Special education law compliance important for all students

Issue December 2010 By Peter A. Hahn

The phrase "special education" evokes different ideas for different people: Some complain about increasing costs that burden underfunded school districts, while others argue that schools do not provide enough services for children in need. I see special education law as ensuring equal educational opportunity for all students by protecting the rights of disabled children in our public schools.

State and federal laws mandate that specialized instruction be provided for children ages 3 to 21 who have one or more recognized disabilities. Examples of disabilities include autism, a physical impairment, a specific learning disability or a psychological disorder. Students are entitled to a free appropriate public education (FAPE) in the least restrictive environment (LRE). Specialized instruction comes in the form of services and accommodations in order to achieve FAPE for a particular student based on his or her needs. LRE recognizes the value of not removing children from the general population of students unless educational needs demand otherwise. Students may require relatively minor modifications while remaining in all general education classes, or a residential school, or anything in between.

The special education team makes decisions about all issues from eligibility to post-graduate concerns. The team is composed of school staff and the family. Families often have other, non-legal professionals involved to support their goals, including special education advocates, to guide them through the process. Parents may also get independent evaluations of their children from neuropsychologists, educational consultants and other professionals. Independent evaluations are sought to supplement a school district's evaluations of a student. Attorneys may be involved in a consulting role.

Ideally the team discusses a student and reaches a consensus on eligibility and what specialized instruction is required. An individualized education plan (IEP) is written to document the services and accommodations to be provided for the student. The team must convene at least once a year to discuss the student's progress and, if necessary, redraft the IEP. A school district is required to conduct its own evaluations of a student at least every three years.

Parents and the school members of a team may disagree on any number of things. Attorneys usually get involved when these issues cannot be resolved either within the team process or through mediation. When a family does not accept the school district's final proposal, then the family can turn to litigation, which begins by filing a complaint with the Bureau of Special Education Appeals (BSEA), the administrative agency designated to hear disputes between families and school districts. The BSEA falls within the Division of Administrative Law Appeals, and has several hearing officers and its own set of procedural rules. A BSEA decision may be appealed to state or federal court.

A lot is at stake for families and school districts, both financially and programmatically. For example, take a student who has both a specific learning disability and a severe emotional disability that contributes to school avoidance. What is required for the student to make effective educational progress? The school district feels it has a program within the district that can provide academic services and counseling to ensure the student gets FAPE, yet the student has struggled for years with the same issues. The situation has become progressively worse. The parents believe the school's proposed program cannot offer FAPE, as the school has failed over the past several years to provide the necessary services for the student, and that a more restrictive environment is necessary in the form of a costly residential program. Can the school district manage the student in the same school program with additional modifications? Is the residential component of the out-of-district placement educationally necessary or merely something that is in the best interest of the child but not required by special education law? The parents' evaluators believe the student cannot be educated without a full-time program. But the school members of the team, including the school psychologist, do not think such a drastic measure is necessary. The BSEA hearing officer must weigh the documentary evidence and expert testimony to make the decision. The school district is responsible financially and programmatically for the program determined appropriate by the hearing officer, unless an appellate court says otherwise if one of the parties appeals into the court system.

Special education matters are more than just legally interesting because they offer a unique insight into how communities value children. We all agree that every child must have a good education. But how far are we willing to go for a child with disabilities? We must hope that the law ultimately provides the right answer.

Peter A. Hahn, Esq., represents clients in special education cases in addition to juvenile, criminal and estate planning matters.