Individualized Education Plans (IEPs) in South Carolina

Individualized Education Plans (IEPs) in South Carolina

Most laws surrounding special education are federal, but South Carolina state laws and regulations also govern the way special education is offered and funded. The most significant federal law governing special education is the Individuals with Disabilities Act (IDEA), which requires states to provide a Free Appropriate Public Education (FAPE) to all students in the Least Restrictive Environment. If a child is eligible for special education services, they must have an Individualized Education Plan or an IEP. The education of students with disabilities is also governed by Section 504 of the Federal Rehabilitation Act. In some instances, a child may qualify under one law and not the other.

The Lento Law Firm is a Nationwide IEP Firm

The Lento Law Firm is a nationwide firm of experienced education attorneys. The Lento Law Firm Team represents parents fighting for Individualized Education Plans (IEPs) that adequately address the needs of their child. You can leave the details of your case online or call us at 888-535-3686.

Section 504 vs. IDEA (IEP)

Section 504 of the Federal Rehabilitation Act of 1973 protects the rights of individuals with disabilities in programs that receive federal funding (i.e., most schools). The definition of "disability" is much broader under Section 504 than under IDEA. Under IDEA, the student must be diagnosed with one or more of the 13 listed disabilities. Under Section 504, a student must show that they have a disability that substantially limits one or more major life activities. A life activity could be walking, reading, writing, or even the ability to concentrate, and impairments may be physical or mental.

The Section 504 process is less formal and involves the parent and school staff reviewing documentation to arrive at an agreement. The IEP process under IDEA is very formal and set in stone—it has rigid requirements for participation and time limits.

If you proceed under Section 504, you have several parental rights and due process guarantees similar to those available under IDEA. You have a right to a hearing and the right to appeal but to the Office of Civil Rights rather than the SC Department of Education.

While Section 504 provides for modifications and accommodations to a disability, it does not provide the same type of access to funding for related services and access to special education offered under IDEA.

 

School Choice and Special Education

South Carolina offers a system of school choice between several public school options, which can be helpful to some students. Additionally, the state also offers the Refundable Educational Credit for Exceptional Needs Children tax credit. This refundable tax credit allows for reimbursement of private school tuition for disabled students. Less than 1% of SC students participate in this option, with the average tax credit claimed of $9,389. Though positive for some families, this option does not address the full needs of most disabled children.

South Carolina also offers a special needs scholarship program, funded by private donations, to provide a limited number of scholarships that cover the cost of private school tuition and costs up to $11,000 per student. Total funding for these scholarships is limited to $12 million per year. However, because this program is funded through private donations, it has been unreliable in providing scholarships at that level.

While this choice may put students in a school district with a better school system overall, it does not provide special education access and related services, which requires an evaluation and an IEP.

IEPs in South Carolina

Summary of Process

The IEP process in South Carolina involves an evaluation to determine if a child has a disability and needs special education. If the evaluation reveals a disability, the next step is an IEP Team Meeting, which will begin the drafting of the IEP. At this point, the parent may take advantage of the ombudsman program. If the parent and school district cannot agree, they may continue to engage in voluntary efforts to compromise, such as the use of a facilitator or a mediator, or the issues may be heard in a Due Process Hearing. Parents have appeal rights to the South Carolina Department of Education and (eventually, if necessary) to court.

What is a Disability?

There are currently 13 disability categories recognized by federal and South Carolina state law:

1. Autism Spectrum Disorders (ASD)
2. Deaf and Blind (D/B)
3. Deaf or Hard of Hearing (D/HH)
4. Developmental Cognitive Disabilities (DCD)
5. Developmentally Delayed (D/D)
6. Emotional or Behavioral Disorders (EBD)
7. Other Health Disabilities (OHD)
8. Physically Impaired (PI)
9. Severely Multiple Impaired (SMI)
10. Specific Learning Disabilities (SLD)
11. Speech or Language Impairments (S/LI)
12. Traumatic brain injury (TBI)
13. Visually Impaired (VI)

SC Code Regs. 43-243.1. A student may have multiple disabilities and may be diagnosed with more than one of these listed disabilities.

Assessment of Disability

The process of securing special education services in South Carolina begins with an Evaluation and Assessment of the student's abilities. Either the school district or the parent may request an evaluation. The school district has a duty to identify children with disabilities.

A parent or guardian must consent to an evaluation for the process to proceed. After consent, the school has 60 days to do a full evaluation.

The assessment shows where the student is at the time (baseline) and sets goals for the future. Every IEP should include a method of assessment to measure progress toward goals.

If a parent or guardian disagrees with the results of an Evaluation, they may request an Independent Educational Evaluation (IEE) at no cost. The parent may select the qualified evaluator of their choice 34 C.F.R §300.502(b)(2).

IEP Meeting

If a student is found to have a disability, the next step in the process is an IEP Meeting, which is a meeting of people involved in a student's education.

In South Carolina, the school must give you notice of the meeting and tell you:

• The purpose.
• Time and place.
• Who will be at the meeting.
• Your right to have other people with you.

The IEP Meeting must include the following people:

• The parent or parents or guardian of the student.
• The special education teacher.
• The regular classroom teacher.
• A representative from the school district.
• Available expert on the student's disability – might be a speech therapist, psychologist, or other treating therapist.

The special education or regular teacher cannot come to the IEP Meeting with a plan, as the meeting is collaborative. The teacher should be listening to the parent and thinking creatively—not trying to control and force any agenda.

Contents/Sections of IEP in South Carolina

An IEP in South Carolina must contain the following content:

1. Present level of educational performance (PLEP). This aspect should describe how a particular disability affects education. This should involve testing results and observation.
2. Annual goals and shorter-term objectives. Goals should be measurable. Shorter-term objectives should describe small steps to the larger goal. The IEP must be revised annually (at least) as appropriate to address a lack of progress.
3. Adaptations. This section should describe how the classroom expectations may need to change, considering the disability.
4. Related Services. This section describes services needed by the student to be successful. The student must get a service if it is necessary for the FAPE.
5. Transition plan. If a student is over the age of 16, the IEP should include plans for after the student turns 18.

Accommodations and modifications

The IEP Team will consider what specific accommodations and modifications will assist your student in improving their educational performance. It may be necessary to adapt the content of educational material (i.e., to modify the complexity of some materials) or to change the way information is taught. It also may be necessary to change performance criteria or other changes or modifications in the classroom. Whatever modifications and accommodations are sought, the IEP serves as a roadmap to assist special education and regular classroom teachers in providing a supportive and effective classroom environment.

Related Services

In addition to classroom modifications and accommodations, the IEP will also plan the sort of related services the school district must provide to a student. A related service is offered beyond the classroom for a child to receive a FAPE.

According to the South Carolina Department of Education, "related services in schools" may include but are not limited to the following:

• Audiology services.
• Counseling services.
• Early identification and assessment of disabilities in children.
• Interpreting services.
• Medical services.
• Occupational therapy.
• Orientation and mobility services.
• Parent counseling and training.
• Physical therapy.
• Psychological services.
• Recreation services.
• Rehabilitation counseling.
• School health services.
• Social work services in schools.
• Speech-language pathology services.
• Transportation.

Conflicts may arise between parents and school districts regarding related services—the parents view related services as vital, but the school district may see them as burdensome.

Informal Dispute Process

If a parent is dissatisfied with any aspect of the IEP, they have several informal options:

1. Ombudsman South Carolina parents or guardians may seek assistance from the South Carolina Department of Education Office of Exceptional Children's (OEC) Ombudsman. An ombudsman is a special education teacher who works with families and agencies regarding special education needs and issues. The ombudsman can answer questions but is often not trained or adept at conflict resolution.
2. Facilitated IEPs A parent or guardian may request a Facilitated IEP process. The Facilitator assigned should be neutral and represent neither the school district nor the parent or guardian. This process is voluntary and may help flush out issues.
3. Local Procedures Local school districts may have specific local procedures that are used to resolve conflict between the school district and parents. You should certainly ask about these procedures, but remember, these procedures should never take away or diminish rights provided under IDEA.
4. Complaint to SC Department of Education parent or guardian may write a letter of complaint to the SC Department of Education Office of General Counsel. The complaining party must send a copy of the letter to the school district.

Formal Dispute Resolution – Complaint

If you disagree with the IEP or with other aspects of the process or the school district's action, you can commence dispute resolution with a Due Process Complaint. The complaint must contain:

• Your child's name.
• Your name.
• Name of the school.
• Description of issues.
• Proposed solution.
• Your signature and date.

Be careful stating the issue, as you are limited to issues in the complaint later. The SC Department of Education offers a form for due process complaints.

Formal Dispute Resolution – Process

In the formal dispute resolution phase, the parties enter a process involving progressive steps. This process will begin with mediation or conciliation and progress to a Due Process Hearing and (in some cases) an appeal.

Mediation

If the parents do not agree, the process moves to mediation, which is a non-binding effort by a neutral observer to help the parties settle on a compromise. Sometimes, this process works if the parties have some agreement in some areas. But if the parties are at odds over the basics, this step may not be successful. If the parties cannot arrive at an agreement, the hearing officer will decide all disputed issues at a Due Process Hearing.

Due Process Hearing

Parents or guardians have a right to present their case before a hearing officer, including witness testimony and documents. The hearing officer must issue a decision within 45 calendar days of the expiration of the resolution period unless an extension is granted. The 45-day timeline includes days when schools are closed due to scheduled breaks, holidays, professional development, and other reasons. The decision must include notice of the appeal rights.

In a Due Process hearing, the parent or guardian has several rights:

• The right to hire an attorney or an expert witness.
• The right to present witness testimony and evidence.
• The right to confront and cross-examine witnesses for the school district.
• The right to have your child there if you choose.
• The right to an open hearing.

South Carolina has a second review process, which it bills as a "second tier" of review, that involves another hearing officer reviewing the full record of the decision below.

An expedited hearing is available, and the parent may request this process through an Expedited Due Process form.

Appeal

A party dissatisfied with the decision in a Due Process Hearing may file an appeal in court within 90 days.

Compensatory Educational Services

If your child has been underserved in terms of special education for a significant period, he or she may have fallen far behind. In that situation, your child may need a more enriched pattern of special services to "catch up" to where they would have been without the school district's failure to provide appropriate special education. Following a Due Process Hearing, you may be entitled to compensatory educational services or services offered to address damages your child experienced during the time in which their needs were not met.

When an Attorney is Necessary

Parents often ask if an attorney is necessary in an IEP matter. The answer to this question depends on the situation, but generally, the greater the needs of the student, the greater the likelihood that you will need an attorney to secure complete services. Advocating on behalf of your child is more than "speaking up"—it's organizing and presenting evidence in a persuasive way.

Despite months of meetings and best efforts, many school districts fail to offer a reasonable plan of services. The parent may begin to suspect that bruised feelings are causing the school district to harden into an unreasonable position. In some cases, there may be retaliation against the student or siblings. If the parties are at a standoff or relationships are deteriorating, the situation is not likely to improve without the intervention of counsel. If you are asking yourself if it is time to hire an experienced education attorney, the answer is probably "yes, it's time."

The Attorney as an Equalizer

An IEP Meeting or Due Process Hearing can be an intimidating place. The room is full of professionals—teachers, administrators, medical or treating staff, and a representative or attorney from the school district. It may begin to feel like it is you (and your child) against the world. An attorney on your side of the table is a great equalizer in this situation. The power dynamics of a hearing shift decidedly in your favor when you have an experienced and tough advocate.

Cost of Special Education Services

South Carolina uses a weighted-student funding model, which sets a basic amount for all students and then adds weights for disability status. This approach helps maximize fairness and transparency, but only about 38% of state education dollars are allocated through it. The remainder of the funding of special education in South Carolina is through multiple revenue streams of program grants.

IEP Disputes Can Become a War Over Resources

An IEP dispute can become a war over resources. The school district may want to limit services offered to your child because of the cost. As a parent, you know that your child desperately needs these services to succeed. Legally, the school district should not limit student services because of cost. But special education funding from the federal government—promised at 40% at the time of the passage of IDEA—has fallen far short. States are faced with funding the shortfall, and in SC, this funding has been piecemeal, leaving much of the cost to individual school districts. It is best to understand the climate you will be up against in seeking certain costly services for your child. The school district will be inclined to limit services for reasons of funding. It is vital to have counsel and a good strategy to obtain the best result possible.

Attorney's Fees

IDEA contains a fee-shifting provision that provides that parties that prevail in a Due Process proceeding will receive payment of their attorney's fees. Keep in mind that this provision does not cover certain costs, such as expert fees, and applies only when you prevail. Although no attorney will promise to win your case and secure attorney's fees, an experienced education lawyer can advise you of the strengths and weaknesses of your case and assess your chances of recovering fees.

How a Special Education Attorney Can Help

1. Secure your child's files and evaluation and all paperwork related to the IEP.
2. Assess the strengths and weaknesses of your case and advise you of your options.
3. Prepare for and represent you at the IEP meeting.
4. Review the IEP or other paperwork before you sign it.
5. Prepare for and represent your interests at the Due Process Hearing.
6. Prepare an appeal, if necessary.

Things to Remember About a South Carolina IEP

1. The IEP is a legally binding document. If the school district fails to follow it, you can file a formal complaint based on noncompliance.
2. Any modification to the IEP must be reduced to writing and agreed to by the parties.
3. If any person necessary to the IEP meeting is not available, the parent must consent, or the meeting must be rescheduled.
4. As a parent or guardian, you must give informed consent to the evaluation and to any service or treatment. You have an absolute right to decline something that you feel is not in your child's best interest.
5. As a parent, you are an expert on your child, and you are an essential part of every stage of the IEP process. The school does not write the IEP and hand it to you—you write it with the school. You are an essential part of the process, and your child is the focus.

Lento Law Firm Team Represents South Carolina Parents or Guardians

As a nationwide law firm, the Lento Law Firm Team can represent South Carolina parents or guardians in the Columbia, Charleston, Mount Pleasant, Rock Hill, or Greenville areas or in small towns and communities throughout the state. We understand that the culture of a community will be reflected in schools and the educational decisions of local administrators. Wherever you live in South Carolina, your child has a right to receive special education services necessary for their education. We will vigorously fight for those services while showing balanced respect to your community. If the fight for an IEP is becoming too much to bear alone, call the Lento Law Firm Team. You can leave the details of your case online or call us at 888-535-3686.