By Attorney David Engler
For the last 12 years I have been a school board member of a county board and a career and technical center. On the county board or Educational Service Center we provide the services to help local districts improve. We also run special schools including one for emotionally disturbed children with varying behavioral issues; a school run in conjunction with a great program started by the local Juvenile Court Judge Theresa Dellick. At the MCCTC almost a third of our students have an IEP. An IEP stands for Individual Education Plan. It is required by law and so many parents do not understand how important to ensure your child’s IEP is carefully constructed to specifically help your child no matter the cost or inconvenience to a district.
The worst thing I ever heard was from the lips of a fired teacher who told me how hard it was to chase after “tongue draggers” every day. My emotions were caught in between punching him and simply shaking my head. I am glad we fired him. Instead I will never forget those words and how insensitive some in education can be towards a child with a disability. And if that disability is one of a severe emotional problem or a slight shade of Autism or Asperger’s, then most of our teachers are ill-trained to help the child with the different wiring. There are many teachers who just get it. They are naturals at knowing how to reach the student with a disability that can be unnerving and tiring. They also understand the investment a parent has made in this child. The teacher may have the child 6 hours a week or maybe more if an elementary student.
And often indifference is the answer from an administration concerned about increased costs. So whether they admit it or not, every administrator knows that a diagnosis of a disability might bring years of extra costs for the district. In a famous case that went all the way to the Supreme Court, Forest Grove School District v. T.A. (2009) the court ruled that the district should have reimbursed the parents for the costs of private schooling since the District should have been aware of the disability and provide assistance to the family. The District claimed they had no idea there was a problem. Justice Stevens of the Supreme Court stated: “We conclude that IDEA (Individuals With Disabilities Education Act) authorizes reimbursement for the cost of special education services when a school district fails to provide a FAPE (Free and Appropriate Public Education) and the private-school placement is appropriate, regardless of whether the child previously received special education or related services through the public school.” The cost to the district was $65000 to reimburse the parents and potentially $500000 in legal fees.
Every school district is legally required to identify, locate, and evaluate children with disabilities (20 U.S.C. §1412(a)(3)). After the evaluation, the district may provide the child with specific programs and services to address special needs.
IDEA defines “children with disabilities” as individuals between the ages of three and 22 with one or more of the following conditions:
- Mental retardation
- Hearing impairment (including deafness)
- Speech or language impairment
- Visual impairment (including blindness)
- Serious emotional impairment
- Orthopedic impairment
- Autism
- Traumatic brain injury
- Specific learning disability, or
- Other health impairment (20 U.S.C. §1401(3); 34 C.F.R. §300.8).
For your child to qualify for special education under IDEA, it is not enough to have one of these disabilities. There must also be evidence that the disability adversely affects your child’s educational performance.
Now each school district should be well aware of its responsibilities. But sadly not every administrator can see life from the eyes of a parent struggling to find help for their child. The schools seem relieved if they can cause the child to graduate and be done with the financial exposure. The former Director of Special Ed for Maryland, Dr. Linda Bluth gave me the best advice ever. “Our children do not fail…it is we who fail our children.” It is very difficult to cause a school culture to adopt this core belief. It makes us accountable. It denies us the ability to blame little to no achievement on a kid with a mental problem, a broken home, a history with children services, parents who think they know better(they almost always do) or some other societal bogeyman. No we have to own it. This means we will have failures. And they will sting.
But for the guardians and parents there is help for you. I have included some of the language in the federal IDEA statute above to help you know what to do. The regulations can be found at www.gov/about/offices/list/users. The country has 81 million students that fit this category. Ohio has about 3 million. We need more teachers and aides with special education training. We need to pay them more to encourage their numbers and recognize that their job makes teaching even tougher than it already is. You can also look at www.mdlclaw.org/wp-content/uploads/2010/02/pub-special-ed-handbook. This handbook gives you sample letters to ask for independent evaluations and how the legal process works. Or hire a lawyer.
Most importantly we need parents to step forward and be armed with the law as you demand the very best possible Free and Appropriate Public Education for your child. The key word to me is appropriate. These children are all so very different. Make sure the IEP has real goals that can be measured without someone guessing that your son or daughter has advanced with soft logic. Don’t give up and never be afraid to ask to talk directly to the Board of Education. Often the Board members are shielded from the other side of the story. Do not assume that they will side with the administrators standing in your way.
You have been given a child with special needs because you can handle it. I do not need to tell you your journey is tough. Not everyone is going to be understanding. But I can tell you that the law is on your side and many more people than you could possibly imagine.
Attorney David Engler
Phone: 330-729-9777
http://www.DavidEngler.com Attorney Engler’s website
Areas of Practice: Family Law, Elder Law, Domestic Relations, Bankruptcy, Criminal
Also published on Family Fault Lines Blog http://familyfaultlines.com/ and on David Engler’s Law Bloghttp://davidengler.wordpress.com/
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