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ASK THE ADVOCATE
by Steve Glink
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If a parent feels the school's assessment for placement is incorrect, what are their options?
I have a daughter in the first grade. She has been diagnosed as being Mild Mentally Retarded. She recently has also been diagnosed as ADD. My daughter has a social functioning level as an average child. At the school she is currently enrolled in they have a special education class for 1st through 5th grade children in one classroom with a total of 7 kids in the class. These children are anywhere from mild to severe MR. I wanted to move my child from this school to our home school in the area of town that we live in. The school is highly against this. They say that she needs to remain in the classroom she is in where she is not with the non-disabled children.
They do some mainstreaming but the MR children line up in a separate line outside on the playground and sit at a different table in the lunch room. When going on field trips or mainstreaming the kids into the classrooms buddied up with other MR children and are not encouraged to buddy or play with non-disabled children. Since my daughter is functioning on a high social level this in my opinion keeps her from progressing. I have asked she be moved to a our home school elementary where there they do not specialize in MR children and the school discourages me from doing this. The psychologist I hired stated she can be put under the other health impaired category and be pulled out for LD labs for certain subjects. I have an IEP meeting scheduled next week and I am always treated like I am a parent who is doing something wrong to her child. They tell me this may cause other children to make fun of her or she may become depressed. I am only trying to do what is right for her but I start second guessing myself.
She has been put on Adderall for 2 weeks now and I see great improvement in her concentration and sleep at night. But I guess my question is when she is put into this school as other health impaired and things may not go smoothly, do they have to provide an aid for her to make it successful? They make it sound to me right now that I am making a decision of pulling her from a classroom that has aids and she will not be allowed that at this school. My child sits at a lunch table with children who through their drinks and eat with their hands. This is heartbreaking for me. Is there someone I can go to that can help me decide if I am making the right decision for her and back me in IEP meetings? I feel all alone against a team of professionals telling me I am doing the worst thing in the world for my daughter and I do not want to do that to her. Thanks so much.
Dear Tricia: your e-mail to the ADDhelpline Ask the Advocate column was forwarded to me for review and response. Before, responding, I must caution you that my answer should not be construed as legal advice because I have not reviewed any documents or spoken to anyone in this case. My comments are intended to be used a general information to help you make your future decisions. Further, I am licensed to practice law only in Illinois. While I am familiar with general federal principles of special education law, laws and court decisions vary from state to state. Finally, my answers are based on your facts and my interpretation of the law. There is no guarantee that a judge would accept your facts or my interpretation of the law.
Under the U.S. Supreme Court's decision in Rowley, you must understand that the law does not require the schools to provide special ed. students with the best or optimum educational placement. Further, the law does require the schools to educate special ed. students in the least restrictive environment (LRE) and, to the greatest extent possible, with non-disabled peers. The LRE requirement does not mean that all special ed. kids must be mainstreamed.
Generally, the IEP must make a judgment call as to what is the most appropriate LRE. Appropriateness really means what placement can confer some educational benefit for the child.
Your e-mail presents a very perplexing issue, much of which is not really a legal issue. The question of what is the appropriate placement for your daughter is a question that must be answered by the IEP team. Under the IDEA, you and your professionals are an integral part of the IEP team. Youare not obligated to accept the school's assessment of your daughter's needs. ADD kids can be classified as eligible for special education under the OHI category. LD is a separate special ed. category, as is MR. I suspect that placement and services vary greatly between ADD, LD and/or MR kids. If you and your professionals truly believe that your proposed placement and change in classification is appropriate to meet your daughter's educational needs, I urge you to stand tall with the courage of your conviction. If the school does not agree, you must file for a due process hearing. Please note that under the law, specifically the "stay-put" rule, your daughter can be forced to remain in her current educational placement until the dispute is resolved. Resolution can take a long time because either party may appeal the due process decision to the trial and appellate level (in state or federal court).
Your e-mail raises the issue of the aide. Under the law, if the IEP team determines that an aide is necessary to assist the child in obtaining her educational benefit, the school must supply (and pay for) an aide. An aide cannot be denied simply based upon the placement. However, they may argue that the need for an aide demonstrates that their proposed placement is appropriate and that your is not.
Finally, your e-mail raises the issue that faces many parents, the feelings of inadequacy that arise from school staffings. You should know that you are not alone. You should also know that your feelings are legitimate. The law does give the school a lot of power is special education matters. Although the school is obligated to give parents a full explanation of their legal rights AND the names/addresses/phone numbers of places where low cost legal assistance is available, that is not always done. Moreover, it still does not stop the school from doing whatever they are going to do. Sometimes, you have to go through the legal process to vindicate your position.
I hope that this was helpful information. If you have any questions or comments, please send me another e-mail or call me at 847/480-7749. Steve Glink