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Questions & Answers on Schools and Special Education
By Phil Stinson, Esq.

EDITOR’S NOTE: From time to time, we will use this space for Phil Stinson to answer some of the questions that readers of Special Child have asked of Mr. Stinson. While Mr. Stinson does answer many readers’ questions individually by e-mail, time constraints sometimes prohibit him from answering each question in a timely fashion.

Q. I want my child’s school district to pay for the costs of FastForWord for my child. FastForWord is a computer-based language/auditory processing training program that will cost several thousand dollars. How can I get the school district to pay for the costs?

A. A parent cannot mandate the use of a specific curriculum or methodology, so long as a child is making meaningful educational progress in his/her educational program and placement. We have obtained funding for FastForWord on many occasions, most often as an award of compensatory education at a due process hearing, or as a settlement with a school district on a compensatory education claim prior to a hearing.

Q. My child’s school district wants to discontinue speech and language therapy services for my child because the school district thinks that she has plateaued in the speech area. I do not believe that this is an accurate appraisal. How can I get the school district to pay for an independent speech evaluation?

A. You should submit a written request to the school district requesting that the school district fund an independent speech evaluation. If the school district refuses to fund the independent evaluation, the district is required to request a due process hearing to attempt to justify to the hearing officer why the evaluation should not be funded. Ultimately, most school districts agree to fund requests for independent evaluations, because the expense of a due process hearing inevitably exceeds the cost of the evaluation.

Q. My child’s school district refuses to provide psychological counseling to my child, even though the IEP team members all say that he needs counseling. What can I do to get the counseling paid for by the school district?

A. If the IEP team has concluded that psychological counseling is required, it should be written into the IEP as a related service. The 1997 Amendments to the IDEA are quite clear that such counseling services are appropriately a related service that should be included in an IEP and provided to a child by the school district. If there is another public agency with a funding responsibility to your child - such as Medicaid - the school district can seek reimbursement from that other agency, since the school district is the payor-of-last-resort under the IDEA.

Q. My child is mentally retarded and has not participated in outdoor recess at school all year. His teacher tells me that often children in his class are sick, and that the teacher doesn’t have to take the kids outside to recess if she doesn’t want to do so. How can I be sure that my son is allowed to go to recess?

A. Your son is entitled to interaction with non-disabled peers in the least restrictive environment. That means that he should be allowed to attend outdoor recess, unless his IEP team specifically concludes that his disability prohibits inclusion in recess. Also, the school district is required to make reasonable accommodations so that your child can participate in outdoor recess. Such accommodations might include, for example, extra staff support during recess or modified playground equipment.

Q. My child’s school district has informed me that the Extended School Year ("ESY") program offered by the school district is a "predetermined four week program for all eligible children." My daughter’s needs can’t be met in the program offered by the district. Can I require the school district to provide an ESY program specifically tailored to my child’s individual educational needs?

A. Your daughter’s ESY program should be specifically tailored to meet your child’s individual educational needs, and should not be based on a pre-determined program.

Q. My son’s teacher has informed me my son’s behaviors are "out of control" in class, and the teacher is not sure how to handle the situation. Can the IEP process address my son’s behavioral issues?

A. If your child exhibits behaviors that interfere with his learning or that of others, the IEP team must consider positive behavioral interventions in the drafting of the IEP. Usually, this is best done by first developing a functional behavioral assessment of the child so that baseline information is available for the IEP team.

Q. My child’s school district offers a limited four-week extended school year program. I am told that the program cannot be any longer. How do I obtain a longer program for my child?

A. Extended school year (ESY) programs must be individualized for each child eligible for ESY services. It is not proper for a school district to place your child in any ESY program of a pre-determined duration in a cookie-cutter fashion. Most school districts will resist any ESY services, and parents must zealously advocate for their child to obtain the services pursuant to the Individuals with Disabilities Education Act (IDEA).

Q. The local school district is currently building two new middle schools scheduled to open in the Fall of 2000. One of the schools has been designated the "multi-handicap" building and is being constructed as an accessible building, whereas the other new school is not being built as an accessible building. Is this legal?

A. No. Federal law - the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act of 1973 (Section 504) - both require non-discrimination in new construction of public school buildings. Whereas certain old schools are exempt from the accessibility requirements for access by physically disabled children, the law is clear that all new school buildings (as well as those schools that are renovated) must be fully accessible. Also, it is not legal to designate one school within a school district as the "multi-handicap" building if such a designation results in de facto segregation of children based on physical disability. I recommend that you file a complaint with the Office of Civil Rights (OCR) at the United States Department of Education, as well as with the Public Accessibility Office at the United States Department of Justice. You might also wish to consult with an attorney to pursue an action in federal court.

Q. My HMO does not utilize the services of a developmental pediatrician, and refuses to pay for a consultation with a developmental pediatrician regarding my child. How can I get the HMO to pay for the consultation with the developmental pediatrician?

A. You should file a grievance with the HMO. The grievance procedure is outlined in your member handbook, and there might be a grievance form available from the HMO. In the grievance and appeals processes, you will need to articulate why the services of a developmental pediatrician are medically necessary. If you can rationally articulate the medical necessity of the need for the consultation, the HMO will eventually agree to pay for the consultation.

Q. It is written into our daughter’s IEP that physical therapy (PT) evaluations are to be conducted at the beginning of each school year. This has not happened in three years. What can be done to make sure that the yearly evaluations are conducted by our school district?

A. Even though federal law only requires that evaluations be every three years, if it is in your child's IEP that a PT evaluation is to be conducted yearly, then the evaluation must be done yearly. You should file a compliance complaint with the Office of Civil Rights at the US Department of Education.

Q. I recently reviewed my daughter’s educational records at her school. I was surprised to find that there are many errors in the documents, as well as information regarding our family medical history that is irrelevant to my daughter’s education. How can I get the documents removed from the file?

A. The Family Educational Rights and Privacy Act (FERPA) is a Federal law that protects the privacy of student education records. The law applies to all schools that receive funds under an applicable program of the U.S. Department of Education. Parents or eligible students have the right to request that a school correct records which they believe to be inaccurate or misleading. If the school decides not to amend the record, the parent or eligible student then has the right to a formal hearing. After the hearing, if the school still decides not to amend the record, the parent or eligible student has the right to place a statement with the record setting forth his or her view about the contested information. You may download a copy of the FERPA statute and regulations at http://www.specialedlaw.net.

Q. My son, age 11, is chronically ill with a metabolic disease that keeps him from attending school on a daily basis. I really don’t want to "home school" him, but I am curious to know if there are any Internet-based school programs.

A. There are occasions when a child’s health condition prohibits regular attendance in school. A good alternative to home-schooling in the traditional sense is use of an Internet-based virtual school program, such as Christa McAulliffe Academy in Yakima, Washington. The school is accredited and offers a full curriculum K-12. Some school districts have agreed to implement the Christa McAulliffe Academy program as in-home instruction facilitated by a teacher visiting the home several times weekly from the local school district. For information, go to http://www.cmacademy.org.

Q. My daughter is twelve years old and going into sixth grade this Fall. She has never had an Individualized Education Plan (IEP), although I have requested accommodations before. The school district just informed me that she failed the 5th grade, and that she is being retained in 5th grade, unless I agree to implement an IEP, in which case she will be promoted to 6th grade. I don’t want an IEP for my daughter. What should I do?

A. Your daughter is clearly not achieving meaningful academic success and would likely benefit from the specially designed instruction proposed by the school district. You need to overcome the stigma that you erroneously attach to special education. If you don’t agree to implement the IEP goals and objectives, the school district can’t legally promote her to the next grade. On the other hand, if the IEP is implemented immediately, the school district is obligated to promote your daughter to the next grade level and develop a plan that will allow her to make meaningful educational progress in school.

Q. I requested a special education due process hearing from my local school district seven months ago. We have not yet been notified of a hearing date. The special education director told me that there is a shortage of hearing officers, and that nothing can be done to speed up the process. Is this fair?

A. Federal law requires that special education due process hearings be held within forty-five (45) days of the filing of a request for a due process hearing. If you have not received a hearing within 45 days of filing the request, you should send a letter to the Office of Civil Rights (OCR) at the United States Department of Education. For a copy of the OCR complaint filing procedures, go to http://www.specialedlaw.net.

Q. My son attended a Summer program for children needing to improve social skills. In the program, he worked on goals similar to those in his individualized education plan (IEP). The school district has always maintained that he is not eligible for extended school year (ESY) services, because he does not meet the eligibility criteria for regression and recoupment. Can I make the school district reimburse us for the costs of the Summer program?

A. If your son needed to attend the Summer program in order to meet his IEP annual goals - such as his IEP goals related to social skills - then the school district is obligated to provide the services as an ESY program. You should now submit a copy of the cancelled check for the services to your child’s school district and ask that the services be paid as your son’s ESY program on the basis that he could not have achieved his IEP annual goals but for the Summer program.

Q. My daughter can only attend recess if there is an adult to assist her on the playground. The school district has told me that they will not allow her to attend outdoor recess because the teachers take their breaks during recess period, and there is no extra staff available to monitor her on the playground. This doesn’t seem fair, and impacts on my daughter’s ability to develop friendships with other children. What can I do?

A. Your daughter is being denied a free appropriate education (FAPE) under both the Individuals with Disabilities Education Act (IDEA) and Section 504 of the Rehabilitation Act of 1973 (Section 504). The school district is obligated to provide an aide on the playground during recess so that your daughter can attend recess with her classmates. There is one caveat: make sure that the need for adult supervision and one-on-one assistance during recess is written into her IEP and/or Accommodation Plan.

Phil Stinson, Esq. is a senior partner at Stinson Law Associates, P.C., a Philadelphia-based law firm dedicated to representing parents of children with special needs in federal courts throughout the country, is Director of the Special Education Law Clinic in Chester, Pennsylvania, is President and General Counsel of the Center for Education Rights (http://www.edrights.org) and is the editor of SpecialEdLaw.net, a multidisciplinary Internet resource portal (http://www.specialedlaw.net). Parents of children with special needs may contact Phil Stinson by e-mail at stinson@specialchild.com.

The Legal Files are provided by Special Child, The Resource Foundation for Children with Challenges, and Stinson Law Associates, P.C., for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. Persons accessing this site are encouraged to seek independent counsel for advice regarding their individual legal issues.

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