In Tips

Rochelle’s Special Education Tips

I Want Everyone In My Child’s Class To Be Like My Child

How often does an attorney or advocate (or parent) argue that a child needs to be in a nonpublic placement because the child wants to be with children that learn like him? Or that the child has school anxiety and needs a nonpublic placement because the child feels different being pulled for special education services or having a special educator work beside him? Or that the child’s day is disjointed because he has some special education classes and some general education classes? It may very well be true that the child would prefer to be educated only with other children who are learning disabled. Likewise, it is not unusual for children to dislike being singled out or pulled out of a general education class for special help. But the law that requires school systems to provide special education also requires that the education be provided in the Least Restrictive Environment, which is defined in terms of the extent to which children with disabilities “are educated with children who are not disabled.” This is a mandate of the law, not a suggestion. While anyone who has been involved in special education for any period of time is aware of the LRE mandate, the issue keeps coming up, most recently in the decision of the Fourth Circuit in R.F. v Cecil County Public Schools, decided March 25, 2019, which upheld the LRE decision of the Cecil County Public Schools’ IEP team. For reasons which can only do with an intent to get the public school system to fund a nonpublic placement, this mandate is strangely overlooked in arguments made by parents’ attorneys and advocates in IEP team meetings. Or maybe it is not so strange after all, as the IEP team would need to ignore the LRE requirement in order to fund the nonpublic placement.

 

The conversation goes like this:

School Staff: “The IEP can be implemented in the LRE in the student’s home school, with the provision of special education and related services.”

Parents’ Attorney: The student has anxiety about being pulled out. The only way the student can learn is in a setting where all of the children learn like him, so he does not feel anxious.”

School Staff: The IDEA requires that the student be educated to the maximum extent appropriate with nondisabled peers. This is the only time the word “maximum” is used in the IDEA. We have added counseling to the IEP to help the student learn to deal with the fact of his disability. Like everyone, he will never be with people who are exactly like him. We are all different, with differing abilities and needs.

Parents’ Attorney: You are putting form above substance.

School Staff: No. We are following the law and providing an appropriate education that will meet the student’s individual needs and which is reasonably calculated to enable the student to make progress appropriate in light of the student’s circumstances.

 

You must be prepared to counter a demand for payment for a nonpublic school when the public school can meet the needs of the student. Make sure your discussion goes into the Prior Written Notice.

Rochelle’s Special Education Tips (“Tips”) Are Designed To Be Helpful And Thought Provoking, But Should Not Be Considered Legal Advice As They May Not Be Accurate For Use In All Situations. Tips Are Based On My Opinions And Positions In Accordance With Federal And Maryland Law And My Over 35 Years Of Experience In The Special Education Legal Field. – Rochelle S. Eisenberg, Esquire
Copyright © 2019 Pessin Katz Law, P.A. All Rights Reserved.
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