Overview of Special Education for Attorneys

Special Education Law Primer

Children with special needs who qualify for special education services at school are protected by a variety of federal and state laws, including Indiana's 511 IAC 7 et seq. ("Article 7"), which mirrors the federal the Individuals with Disabilities Improvement Act (IDEA) and several other laws, including the Americans with Disabilities Act, No Child Left Behind Act and Section 504 of the Rehabilitation Act of 1973.

The parents of special needs children are the enforcement mechanisms for these laws by bringing actions against the schools, interlocals and co-ops. However, unfortunately, there is a shortage of attorneys who represent families of the currently existing 170,754 special needs children in the state of Indiana, so the purpose of this article is to give general information to attorneys about the basics of the laws protecting special needs children.

Generally, the school is charged with providing an individualized education for a child with special needs. This means that the child’s unique needs are supposed to be taken into account when the school and parents devise the child’s IEP (a multi-page document detailing what the plans are for the child’s education, such as the placement and services that the child will be provided).

The IEP is to be written in order to be “appropriate” for the child’s needs and confer “meaningful” educational benefit to the child in the “least-restrictive environment.”

What constitutes meaningful benefit, what is appropriate for the child and what is the “least-restrictive environment” is subject to debate in every case, given that the law doesn’t define any of those words.


Recipe for impasse

The law doesn’t provide for the allocation of the very best possible educational services, only an appropriate IEP designed to confer meaningful educational benefit.

What happens in many of these cases is that the parents and school often disagree about what’s appropriate because parents generally want more or better for their children than the school is able or willing to provide, primarily because of limited resources, lack of sufficient staff and lack of staff training.


How disputes are resolved

When the school and parents reach an impasse as to what constitutes an appropriate education plan for the child, there are three mechanisms to resolve these differences.

They are: complaint investigation, mediation and due process.

With a complaint investigation, an individual employed by the Indiana Department of Education would interview the parents and the school about what happened (or not), gather documents and issue a decision and corrective action, if the law was violated. This process costs parents nothing. Results of complaint investigations are posted at http://ideanet.doe.state.in.us/exceptional/speced/complaint_investigations.

With a mediation, the Indiana DOE would choose a mediator for the process, and it works much like mediation in other areas of law, though attorneys on both sides are strongly discouraged from attending these special education mediations. The school would pick up the cost of the mediator’s fee.

With due process, an independent hearing officer is assigned from a rotating list kept by the Indiana DOE. This individual would conduct an administrative hearing and issue a decision on whether the child’s substantive or procedural due process rights in Article 7 and the IDEA have been violated.

Indiana’s special education law mirrors the IDEA, though there are a few minor differences. The cost of the hearing is borne by the school, including the transcript, hearing officer’s fees (although Indiana’s DOE states strongly on its website and if you should inquire, that the hearing officers, although they are paid by the schools, are NOT employees of the school), their own attorney, and if the parent prevails, the school picks up the attorney costs for the parent.

This attorney fee shifting occurs because these due process cases are seen as civil rights matters, and payment of the attorney fees for parents is provided in both the IDEA and Article 7.

The federal and state laws provide that the family can have a decision in hand within 45 days of their request for hearing being submitted to the Indiana Department of Education. However, as a practical matter, more often than not, the process takes two to three months to get the decision in hand because it requires the coordination of the schedules of two attorneys and a hearing officer, with the average hearing lasting three days.

The IHOs in Indiana are well-versed in special education laws and various areas of disabilities. They include private practitioners with special interests in this area of law and psychology professors at various Indiana colleges and universities. Most have been serving as hearing officers for a number of years, though a new crop of four hearing officers is currently being trained by the Indiana DOE.

After the IHO renders a decision, either party may appeal that decision to the Board of Special Education Appeals (BSEA) within 30 days, unless a request for an extension of time is granted. Then the opposing party has 10 days to respond, unless an extension is granted. BSEA decisions are posted online at http://ideanet.doe.state.in.us/legal/appeals.html.


Hot topics in special education law

There are a variety of reasons that schools and parents reach an impasse about what constitutes an appropriate IEP for the child. Common areas of dispute are:

Autism cases

Parents of children with autism want schools to utilize a type of therapy with the children that has proven scientifically to enable a high number of children with autism to eventually be placed in the mainstream classroom. However, this therapy (usually called Applied Behavior Analysis, Applied Verbal Behavior therapy or discreet trial training) is quite expensive to implement because it requires the use of one-on-one assistance for the child. Schools simply haven’t been given the funds or training to provide this one on one therapy, so they don’t offer this option to parents, creating a recipe for impasse.

Behavior problems

If a child has behaviors that impede his learning or the learning of others, then the school would need to conduct a functional behavior assessment (FBA) that takes a data intensive view of what leads up to the behavior (antecedent), what the behavior is and what the consequences are. Then after the FBA is conducted, a Behavior Intervention Plan is written up and incorporated into the child’s IEP. This BIP is designed to help teachers appropriately handle any misbehaviors of the child and keep things on track.

For example, in one recent case, a child with autism, when given something particularly challenging for him, would bang his head on the table as an avoidance tactic because when he would do that, the teacher would stop what she was doing and comfort him. Although this might be a natural reaction for the teacher, that type of reaction reinforced the head banging for the child and increased the likelihood he would keep doing it. The goal of a well-designed BIP is to extinguish these types of behaviors and replace them with appropriate behaviors.

Dyslexia

Children with dyslexia learn to read differently from their peers and often require different methods and some more intensive assistance in learning to read than the schools are able and willing to provide. In Indiana, even though dyslexia is specifically named in Article 7, children with dyslexia are lumped into the much larger learning disability category, with a variety of other disorders. Schools often are reluctant to put in writing that a child even has dyslexia and instead will categorize the child as having a learning disability. This troubles parents, who want to call a spade a spade and who want early intensive programs designed to remediate the child’s dyslexia.

Suspensions/Expulsions

Removal of a special needs child from school for misbehavior is a different proposition than for a regular education child.

A student with a disability may be suspended for up to 10 consecutive school days for misconduct. The school doesn’t have to provide any educational services during the first 10 days of suspension in a school year. The school may suspend a student for up to 10 consecutive school days for each separate incident of misconduct. However, when the number of days of suspension in a school year reaches the 11th day, the school must provide educational services to the student and must convene a case conference committee meeting within 10 busienss days of the 11th day of suspension to develop a plan for an assessment of the students behavior and review and/or revise the students exhisting behavior plan.

A student with a disability maybe expelled. However, before an expulsion can occur, the school must notify the parent of the decision on the day the decision is made, provide the parents with a copy of their notice of rights, convent a case conference committee within 10 school days of the decision to expel the student and conduct a manifestation determination.

This determination means the committee looks at whether the behavior was caused by the child’s disability or whether it was a willful choice not caused by the disability.

If the behavior was caused by the child’s disability, then that cannot serve as a basis for expulsion.

If the behavior was not caused by the child’s disability, then the child may be expelled, but educational services must be provided to the child so that he or she can continue to make educational progress.

However, parents who disagree with this decision can request an expedited due process hearing.

Finally, a child who has not yet been identified by the school as having a disability but who is being suspended for more than 10 days or expelled can invoke the protections of the IDEA and Article 7 if the school knew or should have known that the child had a disability but failed to evaluate the child and failed to provide appropriate educational services.

Although this article is an oversimplification of this fascinating area of law, the hope is that this information will be useful to other practitioners who receive calls from parents, asking what their legal rights are.

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