The Department of Education (DOE) is the government agency responsible for ensuring that all children receive an appropriate education. Parents sometimes view the DOE as an ally, and the law intended for it to be a collaborative process. The reality, however, is that the department is a governmental entity with competing interests and public policy concerns. Providing services for your particular child, therefore, is not always their top priority. If you are a parent of a child with special needs, you should be aware of your rights. The following example, based on a real-life case involving a community parent, illustrates this point.
A woman named Sarah has a three-year-old son named Joseph who suffers from autism. Joseph has been eligible for “early intervention” services which, by law, are available to children with special needs from infancy until the age of three. Joseph has been receiving intensive early intervention services since he was an infant, with the intensity of his services increasing steadily over the years.
A child generally ages out of early intervention when he turns three years old, but there is an exception if a child turns three after the start of the school year. In that case, he may continue receiving early intervention services until January 2 of the following calendar year. In this case, since Joseph’s birthday was in September after the start of the school year, he was entitled to remain in early intervention until the following January 2. Sarah decided to continue Joseph’s enrollment because he was making significant progress.
Sarah knew that once Joseph aged out of early intervention he would need a preschool program capable of meeting his needs. Several weeks before Joseph began his final semester, she met with the Department of Education’s Committee on Preschool Special Education (CPSE). The CPSE determined that, for preschool, Joseph would require a special education class consisting of no more than six students and at least one teacher and three assistants (along with other services). The committee indicated that the program would have to be “center-based,” which means that the services would be provided at a site as opposed to at the student’s home.
After this type of committee meeting, the DOE normally recommends a placement for the child. However, by December of Joseph’s final semester Sarah still had not heard from them regarding what school site was being recommended for her son. When she inquired, the DOE responded that no programs were available starting in January. They faulted Sarah for extending early intervention and blamed her for not pursuing a preschool program in September. Their message was, “Placements in January are not available to parents who have extended early intervention beyond the age of three,” despite clear laws to the contrary. They insisted that Sarah’s actions relieved them of their obligation to find an appropriate program for her son.
Sarah consulted with her attorney and was reassured that the law supported her position. She persisted and demanded a school recommendation from the DOE. The truth was that the DOE did not have any program with a seat available for Joseph, but Sarah would not relent. The DOE knew that it was required to come up with something so, in place of a center-based program, it offered the only option it had available: partial at-home services. This would mean only 15 hours of instruction per week with no other students, which they insisted would be perfectly appropriate. To the contrary, because of his diagnosis of autism, Joseph needed intensive intervention rather than just a few hours per day. He needed to be in a class with other children in order to strengthen his very weak social skills, not to be isolated from his peers. It was clear that a home-based program would not be adequate despite what the DOE would have had Sarah believe.
She remained firm and rejected their offer. Instead, she acted swiftly to place Joseph in a private school specially designed to educate children with autism. Through her attorney, she filed a request for an impartial hearing seeking tuition reimbursement for the full cost of the program. At the hearing, Sarah would have to prove that the program offered by the DOE was not appropriate, and that the private school placement was appropriate. Ultimately, it was the DOE who relented in the face of threatened litigation. A settlement was reached at the eleventh hour for the full amount of the tuition due for that school year. The DOE conceded that it had failed to find an appropriate program and, in so doing, had failed this child. A pretty significant turn of events.
This story illustrates how important it is for a parent to be informed about her legal rights. Although this story represents just one parent’s experience, many other parents will go through the same thing. Very often, what the DOE says is the law is just their view of the law. This nuance is rarely explained to the parent and the parent is left to believe that she has no recourse. With significant budget cuts burdening the Department of Education, it is becoming increasingly difficult for them to satisfy parents and offer them the services that their children seriously need. Those who know their rights are in the best position to assert their rights and obtain the needed services.
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All names in this article have been changed for the sake of privacy.
Adam Dayan is an attorney admitted to the bar in New York and New Jersey. He practices in the area of special education law.
