Who's In Charge Here? Looking Behind the Curtain in Special Education Matters

Let's say you have a daughter named Dorothy.

Dorothy is (ahem)  9 years old and has recently been evaluated and found eligible to receive special education and related services for her ADHD and high functioning autism.  A few days later, you receive your club Welcome Packet and official "Team Dorothy" jersey!! Or you might receive a rather legal looking notice from the school summarizing the results of the evaluation and an invitation for you to attend a team meeting to review the evaluation data and develop an individualized education program to address Dorothy's needs. A little less festive but just as important.

"Hmmm", you say to yourself, "Team meeting? Who else is on this team?"

Great question! Let's meet the other members of Team Dorothy, shall we?

The official IEP team roster can be found in Section 1414(d)(1)(B) of the IDEA (Individuals with Disabilities Education Act). It includes

• you (the parent), 
• at least one of Dorothy's "regular" education teachers, 
• at least one of her special education teachers or providers (the one responsible for implementing the IEP), 
• a representative of the local education agency (LEA, or as we call it here in Texas, the school district), 
• someone who can interpret the instructional implications of the evaluation data (the role of interpreter can be played by one of the other members of the team or a Licensed Specialist in School Psychology or an education diagnostician), 
• Dorothy (if appropriate) and 
• anyone else the parent or agency feels has special knowledge or expertise relating to Dorothy (such as an advocate!). 

The Statute further defines the LEA representative as one

 (I) qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of children with disabilities;

(II) knowledgeable about the general education curriculum; and

(III)  knowledgeable about the availability of resources of the local educational agency

(20 USC 1414(d)(1)(B))

Sounds great, right? With this kind of line up all working together how can Dorothy lose? After all, you know Dorothy's teachers and they all love her and they're always so helpful. Of course they're going to do what's best for her. And Glenda, the Special Education teacher, is an expert on working with children like Dorothy and will know exactly what to do for her. And we all want what's best for Dorothy, right? Unfortunately, even taking into account all of the above to be true, which is not always the case, our team members don't have a lot of power, magical or otherwise, and there are more powerful hidden team members with other motives at work.

"Who are these hidden team members and what do they want?" you ask. Well, that may require a little investigating on your part. Who has the authority to make decisions with regard to special education programs? Is it the principal?  The local Special Education Director? The local school board? The Superintendent? How is power distributed? To answer those questions, you need to examine your LEA policies, which are public information and should be readily available to you. Check their website. If you can't find them, ask. As a member of this team,  you can't play the game unless you know the rules.
As for what they want, they want uniformity. They want consistency. They want efficiency. They want convenience. After all, they are tasked with the education of hundreds, or even thousands, of students. They can't possibly be concerned with the needs of one child, even one as special as Dorothy.

While you will never see these team members at an IEP meeting, their presence will be reflected in the actions of those that are. You will hear it in phrases like "We can't do that" or "we don''t have the budget for that".  They will tell you about district policies governing what they can and cannot provide. Most of the time such policies are "unwritten".

They will sympathize with your frustration and wish they could do more. They will offer what services they can within limits. If you are looking for services that are more unique and individualized, you will find resistance even if what you're asking for is perfectly reasonable and will truly benefit Dorothy.

My reason for telling you this is not to discourage you but to empower you. Despite their best intentions, know that you are the only member of your child's IEP team with only your child's best interests at heart. You are the hero of this piece. You must be great and powerful.

"Me?" you ask, "What can I do?" The answer is A LOT!
You gain power through knowledge and preparation. You need to walk into that IEP meeting knowing as much as you can about your child's disability. What services and/or techniques have proven effective? How do they relate to your child's unique needs?

• Go online. 
• Talk to your pediatrician. 
• Talk to an advocate. 

The more you know, the better prepared you'll be. Pick your battles. You may not win them all so it's important to prioritize. If it's minor, be prepared to let it go. If it's a top priority,  don't take no for an answer. Remember you are fighting for the noblest of causes; your child's future.

The Theory of Eligibility or E = Qualifying Disability + Educational Need^2(?)

In order to better explain the eligibility evaluation and determination process, I have broken things down to a series of questions and answers. Hopefully, it makes sense to everyone.


QUESTION 1: IS MY CHILD ELIGIBLE FOR SPECIAL EDUCATION SERVICES UNDER THE IDEA?

In order for a child to receive special education services under the IDEA, he/she must

• have a disability as defined by the statute Section 1401(see earlier posts for a list of qualifying disabilities) AND

• as a result of having such disability,  need special education AND related services.

So, having a disability alone is not enough. That brings up our next question.

QUESTION 2: WHAT EXACTLY IS "SPECIAL EDUCATION" AND "RELATED SERVICES"?

 Well, lucky for us the IDEA provides definitions. According to the Statute, the term "special education" refers to instruction that is "specially designed" to meet the disabled child's unique needs (Section 1401(29)). Does that clear things up for you? No? Well, the Code of Federal Regulations Volume 34 is somewhat helpful here. Section 300.39(b)(3) defines "specially designed instruction" as

adapting, as appropriate to the needs of an eligible child under this part, the content, methodology, or delivery of instruction—

(i) To address the unique needs of the child that result from the child’s disability; and

(ii) To ensure access of the child to the general curriculum, so that the child can meet the educational standards within the jurisdiction of the public agency that apply to all children.

To put it simply, special education involves changing what the child is taught, how it is taught to the child and/or how the child receives instruction in order to enable the child to learn based on the child's unique needs.

"Related services" are those services necessary to enable the child to benefit from special education services. These include things like physical therapy, occupational therapy, psychological or audiological services, speech, etc. (Section 1401(26).

QUESTION 3: HOW DO I KNOW IF MY CHILD NEEDS SPECIAL EDUCATION AND RELATED SERVICES?

The answer is by obtaining a comprehensive evaluation either on your own or through the school. Schools may not always be as comprehensive in their evaluations as they could be so if you choose this path, proceed with caution and keep in mind you can always obtain an independent evaluation later if you so choose.

QUESTION 4: HOW DO I GET THE PROCESS STARTED?

The first step in the Special Education process, regardless of whether or not you obtain a private assessment, is to request an initial evaluation. The request can come from a parent or guardian, the school or the district or even a State education agency.

Once a request has been made, written and informed parental consent is required before proceeding with the evaluation. It is important to note that by consenting to the evaluation, parents are not consenting to the provision of special education services. This is just to determine if the child is eligible to receive services.
     If the parent fails to consent, either willfully or just by failing to respond to the request for consent, the educational agency can request a due process hearing against the parent.
     If it is the other way around and the school or district is refusing to evaluate the child, they must provide a written explanation for refusing and information on how to challenge the decision (i.e. a due process hearing).


When parental consent is established, the clock starts ticking. The initial evaluation must be completed within 60 days of obtaining consent (unless the state had a longer time limit in place prior to July of 2005).

QUESTION 5: WHAT DOES AN INITIAL EVALUATION ENTAIL?

According to Section 1414 of the IDEA, the school or district conducting the evaluation must:

use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information, including information provided by the parent

They cannot rely on any one measure or assessment in determining eligibility. The tools implemented should be reliable and administered by people with the appropriate knowledge and training to do so. The assessments must address all areas of suspected disability and provide information regarding the child's functional, academic and developmental abilities. It is important that parents be as detailed as possible when providing information about their concerns regarding their children. The information gathered is not only used to determine eligibility for services but what needs those services should address. Parents must be provided copies of all assessments performed at no charge.

When determining if the child needs SPED and related services, there is a tendency to focus on academic performance. If the child has a disability and is failing classes as a result, the need for special education services is pretty clear. But what if the child isn't struggling academically? Does that mean the child is not entitled to services under the IDEA?  The answer is no. The Statute includes specific language requiring the assessment of functional and developmental abilities as well as the academic. According to the US Department of Education, functional abilities refer to the skills necessary to perform more everyday tasks such as life skills (eating, dressing, toileting, etc.), social skills, behavior skills and mobility skills. Having a deficit in any of these areas can have an adverse effect on the child's involvement and progress in the regular education curriculum. In such cases, specialized instruction in these areas would be appropriate.

QUESTION 6: WHAT HAPPENS NEXT?

When the assessments are completed, parents meet with "a team of qualified professionals" and together determine eligibility and educational need. (IDEA Section 1414(b)(4)(A)). If the child is determined to meet eligibility requirements, the team (including the parents) will formulate a plan on how to best address the child's individual educational needs and create an Individualized Education Program (IEP). Informed parental consent must be obtained before the child can receive any such services. If the parent refuses to give consent, the school will not be required to do anything further under the IDEA.

If the parents are dissatisfied with the evaluation results, they are entitled to request an Independent Educational Evaluation at public expense. If the request is denied, a hearing will be held to determine the appropriateness of the original assessment. Even if the parents' request is ultimately denied, parents can still seek an independent evaluation at their own expense and the results of such evaluation must be considered in determining what constitutes a Free Appropriate Public Education for their child (see 34 CFR Section 300.502). Parents should be sure that any outside assessments obtained meet with stated district criteria requirements.

And that concludes my overview of the eligibility and evaluation process. Any questions?