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Individualized Education Program (IEP)

At Cleary/Fowler, we help students with disabilities get access to appropriate and effective special education programs.

Before 1975, children with disabilities were routinely excluded from public school.

Schools used a variety of excuses to justify excluding disabled children--they had behavior problems, they were unteachable, or they required a "special class" that the school was unable (or unwilling) to provide. The result was that thousands of children with real or perceived disabilities never received any education, due to unilateral decisions made by school administrators.

Take, for example, the infamous case of Peter Mills, who at 12 years old had been excluded from public school since the age of 8 because he was deemed a "behavior problem" by the school's principal.

The 1975 passage of the Education of All Handicapped Children Act (later renamed the Individuals with Disabilities Education Act, or IDEA) changed everything. The IDEA created a framework of educational rights for disabled children and their parents. For the first time, schools were required to screen children for disabilities, educate children with disabilities, include parents in the entire process, and allow parents to appeal improper decisions made by the school.

The cornerstone of the IDEA is its requirement that schools provide a

to any child with one of 14 qualifying disabilities.

The "least restrictive environment" requirement simply means that disabled children should be educated with their general education peers (or mainstreamed) as much as possible.

The centerpiece of the IDEA is the Individualized Education Program, or IEP. An IEP is a written document that identifies a child's disability, describes how it affects his or

her learning, sets baseline scores for academic or behavioral progress, and includes targeted instructional methods the success of which is measured by benchmarks and data. IEPs must be revised at least once every 3 years.

The IDEA also includes protections for disabled students who are involved in disciplinary actions. These protections are critically important for children with disabilities that often manifest in problem behaviors (autism, especially). Before suspending or expelling a disabled child who violates a school's code of student conduct, a school must first conduct a manifestation determination review ("MDR") to determine if the behavior was a result of the student's disability. If the behavior was a manifestation of the student's disability, the school must conduct a functional behavior assessment, institute a behavior intervention plan, and return the student to his or her previous placement.

Crucially, the IDEA gives parents the right to appeal decisions made by the school with respect to their child's IEP and/or placement. If a parent disagrees with an action taken by the school, the parent can request a meeting with the school to resolve the dispute, often known as a "due process hearing."

A due process hearing is a trial where both parties present evidence, cross examine witnesses, and make arguments to an impartial hearing officer. Needless to say, representation by an attorney is a necessity at Due Process Hearings, especially given the fact that all testimony is recorded and issues that aren't raised at the Due Process Hearing cannot be appealed in court later.

Who is eligible for an IEP?

To be eligible for special education, a student must 1) have a disability and 2) by reason thereof, need special education and related services.

I think my child needs special education. What do I do?

Contact the school and request, in writing, that your child be evaluated for eligibility for special education and related services.

What if the school says my child is not eligible for special education services?

If the school denies your child eligibility, it must tell you in writing and explain why your child is not eligible. The school must also provide you with a "prior written notice" that informs you of your right to appeal the school's decision. Parents may appeal the school's ineligibility finding.

My child has an IEP, but it isn't working. What can I do?

As the student's parent, you have the right to request modifications to the IEP. This can be done by requesting, in writing, that an IEP meeting be held to modify the student's program. If the school improperly refuses to modify the IEP, you have the right to appeal the school's decision.

My child has been suspended. What are my rights?

The answer depends on whether your child has a qualifying disability. If your child doesn't have an IEP and the school has no reason to believe he or she is eligible for special education, the student can be disciplined as any other child. In contrast, if your child has an IEP and the school wants to change his placement, the school must first hold a manifestation determination review ("MDR") meeting to determine if the behavior resulted from the disability.

What types of services are available under an IEP?

Put simply, whatever is required to enable your child to make appropriate progress in light of his or her disability. The key word in IEP is "individualized." Your child's IEP should be individually tailored to his or her needs. Some services available include:

The school says my child has a certain disability, but I disagree. What can I do?

Request, in writing, that your child be reevaluated. If the school refuses to reevaluate your child, you may request that the school provide an independent education evaluation ("IEE"). Once the request for an IEE is made, the school must either comply with the request or continue to defend its evaluation.

Does the school have to evaluate my child?

Yes, if they have reason to believe your child has a disability. If the school has not evaluated your child, you may request an evaluation in writing. If they decline to evaluate, they must provide you with a notice of your rights, including the right to seek an independent educational evaluation ("IEE").

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