Advocacy for Parents and Students under Individuals with Disabilities Education Act (IDEA) and Section 504 of the Americans with Disabilities Act (ADA), Drafting and Enforcement of Individualized Education Plans (IEP), Student Discipline (Suspensions and Expulsions), Transition Planning and Due Process Challenges.
The special education process is driven by the individualized needs of the student, regulated by complex state and federal laws, and is very often fueled by emotion, conflict, and uncertainty. Parents and guardians of children with disabilities should proceed with caution and if possible, should give serious consideration to hiring a lawyer specializing in special education.
Purpose of Special Education
It has been long recognized that the purpose of special education is to ensure that all children with disabilities have available to them a “free and appropriate public education” that emphasizes special education and related services “designed to meet their unique needs and prepare them for further education, employment, and independent living”. Special education services are provided at no cost to the parents and must be provided in the “least restrictive environment”.
Special Education Laws
Three primary laws govern special education in Maine: (1) the Individuals with Disabilities in Education Act (“IDEA”), 20 U.S.C. § 1400, (2) Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (at § 504), and (3) Maine’s Unified Special Education Regulations, commonly known as “Chapter 101”. Other relevant laws include the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101, and the Family Educational Rights and Privacy Act (FERPA), 20 USC 1232g. The school district’s obligation is to provide child eligible for special education with a “free appropriate public education” (“FAPE”). FAPE is also the legal standard applied by courts and hearing officers.
Eligibility for Special Education
To be eligible for special education, a child must have a disability and be deemed in need of special education and related services. Once found eligible for services, a child receives services at the school administrative units or, if not yet age 5, through early intervention programs. Disabilities considered include:
- Deaf and Hard of Hearing
- Blindness and Visual Impairment
- Emotional Disability
- Mental Retardation
- Multiple Disabilities
- Other Health Impaired
• Orthopaedic Impairment
• Specific Learning Disability
• Speech and Language
• Traumatic Brain Injury
• ADHD (May be identified as Other Health Impairment, Specific Learning Disability, Emotional Disability.)
The Individualized Education Program (IEP)
An Individualized Education Program (IEP) is a written program detailing the specialized instruction to be provided to the student. The IEP is developed and overseen by the IEP Team during regular meetings where decisions about the IEP are made through consensus. The IEP Team typically includes parents, teachers, special education staff, central administration, and others who have special knowledge or understanding of the child. Once the IEP is in final form, it is considered a legal document and must provide the student with FAPE.
Parents have the right to disagree with decisions made by the IEP Team and may challenge those decisions through mediation, complaint, or by requesting a due process hearing. In Maine, regulations implementing IDEA are overseen and administered by the Maine Department of Education. Due process challenges are governed under a set of procedural safeguards set forth in DOE regulations and provided to every parent of children receiving special education services. Some of the more important procedural safeguards include:
- The “Stay Put” Rule, which provides that a child must remain in the current educational placement while the due process challenge is pending;
- The right to an Independent Educational Evaluation, provided at no cost to the parent if they disagree with the school’s evaluation(s);
- The right to retain an attorney and/or special education advocates, who may accompany the parents to IEP Team meetings or due process hearings and mediations (in some cases attorneys fees are awarded);
- Discipline and removal of students with disabilities;
- Transition Planning to prepare a student with disabilities for life after graduation; and
- The right to appeal the hearing officer’s decision in a court of law
Disability Discrimination under Section 504 of the Rehabilitation Act
A student with a disability may not always be eligible for special education services. Section 504 is a civil rights law that prohibits discrimination against individuals with disabilities. Section 504 ensures that the child with a disability has equal access to an education. If appropriate, the child may receive reasonable accommodations and modifications. Like an IEP, the “504 plan” is the product of collaboration to ensure that reasonable accommodations are made. Unlike IDEA, Section 504 does not require the school to provide an IEP. Also, Section 504 provides fewer procedural safeguards than IDEA.