Changes to DC Special Education Law

DC Special Education LawThe Special Education Student Rights Act of 2014, DC Act 20-486, includes several provisions that ensure that parents of children with special needs have the information and opportunity to more actively participate in the development and monitoring of Individualized Education Programs (IEPs) for their children and to hold schools accountable when their programs are not meeting the needs of their children. In my opinion, three provisions of the Act constitute a sea change in current DC policy regarding the interaction between the parents of children with special needs and the traditional public schools or public charter schools that service them.

Schools to Provide Information Before IEP Meetings

The Act requires schools to provide parents copies of written documents that will be discussed at meetings for IEP or meetings about a child’s eligibility for specialized instruction or services at least 5 business days before the meeting or no less than 24 hours before any such meeting if the meeting is scheduled with less than 5 business days’ advance notice.

This is huge win for parents. Parents – and their advocates – will have a reasonable period of time before meeting school multidisciplinary teams to actually read, analyze and provide informed queries and comments on documents that are critical to understanding the needs of their children and to the development of a program to address those needs. Many of these documents, such as IEPs, psychoeducational evaluations (including the tests and subtests therein), and standardized assessments, are very long and complex, are chock full of educational and psychological vocabulary, statistical data and references, and contain observations and conclusions of teachers and psychologists. Parents and their advocates need time to read and understand these documents, opine on them and plan a strategy on how to address the documents in the meeting.

Since parents will have relevant documents well before the IEP or MDT meeting, they will have a fair opportunity to actively participate in these meetings and to contribute valuable insights in a spirit of true dialogue with the MDT, which is what Congress intended under the IDEA. As IEP meetings are often limited in time because of the schedule of the school day, this provision will help to remove the pressure on parents to read documents on the fly, listen without talking during the meeting, and to just go along with whatever the MDT observes and recommends.

Parents Have the Right to Observe Their Children

Parents – or their designee – will be entitled to observe their child in his current or proposed special education program, but designees cannot be a representative of the parent in an active litigation against the school. Schools may restrict access by requiring advance notice of the observation, to protect the safety and confidentiality of other students in the specialized instruction program, and to avoid disruption that might occur as a result of multiple simultaneous observations of the specialized program.

It is not clear yet how DCPS will implement this aspect of the Act, however, the provision gives parents another lens through which they and advocates may observe and monitor implementation of IEPs and to thereby collect another set of data relevant to the issue whether the school is meeting its obligation to provide FAPE under IDEA. The ability of the schools to request advance notice of observations, however, raises the concern that some general education teachers and special education teachers will prepare for an upcoming observation, to ensure that on observation day they are doing all the things that IEP requires them to do, but which they may not have been doing prior to the observation. On observation day, expect the tones of some teachers’ voices to change, as well as their body language and their implementation of behavior management and disciplinary measures. It is reasonable to expect some teacher behavior will be different on observation day than it would be if they did not know in advance that a parent or his designee is in the school building.

The presence of observers should be expected to affect not only the teachers, but the child, so the observation right should be exercised judiciously to avoid frustrating its purpose, which is to gather information or data on the instructional program and the child’s performance, not to antagonize teachers and administrators. Parents and their advocates should carefully consider the number of observations they want to make, who will observe, and how they will record the events they are observing. Make sure that observations are conducted by professionals who know what to observe and how to do it in a way that is not distracting or is arguably disruptive to instructional program.

Parents Who Prevail in Suits Against the Local Education Agency May Collect Expert Fees

Parents who prevail at a due process hearing concerning the placement of their child or the appropriateness of the IEP can recover reasonable expert witness fees up to $6,000. This section of the Act obviously reduces the financial barriers confronting parents who have a solid factual and legal basis to sue the local education agency, but who are hesitant to sue because of the cost of litigation.