Legal Briefs from Matt Cohen
The following are past questions and answers from Matt Cohen on this topic.
Can a paraprofessional service IEP minutes?
Who can provide IEP minutes besides the special education teacher in a resource program? Can a teacher's assistant service IEP minutes with direction from the special ed teacher? What is the difference between direct minutes and supplementary minutes?
Thank you!
Dear Lavonne:
As a general matter, the duties of teachers versus paraprofessionals are spelled out in state law. However, under both NCLB and IDEA, instruction must be provided by highly qualified teachers that meet state standards for teachers. Paraprofessionals may assist the teacher and student under the supervision of the teacher, but should not provide ongoing direct instruction themselves, particularly without direct ongoing involvement by the teacher.
If the IEP specifies a certain number of instructional minutes by a teacher, those minutes should be provided by the teacher.
(November 2009)
If my son's school did not make adequate yearly progress, do I have a right to send him out of district to a school that will better meet his needs?
Dear Mr. Cohen,
My son's middle school failed adequate yearly progress three years straight. He has an IEP, and a diagnosis of Asperger's.
I have identified a school in a nearby town that specializes in educating children like my son. I have requested placement on the grounds that the school did not meet the NCLB criteria, and that he has not shown progress as he should. However, the school is denying me the ability to send my child out of district, stating NCLB does not apply to IEP/special education, and that I can only send my son to "another school" if and only if there exists another school within our district.
My question: How does NCLB apply to IEP/IDEA and FAPE? If my school did not meet NCLB, do I have a right to send my child out of district to another school that performs better, especially one that specializes in educating children with Asperger's?
Dear Dawn:
Under NCLB, there are circumstances where students at a school that is consistently failing to make adequate yearly progress can request transfer to a school that is meeting state guidelines. However, the transfer to an adequately performing school would be based on the overall school failure and would allow transfer to an adequately performing school. It would not trigger an automatic right to transfer to the school with the program for children with Asperger's.
On the other hand, if your child is not making adequate progress on his IEP on a consistent basis, the school is obligated to provide your child with an appropriate education. If that can't be accomplished at the current school, they are obligated to provide a program that does, whether within the district, or, if not available in the district, potentially in another public or private school outside the district.
The right to placement in a special program under IDEA due to the child's inability to receive an appropriate education is not limited or governed by the transfer provisions of NCLB.
(November 2009)
What kind of "safety net" do parents have after their child has been terminated from special education?
I work with kids with special needs in grades K-8. When a child is exited from an IEP, parents often see this as a good thing intellectually, but emotionally they feel frightened.
"Where is my support system going?" they wonder, and, "What will I do now that I have no legal recourse?"
Do you have resources or suggestions for helping the parents transition?
Your question addresses parental concerns about the absence of a safety net when their child's special education eligibility is being terminated because the child has made adequate progress.
First, it is possible for a student that is making good progress and functioning at a level suggesting special education may no longer be needed to have an IEP that gradually reduces the level of service prior to formal termination. This can reduce the risk that the student goes from a needed level of support to no support and suffers regression or other problems as a result.
Another option for students in these situations is for the student to shift from an IEP to a 504 plan as an interim measure. This also allows for some greater degree of protection and/or attention as the student shifts from a higher level of special education service to regular services.
Finally, in many schools, a student should be able to receive a variety of study supports and other accommodations available to regular education students, even in the absence of formal special education eligibility or 504 status. In addition, if the student begins to experience serious problems after eligibility is terminated, the parents can request that the child be reevaluated for renewed special education or Section 504 eligibility.
(November 2009)
How can an adult with LD get accommodations on the ACT?
I have a daughter with LD. She is 31 years old and is trying to get an associates degree. What is keeping her back from continuing her education is not being able to pass the ACT reading and writing tests. The tests are given online and do not allow you to go back to correct or complete a page.
Is there a way that she can get the paper form of the test? Or is there a different kind of grading for adults with LD? She has 40 credits, so she is able to pass some of the courses but she is at a standstill now because of this test.
I have tried to get in touch with the National Center for Learning Disabilities here in New York to no avail. I would appreciate any help that you can give me concerning this matter.
Thanking you in advance,
Jennifer
Dear Jennifer:
If a person has a documented disability that requires accommodation in how testing is administered, he/she should request accommodation to the test agency. The individual will be expected to provide clinical documentation of the existence of the disability, the impact of the disability, the need for the accommodation, and the relationship of the disability to the requested accommodation.
Alternative test formats are often used to accommodate people with various types of disabilities. However, the request for accommodation must be reasonable. If the testing is all done online, some investigation would be needed as to how alternative testing could be done under appropriate, controlled conditions that would still accommodate her needs.
Further, there would need to be clinical documentation of why the particular accommodation in relation to the test format was necessary as a result of her disability.
(November 2009)
Are summer school teachers required to follow a student's IEP?
My daughter has a learning disability in math. She has an IEP that addresses this. She failed math this last school year so she went to summer school and I was told she was failing math there. I mentioned to the teacher that she has an IEP and was told that they did not have to address the IEP during the summer because they have a skeleton crew and don't have adequate staff. Can you please let me know if this is legal? They have failed her in school because they would not provide her help.
Dear Stephanie:
First, if a child is not making adequate progress and loses progress during breaks, he/she is entitled to receive extended school year services over the summer to address the disability. These services should be spelled out in the IEP and should be sufficient to allow the child to make progress.
Even if your daughter was in regular math class, if she has an IEP due to her math disability, it would be likely that she would be entitled to accommodations and other assistance to help her with the math in the regular summer school program.
Further, given that she has an IEP, you should question the adequacy of her math instruction during the regular school year, as the IEP should be designed so that she will make progress. If she is failing, that is an IEP issue, and the IEP team should determine why she is failing and what is needed in order to allow her to make adequate progress.
(November 2009)
The school district wants me to use a curriculum that has not been effective for my students with special needs. What can I do?
I have been teaching for 39 years. I am currently teaching special education in South Carolina (it's my third year in the district).
For the past two years I have been teaching in a self-contained cross-categorical classroom (Tier III). I have used my background experience, knowledge, and personal funding to implement programming that has had very compelling test results.
I have not been using the programs required by the district that have already failed the students. This has resulted in a power struggle with district office and this school year I will be required to teach the district required programs. I have made every effort to work with district office and building administration to prevent certain failure for my students. As the district can require me to teach what they may, I want to know what data or avenue would best support myself and parents to provide the programming that will best meet the needs of the students.
How should this best be addressed with the least impact on the students? Would you please be specific to NCLB and IDEA? Thank you.
Richard
Dear Richard:
Your question addresses how to address the school administration's requirement that you teach students with disabilities using a curriculum or methodologies that have not been effective for them.
Under both No Child Left Behind, which applies to all students, and the IDEA, which applies specifically to students in special education, the schools are required to provide peer-reviewed, scientifically-validated instructional programs to the extent practicable. Equally important, under the IDEA, schools are required to provide specialized instruction, including adapting as necessary, the method, content, and mode of delivery of instruction to assure that the student's program is reasonably calculated to provide the student with a free appropriate education.
Assuming you have data on the ineffectiveness of the school's program (and the effectiveness of your methods), you could potentially file a complaint with the Office for Civil Rights for a violation of Section 504 (which also requires the provision of FAPE), you could file a complaint with the state education agency, or you could share information with the parents of your students to inform them about this information and their right to request a special education due process hearing.
You may also conceivably have a right to a grievance through your collective bargaining agreement, but that would depend on the language of the agreement. However, you may wish to get legal counsel before taking any steps that would lead to a dispute with the school administration.
(November 2009)
Should accommodations and modifications that affect grading be documented on report cards?
How should a school be documenting accommodations or modifications that affect a student's grades? Should they be noted on report cards/permanent records?
Dear Debbie:
When a school is providing accommodations or modifications that affect a student's grades, these accommodations should be noted in the student's IEP or Section 504 plan. As a general matter, however, school are not supposed to share information on a transcript or a diploma that has the effect of disclosing that the student has a disability or flagging him/her as a special education student, unless the educational program has been modified to such an extent that the student is not receiving a regular diploma.
(October 2009)
What rights does a teacher with a disability have?
I am a teacher with ADHD. What, if any, rights do I have? Where should I look for information on handling this successfully in the workplace? There are modifications for students but as far as I know nothing for teachers.
Dear Clara:
You are seeking information on your right to accommodations as a teacher with ADHD. Assuming you work for a public school, your rights are determined by the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, state disability laws, and your union contract.
As a general matter, people with ADHD that are otherwise qualified for their job are entitled to receive reasonable accommodations in employment when needed to address the impact of their ADHD on their ability to successfully perform their work. The Equal Employment Opportunity Commission has regulations and explanatory material on the rights of people with disabilities in relation to employment.
(October 2009)
What can we put in the 504 Plan to make sure that my son is not punished for symptoms of his ADHD?
I am hoping that other parents also have this question. I am a Reading Specialist and I thought that I covered the bases with my son's 504 Plan, but I was wrong. He was forced to write his name repetitively on several occasions for forgetting to put his name his paper — that was until the teacher realized it wasn't working. Then she just made him miss part of his recess.
It was the end of the year and my hands were tied because it wasn't in his 504 that he couldn't be punished for this. I do not want him punished for anything relating to symptoms of his ADHD. How can I word this in his 504 to prevent this in the coming years?
I never thought a teacher would punish any child this way. I taught for 14 years and never felt it was appropriate for any child just by the very nature of punishment and reward. I can't help other children, but I can certainly make sure this doesn't happen to mine again.
—Andrea
Dear Andrea:
As a general matter, students should not be punished for academic problems due to their disability. However, your son’s Section 504 Plan, or those of other students, need to be specific and detailed in describing the student’s disability and the ways the disability impacts their academic and non-academic performance.
This sort of repetitive writing task is a throwback to educational practice decades ago, regardless of disability law. However, if the student is forgetting to do something necessary to complete an assignment, that should be identified as a problem area and should be addressed in the 504 Plan.
Under the IDEA, and implicitly under Section 504, schools should address both academic non-compliance and behavioral non-compliance through the use of positive behavioral interventions and supports as much as possible. For example, your son may need instruction on how to develop a routine for checking to make sure the assignment is complete, including having his name. An incentive structure might be helpful to motivate him to pay attention to this task.
It may also be appropriate for the plan to include that the teacher will monitor the assignments to verify that they are complete, rather than punishing the student. If there are actions being taken by the school that the parent disagrees with, these should be raised with the school. While the school may not agree, it is often helpful to include in the 504 plan both what the school will do proactively and those actions or interventions that the school should not do, such as excluding the child from recess.
Notably, the IDEA and Section 504 both provide protection not only in relation to academic activities, but non-academic and extracurricular activities as well. There may be an argument that the failure to appropriately accommodate the possible problem with work completion was also resulting in unfair exclusion from recess or other non-academic activities.
(September 2009)
Is a student at a private, religious university protected against discrimination under the Americans With Disabilities Act?
An issue recently came up with a patient of mine whom I have been treating for ADHD since he was 9 years old. He is now 21 and transferred last year from a local community college where he was a straight-A student and had an accommodation plan to a private, Lutheran university. The patient is in a church music director program.
One faculty person at this private university started raising concerns midway through this past year about my patient's behavior during unstructured class time. The faculty member spoke with a counselor at the university to discuss this patient's goofy behavior.
Subsequent to this program, my patient went on a school-related trip with the teacher and she documented my patient's behavior every step of the trip so she could bring her complaints to the administration upon their return. All of the behaviors revolved around silly, "immature" behavior and never involved anything that was dangerous or illegal.
I have talked to my patient about his longstanding pharmacotherapy but he doesn't like how he feels on the medication when he's not tasked with studying. He also has a seizure disorder, so medicating him is tricky. The teacher has taken her concerns to the department and has suggested that my patient isn't fit for the director of church music program.
I know that this situation is likely different than it would be in a public university because of the separation of church and state. Does my patient have any legal recourse?
Dear Dr.:
As a rule, religiously controlled organizations are not subject to the protections of the Americans with Disabilities Act. If the school receives grants or direct financial support from the federal government, it may be covered under the non-discrimination provisions of Section 504 of the Rehabilitation Act of 1973.
Complaints against colleges and universities for disability discrimination can be made to the U.S. Department of Education, Office for Civil Rights, which investigates claims of disability discrimination and could determine if the school is covered by Section 504. If not, there may not be a clear basis in federal law to take action.
However, some state, regional, or local human rights laws or regulations cover religiously controlled institutions even if they are not governed by federal disability laws. The student may want to seek legal consultation from a knowledgeable disability law attorney in your area.
(September 2009)
How can I get the school district to put my son in a more appropriate out-of-district placement?
My 9-year-old son has autism and is in an out-of-district placement. We live in a bad district for students with autism, so I fight to keep him out-of-district.
He's now the highest-functioning student in his class. My district keeps ignoring my request to have his paperwork sent to a school that is teaching more appropriate reading and math.
There was very little improvement from when he was reevaluated last October — almost no gain. How can I make them send his paperwork to other schools that may be willing to accept him? I don't want to wait until next October for reevaluation, but want him possibly setup for a new school if they have availability in September.
—Audra
Dear Audra:
The primary legal issue in any dispute over the adequacy of a special education placement, whether in the school district, in an adjacent public school district, or in a public school funded placement in a private special education school, is whether the placement is providing the student with a free appropriate public education (FAPE).
You have raised a variety of concerns indicating that your child is not receiving an appropriate education and that there is an appropriate education available in other schools. The school district is obligated to show that the program offered provides FAPE, including that the program is based on scientific peer-reviewed research to the extent practicable.
Unfortunately, because the legal standard for FAPE requires that the program be reasonably calculated to allow the student to make meaningful progress, but not the most progress, schools can often argue that they are providing FAPE, even if the program is much less effective than other options.
At the outset, you may want to ask the school for information that supports that the program they are providing is a research-based program. Beyond that, you may need to gather information that documents that your child is making little or no progress, particularly in comparison to what he may be able to accomplish, taking into account his disability.
It may also be helpful to obtain outside clinical evaluations of your student, particularly psycho-educational evaluations, to determine if your child is making appropriate progress and to evaluate whether the school's program is adequate to address your child’s needs.
As part of this evaluation, it would be important for the clinician to review school testing, IEPs, and progress reports and, if possible, to actually observe the student in the class.
(September 2009)
My son's IEP states he will not take math, science, or social studies. Is this permissible by law?
My son is 9 years old and is in special education. His IEP states that he will not take math, science, or social studies. I would like to know if this is the process for all children who have difficulty learning to read.
The special ed teacher told me that her students never learn to read over a fourth grade level. I asked if he was mentally retarded and if that is why he won't have a successful school education. They told me it is possible. But at home we find that he has the ability to learn and remember things as long as we explain it to him.
His problem is reading and most of the schoolwork requires that he read but he cannot retain what he reads. If he doesn't have MR then why would they keep him from "fun" subjects like science and math? Those are things he likes. In the regular classroom they say he requires too much teacher time because they have to explain things and read him directions.
I am so confused and even if he is never a good reader there are many other ways to teach.
—Lorraine
Dear Lorraine:
First, if you have questions or disagreements with the school about your child's disability label, level of functioning, or capability of learning, or the reasons that he may not be making appropriate progress, you may want to consider either requesting a reevaluation from the school district or seeking a private psycho-educational evaluation.
I am also concerned about any statement by a teacher that his/her students "never learn to read over a fourth grade level." Even children with severe disabilities are sometimes capable of learning beyond expectations.
If a student is not severely cognitively impaired, such statements or limitations are especially inappropriate and often establish self-fulfilling prophecies. Each student's educational program should be individualized based on his/her needs and capabilities. A one-size-fits-all rule is not consistent with the requirements of IDEA or Section 504.
In addition, students should not be excluded from academic subjects by rule or practice. This also must be individualized. In fact, students should be mainstreamed to the maximum extent appropriate, including the provision of supplemental aides and supports to the extent necessary to allow the child to be successful.
Unfortunately, in this difficult economic period, budget concerns are becoming a bigger factor in many schools' decisions about placement and services. Despite this, the IDEA still requires individualized programming in the least restrictive environment appropriate to the student, including use of supplementary help to facilitate participation in regular education.
(August 2009)
Is a parent entitled to a written transcript of an IEP meeting that was recorded?
Are there any court decisions out there on the issue of whether a parent has the right to a "written transcript" of a recorded IEP meeting? Or is it left up to each party to transcribe a recording? How can a parent get a transcript instead of just an audio copy?
Dear Julia:
As a general matter, you have a right to a copy of whatever means of record keeping was used at the IEP meeting. Your right to the tape is because it is a part of your child's school record, not because there is a special rule entitling you to a written transcript of the recording of the meeting.
However, you should consult your state's special education and privacy/taping laws and regulations to see if there are any state-specific rules in this regard.
(August 2009)
Can a school deny a student assistive technology because he/she is not failing?
My 11-year-old son is diagnosed with ADHD and anxiety disorder. I am finally getting the opportunity for a Section 504 plan so that he can have some accommodations for completing tests, assignments, and homework.
My son's particular problem is in reading. It normally takes him one hour to read 10 pages of a fifth grade level book. His performance on the Maryland State Assessment (MSA) lead to him getting a 504. His teacher observed how slow he was reading and he did not finish the test.
I have downloaded Kurzweil 3000 and scanned in his books. (In case you are unfamiliar with Kurzweil 3000 it is a scan and read program that tracks each sentence in a higlighted color and each word in another as it reads.) The students are required to read five grade level books per quarter and he has not been able to reach this goal. However, he was able to achieve this goal easily this quarter due to the Kurzweil 3000. He reads 20 pages in 15 minutes.
The school is saying that provision of that software is not needed unless you cannot read at all. My contention is that my son should be provided whatever it takes to allow him to perform the same work in the same amount of time that is expected of his peers.
I do not want him having less homework and extended assignment/test time. That sets up a bad precedent for my child, expecting less of himself and expecting more from the system. It would be best if he could work independently just like his peers.
What is your legal opinion on this?
Dear Pam:
Children are entitled to be evaluated for the use of assistive technology, such as the Kurzweil scan/read program, if it is suspected that they may benefit from the technology. If it is determined that the assistive technology is needed for them to benefit from their education, it should be provided as part of the IEP.
The need for assistive technology should be based on the needs of the individual student and certainly should not be based on a rule that the student must be failing. In fact, the 2006 IDEA regulations explicitly stated that the fact that the student is getting passing grades or progressing year to year does not, by itself, mean that the student is receiving a free appropriate education. In other words, total failure is not a permissible prerequisite for receiving particular special education or related services.
(August 2009)
My son has been struggling for three years and was held back but does not qualify for services. How can I fight this?
My son's school has seen him struggling all year long. He failed the Florida state standardized exam. As a result, he is now attending summer school. The school decided to evaluate him at the very end of the year, so there's nothing that can be done.
Further, I was advised by the school psychologist this week that although my son exhibits ADHD and a learning disability, he scored below average on some tests and a little above average on others, giving the sense that he's average. Therefore, no help will be provided by the school system next year.
Is there anything I can do to fight this? My son has struggled with school since kindergarten and is now in 3rd grade. He repeated first and may have to repeat third. Thank you.
Dear Maria:
Under the IDEA, school districts are responsible for "Child Find," which means that they must timely identify all children suspected of having disabilities that reside in their school district, determine if evaluation is needed, conduct needed evaluations with parental consent, and, if the child is determined eligible, assure that the child has an IEP within 30 days after the eligibility decision.
If your child was having problems for a prolonged period of time, it may be that the school violated the Child Find requirements by failing to evaluate your child in a timely way. In addition, it appears that the school may be using overly restrictive standards for assessing whether your child has a disability and/or whether the disability impacted his educational functioning (including non-academic performance).
The schools should not rely on any single test instrument in making its decision and must consider the child's functional performance, as well as the child's academic and test performance.
(August 2009)
Is a child due compensatory services if his general education teacher was given his 504 plan late in the school year?
A general educator was given a 504 plan for a student three days before the end of the school year, which stated that the student is allowed extra time on assignments. Are 504 plans retroactive? Does the teacher need to go back to give the student extra time on past assignments?
Dear Kathleen:
Neither Section 504 plans nor IEPs are automatically retroactive. The 504 or IEP team can build in procedures that allow for some degree of retroactive activity to address a child's needs. However, if the school should have identified the child as being eligible for an IEP or Section 504 plan earlier, and failed to do so to the detriment of the child's performance or progress, the parents may argue that the child is entitled to some form of compensatory services to make up for the lost time.
(August 2009)
How can I address systemic problems within a school's special education program?
Dear Matt,
My son started ninth grade this past year and had an IEP for his writing disability. Before school started, I introduced myself and my son to the teachers and explained his disability, IEP, and how to contact me. Within one week, he began to fall behind and his resource teacher emailed the teachers to be sure they knew he was twice exceptional.
By late November, after many e-mails and phone calls, he was making D's and F's and was very upset. We found that his IEP was not the one that we discussed in the spring of 8th grade, and they weren't giving him any accommodations from the incorrect IEP either.
I had him transferred to another school at which he has thrived and made B's. I have asked that they change his grades from the first semester to reflect only his tests since that shows his knowledge of the subjects without penalizing him since he had no accommodations. They are probably going to change the grades, but nothing has changed in the process and other kids are still going to be affected. How can I pursue this to push them to correct the system for these other kids? Should I file a lawsuit or write a "letter to the editor"?
Thanks,
Gina
Dear Gina:
Your question asks what can be done to address systematic problems within a school or school system, even if your own child's problems have been resolved.
First, if a child is denied a free appropriate public education in a way that significantly interfered with his ability to benefit from the education or make appropriate progress, the student may be entitled to receive compensatory educational services to make up for the services that were inadequate or not provided. However, compensatory services generally only can be obtained through mediation or through a due process hearing. Although this remedy is difficult to obtain, it may cause schools to review their procedures in order to avoid similar problems in the future.
Beyond this individual remedy, there are a number of other procedures available to address systemic problems. First, each state education agency must have a complaint procedure that parents may use to address procedural violations or systemic problems within a school or district. If parents file an administrative complaint using this procedure, the state is required to investigate and make a determination as to whether the school is complying with IDEA requirements.
A second option is to file a complaint for violations of Section 504 of the Rehabilitation Act of 1973. These complaints are filed with the US Department of Education's Office for Civil Rights. The complaint procedure can be found at the OCR website.
If there is a violation involving discrimination based on disability, complaints can also be brought to the U.S. Department of Justice, which is responsible for investigating and taking action in relation to violations of the Americans with Disabilities Act.
Additional options may be available if your state, county, or municipality has a human rights act or ordinance. You may also bring grievances to the local school board, either simply as a citizen or parent of a child in the district, or using the District's ADA, 504, or general complaint procedures.
At times, meaningful change may only occur if parents organize and use the political process to raise the community's awareness about the problems with special education within the system or by bringing pressure on the administration or school board.
(July 2009)
Can a school ask parents for a "co-pay" to help cover services listed on the IEP?
My wife and I have a son who is 6 years old and has autism. The IEP team met and decided he needed a one-to-one school aide for next school year and this has been placed in the accommodations/modifications section of his draft IEP. Subsequent to the IEP meeting, the school system has told us that the aide is for behavioral needs, which is covered under the Comprehensive Services Act, and therefore we must pay a "co-pay" for this aide's services.
We have refused to pay a co-pay for this aid saying that the aid is identified on the IEP and the local school system is responsible for providing our son with a free and appropriate public education. Does the local school system have any authority to require us to pay for an aid that is for use in the school only and identified in the IEP?
Thanks,
James
Dear James:
Your school district is apparently insisting that you utilize some form of public or private health benefits to subsidize the cost of a one-to-one aide, referenced in your son's IEP.
Schools may ask the parents if they are willing to utilize third party coverage to pay for covered therapies or other related services. However, under no circumstances can schools require parents to use third party coverage if there is any out-of-pocket expense to the family, including deductibles, co-pays, exhaustion of lifetime maximums, or triggering any exclusion or pre-existing condition problems.
Under the IDEA, the child is entitled to a free appropriate public education. This means that the education, including any services listed as needed in the IEP, must be provided at no cost to the family.
(July 2009)
Can a school have teachers complete ADHD screening forms without parental consent?
Can a school have teachers complete ADHD screening forms when a parent has not requested this? These forms were mailed to me by our area education agency and we had no prior notice that this would be happening.
I know that my daughter does not have ADHD. I do believe she has a learning disability and we are in the process of getting that diagnosed privately outside of the school. Can I have these removed from her file?
A school should not conduct an individualized evaluation of a child for purposes of diagnosing or identifying a disability without the written informed consent of the parent.
ADHD rating scales are assessment tools used for the purpose of determining whether a child has ADHD. As such, they suggest the school is conducting an evaluation of that student, which must be done with the consent of the parent. Schools are allowed to conduct school-wide evaluations of all students without consent, but are not supposed to conduct individual evaluations to assess disability without first informing the parents of the desire to evaluate, obtaining the parents' input about whether an evaluation should be done and the components of such an evaluation, and obtaining their written consent for the evaluation.
If an evaluation was done without consent, or if a student's file has any records that the parents object to, there are procedures under the federal Family Educational Rights and Privacy Act (FERPA) and most states' school records laws, for reviewing and objecting to specific records or information in the file. If the school does not agree to the parents' request, there is a procedure for requesting an administrative hearing to challenge the presence of the objectionable records.
(June 2009)
Can a school district forbid parents from meeting with teachers to discuss an upcoming IEP meeting?
What would be the best response to a school district saying that a parent should not be meeting with teachers to discuss (among other issues) accommodations for an upcoming IEP meeting? What should you do if the case manager has canceled your meetings with teachers before an IEP meeting? Is there a good way to change case managers in this instance?
Dear Jan:
There are no federal rules (and generally no state-specific rules) governing or limiting the circumstances under which parents and teachers can discuss issues concerning a student. As a general matter, parents and teachers are and should be free to talk about any issue at any time if they mutually wish to participate in the conversation.
If either party does not want to participate in the conversation, that is their option, unless the conversation is part of the standard procedure for teacher/parent communication. For example, a teacher must participate in conversations with parents at parent/teacher conferences, if the school uses this procedure for sharing information at specific times during the year. A teacher may also choose to call or receive calls from parents to discuss any issue on an ad hoc basis.
In addition, under some circumstances, the IEP or Section 504 plan may specify that the staff generally or a particular staff person will share information with the parents under specified circumstances, such as a weekly call about homework completion, a plan to call whenever there is a behavioral incident, a monthly team meeting, or the like.
However, schools may adopt policies which set forth how or under what circumstances communication should take place, which may limit the timing or frequency of communications (unless otherwise specified in the IEP or 504 plan). That said, whatever policies the school chooses to adopt must be shared with all parents and implemented in a consistent and non-discriminatory or punitive way.
In other words, it is inappropriate for an individual staff member to unilaterally make a decision that parents' access to teachers should be limited or restricted, whether in anticipation of an upcoming IEP meeting or otherwise. As a practical matter, such communication should be encouraged, rather than discouraged, and can help to facilitate more efficient and productive IEP meetings.
(June 2009)
For more information on this topic, please visit the Legislation & Policy section in LD InDepth.
