All children, regardless of their disabilities, deserve an equal opportunity to achieve their dreams in life. However, when children with disabilities do not receive the appropriate support and school services, they face significant disadvantages that make their lives more challenging.
In the United States, federal law mandates that all school districts must provide students in kindergarten through twelfth grade with Individualized Education Plans (IEPs) if they have a disability. While federal law usually oversees the rules and regulations surrounding IEPs, some states have decided to define and expand certain aspects of the law. It is critical that if your child is struggling to receive IEP services, you reach out to a qualified attorney-advisor for help.
Below you will find answers to the most frequently asked questions about IEPs in Georgia. You do not have to weather this storm alone; contact Lento Law Firm today.
What is an IEP?
Under the Individuals with Disabilities Education Act (IDEA), IEPs are considered legally binding documents that specify the services and support students with disabilities need to receive an education. To be considered for an IEP, students must have a disability, which includes:
- Intellectual disability
- Hearing impairment and/or deafness
- Speech or language impairment
- Visual impairments or blindness
- Orthopedic impairments
- Autism
- Traumatic brain injury
- Multiple disabilities
Students with serious emotional disturbances may also qualify for an IEP. A “serious emotional disturbance” is defined as any condition that exhibits one or more of the characteristics listed below over a long period of time and to a degree that negatively affects the child's educational performance:
- A failure to learn is not caused by intellectual, sensory, or health issues.
- Incapable of making or developing relationships with others.
- Having inappropriate feelings or behaviors under normal conditions.
- A prolonged state of sadness or depression.
- Developing physical symptoms or fears after personal or school problems.
Emotional disturbances also include schizophrenia.
Before getting a comprehensive IEP, there are several steps that need to be completed. The first – and arguably most important step – is figuring out if your child needs an IEP. Usually, the teacher will recommend an evaluation for services and support if they believe the student needs it. But if they don't, you can request an evaluation yourself.
The initial evaluation team typically consists of your child's teacher and at least one other person qualified to conduct an evaluation, like the school psychologist or guidance counselor. Together, they will administer various tests and watch how your child behaves and reacts during the evaluation. If they believe your child requires services, they will arrange an IEP meeting.
During the IEP meeting, you will have the opportunity to discuss the evaluation results and recommend services and accommodations that you think your child would benefit from. The IEP evaluation team is supposed to collaborate with you to reach a decision. Once the IEP document is complete and all parties are satisfied, you will meet with the evaluation team to sign the document, and the services will start immediately. The IEP will be reevaluated once a year, at least, though you can ask for additional meetings throughout the year to determine which services should be continued and how the document should be amended as your child grows.
There are many cases where the school district does not offer IEP meetings, stalls and reschedules them, or disagrees with the services being requested. When this happens, it is important to have an attorney-advisor present to advocate on your child's behalf, ensuring they are receiving the support necessary to succeed in their academic career.
Transition Plans
Once a Georgia student reaches the age of 14, their IEP will start to include postsecondary goals and transition needs. Such goals might include college, vocational programs, independent living, or employment considerations. When students enter high school, they are given the option to participate in their IEP meetings. This gives them autonomy over their current and future goals, which can boost their self-confidence.
IEPs for high school students should be reviewed more than once a year to ensure the student is getting the most out of the services and accommodations.
Private School Exceptions for Georgia IEP Regulations
Like most federal regulations, private schools are normally not subject to the same provisions as public schools. When a parent enrolls their child in a private school, the child's rights to an IEP are not equivalent to those of public school students. However, intermediate units, which are regional educational service agencies, are required to collaborate with administrators from private schools in their respective areas to discuss the available services.
At a minimum, the local school district must evaluate students with disabilities for special education and determine their eligibility for services. If the evaluation reveals that the student is eligible for special education services, the school district must offer the child a Free Appropriate Public Education (FAPE) in a public school. Of course, parents have the right to refuse this offer and keep their child in private school.
In certain situations, a public school student who is not receiving adequate accommodations or the services they need to succeed may be permitted, on a case-by-case basis, to pursue their education in a private school with financial assistance from the public school district. Although this is uncommon, an experienced attorney-advisor can help gather evidence from previous cases and assist in negotiating with the district.
Georgia's Additional Requirements
Georgia has adopted the IDEA regulations, but it has expanded its services for students with disabilities as well. For instance, it provides an alternative assessment program (Georgia Alternate Assessment) that allows students with disabilities who cannot participate in the assessments given to the general school population to be tested on what they learned.
School districts in Georgia also have specific testing accommodations they can offer students with disabilities, including:
- Extra testing time
- Private testing areas
- Having written exams turned into oral examinations
- Small group testing areas
- Preferential seating during the exam
- Low vision aids
- Repeating directions
- Color overlays or templates with contrast and tactile cues
- Pointing to answers in a test booklet
- Scribe or adapted writing tools
- Frequent breaks
Additionally, students who are given such accommodations should also be taught how to use - and request - them prior to the exam to avoid wasting time on instructions.
Emergency Event Plans & IEPs
Federal law requires that school districts have specific procedures for emergency situations and that these procedures are practiced by the school throughout the year. Examples of emergency situations include natural disasters, like tornadoes, hurricanes, and earthquakes, as well as active-shooter drills and fire drills.
Additionally, the Guide for Developing High-Quality School Emergency Operations Plans recommends that school districts across the country provide for emergencies in IEPs so that if an emergency occurs, the school, parents, and students know what to expect. For example, the school might include one or more of the following stipulations on the student's IEP for an emergency event:
- Providing one-to-one supervision during things like drills, emergencies, or other transitions.
- Designating a pre-identified quiet place for the child to self-regulate.
- Ensuring access to sanitation stations or hand sanitizer.
- Implementing a peer buddy system.
- Teaching self-soothing strategies.
- Providing access to emergency medications.
- Offering earplugs or noise-canceling headphones to the student.
- Giving the student an opportunity to practice emergency procedures.
- Ensuring the child's service animal, if they have one, is familiar with as many people at the school as possible and has participated in the drills as well.
- Making short-term accommodations for children with temporary disabilities - like broken arms or legs.
Furthermore, schools must commit to training their faculty and staff in how to respond to emergency situations, especially if they have more than one student with an IEP.
It is important to note that if your child's IEP does not currently include an emergency event plan, you have every right to bring it up with the school. You don't have to wait for the next scheduled IEP meeting. You can request one to adjust the IEP at any time by contacting the school to request it. If they don't schedule one or try to make you wait till the next IEP reevaluation meeting, they are violating federal law. An attorney-advisor will be able to contact the school on your behalf and enforce the meeting.
Report: Overview of Special Education in Georgia
Unfortunately, despite the fact that Georgia has adopted the IDEA regulations, there are some school districts that fail to provide adequate accommodations and services to children in special education. For instance, in 2019, the Barton Juvenile Defender Clinic at Emory University School of Law filed a suit against the DeKalb County School District, the Georgia Department of Education, and the Sheriff, stating that for more than a decade, students with disabilities held in the DeKalb County jail have not been receiving special education services they are entitled to under the IDEA. In September of 2021, the Court ruled in favor of the plaintiffs, making it the first case in Georgia to make it clear that the IDEA grants students with disabilities access to special education while in adult jails.
Since 2020, there have been over 15 due process hearings implemented by parents or guardians on their children's behalf to encourage the state to provide the necessary accommodations and services their children need to succeed in school. Clearly, schools in Georgia find it hard to provide public school students with IEPs, so it is important not to back down if you feel the school is failing to help your child. A skilled IEP defense attorney can help enforce IEP evaluations and meetings and encourage the creation of a comprehensive IEP.
IDEA Reauthorization
While the IDEA has not been reauthorized since 2004, the federal government did announce Part B in 2018, which provides financial assistance for the education of disabled children. To qualify for the financial assistance, states first have to submit a State Plan. The State Plan must explain what the assistance will be used for and the policies and procedures they currently have in place. Some of the things states must include in the plan include:
- Georgia's free appropriate public education policy.
- Limitations for their FAP for children under three years old.
- Requirements for physical education.
- Assistive technology services or devices they will offer.
- Services offered in an extended school year.
- Non-academic services.
- Alternative education placements.
- Options for programs.
- Their procedures for finding and evaluating disabled children.
- Individualized Education Plans.
- Residential placements.
- Their plan to conduct routine hearing aid and external surgically implanted medical devices.
- A least restrictive environment policy.
Costs
Though the IDEA has intended for IEP services to be free for all students, there is actually limited funding for it. Further, federal law only requires schools to provide “reasonable” accommodations. The term “reasonable” is subjective, but most school districts define it as accommodations that level the playing field between children with disabilities and their classmates. Thus, they are sometimes slow to offer a service that would do more than the minimum because the cost is too high. For example, if your child has a hearing impairment and wears hearing aids, the school might refuse to provide them with an interpreter even when an interpreter would ensure your child is better able to understand what's going on.
An attorney-advisor who specializes in special education defense will be able to contact the school on your behalf and make sure they are providing the services your child needs, no matter the price tag.
Lack of Funding Does Not End a Student's Right to Education
If your school district denies your request for services or accommodations and blames it on insufficient funding, it's important to assert your position. Though the cost is a consideration for determining whether an accommodation is reasonable or not, it shouldn't be the sole determining factor. At the IEP meeting, you have to make sure your school gives you specific information about the cost of the accommodation or service.
Many families do not realize they can push back against school districts when constructing the IEP and end up giving in to what the district offers without questioning them. You should not have to accept inadequate services or accommodations just because the school says it cannot afford them. Attorney-Advisor Lento and the Lento Law Firm Education Law Team have a wealth of knowledge regarding IEPs and can use this to leverage better accommodations and services for your child.
Georgia Department of Education Division of Special Education Services and Supports
While the IDEA governs the IEP process, states are supposed to create their own dispute resolution process when conflicts arise. In Georgia, the Georgia Department of Education Division of Special Education Services (DSES) oversees due process hearings and mediation proceedings.
After a complaint is made, the DSES team will decide if the complaint should be investigated or dropped. If they decide it should be investigated, they will reach out to the parent and child, as well as the school district, and begin trying to piece together what's at issue. In addition, both sides will have the opportunity to submit evidence and witness testimony, as well as participate in mediation, to try and resolve the issue before a due process hearing is initiated.
If the parties opt to participate in mediation, it will be conducted by an impartial individual who will allow the parent and LEA to discuss their issues with the hope of reaching a mutually agreeable solution. This solution will be written down into a legally binding agreement, and the parties are expected to carry out what they've agreed on going forward.
Due Process Hearing
After the initial investigation is completed, if an agreement cannot be made between the parent and the local educational agency (LEA), the complaint will transfer to a due process hearing. If the LEA is requesting the due process hearing, they need to tell the parents and child within 10 days of the request, but if the parent is doing the requesting, the LEA must respond to the request within 10 days of receiving it.
When parents initiate the proceedings, they have to provide enough information to fully explain why the request is being made. If the LEA feels that the due process request is insufficient, they have to notify the administrative law judge (ALJ) within 15 days of receiving the request so that the ALJ can review it. The ALJ then has five days to decide if the request is sufficient. If they decide it is not, the parent must re-file the request and provide more information to explain their reasoning.
Early resolution sessions can be requested after the due process hearing has been scheduled, but it must be done within 15 days of the due process hearing request. During the early resolution session, the IEP team and parents will work with the ALJ in charge to come up with an agreement and written settlement. This agreement is legally binding after a 3-day review period and must be implemented within 30 days of the resolution period ending. If it is not implemented in time, the due process hearing will begin, and if no resolution is reached, the due process hearing will begin in 45 days at the behest of the ALJ.
During the hearing, both parties will have the right to present their evidence and witness testimony, as well as review the school's records of their child, and get help from an attorney-advisor. In cases like this, parents may be looking for reimbursement for an independent evaluation or services, alteration of an IEP, alteration of the student's placement, or other relief. At the end of the hearing, the ALJ will determine whether the petitioner should receive what they are requesting.
Special Considerations for Preschoolers
Under the IDEA Part B, Section 619, preschoolers with disabilities are entitled to receive special education and coordinating services. The Georgia Department of Education is responsible for overseeing how school districts abide by this regulation. One of the regulations states that preschoolers - who are aged 3 to 5 years old - must be placed in the least restrictive environment (LRE). This regulation specifies that children with special education needs must be given instruction with their peers in general education as much as possible. If the school refuses to provide them with such an environment or forces them into special education situations that are not appropriate for them, they can be held liable.
Once a child ages out of these services or enters kindergarten, it is important to immediately schedule an IEP evaluation with your child's school. The preschool services will serve as a stepping stone for the accommodations and services they will need in school going forward.
Protect Your Student's Rights
The IDEA specifies that all children with disabilities are entitled to a free and appropriate public education. School districts must provide certain services and accommodations to the child to comply with this regulation. To ensure they do so, it is important to have an IEP created. As we explained above, IEP documents are legally binding, and thus if the school fails to provide your child with the services they need to succeed in school, they could be sanctioned or lose their federal funding.
With clients around the country, Attorney-Advisor Joseph D. Lento and Lento Law Firm's Education Law Team have unparalleled experience helping children with disabilities receive appropriate accommodations. This process can be incredibly overwhelming, and working with a skilled defense team will ensure you are fully prepared to defend your position, whether it is in an IEP meeting, mediation, or a due process hearing. Call 888-535-3686 today or schedule a consultation online.
