funding Their Battle

You pay federal taxes.  You have schools in your town.  Those schools have special education programs.  If you’re reading this blog, you’re probably a parent of a child with special needs.

Well, guess what?  If you have a dispute with your school about your child’s IEP or otherwise not meeting your child’s special education needs, YOU are paying for the school to fight against you and your child.

Guess what else? Even if you don’t have a child with special needs or don’t even have a child in the school district, YOU are still paying to have the school fight against the child with a disability and his/her family.

Yes, you heard that right.  YOU are paying to fight against children with disabilities in your community – maybe your own child.

Let me explain this in greater detail and why the system should change.

Federal Funding For Schools

The federal law known as the Individuals with Disabilities Education Act, 20 U.S.C. §§1400 et seq. or “IDEA” protects students with disabilities and guarantees they receive an appopriate education from their local schools.  This is accomplished and enforced through a federal funding mechanism within IDEA.  If a state receives federal funding for its schools, it must provide special education and related services to children with disabilities in its public schools.  20 U.S.C. § 1412.

In other words, some of the federal taxes you pay goes to fund special education and related services for students with disabilities.  You probably don’t object to ensuring a wheelchair-bound child can access the school via ramps or a child with diabetes having access to the school nurse to administer insulin shots.  You also likely don’t object to a chid with a learning disability receiving extra help in the classroom so they can achieve with their non-disabled peers.

YOU don’t object . . . but the schools are.

Where Does the Funding Go?

Those federal funds for special education – your tax dollars – are supposed to be used to assess if children have disabilities and evaluate their needs, prepare Individualized Education Programs or “IEPs” with special education adn related services to meet those needs, and decide the best location to provide those services for the child.  20 U.S.C. §1414.  Just as non-disabled children can get their education at their local public school for free, the goal of IDEA is to provide the same for children with disabilities, called a Free Appropriate Public Education or “FAPE”.  20 U.S.C. §1401(9).

Still sounds pretty reasonable, right?

How Does A School Make Sure It Provides a FAPE?

Schools are supposed to ensure a child with a disability provides a FAPE via two main mechanisms: (1) assembling an IEP team; and (2) ensuring that the rights of the child are protected and the parents are active participants in enforcement of those rights.  Tax dollars pay for schools to assemble an IEP team, which consists of the child’s parents (and the child if appropriate) and several key school personnel, to discuss how best to provide FAPE for the child with a disability.  20 U.S.C. §1414(d)(1).  States and schools must also put procedures in place to secure the legal rights of the child with a disability and his/her parents.  20 U.S.C. §1415.

This is where the system usually breaks down.  Because the parents and the school staff don’t alawys agree on how the IEP is developed or what services are provided to the child with a disability.  Thereby, a dispute arises.

How IDEA Addresses Special Education Disputes – The Problem

IDEA provides mechanisms to address these special education disputes between parents and schools.  If a school wants to do something with which the parents don’t agree or if the school doesn’t want to do something the parents have suggested, the school can issue a Prior Written Notice or “PWN”.  20 U.S.C. §1415(b)(3) and (c)(1).  Parents can review their child’s education records kept by the school as a check on whether the school is providing a FAPE.  20 U.S.C. §1415(b)(1).

There are other “Procedural Safeguards” in IDEA, but none that causes as many problem as a party’s right to file a complaint challenging the “identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child” a/k/a a “Due Process Complaint.”  20 U.S.C. §1415(b)(6) and (f).

Why is this a problem?  Well, anytime lawyers get involved, there’s a problem, right? [He says half-jokingly, half-seriously.]  Each party to a Due Process case has “the right to be accompanied and advised by counsel.”  20 U.S.C. §1415(h)(1).

Still not a bad thing until you realize who is paying the school district’s lawyer’s bill.  The answer is . . . you probably guessed it . . . YOU ARE!

Paying For The School District’s Lawyer

That’s correct.  Whether attorney’s fees are paid directly by the school district’s Board of Education or through insurance (which is purchased using school budget money), the source of the money paid to the lawyers fight against your child with a disability is tax dollars.  YOUR tax dollars.

Schools are misdirecting funds intended to provide education to children with disabilities by spending it on legal bills or insurance to fight special education cases.

So what does that mean?  It means YOU, the taxpayer, are paying for the attorney sitting across the table from you and representing the school district.  The harder the school district lawyer fights, the more YOU are paying him/her.  The school district never has the incentive to resolve the dispute because they’re not truly paying the bill.

Now, I don’t know if you have ever been in a lawsuit before, but if you have, you know what a financial burden it is to pay a lawyer.  You have the incentive to get it over as quickly as possible because, in all likelihood, you are not Bank of America (or Citibank or Goldman Sachs or some other big bank).  But if you didn’t have to pay for your lawyer, you’d fight to the ends of the Earth, right?  That’s how the school district views it.

Not What IDEA Was Designed To Do

IDEA was not set up to favor the school districts.  In fact, IDEA was designed by Congress to “level the playing field” so that parents had a stronger role in the education of their child with a disability.  Specifically, Congress stated: “The purposes of [IDEA] are to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; to ensure that the rights of children with disabilities and parents of such children are protected; and to assist States, localities, educational service agencies, and Federal agencies to provide for the education of all children with disabilities” among other goals.  20 U.S.C. §1400(d)(1).

IDEA was meant to improve collaboration and cooperation between schools and parents to help children with disabilities receive better education.  Certainly, Congress did not intend for states and schools to use federal funds to wage bitter lawsuit wars against parents and their children with disabilities.

But that is what it has become.  Ask any of my colleagues at COPAA.

So What Can You Do About It? – TAKE ACTION!

If you are like me and fed up with this system of injustice and abuse of taxpayer money, you can take action.  What school districts and their attorneys don’t want you to know is that because the source of funds paying the lawyer fees is public tax money, they MUST disclose such payments to the public who are paying those taxes.

In other words, if you live in a school district that is waging a special education war against a child with a disability, you have the RIGHT to know how much the school is paying its lawyers.

How do you find this out?  You make a Freedom of Information Act or “FOIA” request (or your state’s version of FOIA; for example, in New Jersey it is called the Open Public Records Act or OPRA).

Each state has a website for FOIA requests (I’ve listed a few below as examples) and usually a form to fill out.  On the form ask to see “All fees and costs paid to lawyers by XYZ Schooll District for special education disputes or legal disputes under IDEA for the last 5 years” or something similar.  Prepare for a fight, but you have the lawful right to that information as long as you live in XYZ School District.

New Jersey OPRA Records Request Website and Form

Florida Public Records Act Website and Forms

Texas Open Records Requests Website and Forms

Pennsylvania Open Records Request Website and Forms

For those not listed here, Google “[Your state] FOIA request” and look for an official state website URL.

Go get ’em!

What is a “reasonable accommodation”?

Recently I was asked to explain what a “reasonable accommodation” is.

The person put the question in some context:   Their child’s “special education school thinks a table in classroom with curtain is a reasonable accommodation for his bathroom needs. The class is coed teenagers with different cognitive and physical abilities.”

I doubt this is a “reasonable accommodation”, but let’s explore how we get there.

504 and ADA, not IDEA

First, “reasonable accommodation” is 504  and ADA language, not IDEA.  Under IDEA, a school must develop an IEP that meets all needs of a student with a disability.  This is not an ‘accommodation’; rather it is a legal requirement so that a child may receive a FAPE.

What does 504 require?

Section 504 of the Rehabilitation Act of 1973 (504 for short) is a federal law that prohibits a  facility that receives federal funds from discriminating against a person with a disability.  Under 504, a public school must ensure that a child with a disability has equal access to education and services.  To accomplish that, the school must provide modifications to education and services or a “reasonable accommodation” to such student so that he/she is not discriminated against because of his/her disability.

What does the ADA require?

The Americans with Disabilities Act (ADA) is very similar to 504 and applies to schools equally.  The purpose is to prevent and prohibit discrimination against students with disabilities, so it requires the same as 504.

How is “reasonable accommodation” defined?

Unfortunately, neither 504, ADA, nor their regulations define this specific term.  We know from caselaw that schools are required to make reasonable accommodations according to a person’s disability unless such changes would fundamentally alter the nature of the school’s purpose, i.e. providing educational services.

There are obvious accommodations like making sure there is wheelchair access to all parts of the school for a student confined to a wheelchair.  There are slightly less obvious accommodations like assigning a staff member or student to assure that child in a wheelchair can get out of the building in case of fire or a fire drill.   But this is still reasonable.

Types of “reasonable accommodations”

There are several types of accommodations already determined to be reasonable.  They fall under categories.

a. Accessibility: This includes the wheelchair example above and a special needs bus or transportation.

b. Service Animals: For children who need the assistance of a service animal, schools must allow access to accommodate that child’s needs.

c. Interpreters: Access to sign language interpreters or hearing aids for those who have hearing disabilities or access to other interpretors like Braile materials or interpreters when a child with a disability does not speak English.

d. Auxiliary Aids and Services: A school may need to provide a medical plan or extra access to a nurse for a child with diabetes, epilepsy, or other illness requiring medication and/or monitoring during the school day. Or perhaps a child’s disability requires a smaller classroom, less noise, less distraction, different lighting, etc.

e. Removal of Barriers: If doors or stairways or other typical structural aspects of the school are a barrier to a child with a disability, the school must find alternate ways to accommodate that student.

There are several others, but these are the major categories in which schools must provide accommodations.

Is the accommodation reasonable?

Reasonableness is going to be determined by what the disability is and how it interferes with the child’s access to educational services.  So, accommodation may be decided on a  case-by-case basis, but, again, can’t change the fundamental purpose of the school.

Some guidelines (not legal advice):

– Identify your child’s specific needs

– Suggest an accommodation (don’t necessarily rely on the school to design one themselves, as it may not be appropriate)

– If the school finds your suggestion unreasonable, ask them to state why

– Ask the school to suggest an accommodation

– Provide medical documentation if appropriate

– Ask the school to respond to request in a reasonable time

Is the bathroom example in the question reasonable?

Although the person did not reveal what the disability of the child is, a desk in a room with other children with a curtain does not seem reasonable for numerous reasons: anxiety of the child because of the location; potential health risks because of unsanitary conditions; and may not appropriately address the need of the child.

Final word

Follow the guidelines above (and think of more yourself) to determine a reasonable accommodation that the school should make in order for your child with a disability to access the educational services.  If the accommodation that the school provides seems shocking or inappropriate, it is not likely reasonable.


Websites for Parents of Twice Exceptional (2e) Kids








Audio Recording IEP Meetings – Is It Allowed?

Having an audio recording of what happens in an IEP meeting is powerful evidence, especially when school districts deny what was said or fail to put a service in writing into the IEP.   For example, an audio recording can prove or disprove what was actually discussed during the meeting, whether the parents were given proper opportunity to participate, and what decisions or objections were made.   For those reasons, parents often wonder if they are permitted to record an IEP meeting.

So, can you do it?

Federal Law

There is no federal law prohibiting a parent or school official from recording IEP meetings.  IDEA and the other special education laws are silent on that specific issue.

However, IDEA does say a few things that are relevant to the discussion:

  • Parents are critical members of the IEP team
  • Parental participation in IEP meetings is vital and if a school blocks such participation, it is a denial of FAPE
  • Parents have the legal right to understand the IEP and, if necessary, have it explained to them

Audio recording an IEP Meeting, when the IEP Team is aware and consents to it, is not a violation of federal privacy law.

So that means you can do it, right? Not so fast.

The U.S. Department of Education (USDOE) Office of Special Education Programs (OSEP) has issued a letter opinion and Policy Memorandum on this subject in June 4, 2003 (PDF file).  The bottom line of the analysis is that it is a local policy issue and depends on several factors.

When a federal law is silent on an issue, the individual states can decide or legislate on the issue.

State Privacy Laws

The next hurdle to overcome is what state law says on privacy and audio recordings.  Each state has its own laws regarding the consent required to audio record events, even if they are ‘public’ events.

Some states are known as ‘dual consent’, which means both parties must know about and agree to the recording.  Some states are ‘single consent’ which means that only one of the interested parties (usually the parent who wishes to record the IEP meeting) has to agree to it.

While not exhaustive of every state’s law, the Digital Media Law Project collected links to some state’s laws on this issue.  This site is not being kept up to date, so make sure you check your own state’s law on recording or consult with a local attorney.

School District Policies

It is therefore left to the State Educational Agency (SEA) or Local Educational Agency (LEA) to determine the policy on audio recording these sessions.

The SEA or LEA (local school district) may issue a policy requiring, prohibiting, limiting or in any other way regulating audio recording of IEP Meetings.  If the public agency has a policy that prohibits or limits the use of recording devices at IEP meetings, the policy must have exceptions necessary to protect parental rights, such as the ability to understand the IEP or the IEP process. Any such policy on tape recording IEP meetings must be uniformly applied.

Protecting Access to Recordings

Any recording of an IEP meeting maintained by a public agency is an “education record,” within the meaning of the Family Educational Rights and Privacy Act (FERPA)[1] and would be obtainable by the parents through a written request.  It would also be subject to the protections of FERPA prohibiting its release to anyone not authorized under that law.

So what do you do?

Parents wishing to use audio or video recording devices at IEP meetings should consult state laws or local school policies for further guidance or consult with a local education attorney.


[1] 20 USC §§1232g and 1232h; Regulations 34 CFR §99.1 et seq.

Transportation is a Mandatory “Related Service” for Special Ed Kids That Need It

Under IDEA, transportation is a “related service” that must be provided to kids with an IEP.1  Transportation must also be provided to infants and toddlers as part of Early Intervention Services.2

Transportation includes travel between home and school; between schools (if the child attends more than one campus); travel within and around school buildings (if that is a challenge); and specialized equipment like ramps, lifts, or adapted buses if required to transport the child with a disability.3

What kind of transportation will be provided to my child? This depends entirely on what your child’s needs are. If your child has Sensory Processing Disorder, he/she may not be able to ride the regular large bus to school. If your child is in a wheelchair or has other physical impairments, he/she might require a specially-adapted vehicle. Alternatively, you as the parent may be reimbursed by the district if you provide the transportation agreed to by the IEP team.

Transportation needs should be discussed during an IEP meeting or 504 planning meeting. If the school district needs to send the child with a disability outside the school for services or places the child in an ‘out of district’ program or private school, the school district must also provide transportation to those services or program.

Learn more about how school buses and transportation for your child with a disability fits into planning for your child’s education and IEP in our book SchoolKidsLawyer’s Step-By-Step Guide to Special Education Law.

1. 20 U.S.C. §1401(26)(A); 34 C.F.R. §300.34(a).
2. 20 U.S.C. §1432(4)(E)(xiv); 34 C.F.R. §300.34(a).
3. 34 C.F.R. §300.34(c)(16).



New special ed case involving charter schools and attorney’s fees

The U.S. Court of Appeals for the Third Circuit handed down an excellent decision on October 11, 2017 for parents of children with disabilities.  In the case of H.E., et al.  v. Walter D Palmer Leadership Learning Partners Charter School, et al., the Court held and reaffirmed its prior ruling that “success on a claim for procedural relief can constitute a victory ‘on the merits’ that confers ‘prevailing party’ status” allowing the parents an award of attorney’s fees.

Parents had children with disabilities enrolled at Walter D Palmer Leadership Learning Partners Charter School.  The parents had alleged that the charter school was not providing a Free Appropriate Public Education (FAPE) to their children.  The parents entered into a settlement agreement with the charter school whereby the school was to provide the children with compensatory education and contribute towards the parents’ attorney’s fees, but before the school could deliver on the agreement, it closed in 2014.

The parents filed a Due Process complaint against both the charter school and the Pennsylvania Department of Education (PADOE), alleging that PADOE as the state agency was responsible to make good on the charter school’s agreement.  However, the administrative hearing officer dismissed the parents’ case and held that the parents could not go after PADOE and had to get their relief through the charter school’s settlement claims process.

Parents filed an appeal in the federal district court seeking reversal of the administrative hearing officer’s decision plus attorney’s fees and costs for having the fight the battle.  The federal court vacated the hearing officer’s decision and sent the case back to the hearing officer on the issue of compensatory education, but denied the parents’ claim for attorney’s fees because it was a victory on purely procedural matters, not a substantive claim, and therefor they were not “prevailing parties”.

The federal appeals court reversed the federal district court on that basis and said that parents were indeed prevailing parties and entitled to reimbursement of their attorney’s fees and costs.

Thankfully courts are beginning to recognize that these battles are difficult and expensive for parents to bear and their statutory right to be reimbursed for the costs and fees paid to fight these cases when they win should be honored.  It is a re-balancing of the playing field.

The full decision can be downloaded from the Third Circuit Court of Appeal’s website here.  (It is a PDF file)

Special Education Law and Child Custody

According to the American Psychological Association, 40-50% of marriages in the United States end in divorce.  Of all children born to married parents this year, 50% will experience the divorce of their parents before they reach their 18th birthday. (Patrick F. Fagan and Robert Rector, “The Effects of Divorce on America,” Heritage Foundation Backgrounder, May 2000.)

So, the question arises: What happens to kids with special education needs who come from broken homes?

It is important to recognize that special education law is, for the most part, federal law and the same in all 50 states, but family law is state law and may differ from state to state.  Thus, the following are just a few issues facing divorced parents and the education of their children with disabilities.  You should check with your own state’s family law or hire a local attorney to get answers to your specific situation.

Which parent makes the special education decisions?

Education decisions fall under the category of “Legal Custody” of the children.  This is different from “Physical Custody and Visitation”.  Usually both divorced parents share legal custody of the children born during the marriage.  This means that unless a court Order or divorce agreement says otherwise, both parents of a child with a disability share the education decision-making ability and rights.

However, the divorced parents might not always agree on the education choices for the child.  For example, one parent might not feel the child has a disability or is eligible for special education; or one parent might not agree with the other parent on what the school is offering for services.  There are a number of provisions in the special education law which require parental consent.  Who has the ability or right to give such consent?

If there is (or might be) a dispute between the divorced parents, the parties should work out an agreement or have the Court decide to alter the general rule.

What happens when there is an agreement or Court Order?

A divorce agreement (sometimes called a Joint Parenting Agreement) or Court Order controls how education decisions are made for a child.  Again, if the agreement or Order simply says “joint legal custody” (which is typical) or is otherwise silent, both parents have equal rights to making education decisions and should cooperate for the best interests of the child.

As stated above, sometimes one divorced parent allows his/her emotions towards the other ex-spouse interfere with the decisions for the child.  In these situations, the agreement or Order should be very specific about who makes the special education decisions for the child or how a dispute can be resolved.  Even if there is “joint legal custody” on other issues (religion, morals, etc.), education decisions may be separated out and either one parent has the exclusive right to make these decisions or the power to override the other parent.

The Court always has the power to enforce such agreement or Order or to modify it so as to protect the child.

How does physical custody or visitation impact this situation?

Although “joint physical custody” is a possibility (usually meaning the child spends equal amounts of time in each divorced parent’s home), it is not as common as granting one parent physical custody and the other parent visitation rights.  This means one of the parents’ homes will be the ‘primary residence’ of the child and the other parent gets to see the child on a regular schedule.

This has a number of effects on the education of a child, particularly one with special needs.  First, ‘primary residence’ of the child will determine the public school responsible for the child’s special education (who manages the IEP or 504 plan).  If that school district is not particularly helpful to children with disabilities or has a track record of violating special education laws, it will impact both the Court’s and the parents’ positions on physical custody.  Careful thought should be given to where the parent having physical custody resides and the ‘home school district’ (not to be confused with homeschooling).  This is also a challenge if there is joint physical custody and the divorced parents live in two different school districts; it may be unclear to which school district the child is assigned.

Another issue that can arise is which parent has the right to attend IEP meetings.  IDEA says that parental participation is critical, but the law does not say if that means one or both parents.  What if the parent who doesn’t have legal custody wants to attend an IEP meeting just to make sure that everything is being done right for his/her child?  Can the school bar him/her from the meeting?  Also, is the non-custodial parent allowed to pick the child up from school?  What if one of the parents has a restraining order against the other parent, but the order doesn’t discuss whether the restrained parent can visit with the child?  Or attend school events?

The school may be caught in the middle.

If the joint parenting agreement or court Order spells out these issues, then the school should be provided with a copy of that document so there is no question.  However, if the document doesn’t explicitly say what happens in these situations, the school might demand that the parents sign a document that clarifies the issues.

What if the child is not doing his/her homework?

Suppose either the custodial parent is not making the child complete homework assignments or it is the parent who has overnight visitation not enforcing homework because such parent doesn’t want to reduce their limited time with the child.  What happens when the other parent learns that the child’s performance in school is deteriorating because of the homework issue?  What can that parent do?

Again, the school’s special education services will likely be blamed when it may not be its fault at all.  The school should not be caught in the middle on this issue either, but also the school should not be allowed to rely on this as an excuse for inadequate services.  In this situation, it may be necessary to bring in a family law mediator or the judge to figure out a solution to this problem.

Who has the right to file a dispute with the school district?

It is not clear that even if one parent has sole legal custody on education decisions that such parent is the only one who can file a dispute against the school district.  For example, if the custodial parent is not enforcing the special education rights of the child against the school, can the non-custodial parent file the lawsuit against the school?

In most states, non-custodial parents do not relinquish all of their legal rights over the child.  For example, a custodial parent usually cannot leave the state without notifying the other parent and obtaining court approval to do so.

Thus, the non-custodial parent may retain the right to file a lawsuit on behalf of the child for violation of the special education laws by the school district.  What is not clear is the role of the custodial parent in this situation.

These are unresolved issues at this point and I won’t propose to resolve them here.  The purpose of this is to give you some food for thought on concerns you might face when parents of a child with a disability divorce.

As always, for specific legal advice consult with a lawyer in your locality.  You may wish to consult with both a family law lawyer and a special education lawyer if one lawyer does not handle both areas.



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: