A mainstream education is a legal obligation

School districts are required to provide educational programs which are not only individualized to address a disabled child’s unique needs, but are provided in the least restrictive environment.  Educating children with disabilities in the least restrictive environment is the ultimate goal of the Individuals with Disabilities Education Act and the law provides that “to the maximum extent appropriate, children with disabilities…are educated with children who are not disabled, and special classes, separate schooling, or removal of children with disabilities from the regular education environment occurs only when the nature or severity of the disability of the child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.”   20 U.S.C. §1412 (a)(5)(A).  In Sacramento City Unified School District v. Rachel H., 14 F. 3d 1398, 1400-1401 (9^Th Cir. 1994), the Court of Appeals set forth four factors to consider when determining whether a District has offered a disabled child a placement in the least restrictive environment: (1) the academic benefit of placing the child in a general education setting; (2) the non-academic benefits i.e. socialization; (3) the impact of the child’s placement on a general education classroom; and (4) the cost of full inclusion.

Despite the law’s strong preference that disabled children be educated “to the maximum extent appropriate” with non-disabled peers, districts are generally resistant to full inclusion.  Fully including a child with a disability can be challenging and difficult; I recently heard a district administrator describe it as “very labor intensive.”  In terms of the “supplementary aids and services” necessary to successfully place a disabled child in a general education classroom, including the possible provision of a full time one-on-one aide, the financial cost to the district can be substantial.  It is always cheaper, and easier, for a District to simply place a disabled child in a self-contained special education classroom.  It is important for parents to be aware of school districts’ predisposition against full inclusion, particularly when it will result in a significant commitment of staff and money.

Even if a full time general education placement is not appropriate for a child with a disability, the law nevertheless requires that the child be mainstreamed in a general education setting as much as possible.  Again, significant amounts of mainstreaming requires a concomitant commitment of resources, and it is for this reason that districts will typically offer mainstreaming during such times as the disabled child would be in the company of nondisabled peers, anyway e.g. recess, lunch, and assemblies.  This somewhat standard prescription for mainstreaming is seen in IEPs for children whose levels of impairment range from the severe and profound to the more mildly disabled.  With respect to least restrictive environment considerations, it is important for parents to appreciate the strong statutory preference for full inclusion, or mainstreaming, and the fact that the amount of time in a general education setting offered by the district is directly relevant to the overarching question of whether the district has offered an educational program individualized to address the child’s unique needs.

Assessment, assessment, assessment

When parents see me for an initial consultation, it is a virtual certainty that I will recommend that they obtain independent assessments to determine their child’s strengths and weaknesses and to recommend appropriate educational services.  The opinions of even the most informed parents mean little in the context of an IEP meeting or, subsequently, in a due process hearing.  In reality, although they are required to consider any assessment obtained by the parents, districts typically ignore them but it is nevertheless important that the parents provide any independent assessments they obtained to the district so that it at least had an opportunity to consider them.

Independent assessments obtained by the parents are essential to providing guidance in terms of the child’s needs and appropriate services.  Assuming that the dispute with the school district results in a due process hearing, parents have no chance of prevailing without the reports, and testimony, of qualified experts who are familiar with the child’s needs and the educational program offered by the district.  Administrative due process hearings are essentially expert witness battles and this has been recognized by the United States Supreme Court.  (Schaffer v. Weast, 546 U.S.) 49, 60-61 (2005).

Whether or not the parents should request, prior to obtaining an independent educational evaluation, that the District fund the assessment depends on a variety of factors specific to each situation.  Ultimately, the parents’ success, or failure, in obtaining an appropriate educational program is determined by both evidence of the inadequacy of the program offered by the District and the veracity of the independent assessments obtained by the parents.

How to approach your IEP…

Prior to one of my son’s IEPs I was asked whether I would be attending in the capacity of his father, or as his lawyer.  Although this happened a long time ago, I still puzzle over how I could be expected to divorce myself from the role of father.  I mention this because, like all special education attorneys, I am frequently asked by parents how they should conduct themselves at their child’s IEP meeting and the simplest answer is to be your child’s parent, not their lawyer.  Although I always strongly encourage parents to learn as much as possible prior to an IEP and to be aware of potential problems, I believe it is important that the parents not conduct themselves in an unduly guarded or adversarial fashion i.e. as a lawyer.

Although far removed from reality, there is a perception that the formulation of an IEP is a collaborative process between parents and school district staff.  However, despite the requirements of state and federal educational law, the IEP which will be offered to a disabled child is typically determined either explicitly, or implicitly, by district staff prior to the IEP meeting with the parents.  In terms of the latter, an IEP is often determined simply on the basis of what is available within the district.  Despite this reality, it is important for parents to participate in the IEP process by answering questions and articulating their concerns.  Otherwise, the school district will later claim that they were not aware of parental concerns and thus did not have an opportunity to address them.  Unfortunately, I have seen many cases where the parents, often worn down by years of being ignored by the district, and unwilling to participate further, are blamed for the inadequacies of an IEP even though special education law places the primary responsibility for offering a FAPE upon the school district.

In terms of basic IEP “do’s” and “don’ts” , because of the potential importance of the IEP meeting I recommend that inexperienced parents obtain legal counsel prior to attending the IEP meeting though I rarely recommend that an attorney attend the actual meeting.  There are a number of reasons for this which I share with parents prior to the IEP meeting.  Although I typically recommend that the parents audiotape the IEP meeting, it is important to appreciate that it is the IEP document itself which stands as the document of record, not an audio recording.  For this reason it is critical that the parents make sure that all of their questions and concerns are reflected in the IEP document.

Even if the IEP is not completed, parents should insist on being provided with a copy of what has been written by the District prior to leaving the meeting.  Since it is not uncommon for parental input to not be included in the IEP document, or items which were not discussed to be subsequently added, the parents should ask that the IEP minutes be reviewed prior to the termination of the meeting.

Finally, although parents normally feel a certain amount of pressure to consent to an IEP at the conclusion of the meeting, there is no requirement, or deadline, for when they must do so.  As with most things, time for reflection and consideration is warranted.  Also, if a different classroom placement has been offered it is essential that the parents observe that potential placement before agreeing or not agreeing to it.  Descriptions of classroom placements provided at IEP meetings are often incomplete and frankly, inaccurate.  I have yet to attend an IEP meeting where district staff described an offered placement in anything less than glowing terms.

According to the law…

There are two parts to the legal analysis of whether a school district has offered a student with a disability a free appropriate education (“FAPE”).  The first question is whether the LEA has complied with the procedures set forth in the Individuals with Disabilities Education Act (“IDEA”).  Board of Education of the Hendrick Hudson Central School District v. Rowley, (1982) 458 U.S. 176, 206-207.  The second question is whether the IEP developed through those procedures was substantively appropriate.  Id. p. 207.

Procedural flaws do not automatically require a finding of a denial of FAPE.  A procedural violation does not constitute a denial of FAPE unless the procedural inadequacy (a) impeded the child’s right to a FAPE; (b) significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of FAPE; or (c) caused a deprivation of educational benefits.  20 U.S.C. §1415(f)(3)(E)(ii); Education Code §56505, subd. (F)(2)(A)-(C); W.G.v. Board of Trustees of Target Range School District No. 23, (9^th Cir. 1992) 960 F. 2d. 1479, 1483-1484.

Despite the emphasis which the U.S. Supreme Court in Rowley placed on school district compliance with the procedural requirements of the IDEA, and the passage of time which has taken place since that decision was rendered, procedural violations of the IDEA are nevertheless common.  Whether or not a procedural violation has resulted in the denial of a FAPE to a disabled child rests primarily upon whether that procedural violation was significant in terms of denying the child educational opportunity or his or her parents the right to meaningful participation in the IEP process.

In Rowley, the Supreme Court also addressed the level of instruction and services that must be provided to a student with disabilities to satisfy the requirements of the IDEA.  Under Rowley, and state and federal statutes, the standard for determining whether a district’s provision of services substantively and procedurally provided a FAPE involves four factors: (1) the service must be designed to meet the student’s unique needs; (2) the services must be reasonably designed to provide some educational benefit; (3) the services must conform to the IEP as written; and (4) the program offered must be designed to provide the student with the foregoing in the least restrictive environment.  While this requires a school district to provide a disabled child with meaningful access to education, it does not mean that the school district is required to guarantee successful results.  (20 U.S.C. §1412(a)(5)(A); Education Code §56301, Rowley, supra, p. 200).

In Rowley, the Supreme Court held that the IDEA does not require school districts to provide special education students the best education available or to provide instruction or services that maximize the student’s abilities, and parents often hear this from school district personnel.  Rowley, supra, p. 198.  School districts are required to provide a “basic floor of opportunity” that consists of access to specialized instruction and related services individually designed to provide educational benefit to the student.  Rowley, supra, p. 198.

As indicated, school districts contend that the provision of fairly minimal benefit is sufficient to satisfy the substantive requirements for the provision of a free appropriate public education.  However, in the Ninth Circuit, which encompasses California and most of the western United States, it is clear that the educational program provided to a disabled child must be reasonably calculated to confer “meaningful educational benefit.”  Adams v. State of Oregon, 195 F. 3d. 1141, 1149 (9^th Cir. 1999); J.L. v. Mercer Islands School District, 575 F. 3d. 1025, 1038 Fn. 10 (9^th Cir. 2009).

Although school districts often claim that they are only responsible for addressing academic issues, and thus any evidence of academic progress proves that a disabled child has been receiving a FAPE, their obligation actually extends much further to encompass “social, behavioral, and emotional needs.”  (“The term ‘unique educational needs’ [shall] be broadly construed to include the handicapped child’s academic, social, health, emotional, communicative, physical and vocational needs”).  H.R. Rep. #410, 1983 U.S.C. Can 2088, 2106.   Furthermore, what constitutes a free appropriate public education for a disabled child must be determined in the context of his or her potential.  Mrs. B. v. Milford Board of Education 103 F. 3d. 238, 247 (3^rd Cir. 1999).

While largely unspoken, disputes between parents and school districts are often grounded in conflicting views about what a disabled child is capable of.  A child’s potential to make progress across all areas of development goes to the very heart of the question of whether a district is addressing a child’s “unique needs”.  After being unable to appropriately serve a disabled child it is quite common for a school district to take the position that the child’s impairment is such that it is not realistic to expect the degree of progress which the parents might envision.  This points out the critical need, discussed elsewhere, for parents to obtain appropriate independent assessments of their child’s needs.

Assessments and evaluations are a critical part of treatment – it identifies the nature and extent of your child’s disability. Before your child can begin receiving special education services, the child must be deemed “eligible” for an IEP or IPP. The first step is an assessment in all areas of known or suspected needs by the Regional Center and the school district. Evaluations are conducted by trained professional(s) utilizing a combination of standardized testing, observation, parent questionnaires, and review of previous reports. The findings are made available for the use by the IEP /IPP team. The evaluation should identify areas of strength and weakness, and will serve as the starting place/ baseline of your child’s functioning from which the progress towards annual goals is measured. The evaluation should also determine the type of services to be offered and the intensity of therapy which your child will receive over the coming year. If done on an annual basis, it should reveal how far your child has progressed over the past year.