Lynn Brown Featured in Long Island Herald's Ask the Lawyer

Publication Source: LIHerald.com

Q: My son is in the second grade and receiving special education services from our school district. I have just been sent a notice by my school district that we are having an “annual meeting” regarding those services. What is that annual meeting all about, and what are my rights if he is not getting the services he was promised or I believe he needs additional or different services?

A: If your son is receiving special education services, he has been classified by the school district’s Committee on Special Education, or CSE. The services that the school district is currently providing were determined at your last annual CSE meeting, which was probably held last spring for the current school year. The services that the school district has deemed appropriate for your child were set forth in a document called an Individualized Education Program, or IEP, which is a written statement outlining the plan for providing an educational program for a learning disabled student, which sets forth the child’s classification, placement and special education services, including educational, social and behavioral goals appropriate for that student. An IEP is only effective for one year. At your annual meeting, the IEP is re-evaluated to make sure that it is still appropriate for your child’s needs.

At your next annual meeting, the CSE will consider what progress, if any, your child has made under his IEP in place for the current school year. The CSE will decide if your son’s placement (what kind of classroom he is in or where he attends school) is appropriate and whether he needs to continue with his present level of services (for example, two sessions of speech therapy a week), or whether he needs additional or other services entirely. Every three years, a new set of evaluations is performed (called a “triennial evaluation”) to assess your child’s progress and/or needs. If you or the school district believe that it is not reasonable to rely on evaluations that may be two years old, you can request that the school district re-assess your child at any time before three years have elapsed. If you do not want to rely on testing performed by the school district (for example, because you believe your child needs testing that the person designated by the school district is not qualified to do), you may request an independent evaluation by a professional outside the school district, at the school district’s expense. If the school district does not agree to pay for such an independent outside evaluation, the school district must commence an impartial hearing to determine its right to refuse to pay for that independent evaluation.

If you and the school district do not agree on what is appropriate for your child at your annual CSE meeting, you may commence an impartial hearing at which the issue will be whether the school district needs to provide any particular placement and/or service to your child to provide a free, appropriate, public education or “FAPE”. An impartial hearing is presided over by an impartial hearing officer appointed by the State, and resembles a trial, in that witnesses are called and examined under oath. If a parent files a due process hearing request, that parent may invoke pendency, sometimes known as “stay put,” in which a child’s placement and level of services remains the same as in the child’s most recent agreed to IEP, which is typically the IEP from the last year’s annual meeting. Until the hearing officer makes a decision or until a settlement is reached between the parent and school district, the school district is obligated to comply with that prior IEP, including by keeping the placement and services the same as before you and the school district disagreed.