Attorneys: Rochelle, R. Scott
The Individuals with Disabilities Education Act ("IDEA") is a federal law that requires states to provide a "free, appropriate public education" to children with disabilities so they can be educated to the greatest extent possible along with all other children. 20 USCS § 1411 et seq. (West 2004). Qualifying children are entitled to special education and related services at no cost to their parents, and a description of those services within an Individualized Education Program (IEP).
An IEP is a legally mandated document that addresses the manner in which a child's special needs will be accommodated in the child's Least Restrictive Environment ("LRE"). More specifically, providing a Least Restrictive Environment ensures that children with disabilities are educated with children who do not have disabilities, and have access to the same general curriculum so that the child can meet the same educational standards that apply to all children in that school district.
Ideally, an effective IEP is a well-negotiated document that requires a team approach in determining what specialized services, adaptations and modifications may be needed to enable qualified students to make progress in their appropriate placement. At the heart of this process is the student's Case Study Evaluation ("CSE"). An appropriate evaluation of a student's needs requires that any qualified student, as well as any student suspected of qualifying under the IDEA must be evaluated by professionals certified by the State of Illinois.
Such qualified individuals include but are not limited to; a licensed, certified school psychologist, certified social worker, nurse, special education teach, and regular education teacher. Each must be involved with the evaluation and in certain circumstances, speech language pathologists, hearing specialists, and other qualified individuals may be required to participate under the IDEA.
Perhaps the most important aspect of this process is the inclusion of the evaluated child's parent. It is important to note that the child at issue is to never be evaluated without the parent's consent. This consent must be signed prior to any evaluation by qualified professionals. In fact, allowing parents to take an active and influential role significantly decreases its vulnerability and may serve as a safeguard against litigation stemming from the process.
The IDEA sets out certain mandates for parent participation in the drafting of the IEP. Parents of a student with a disability must be given the opportunity to inspect and review all of their child's education records and to participate in matters involving their child. In addition to the requirement that parental concerns be noted in the development of the IEP, there is a Parental Vision section in an IEP which sets out the parent's position regarding their child's outlook and what their academic goals for their child.
Most commonly, conflicts arise in the determination of a student's academic or behavioral flaws, or lack thereof. In the instance that a parent and school differ in opinion on the need for an evaluation to determine whether the student should be receiving special education services, written notice must be given to the parent or other requesting party within ten days that the school is denying the request. Id. The parent may then choose to exercise the procedural safeguards available under law, by requesting a mediation or due process hearing if they feel that the school's decision is wrong.
In the occurrence of an agreement between parent and administration, an additional consent must be signed by the parent prior to implementation of any special education, assuming the student was found to be qualified. In lieu of these mandates, it is highly recommended that administrators communicate to parents their right to an independent educational evaluation at public expense if they disagree with an evaluation obtained by their school district. Failure to do so may give the appearance of bad faith dealings and subsequently negative exposure in resulting litigation.
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Scott Rochelle, an associate in our Chicago office, concentrates his practice in general litigation with a focus on commercial litigation, civil rights defense, and school law. Prior to joining Querrey & Harrow, Scott served as a judicial clerk in the Office of the Honorable E. Kenneth Wright, Presiding Judge of the First Municipal District in the Circuit Court of Cook County. Scott also worked with the Office of the University Counsel where he worked closely with University of Illinois' attorneys on large litigation matters involving civil rights, premises liability and labor disputes.