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Your Child’s Education

Navigating and Advocating for Families with Special-needs Children

It is difficult enough for parents and family to ensure their child is receiving an appropriate education in today’s education model without the added difficulty of navigating the often-barely chartered waters of special education. Parents of ‘mainstream’ children must advocate and stay involved in the day-to-day schooling activities in order to obtain the best education available to their children. This can be daunting without the emotional stress of dealing with the challenges of our children, a system filled with acronyms, and a process and procedure that can be confusing on a good day.

Navigating the waters of special education can be made easier by a basic understanding of the rights, rules, and regulations that govern the school districts when deciding if a student is eligible for special education and, if so, what services that student will receive.

School districts are subject to state and federal laws that provide detailed procedures to ensure that a student receives a FAPE (free appropriate public education) during the entire time he or she is eligible for special education. Because special education is such a highly complex and regulated area of the law, it is in the parents’ best interest to seek assistance to understand the special-education process. The more informed and well-advised the parent, the more they can make of the opportunity to be a part of the design and development of their child’s educational experience.

The idea that you, the parent or person with custody of the child, will work in partnership with the school district is essential to the process of providing a FAPE for that child. In doing so, you will be a member of the IEP (individualized education plan) team for the student, which is charged with the development of an IEP. Both state and federal laws provide that the IEP be tailored to the student’s unique needs to provide sufficient services to enable the student to make meaningful educational progress and to assist the student in the acquisition of knowledge and skills, including social and emotional development based on appropriate chronological and developmental expectations.

Services to be provided to the student will be at no cost or expense to the family as part of the public-education program. It is also required that students in private schools at private cost are entitled to a FAPE if they want to take advantage of public educational services.

In order to determine eligibility for special services, the student is referred for an evaluation. Parental consent is required before the school can evaluate or test a child. However, the school can review existing data, give your student a test or other evaluation that is given to all students (i.e. MCAS or classroom tests) that are part of the general education program, or share information with federal or state educational officials without parental consent.

Such parental consent is required before your school district can provide special-education and related services to your student for the first time; to make a change in services, placement, or reevaluation; or to excuse members of the IEP team from attending a team meeting.

As the student’s advocate, you will be entitled to prior written notice from the school district when it proposes or refuses to take steps to identify your student as one with a special need, to evaluate your student, to provide special services to your student, or to change your student’s program. This is called ‘prior written notice’ by federal regulation, and the notice must state:

What the school district proposes or refuses to do;

Why the school district proposes or refuses to take the action; and

How the school district came to this decision, including information about each evaluation procedure, assessment, record, or report that was considered.

It must also describe any other options the IEP team considered and why those options were rejected.

Let the advocating begin. You have the right to request an IEE (independent education evaluation) from an independent, qualified examiner at public expense, provided you meet financial-eligibility requirements, or at your own cost at any time. This IEE must be considered in 10 days by the IEP team to determine if any changes should be made.

If disagreements about the IEP continue, the law provides for several methods of attempting to resolve the dispute. Initially, parents can bring the dispute to the attention of local public-school officials, and then, if still unresolved, they can use the services of the ESE (Department of Elementary and Secondary Education) Problem Resolution System. Mediation is another often successful option, and ultimately, if a hearing with testimony and witnesses is necessary, a due-process hearing through the BSEA (Board of Special Education Appeals) can be convened.

At all times in this education planning process, the assistance of an advocate, attorney, or other qualified professional is recommended. The laws regulating special education are very complex and can be easily misinterpreted or not properly followed procedurally. In order to ensure that your child’s educational experience is smooth sailing, engaging the services of the appropriate advocate, attorney, or other professional is essential.v

Julie A. Dialessi-Lafley, Esq. is a multi-faceted attorney with the law firm of Bacon Wilson, P.C., who focuses her practice areas in business law, real estate, estate planning, and administration and family law. She contributes to a popular Family Law Blog at familylawbits; (413) 781-0560;[email protected]

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