Special Education in Kentucky

Do schools have to offer special education?

Under the Individuals with Disabilities Education Act (IDEA), schools have to identify students with disabilities and provide free and appropriate education for them. The education has to be individualized. This means learning has to be set up in a way that works for the student and their personal issues.

If you are a parent or legal guardian you can ask for an Individual Education Plan (IEP), a 504 plan, or an evaluation for services.

• IEP: If the student’s disability has an adverse impact (makes it hard to do well in the classroom), an IEP can be created that includes needed supports, accommodations, and modifications.
• 504 Plan: If the student’s physical or mental impairment greatly limits one or more major life activities, a 504 plan can help give needed accommodations.
• Gifted and Talented: This program is considered an arm of Special Education. The same protections that apply to other special education students apply to this program.

What kinds of special needs might need special education services?

Common special needs are things like:

• Challenges with learning
• Challenges communicating
• Emotional and Behavioral Disorders
• Physical Disabilities
• Developmental Disorders

Common reasons why children struggling in school might be able to get support services so they can be taught in a special way:

• Autism
• Developmental delay
• Hearing Impairment
• Speech Impairment
• Learning Disabilities
• Attention Deficit Hyperactivity Disorder
• Visual Impairment
• Mental Retardation
• Emotional/Behavioral Disorders

What are the steps of the special education due process?

There are federal and state laws that make sure the rights of children with educational disabilities are protected. These rights include making sure that students and parents can work with the school district when major things are being decided on for the student.

The following steps must be followed in this order:

• Step 1: Referral
  If a parent or guardian, school staff member, or someone who knows a lot about your child notices that they might need special help in school, the school system needs to be told in writing. Schools have a responsibility to identify and evaluate children with disabilities.

  Schools focus on preventive strategies. These are also known as Response to Intervention (RTI). The idea is to help a student get better at things they struggle with. In the RTI process, schools focus on services (interventions) that should meet a student’s needs. The school also focuses on how the student responds. If a student’s struggles get worse or don’t improve, then an educational professional or parent or guardian can refer the student for an educational evaluation.

  If a parent or guardian wants to refer the child, the school must provide help with the written referral to make sure it is complete and that it given to the new school. 

  The important part of the referral process is showing that the school tried interventions to see if they could meet the child’s needs. The referral information must show that:
  ▪ your child didn’t respond to other types of intervention, and
  ▪ the interventions must be research based.

  When the school gets a referral for your child, these things will happen:
  ▪ The parent will be told in writing that the school got a referral on their child.
  ▪ The notice tells the parent the referral was made and asks them to come to an Admissions and Release Committee (ARC) meeting to talk about the referral
  ▪ The parent becomes a member of the ARC.
  ▪ The ARC decides if there is enough information to start a full and individual evaluation.
  ▪ The school district has to get consent (written permission) from the parent or guardian before the child can be individually evaluated. Getting written permission is a federal and state regulation.
  ▪ State regulations say the total amount of time from the date of the signed, written consent until the date services start, should not be more than 60 days. The days the district waits for the parent to decide does not count in that total.
   

• Step 2: Evaluation
  Once the parent or guardian gives written permission for the evaluation, a team of people who work with the child evaluate the child’s abilities and needs. They use different tests and procedures to help make sure the evaluation is valid. Your child has to be evaluated individually, not as part of a group.

  ▪ There is no cost to the parent or guardian for the evaluation.
  ▪ A team or group of people who are trained to give the tests and interpret the results must do the full and individual evaluation. This is called a multidisciplinary team evaluation.
  ▪ The evaluation must look at all areas related to your child’s suspected disability.
  ▪ At least one of the people on the multidisciplinary team must have knowledge in the area of disability that the child is suspected to have.
  ▪ Several different tests and procedures need to be used, not just one.
  ▪ All tests must be given in the language the child speaks, and in a way that the child can best answer. This is a non-discriminatory test.
  ▪ When the evaluation is done, the parent or guardian is invited to an ARC meeting to talk about the results.
   

• Step 3: Eligibility
  When figuring out if the child is eligible for special education, the ARC must include people who have knowledge about the evaluation procedures and results. The ARC uses these results to decide if the child has a disability. The ARC also uses the results to decide if the disability affects the educational performance of the child. If they decide it does affect performance, they then have to decide if the child needs specially designed teaching and related services so that they can get free and appropriate public education. A free and appropriate public education is sometimes also called FAPE.

  If the ARC decides that the child is eligible, the parent or guardian gets a written explanation, and the ARC develops an Individual Education Program (IEP) for the child. The parent or guardian has to give written permission for the child to get the services in the IEP. If the parent or guardian refuses to give permission, that must be done in writing.

  If the ARC decides that the child is NOT eligible for special education services, the parent gets a written explanation of the decision. This written explanation is called a conference summary. If the child is not eligible for an IEP, they may still be able to get a 504 Plan.
   

• Step 4: Individual Education Program (IEP) Planning
  After the ARC decides that the child has a disability that impacts their education, the ARC develops a written Individual Education Program (IEP) for your child. The ARC may
  ▪ review the evaluation material
  ▪ decide if the child is eligible
  ▪ develop the IEP, and
  ▪ decide where the child can get services

  Sometimes this can all be done in one meeting. But, if it takes more than one meeting, the IEP must be developed no later than 30 calendar days after the ARC meeting when they determined eligibility. It also has to be done within the 60 days set by state regulations (see Referral section above.)

  An IEP is written especially for the individual child. It is a written, individualized plan of action describing specially designed ways to teach the child and other services the child needs. The ARC team figures out the child’s current educational performance by reviewing the most recent evaluation data, getting parent or guardian input, and looking at progress data.

  Goals and objectives are created every year. The goals and objectives must be specific, able to be measured, and checked throughout the school year. The ARC team describes what services the child can get, when those services start, and when they think those services might end.

  The ARC team also sets out how much time the child needs to spend in their general educational setting. The child has a right to be educated in the least restrictive environment for their needs.

  Transition plans help students graduate from primary to secondary school. They also help them to get ready for life after school. When a student transfers schools, they should get a transition plan. The student’s “placement” (see next section) sets out where they can get their specially designed teaching, as well as other related services.
   

• Step 5: Placement
  The ARC decides where the services are provided after the IEP is written. This is called “placement.” The child has the right to get taught and to take part in school activities in the least restrictive environment (LRE). This means the child has a right to be with children who don’t have educational disabilities. The ARC must always consider a regular education class in a regular school as the first option for placement. The LRE is not the same for each child and is decided by the ARC based on the child’s IEP.

  The following questions are important factors when deciding on the LRE:
  ▪What does the IEP say the child needs?
  ▪Where can the child get what the IEP says they need?
  ▪Where can the child get what the IEP says and also be with other children who don’t have educational disabilities?

  The school has to get written consent from you before your child can get IEP services.
   

• Step 6: Implementation
  Once the parent or guardian gives written consent, the IEP services begin. The implementers of the IEP are responsible for providing instructional activities to help the child meet the goals of the IEP. They are also responsible for keeping data of how the child is doing during the year. These records are used to make decisions at the yearly ARC review meeting and to show that services were provided. All school staff who has contact with the child must implement the IEP.
   
• Step 7: Review
  Federal and state regulations say that the ARC has to review the IEP. The review has to be done within 1 calendar year of the date of the ARC meeting when the current IEP was completed. This is called an annual review. Even though the IEP has to be reviewed at least once a year, a parent or guardian or any member of the ARC can ask for a review at any time.

  At the annual meeting, the ARC reviews the child’s IEP data to decide if the goals have been met. The ARC also decides if the child still needs the specially designed teaching and other services. If the services are still needed, the ARC develops a revised IEP and decides where services will be provided.

  The ARC gives the parent or guardian a written summary of all the decisions made. This is called a conference summary. During the ARC meetings, the parent or guardian can suggest changes or voice concerns to things in your child’s IEP.
   

• Step 8: Re-evaluation
  Regulations also say that the school district has to meet with the parent or guardian to re-evaluate the child. This has to be done on or before the 3rd anniversary of the meeting when the ARC decided the child was eligible. This is called the triennial review.

  The ARC must meet with the parent or guardian to plan for this re-evaluation and the parent or guardian has to give written permission for the re-evaluation. They don’t have to do a new evaluation if the parent or guardian and the district agree that no new information is needed to decide your child’s continued eligibility.

What if there are disagreements about the special education plans?

If at any point there is a disagreement about the child’s IEP or 504 Plan, you can do the following:

• Ask for an ARC Meeting: Having a meeting lets the parent or guardian voice his/her concerns and disagreements so they are formally documented into the child’s record.
• Ask for Mediation: Mediation is when a neutral third-party tries to settle the conflict.
• File a Formal Complaint: The complaint must talk about the specific IDEA violation; it has to be filed within 1 year from when the cause of the complaint happened, and the complaint has to be resolved within 60 calendar days of filing.
• File a 504 Complaint: A 504 complaint with the school or with the Office of Civil Rights has to be filed within 180 days of when the cause of the complaint happened.
• File A Due Process Complaint: This type of complaint is like a trial. Evidence is presented, witnesses are called, and a decision has to be made within 45 days. The due process complaint has to be filed within 3 years of when the cause of the complaint happened

Can I take notes at the IEP meeting?

YES. It is a good idea to take notes during the meeting. These can be for your own use, or in case there are disagreements later.

If you think that it might be hard for you to take notes and also take part in the meeting, you can bring someone along with you to take notes. The school will probably have a note taker at the meeting too. To make sure that you get good notes, review your school’s IEP form before the meeting so you have a better understanding of what happens at the meeting.

In your notes, make sure that you write down the time, date, location, and who is at the meeting (include names and titles). Also, include the full name, address and phone number of the school’s note taker.

You can summarize what is being said in the meeting. Don’t try to write everything down word for word.

Notes are especially good when disagreements come up between you and the school. If you ask for something during the meeting and the school says no, make sure that you take note of this and the reason they give for saying no. Ask them if the disagreement is noted in the conference summary. If not, attach a note yourself to the conference summary explaining your disagreement.

After the meeting, look over your notes. Make sure that you understand them and that you haven’t missed any information. If you missed information, add it before you leave and do not make any changes or add anything after you leave. If you add to the IEP meeting notes after you leave, you may not be able to use them in a legal proceeding if that ever happens.

Can I record the meeting?

You can get permission from the school to record the meeting by asking them. If the school says it is okay, make sure that you get that in writing. If the school refuses, you still might be able to, but because this is an issue of state law, you should talk to a lawyer first.

Can I bring an outside professional to the meeting?

YES. Federal regulations say that the IEP team can include “other individuals who have knowledge or special expertise regarding the child.” You must be able to show how that person has knowledge or special expertise. This includes the professional’s credentials and a description of how s/he knows the child. You should let the school know at least 1 day ahead that you are bringing an outside professional to the meeting. Telling them is a good idea, but not a rule.

Does the school have to reschedule the IEP meeting if I can’t go?

YES. If you can’t go to the meeting the school has to reschedule. Federal law states that schools “must ensure that the IEP Team.... includes.... the parents of the child.” The school has to give the parent or guardian enough notice about the meeting, so s/he has a chance to attend. The school also has to schedule the meeting for a time that everyone agreed on. If you get notice that the meeting is scheduled for a time that you know you can’t go, tell the school right away. If you can’t go, explain to the school why you can’t and give them some other dates that work for you. Do this is in writing and keep a copy to show that you are cooperating with the school to find a meeting time. If you can’t go to a meeting in person, the school can do the meeting on the phone if you agree to that.

The school can have an IEP meeting without the parent or guardian ONLY if they can show that they couldn’t get you to go to the meeting. That is why it is important to keep records of your communication with the school.

Can I ask for a break (recess) during the meeting?

The law has very strict guidelines for the school on the time frame for when IEP meetings have to happen. Schools make every effort to meet this time frame, even if you feel you’re not ready. So, the school might pressure you to agree to a specific date.

There is nothing in the law that says the IEP meeting has to start and end in one session. The most important thing if you ask for a recess (break) is to be clear about why you feel you need one. Stay calm and firm. IEP team members can agree to break and get back together at a later date and time. During the meeting, if you think the team needs more information or that someone else should be there, ask for the meeting to be stopped. Explain why you need a break and try to get a rescheduled time and date before you leave.

You can also leave the meeting and send a letter right away explaining why you needed a “recess.” The team is probably going to complete the IEP without your input. But you can ask for another meeting to amend (make changes to) the IEP with the new information you have. There’s no time limit on when this meeting happens.

If you ask for a recess and it is denied, tell them that you will stay at the meeting but that you will ask for another one at another time when you have the additional information or can bring the person you think should be there.

What are some tips for a successful ARC meeting?

• Get Ready for Meetings
  ▪ Treat the IEP meeting like it is the first step to a due process hearing by preparing for the meeting and building a record.
   
• Prioritize your Child’s Needs
  ▪ Make a list of what your child really needs, what you want for your child, what you might be willing to compromise about, and what would be nice to have but that you could give up
  ▪ Think about the evidence you have to support each thing you ask for, like reports, assessments, experts, and other documents.
   
• Build Good Relationships
  ▪ Ask questions.
  ▪ Ask your child’s team to explain things to you that you don’t understand.
  ▪ Stay calm. Be polite and courteous even though it may be hard.
  ▪ If a meeting is falling apart with nasty comments and behavior from any team member, ask for a break. Or ask that the meeting be continued at a later date and time.
   
• Document Issues and Concerns
  ▪ Ask that items and issues you feel strongly about be written down in the meeting summary or notes.
  ▪ Review the summary before you leave the meeting.
  ▪ Know your rights about changing your child’s records.
  ▪ Always find qualified people to help
   
• Remember
  ▪ Don’t assume that the school is out to get your child.
  ▪ Treat the professionals that you deal with as if they have your child’s best interest at heart.
   
• Have an Open Mind
  ▪ If your child’s team suggests a placement that you don’t agree with, don’t dismiss it or refuse to think about it.
  ▪ Remember that the IEP meeting is important for getting things on your child’s record.
  ▪ If the case goes to a due process hearing, it is important that you are seen as a cooperative person who thinks a lot about and pays attention to the team’s program. You need to be able to explain why you think the program doesn’t meet your child’s needs.

How can I disagree with the IEP team without hostility?

• Tell the team if you don’t think the IEP is a good fit.
  ▪ Let them know you don’t think that it gives your child enough help or the right kind of help.
  ▪ Use facts to support your position.
   
• Be polite but firm in what you want to say.
   
• Give consent to an IEP that you don’t think is a good fit.
  ▪ When the team ask you to sign the IEP, write this statement on the IEP: “I consent to this IEP being implemented but I object to it for reasons stated during the meeting.”
   
• Sign your name.
  ▪ Don’t be surprised if someone gets upset and claims that you can’t write on the IEP because it is a legal document. This is not true – you can write on your child’s IEP.
  ▪ You are a member of the team and a part of the IEP process.
  ▪ The law says you have to make your objections clear.
  ▪ If someone tries to stop you, write your objection on a separate sheet, and ask for it to be attached to the IEP.
  ▪ Sign your name after you write your objection.
   
• Stay calm.
  ▪ Take your copy of the IEP, even if you don’t like it, say “thank you,” get your belongings and leave.
  ▪ The IEP team now has a problem because you advised them in writing that their proposed program is not a good fit for your child. You also gave permission for them to go ahead with the program against your wishes.
   
• Recording meetings.
  ▪ It’s a good idea to record if you expect a dispute or disagreement.
  ▪ The recorder should be out in the open.
  ▪ Always ask permission before recording.
   
• Re-state your position.
  ▪ You consented to the school implementing the IEP because something is better than nothing.
  ▪ You believe that an inadequate program is better than no program.
  ▪ But you believe the proposed program is not appropriate for your child.

What are 8 steps to take if I ask for an evaluation, but the school refuses?

1. Ask the school why it refuses to evaluate.
   ▪ If they refuse, they have to tell you why in writing.
   ▪ Ask for details about why they refused.
   ▪ Remember: the school can’t deny evaluating your child because they want to use response to intervention (RTI) first.
    
2. Ask for a meeting with the school.
   ▪ Talk about your concerns with school officials face-to-face and on the record.
    
3. Think about an independent educational evaluation.
   ▪ This can help show that your child does have a disability. The school doesn’t have to pay for this.
    
4. File a due process complaint.
   ▪ If the school won’t budge, file a written complaint saying that the school was wrong to refuse.
    
5. Make sure your request is in writing.
   ▪ When you ask for a formal evaluation, make sure you do it in writing and list the reasons your child needs one.
    
6. Ask for mediation
   ▪ You can ask for mediation. Mediation is when a third party works with you and the school to reach an agreement
    
7. Talk to an advocate or lawyer
   ▪ For a fee, an advocate or lawyer can help you navigate your communication with the school
    
8. Think about filing a state complaint
   ▪ If the school violated special education law, you may want to file a written complaint to your state department of education