FREQUENTLY ASKED QUESTIONS
Q. WHAT IS THE INDIVIDUALS WITH DISABILITIES EDUCATION IMPROVEMENT ACT (IDEIA)?
A. The Individuals with Disabilities Education Improvement Act (IDEIA) is the nation’s special education law. It provides federal funding to assist states in providing educational opportunities to six million plus students with varying disabilities who participate in special education.
In exchange for funding, the IDEIA requires states to provide a free appropriate public education (FAPE) in the least restrictive environment (LRE). The law also contains detailed procedural safeguards. The law was enacted in 1975 because three million children with disabilities were either not being allowed in schools, or inadequately educated. (Although the correct name for the law now is IDEIA, most people continue to refer to it as IDEA.)
Q. WHAT IS A FREE APPROPRIATE PUBLIC EDUCATION (FAPE)?
A. The law recognizes that children with disabilities are entitled to the same experience as their typical peers. IDEA further recognizes that the expense associated with providing for the special needs of children with disabilities is a public responsibility.
Specifically, FAPE means special education and related services are the following:
- provided at public expense, under public supervision and direction, and without charge to parents;
- meets the standards of the state educational agency (the Nevada Department of Education);
- provided in conformity with the IEP established for the child; and includes an appropriate preschool, elementary or secondary school in the state.
A FAPE does not mean “the best education” – children are not entitled to a “Cadillac” education but they are entitled to a solid “Chevrolet” based on the child’s unique needs as outlined in the child’s IEP.
Q. WHAT IS THE LEAST RESTRICTIVE ENVIRONMENT (LRE)?
A. Special education children must be educated in the least restrictive environment (LRE) to the maximum extent appropriate. The examination of what constitutes LRE for a child must begin with the regular classroom, with supplementary aids and services. Unfortunately, we often see more restrictive placements being considered first by IEP teams during the placement discussion.
The primary purpose of IDEA is to ensure the provision of FAPE, but the provision must be in the least restrictive environment to the maximum extent appropriate. The issue of what comprises LRE has been contentious. Some people believe that LRE is different for every child while others have presented legal, philosophical, and programmatic rationales supporting the case that the LRE for all children is in the regular education environment with the use of supplementary aids and supports.
Because of case law there has been increasing pressure on districts to comply with the LRE mandate and place special education students in general education classrooms with typical peers. Among the most noteworthy class action lawsuits are Corey H. in Illinois, and Gaskin in Pennsylvania. Two important Circuit Court decisions in the 1990s (Rachel H. and Oberti) laid out legal criteria for a child’s inclusion in a regular classroom.
Continuum of Alternative Placements
The regulations require that a continuum of alternative placements must be available and lists placement options from the least restrictive (regular classroom) to the most restrictive (institution). The examination of where a child should be educated must start with the regular classroom on the continuum.
The options become progressively more restrictive and provide less access to typically developing peers or activities until there is essentially no opportunity for contact or participation. According to the LRE regulations, states are required to ensure that all children with disabilities are educated in the regular education environment to the maximum extent appropriate.
Q. WHAT ARE SUPPLEMENTARY AIDS AND SERVICES?
A. Supplementary aids and services play a pivotal role in supporting the education of children with disabilities in the general classroom and their participation in a range of other school activities. These supports must be discussed in the IEP meeting. Examples include, but are not limited to, the following:
- Supports to address environmental needs (e.g. preferential seating, altered room arrangement, etc.);
- Levels of support staff needed (e.g. behavior specialist, health care assistant, paraprofessional support, instructional support assistant);
- Specialized equipment needs (e.g. computer, augmentative communication device, wheelchair, etc.);
- Pacing of instruction needed (e.g. breaks, more time, home set of materials);
- Presentation of subject matter needed (e.g. taped lectures, sign language, primary language); and
- Assignment modification needed (e.g. shorter assignments, taped lessons, instruction broken down in steps).
Q. WHAT IS AN INDIVIDUALIZED EDUCATION PROGRAM?
A. The Individualized Education Program, or IEP, is the key document developed by the parent and the child’s teachers and related services personnel that lays out how the child will receive a free appropriate public education (FAPE) in the least restrictive environment (LRE). The IEP describes the child’s academic achievement and functional performance. It then establishes annual goals for the child and describes how those goals will be measured; states what special education and related services are needed by the child; describes how the child will be appropriately assessed including through the use of alternate assessments; and, determines what accommodations may be appropriate for the child’s instruction and assessments. Goals and objectives must be written prior to determining placement for a child. The IEP is often referred to as a child’s “road map”.
Q. WHO DEVELOPS THE IEP?
A. An IEP team is responsible for developing the IEP and ensuring the effective implementation so that the child can receive special education and related services.
The IEP team must include: the parent/guardian of the child (not a DFS caseworker as guardian in the case of a foster child); a special education teacher; a regular education teacher; and, a representative of the school district who has the authority to commit school district resources. At the discretion of the parent or school district, other individuals who have knowledge or special expertise regarding the student, including related services personnel as appropriate, may be invited to the meeting.
Q. HOW DOES A CHILD GET AN IEP?
A. In order for a child to become eligible for special education services and to receive an IEP, the child must first be determined to have a disability. Parents or school personnel who suspect that the child may have a disability must request that the child be evaluated by a multidisciplinary team (MDT) to determine if the child has a disability and needs special education.
If a parent believes that his/her child may have a disability, we strongly recommend that the parent write a letter requesting an evaluation for special education to the Principal of the child’s school outlining the reasons that the parent suspects the child has a disability. The parent must be able to describe the suspicion and how it is adversely affecting the child’s education. For example, if a child has a disability but is receiving all A’s in classes, the child probably would not qualify for special education.
After the letter is received by the Principal, the school is considered to be on notice that the child is suspected of having a disability. The next step is the signing of the parental consent for evaluation (form CCF 555), which triggers the 45 school days timeline to complete the evaluation per Nevada regulations.
Once the evaluation is completed within the 45 school day timeline, the parent meets with the MDT to discuss the evaluation results and determine whether the child is eligible for special education services. If it is determined that the child is eligible for services, an IEP must be developed within 30 days. (In CCSD, the IEP is frequently developed immediately following the MDT meeting).
If the child is found ineligible for special education services, the parent has the right to either request an independent education evaluation (IEE) or to challenge the MDT decision by filing a due process complaint. (See Legal Remedies)
Q. WHAT IS AN IEE (INDEPENDENT EDUCATION EVALUATION)?
A. An IEE is an evaluation completed by a qualified independent evaluator outside the school district. Parents have the right to request an IEE if there is a disagreement about a child’s evaluation or MDT. Once the school district receives the request for the IEE, the district has two choices: pay for the IEE or request a due process hearing to resolve whether the current CCSD evaluation is appropriate. An IEE request should be put in writing to the Director of Related Services.
Q. IF A CHILD MOVES FROM ONE STATE TO ANOTHER, DOES THE IEP FOLLOW THE CHILD?
A. The new school district in the new state is required to provide a free appropriate public education (FAPE) to the child including providing services that are comparable to those services outlined in the child’s original IEP. The new school district may implement the pre-existing IEP, but is not required to do so. If the new school district does not implement it, the new school district must work with the parent through the IEP team process to develop an appropriate IEP consistent with federal and state law.
Q. IF A CHILD MOVES TO A NEW SCHOOL WITHIN THE SAME SCHOOL DISTRICT, DOES THE IEP FOLLOW THE CHILD?
Q. WHAT IF PARENTS DECIDE THEY DON’T WANT THEIR CHILD TO RECEIVE ANY SPECIAL EDUCATION SERVICES AT ALL?
A. In the past, school districts could challenge a decision by parents to remove their child from special education through due process procedures. Today, parents have the right to remove their child from special education altogether.
Q. HOW OFTEN MUST AN IEP MEETING BE HELD?
A. An IEP meeting must be held at least once a year (often referred to as the “annual” or “annual IEP”). However, either parents or school staff can request additional meetings if problems arise. The meeting must be “mutually convenient” for the parent and school, and the school must make several attempts to get the parent to the IEP meeting. A phone IEP can also be held if the parent cannot come to the meeting physically.
Q. DO PARENTS RECEIVE NOTICE OF MDT AND IEP MEETINGS FROM THE SCHOOL?
A. Yes, parents will receive proposed meeting dates along with an expressed reason for the meeting. The meeting date must be mutually convenient. If the date does not work with your schedule, notify the school to arrange a convenient date and time.
Q. HOW OFTEN MUST A CHILD BE EVALUATED?
A. A child has the right under IDEA to be re-evaluated every three years. If the school and the parent agree that an additional evaluation is unnecessary, the three year re-evaluation can be waived. This must be agreed to by the parent and put in writing.
Q. WHAT ARE TRANSITION SERVICES?
A. Transition services must be included in all IEPs when the student reaches age 16 and may be included for younger students if deemed appropriate by the IEP team. Transition services are a coordinated set of activities that promote movement from school to post-school activities such as post-secondary education, vocational training, employment, adult services, independent living and community living. The ultimate responsibility for providing transition services rests with the school district and there is no provision for a waiver of this requirement.
Q. ARE MY CHILD’S EDUCATIONAL RECORDS CONFIDENTIAL?
A. Yes, The Family Education Rights and Privacy Act (FERPA) is a federal law that ensures that parents have access to their child’s educational records. Additionally, it ensures that their child’s records are protected by limiting access to the records without parental consent.
FERPA applies to all agencies and institutions that receive federal funds, including schools, colleges and universities.
Parents have a right to inspect and review all education records relating to their child. Many school personnel erroneously believe that test materials are copyright protected so they won’t let parents see these materials, however, this belief has been found by courts to be incorrect.
Q. AS A PARENT, AM I ALLOWED TO VISIT AND OBSERVE MY CHILD’S SELF-CONTAINED CLASSROOM?
A. The school district often tells parents that they cannot observe the class because of confidentiality concerns for other children. However, it has never been adequately explained by school district administration as to how a parent would know or learn the names of the other children in the classroom by virtue of a visit.
In addition, the only law that deals with “confidentiality” is FERPA which regulates education records and nothing more!
When a school administrator takes the position that parents cannot visit their child’s classroom, it naturally creates an appearance of the following:
- that the program is clearly inappropriate and the parent would
quickly discover this, and
- that the school is attempting to keep important information from parents.
A U.S. Supreme Court decision in Owasso v. Falvo furthered the notion that students have very little expectation of privacy.
When faced with denied access, a parent should ask school administrators questions like:
- How can the standard be different in a public school for children
with disabilities in a self-contained classroom compared to those of their typical peers? Why are parents of children in regular classrooms allowed to observe their child’s classroom?
- Isn’t such a practice discriminatory?
If parents aren’t permitted to observe their child’s classroom because they would see other children, then parents could not go into the school for other reasons – to help supervise field trips, to help teachers with parties, etc.
If such a situation arises, we suggest that CCSD central office staff be contacted for clarification on this matter. Student Support Services and the Office of Compliance and Monitoring can be reached at 702-799-5471 or 702-799-1020.
Q. IN WHAT CIRCUMSTANCES DO DISCIPLINE PROCEDURES APPLY?
A. The discipline procedures apply where the infraction results in a change in placement for longer than ten days. Unless a disciplinary infraction is the result of a child’s disability, the child can be disciplined in the same manner and for the same duration of time as a non-disabled student.
- Even if the infraction is the result of the child’s disability, if the discipline infraction relates to drugs, weapons or serious bodily injury the child can be removed from school automatically for up to 45 days. The child will continue to receive some educational services in order to progress on the IEP.
Q. WHAT IS A MANIFESTATION DETERMINATION (MDR)?
A. A manifestation determination review (MDR) is a meeting which must take place within 10 days of a behavior infraction that would cause a student to be removed from their current placement for more than 10 days. An MDR must be convened additionally if a series of suspensions adds up to greater than 10 days. The questions that must be asked at an MDR are:
(1) was the student’s action directly related to the student’s disability?
(2) was the conduct in question a result of the school’s failure to implement the child’s IEP?
If the answer to either one of these questions is “yes”, then the disciplinary action stops and the child is returned to the prior placement.
Q. WHAT HAPPENS IF THERE IS A BREAKDOWN IN COMMUNICATION OR THE PARENT BELIEVES THE IEP, CHILD’S PROGRAM OR PLACEMENT IS INAPPROPRIATE?
A. Parents, including surrogate parents, are very important in all aspects of their child’s special education program. The involvement begins at the time of the initial referral for an evaluation for special education. The school district and parents always attempt to work together to try to resolve disagreements that affect a child’s education, but when this isn’t possible, there are several rights a parent can exercise to resolve the dispute.
Mediation services are offered through the Nevada Department of Education at no charge to parents or school districts. Mediation is a voluntary process for parents and districts, and both must agree to participate in the process. Mediation cannot be used to delay or deny due process rights under IDEA. If parties reach an agreement during mediation, the agreement is put in writing and is enforceable in state and federal courts.
Any individual or organization can file a State Complaint if it believes a school district, another public agency serving special education students, a private agency under contact with a public agency serving special education students, an educational service district, or the state has violated federal or state laws implementing IDEA. The complaint must be in writing and signed by the complainant. Specific directions can be found on the Nevada State Department of Education website.
When preparing a complaint be as concise as possible and provide dates and events that are relevant to the allegations.
The State Complaint must be sent to the Superintendent of Public Instruction for Nevada. A copy must be sent to the Clark County School District’s Superintendent as well.
Impartial Due Process Hearings
Both parents and school districts may request an impartial due process hearing involving these issues: evaluation, placement, or provision of a FAPE to a student. The Nevada Department of Education will assign an independent impartial hearing officer to conduct the special education hearing upon receipt of the complaint.
The hearing request must contain the following:
- The name of student;
- Address of the residence of the student;
- School the student is attending;
- Parent of the child;
- Description of the nature of the problem and facts related to the problem; and
- Proposed resolution of the problem to the extent known and available to the party at the time.
It is critical that all the issues surrounding the dispute be laid out in the due process complaint. If an issue is not included in the complaint, it cannot be considered by a hearing officer at a hearing.
During the pendency of a due process hearing, a student remains in his or her educational placement (“stay put”) until the completion of the proceedings, or the parties agree otherwise.
After a due process complaint is filed, and a hearing officer appointed, a 30 day resolution period begins. A resolution meeting must be held fifteen days after the due process complaint is filed. The resolution meeting is an effort to resolve the issues raised in the due process complaint. The meeting is comprised of relevant members of the child’s IEP team, CCSD Office of Compliance and Monitoring staff, the parent, and whomever the parent wishes to bring to the meeting. The district must provide the parent notice of who will be attending the resolution meeting from the district.
If the resolution of the due process complaint is unsuccessful, and a hearing moves forward, a hearing officer must issue a final decision within 45 days after the hearing time period begins.
Both parents and school districts may be accompanied and advised by an attorney and individuals with special knowledge or training with respect to the special education.
Expedited Due Process Hearing
When a due process hearing request involves disciplinary matters, the due process hearing is expedited and must occur within 20 days of filing. A resolution meeting is also expedited and must be held within 10 days of filing the expedited due process hearing.
Due Process Hearing Decision Appeal
Nevada is what is called a “two tier” state. Either the school district or a parent may appeal a due process decision to the State Department of Education. The State Department of Education will appoint an independent State Review Officer to review all the records, testimony, etc. in the first hearing and render a decision.
Appeal to Federal or State Court
Once administrative remedies have been exhausted, (due process hearing and appeal) the district or a parent can then appeal the decision to federal or state court.
Wrightslaw – excellent site for parents: http://wrightslaw.com
Federal site for information related to special education regulations: http://idea.ed.gov/
U.S. Department of Education – OSEP: http://osepideasthatwork.org/
FERPA Regulations: http://2.ed.gov/policy/gden/guid/fpco/ferpa/index.html
Inclusion Network: http://www.inclusion.com/inclusionnetwork.html
Department of Education – IEP Questions and Answers: https://www2.ed.gov/policy/speced/guid/idea/iep-qa-2010.pdf
Including Samuel: A powerful video that explores the reasons for and impacts of inclusion. The site also has links to valuable reference materials: http://includingsamuel.com/home.aspx