4 Reasons Why Inconsistent State Special Education Laws Can Hurt Your Child’s Education! By JoAnn Collins Keywords: autism, PDD, Asperger, IDEA 2004, specific learning disability, SLD, IEE at public expense, FAPE

Are you the parent of a child with autism, pervasive developmental disorder (PDD), or Asperger’s who is having a dispute with your school district? Concerned about your state’s special education laws and whether they comply with IDEA 2004 (Federal Special Education Act)? Many states appear to have special education laws that are inconsistent with federal special education laws. This article will discuss why these inconsistent state laws could be hurting your child’s education.

1. Some school districts use state laws to deny children eligibility for special education. For example: In Maine, state law requires that children suspected of having a specific learning disability (SLD) score 1.5 standard deviations below the mean in two or more areas of psychological processing, but they cannot be more than 1.5 standard deviations below the mean (the mean is in the mean). In the OSEP policy letter to Hugo, OSEP says this is inconsistent with federal special education law because it could result in children with SLD not being properly identified. A child who does not receive the necessary special education and related services could negatively affect the child’s education and future adult life!

2. Some school districts use state laws to deny children needed ESY services. For example: In New York their state laws say that for a child to receive ESY services she must have a substantial regression (with a long recovery period). They also state that a child must be in self-contained settings, have severe multiple disabilities, or be housed and hospitalized. This is inconsistent with IDEA 2004 which states that ESY services must be determined on an individual basis and provided if a child is in need of the services so that she can receive free appropriate public education (FAPE).

3. Some school districts are preventing parents from “obtaining” publicly funded IEE by using state laws that require “pre-notification” or “request” IEE. IDEA 2004 (Federal Special Education Act) states that parents have the right to “get” an EEI at public expense when they disagree with a school evaluation. Some state laws drop the word “obtain” and insert the words “request” or “pre-notification.” For example: In my state of Illinois the regulations state that parents “must apply” for a publicly funded IEE rather than parents “have the right to obtain” the assessment. This may prevent you from determining what your child’s disabilities are and what services your child needs for FAPE

4. Some school districts use state laws to deny parents “meaningful participation” in all aspects of their children’s education. For example: In Maine their state law requires parents to submit written statements of concern at least three days before a scheduled IEP meeting. In the OSEP policy letter to Breton OSEP states: “However, the IDEA does not allow a public agency to set criteria for parent attendance at an IEP meeting. Therefore, we argue that it would be inconsistent with… IDEA for an agency adopt a comprehensive policy requiring parents to provide a written copy of their concerns to the IEP team three days prior to the meeting, so that their concerns will be addressed at that meeting.”

Use this information in your defense to ensure that your school; the district complies not only with state law, but also with federal law.

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