You have learned that your child requires intensive intervention and educational services. A school district may provide your child with the services your child requires on the IEP. To help support your request for an intensive (and what is oftentimes, costly) educational program, provide your school district with “quality” recommendations and ask the IEP team to consider the recommendations made for your child’s education. If the school district refuses, all hope is not lost – you may have to retain an attorney to protect your child’s rights under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. § 1400 et seq.). Obtaining funding from your school district can be what makes the difference in your child’s life.
The first step to securing funding for the services your child requires is presenting the IEP team with recommendations from an esteemed professional who has evaluated your child in the area of his disability. An unhelpful recommendation is one that reads: “John requires an intensive level of intervention.” It is too vague and open to interpretation. A much more helpful recommendation is specific, for example: “John requires an intensive level of intervention with no less than 40 hours of 1:1 ABA therapy and 4 hours a month of ABA program supervision with a Board Certified Behavior Analyst (BCBA).”
The next step is to share the evaluation and recommendations with the school district and request that the IEP team consider including those recommendations in your child’s IEP. It will also inure to your benefit to have the professional who performed the evaluation participate in the IEP meeting, either in person or by telephone. This will allow the IEP team to ask questions about the recommendations.
Next, once you receive a copy of the IEP, read it to determine whether it provides an educational program that will meet your child’s unique and individual needs. If the IEP does not provide the educational services that will help your child make “meaningful” progress (progress that is meaningful to your child), then you should reject the IEP, in writing, and give reasons why you find it inappropriate. For example, “We just received John’s IEP. As we expressed at the IEP meeting, John requires a far more intensive level of services than is recommended in the IEP. Dr. Jacob’s report recommended that John receive 40 hours of 1:1 ABA, yet the IEP provides for no ABA intervention, and only one period per day of 1:1 teaching time. This is completely inadequate to appropriately educate John.”
What can a parent do next? It is now clear that the school district is not going to meet John’s needs for the upcoming school year, either because the district does not agree with the recommendation, or cannot provide the program in-district for a variety of reasons. Sometimes even the most caring school district professionals who want your child receive the intensive level of services he needs, simply do not have the power or authority to make that happen. At this point, parents should consult with an attorney who specializes in special education law for advice and plan of action.
Two options available to the parents are to: (1) fund the program and seek reimbursement from the school district; or (2) sue the school district to seek funding for the appropriate program going forward. It is preferable for parents to fund the program, if at all possible, so that the child is benefiting from the program while the litigation is in progress – then the outcome is “only” about the money. The second alternative requires that the child wait until the outcome of the litigation before the educational program is put into place. Attorneys who specialize in special education law can provide parents with strategies to help them and their child reach the desired outcome.
If there is no private school that is either available or that is appropriate to meet your child’s needs, parents may consider implementing a home program and seek reimbursement for the services implemented in the home. (This is not the same as a “home-school” program and you should discuss with your attorney or advocate how to phrase what you are seeking before you contact your school district).
In addition, you should find experienced therapists to work with your child and their services should be within “market rate” in the area where you live. School districts may challenge the service providers’ rates so that your providers’ rates should be defensible as within the market rate range. Factors include the provider’s level of experience, reputation, and education and sometimes “certification” in the field (e.g. an ABA provider who is Board Certified as a Behavior Analyst – BCBA).
To ensure that you have a “winnable” case for reimbursement, you must first provide the school district with notice about the services you intend to implement and that you intend to look to the school district for reimbursement. Parents are advised to give this notice in writing, and it must be given 10 business days prior to implementing the services.
If you decide to file a demand for due process for reimbursement/funding for your child’s program, you will have to prove that the program or private school for which you seek funding is appropriate to meet your child’s needs, and you should anticipate that your providers will have to testify and give evidence that their services are helping your child make meaningful progress.
You can also include in your demand for due process a claim for “compensatory education.” Compensatory education is a remedy available to students who have not received the services that they were mandated to receive in a previous IEP, or were never mandated to receive the services, but should have been. This remedy is intended to “compensate” the child with services.
The field of special education law is a complex field that requires advocacy and expertise. A helpful source of information for families is the Council of Parent Attorneys and Advocates (COPAA) (www.copaa.org). If you want to find an attorney or advocate, COPAA maintains a list of special education attorneys around the country. You do not have to go it alone!
Tracey Spencer Walsh, JD (Fordham University School of Law, ’94) is a Partner at Mayerson & Associates, a New York law firm dedicated to representing children and adolescents with autism and other disabilities, and assisting families in accessing the education and related services necessary and appropriate for students. Tracey is also an Adjunct Law Professor at Fordham University School of Law and teaches a Special Education Advocacy course. Tracey has also been a featured speaker at many national conferences on special education topics. Please visit www.mayerslaw.com for more information.
