Every child has the right to an education, whether or not they have a disability. Unfortunately, many students with disabilities are unable to get the appropriate accommodations and services they require and end up suffering because of it.
Under federal law, all school districts are supposed to provide eligible children in kindergarten to twelfth grade with an Individualized Education Plan (IEP). Despite this being a federal law, many states have opted to add additional regulations surrounding IEPs. If you believe your child would benefit from an IEP, or you are having a hard time enforcing the IEP at your school, an attorney-advisor can help. Call the Lento Law Firm today.
In the following sections, we will discuss the most frequently asked questions about IEPs in North Carolina.
What is an IEP?
According to the Individuals with Disabilities Education Act (IDEA), IEPs are documents that outline the services and accommodations a student with disabilities needs to participate in their education. Additionally, IEPs are legally binding, meaning that the school must abide by it or risk being sanctioned or fined by the federal government.
For students to receive an IEP, they must have a disability. Disabilities are defined under the IDEA as including:
- Hearing impairment and/or deafness
- Speech or language impairment
- Visual impairments or blindness
- Intellectual disability
- Autism
- Traumatic brain injury
- Orthopedic impairments
- Multiple disabilities
Further, students who suffer from serious emotional disturbances might also qualify for an IEP. Under the IDEA, a serious emotional disturbance includes any behavior or condition that exhibits one or more of the following characteristics:
- A failure to learn that is not caused by health, intellectual, or sensory issues.
- An inability to make or develop relationships with others.
- Exhibiting unseemly feelings or behaviors towards others under normal circumstances.
- An extensive state of depression or sadness.
- Physical symptoms or fears that emerge after personal or school problems.
These characteristics must happen consistently over a long period of time and to the degree that negatively affects the child's educational performance. Schizophrenia is also considered an emotional disturbance.
Before your child can receive an IEP, they first need to be evaluated. Generally, their teacher will have noticed the need for an IEP and requested the evaluation, but if they did not, you have every right to request the school to conduct one yourself.
During the initial evaluation, the teacher, a qualified evaluator (like the school guidance counselor or psychologist), and yourself will meet with the student and administer various tests to see how your child reacts and behaves. If, during the evaluation, the IEP evaluation team believes the student would benefit from an IEP, they will schedule an IEP meeting.
The IEP meeting will provide you and your child with an opportunity to request certain services and accommodations that you believe will benefit them academically. The IEP team will evaluate what kind of accommodations they are willing to offer and what they can afford to provide. Once the IEP is complete, the stipulations must be carried out immediately. IEPs must be reevaluated each year, though depending on the age, they might be reevaluated more than that. Also, you can request a reevaluation meeting whenever you feel it is necessary to update the IEP.
Regrettably, there have been several cases over the years where a school district either does not offer an IEP meeting, stalls them, or constantly reschedules them, hoping to deter the parent from updating the document. Similarly, there are times when the school will outright disagree with the services being requested and refuse to provide them. Attorney Joseph D. Lento and the Lento Law Firm's Special Education Law Team understand how frustrating these experiences can be, which is why they will work tirelessly to ensure the IEP process is as seamless as possible.
Transition Plans
In North Carolina, like most other states, students who are 14 years or older need to include postsecondary goals and transition needs in their IEP. Additionally, once the student turns 16, these transition goals must include employment, vocational programs, college, or independent living concerns. To allow students with disabilities a modicum of dignity and independence, the IDEA encourages student participation in IEP meetings once they reach high school.
Also, the IDEA suggests that IEPs for high school students with disabilities be reviewed more than once a year, maybe even once a quarter, to ensure the services and accommodations listed continue to reflect what the student actually needs.
Private School Exceptions for North Carolina IEP Regulations
Federal regulations generally only extend to publicly funded organizations - like public schools. If a parent decides to place their child in a private school, the child will not have the same rights to an IEP as a public school student. However, their state educational agency is supposed to reach out to the private schools in their areas to talk through the different services available for students with disabilities.
At the very least, the local school agency is supposed to reach out and evaluate students with disabilities at all schools, even private schools. When parents are made aware that their child should be awarded special education services, the school district needs to offer the parents a Free Appropriate Public Education (FAPE) in a public school. But, parents have the right to keep their child in private school and refuse the offer of a public school education.
Sometimes, a public school student whose school is refusing to provide the appropriate accommodations or services they need could be allowed to transfer their education to a private school that is paid for by the school district. Though this is an uncommon occurrence and is usually only made on a case-by-case basis, Attorney-Advisor Lento can help negotiate with the school district on your behalf.
North Carolina's Additional Requirements
North Carolina has expanded its services for disabled students to include specific accommodations and services they are willing to offer students. For instance, they will provide them with:
- Adapted physical education classes that would help with their physical and motor fitness, fundamental motor skills and patterns, and individual sports skills.
- Assistive technology helps improve their functional capability.
- Occupational therapy
- Counseling services
- Medical services
- Extra testing time
- Mobility services
- Parental counseling and training
- Physical therapy
- Psychological services
- Speech pathology
- Supplementary teaching aides
- Access to textbooks
- Oral exams
- Bringing snacks into exams
It is also important for students with accommodations and services to be trained in how to use them so that they don't have to spend time on exam day reviewing them.
Emergency Event Plans & IEPs
According to federal law, every school district in the country is required to have procedures for emergency situations to practice these procedures throughout the school year to ensure faculty, staff, and students are aware of how to conduct themselves. Emergency situations might include active-shooter drills, nuclear radiation threats, tornado warnings, hurricanes or earthquakes, and fire drills.
The Guide for Developing High-Quality School Emergency Operations Plans also recommends that school districts include emergency plans in IEPs so that when there is an emergency, every party, including the disabled child, is aware of what to do. Some of the stipulations a school might include in the IEP for an emergency event include the following:
- Making short-term plans for children with temporary disabilities - like those who broke their legs or arms.
- Offering one-on-one practice of the fire drill or other emergency transitions.
- Showing the student their pre-identified quiet place prior to the drill so they can have the opportunity to self-regulate.
- Making sure the student has access to sanitation stations or hand sanitizer, if necessary.
- Creating a peer buddy system where the disabled student is matched with a designated student, and they are instructed to stay together during the drill or emergency.
- Showing the student how to self-soothe or providing them with opportunities to practice it on their own.
- Giving them access to their emergency medications.
- Giving them earplugs or noise-canceling headphones to help with the auditory stimuli they may experience during a drill or emergency.
- Providing the child with an opportunity to run through emergency procedures outside of designated drills.
- Making sure the child's service animal has participated in the drill and is familiar with people at school.
The federal regulations also require that schools commit to training their employees on not only how to respond to emergency situations but also how to approach and calm down a disabled child during an emergency situation.
If your child's IEP does not include an emergency event plan, you can contact them to set up an IEP revision meeting and have it added in. If they try to avoid scheduling a meeting, you must reach out to an attorney-advisor immediately. You have every right to amend your IEP, and if the school is keeping you from doing that, they should be punished.
Report: Overview of Special Education in North Carolina
Since 1993, North Carolina has abided by the same spending limit when it comes to students with disabilities. As of right now, North Carolina only gives school districts about $4,600 per student with a disability, no matter the disability they have, and it only distributes this money until it reaches a limit of no more than 13% of the school district's students. Clearly, this is not enough money as most school districts have more than 13% of their student population composed of students with disabilities. Now, almost 30 years later, the state is finally starting to rethink the limit.
As North Carolina continues to mull this decision over, it does not mean your child should continue to suffer. If you feel that their school is failing to provide them with the accommodations and services they require to succeed, a skilled IEP defense attorney can help. Attorney-Advisor Lento and the Lento Law Firm's Special Education Law Team will reach out to the school district and attempt to negotiate on your child's behalf.
IDEA Reauthorization
The IDEA has not been revised since 2004, but in 2018, the federal government did implement Part B. Part B offers school districts additional financial assistance for the education of children with disabilities. For a state to qualify for financial assistance, it must first submit a State Plan, which explains how the money will be used and the policies and procedures they have in place that might be impacted by the assistance. For instance, the State Plan must include:
- North Carolina's free appropriate public education policy.
- North Carolina's FAPE limitations for children under three.
- Assistive technology services or devices the state will offer students with disabilities.
- Physical education adjustments for students with disabilities.
- Services they will offer throughout the summer for an extended school year.
- Non-academic services they will offer.
- Alternative education programs
- How they will find and evaluate children with disabilities.
- Policies surrounding Individualized Education Plans.
- Policies on residential placements.
- How they will conduct routine hearing aid and external surgically implanted medical device evaluations.
- Their policy on the least restrictive environment.
Costs
As we explained above, North Carolina does not receive much funding for their students with disabilities. Even with the addition of the Part B funding, it can be hard for some school districts to agree to certain services and accommodations because of the costs associated with them. Additionally, the IDEA only requires that IEPs provide "reasonable" services for students, which can be defined in several different ways and tends to be subjective. For instance, if a student with a visual impairment is still able to read a regular textbook, the school district will be slow to offer them a braille tutor or a textbook in braille, disputing the fact that it would allow the child to better understand the material.
If your school district has stated that the cost of accommodation is out of their budget, but you believe it would have a greater effect on your child's academic career, an attorney-advisor can help you gather evidence and expert witness testimony to sway their decision. Your child deserves the services they need, not just the ones the school district is willing to offer.
Lack of Funding Does Not End a Student's Right to Education
Though North Carolina faces a lack of funding for children with disabilities, your child still has a right to those services. If they deny your request because of a lack of funding, you must push back. Cost is always a consideration when it comes to agreeing on an accommodation or service request, but it should not be the sole determining reason. Thus, working with an IEP attorney-advisor at your IEP meeting will ensure you are made aware of all the factors that concern their denial. If they can only justify the denial by citing cost, your attorney-advisor will work tirelessly to help them see its necessity.
North Carolina Department of Education Division of Special Education Services and Supports
Though the IDEA oversees the IEP process, the states are required to design their own process for resolving conflicts and complaints. In North Carolina, the Department of Public Instruction (DPI) oversees mediation and due process hearings. The DPI encourages parents to try addressing their issues at the classroom level first, but if that is not successful, they can attempt to fix the issue with the principal or school administrators. Issues should not be addressed by the local education agency (LEA) unless these other proceedings have been exhausted first.
If the LEA cannot resolve the issue with the parent, it may be referred to an alternative dispute resolution process - mediation. During mediation, the mediator will help facilitate an agreement between the parent and LEA by allowing both sides time to be heard and helping them understand what the other person is trying to explain. The agreement that both sides come to will be recorded in a legally binding document, and both sides are expected to implement the agreement immediately.
Oftentimes, though, mediation is insufficient, and the matter is referred to a due process hearing.
Due Process Hearing
If a due process hearing is necessary, or if the parent or LEA wishes to bypass the alternative resolution process, to begin with, they can do so by filing a request for a due process hearing. This petition must allege a violation that has occurred within the last year and cannot be filed on behalf of a student who has reached the age of majority unless the court has given a parent guardianship.
Depending on the party that has issued the petition, the other party must respond to it. If the parents have sent out the petition, the LEA must respond within 10 days of receiving the petition. The response must include the following:
- An explanation of why they refused the accommodation in question;
- Describe the other options the IEP team considered and why they were rejected;
- Describe the evaluation procedures they used to make this decision; and
- Describe other factors they think might be relevant to explain their decision.
Within 15 days of receiving notice of the parent's petition for a due process hearing, the LEA must also meet with the parent and a member of the IEP team to discuss the issues and facts in the petition and give themselves an opportunity to dispute the petition. If the issue cannot be resolved during this meeting, the due process hearing will occur.
During the due process hearing, both sides will have an opportunity to present evidence and witness testimony to support their argument. Once both sides have been fully heard, as well as having an opportunity to cross-examine the other side's witnesses and evidence, the due process hearing committee will determine which party will prevail. It is important to note that North Carolina law also provides for an appeal to this decision.
Special Considerations for Preschoolers
According to Part B of the IDEA, while IEPs are only available to students in kindergarten and above, preschoolers with disabilities are entitled to receive special education and coordinating services prior to receiving an IEP. Under this rule, children aged 3 to 5 years old can only be placed in the least restrictive environment. If they are placed in a more restrictive environment than necessary, the school district could be fined or sanctioned.
After preschool, when the child enters kindergarten, they are eligible for an IEP meeting. If the school fails to offer you one immediately, make sure you reach out to inquire about setting one up. It is important to realize that if your child requires any special education services before kindergarten, they probably need those services going forward. An IEP evaluation will help outline which services they need and what you can expect from the school.
Protect Your Student's Rights
While the federal government has stated, through the IDEA, that children with disabilities are entitled to a free and appropriate public education, many school districts either fail to comply or, if they do comply, fail to offer students the accommodations and services they actually need to succeed in school. To ensure the school district follows this federal regulation, it is important you reach out to a skilled attorney-advisor for help.
Attorney-Advisor Joseph D. Lento and Lento Law Firm's Special Education Law Team have helped clients around the country receive the accommodations and services they need. They understand how overwhelming these proceedings can be and will work diligently to ensure the school upholds your child's due process rights. With unmatched experience and a fighting attitude, the Lento Law Firm's Special Education Law Team is your best bet for guaranteeing your child's future is free of the extraneous challenges school districts can cause. Call 888-535-3686 today or schedule a consultation online.
