Legal Briefs from Matt Cohen
Each month, special education lawyer Matt Cohen answers selected questions from the LD OnLine community regarding legal issues for people with learning disabilities.
Below are the newest questions answered by Matt Cohen. To view all questions, organized by topic, visit the All Questions section.
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Must the school district provide an alternative home teacher if we fire one we think is incompetent?
If a school district has failed to supply home services as indicated on an IEP, what recourse do the parents have. Our child's home teacher was fired by the district as they say was for "personal reasons." This was extraordinary and our child made significant progress. The second teacher that came was incompetent and we fired her. Since then, six months later, no teacher has been sent and our child has suffered significantly. We have paid out of pocket for services the school was supposed to provide. Please help!
If your child has an IEP calling for home services, or any other specific educational or related service, which the school fails to provide for a significant period of time, sufficient to cause a disruption or meaningful interruption in the child's ability to make progress in their education, the school system may be responsible for what are called "compensatory educational services." Typically, the school will not volunteer to provide such compensatory services, but will only do so if the parent initiates mediation, a due process hearing, or an administrative complaint with the state department of education.
However, brief interruptions of service akin to those that would occur for a child in regular education if the teacher were temporarily ill are typically not a sufficient basis for compensatory education. Notably, however, the school district offered you an alternative provider after the initial provider was terminated by the school district. You made the choice to refuse the services of this second provider. As such, the school may argue that it was your decision to discontinue services, rather than theirs, which would provide them a basis for avoiding responsibility for compensatory services.
Is the school mandated send progress updates to parents and if so, what is required?
We live in the Chicago area. My son is in third grade. He has had an IEP at his current school for four years. The IEP form that our school uses includes a section for quarterly progress updates for his various educational goals. Is the school required by law to send us progress updates on a quarterly basis for all of his IEP goals, and if so when are they required to do so? We currently receive updates on some goals (not all) but these updates are not consistent across all the different goals that are listed on his IEP.
If they are not required to send us regular updates, can we request formal updates on his progress as part of the IEP? Also, is the school required to have all educational goals prepared and sent to parents within in a certain period of time prior to an IEP meeting. We often receive final IEP papers only one or two days prior to the actual meeting which makes it challenging to prepare and review the documentation adequately prior to the IEP meeting.
Thank you,
Colin
Dear Colin,
Your question addresses whether you should be receiving quarterly progress updates with respect to your child’s progress in relation to his annual goals. The IDEA requires that the school district provide the parents with regular updates on the child’s progress in a manner and form consistent with that of regular education, such as on a quarterly basis similar to the quarterly report cards that the school would provide in regular education. In addition, if the parents and school agree to include in the IEP additional forms of information sharing or reporting, the school must then carry out those additional requirements as well.
It is not unusual for an IEP to provide for a weekly email to a parent, a notebook to be sent back and forth between the parents and the school on a daily basis with information from teachers and parents provided as needed, provision of periodic progress reports of greater frequency than those provided for other students if there are particular reasons that the child’s progress needs to be monitored on a more regular basis, or even a provision for periodic meetings during the course of the school year in order to actually discuss how the child is doing.
On the other hand, you also question the school districts provision of IEP papers one or two days prior to the IEP meeting. In fact, the school is not required to provide any documentation in relation to the IEP prior to the meeting, unless you submit a formal request for records prior to the meeting and the paperwork already exists.
It would appear that the school is providing you with a draft IEP. Importantly, the information they are sharing with you ahead of time must be in a draft and subject to modification at the IEP meeting. If they are presenting you with a “final” IEP paper and is not subject to modification at the meeting, they would be potentially guilty of conducting an IEP meeting in which the IEP was predetermined without parental input. Advanced notice, including receipt of the draft set of goals, objectives or services, is desirable even if it is only occurring several days before the meeting.
Can a school cancel an IEP program due to budget cuts?
Can A school district decide to cancel a IEP Program due to budget cuts? Can the just cancel a program because there is not enough money for the program? Are there any laws that can prevent this from happening?
Dear Jair,
Your question asked whether a school can decide to cancel an IEP program due to budget cuts. Schools are obligated to provide students with free appropriate public education. They can not simply terminate a program because they do not have enough money. Further, if the school as a whole is experiencing budget cuts, it must assure that the efforts to achieve a balanced budget are distributed fairly among all students, rather than by simply cutting special education programs or the program for a particular student.
Does the school have the right to contact my child's doctor?
My child has LD and the school wants us to sign a form stating that they have a right to contact her doctor to moderate her medication. I refuse to sign it. I don't think the school has that right. Will they be able to do anything?
Paula
Dear Paula,
Your question relates to whether the school district may have you sign a form allowing them to contact your doctor in order to secure a change in your student's medication. School districts may be legitimately interested in a child's medical history and/or medication. However, you are not legally obligated to sign a consent to allow the school to access medical information, nor is the school allowed to condition participation in school or receipt of special education on your willingness to have your child receive medication or to receive a particular medication recommended by the school system.
