Special Education Advocacy and Dispute Resolution

Individualized Education Plan (IEP)

Your child’s IEP is the cornerstone of his/her learning plan. The IEP ensures that your child has access to the general education curriculum at a level appropriate for him/her. It should present your child’s customized learning opportunities, accommodations, adaptations, specialized services, and supports needed to progress towards achieving his/her learning goals. You should be a partner with the school and the Committee on Special Education (CSE) or Committee on Preschool Special Education (CPSE) in designing and implementing your child’s IEP. Research shows that children thrive when parents/guardians are engaged partners in their children’s learning journey. Your child’s IEP should be implemented in a timely manner. When this doesn’t happen, we are there to support your child’s access to the most appropriate educational support in the least restrictive manner possible.

Behavior Intervention Plan (BIP)

Schools are legally mandated (under the Individuals with Disabilities in Education Act [IDEA]) to proactively use positive behavioral supports and interventions to ensure that students with disabilities have access to safe learning environments. A student with harmful behaviors should have a Behavioral Intervention Plan (BIP) as a proactive mechanism to avert this undesirable behavior and prevent negative disciplinary actions. The BIP should, in turn, be based on the results of a Functional Behavioral Assessment (FBA). A FBA is an assessment tool used to understand why the student engages in the behavior that impedes learning and how this behavior is related to the environment.

Manifestation Determination Reviews

When a child’s behavior impedes his/her learning and/or violates the school’s Code of Conduct, and an alternate placement is proposed (e.g., from general education to special education), a Manifestation Determination Review (MDR) must be conducted. The purpose of this review is to determine if the child’s behavior is caused by or had a direct and substantial relationship to his/her disability or whether it was a failure of the school to implement the student’s IEP.

STUDENT DISCIPLINE

• IDEA Encourages Proactive, Positive Approaches

Students with disabilities are among the most vulnerable in schools. When a child’s disability has a significant impact on their independence and behavior, and they are in a special education setting or another non-inclusive school environment, it is even more important for parents/guardians to be connected to the school team and other parents. Inclusion can be a good option for children with severe disabilities, but it is often difficult to get the level of accommodation needed, depending on the nature and severity of the disability. Schools are supposed to use proactive and positive measures to discipline students, but they have leeway to use aversive methods where the students’ behavior presents an imminent risk of harm to the student or others. This exception allows schools to use aversive methods of discipline on students with disabilities when less restrictive or intrusive interventions did not work.

• Prohibited Types of Disciplinary Measures

Schools can no longer use seclusion rooms or corporal punishment on students. However, where there is a risk of imminent harm to the student and others, schools can use physical restraints including handcuffs (if the student is being arrested by the School Resource Officer), time-outs (physically separating the student from his/her peers in a non-locked setting), and physical escort. Parents/guardians and caregivers are supposed to be notified the same day if these aversive methods are used to discipline their child.

• Suspensions or Removals

Suspensions are allowed under the Act. There are five (5) and ten (10) day suspensions. However, the school district cannot suspend a student so many times that it essentially results in a change to the student’s placement. A superintendent of schools may directly or upon the recommendation of a hearing officer, change a student’s placement to an interim alternative education setting where the student’s behavior involves serious bodily injury, weapons, illegal drugs or controlled substances.

The Office of Special Education hears complaints when school districts and parents/guardians disagree about the provision of a free and appropriate public education (FAPE) to a student with a disability or one suspected of having a disability. The Office of Special Education is charged with ensuring that parents and students with disabilities are accorded due process (fairness in administrative hearings) to resolve their concerns. There are 3 options to resolve a parent’s concerns: Mediation, State Complaint, and Due Process Hearing.

• Mediation

This is a voluntary process where parents of students with disabilities and school district representatives meet with a trained mediator to discuss and resolve their complaints collaboratively. Parents and school district representatives are supported in reaching their own agreements to resolve the concern. Not all school concerns are suitable for mediation. While a mediator is impartial, mediation requires that both sides agree and voluntarily reach an agreement. The mediator does not decide who is right or wrong. 

Where a student was denied FAPE and other legal rights, mediation is not a good option, as a formal, enforceable decision might be best.

• Due Process or Impartial Hearings

A due process hearing, also called an impartial hearing, is a formal way to resolve serious disagreements between a parent and a school district about a child’s special education services. This may include disputes about evaluations, eligibility, placement, support, services, discipline, or whether the school is providing the child with FAPE. At the hearing, both sides can present evidence, call witnesses, and explain their position to an impartial hearing officer. The hearing officer reviews the information and issues a written decision that is legally binding and may be enforced in court.

• State Complaint

Navigating the special education system can be overwhelming, especially when you are trying to ensure your child receives the services, accommodations, and opportunities they need to succeed. If a parent of a child with a disability feels that the school district or its personnel violated federal or NYS educational law or regulation relating to the education of students with disabilities, they can submit a written and signed State Complaint to the NYS Education Department (NYSED). Once the complaint is received, the NYSED must investigate and issue a written decision of its finding.  

At C. Cadogan & Associates, when problems arise, we help families understand the different options to resolve their dispute with the school district and pick the best option to resolve their concern based on the severity of the alleged violation. We explain the hearing process, review the issues in dispute, organize records and evidence, prepare for testimony, and present their concerns clearly and respectfully at the hearing. Our goal is to help parents feel prepared, informed, and supported when important decisions about their child’s education are at stake.