Parent Consent Part 2: Alternative Assessments and Alternative Education Programs

Parent Consent in the IEP Process
Part 2: Alternative Assessments and Alternative Education Programs

The Maryland Parent Consent Bill passed in April of 2017 provides parents the right to consent or refuse consent for their child to be assessed using an alternative assessment and to being placed in an alternative education program.

Alternative Assessments:

The Maryland alternative assessment, previously called ALT-MSA, is now referred to as the MSAA, Multi-State Alternative Assessment.  Alternative assessments are only for students who have significant cognitive disabilities.  A single score on an IQ assessment is not to be the determining factor as to whether a student has a significant cognitive disability.  Students demonstrating academic deficits or difficulties solely due to specific learning disabilities (SLD), speech-language impairments, other health impairments (OHI), and emotional-behavioral disabilities (ED) do not qualify for the Maryland alternate assessments.  Individualized Education Program (IEP) teams must consider multiple factors in determining whether a student qualifies as a student with a significant cognitive disability such as psychological assessments, adaptive skills, assessment data, and performance in the curriculum.  Students who take the MSAA are taught using alternative academic standards and will not receive the instruction needed to earn a diploma. IEP teams must review the student's determination as to whether they qualify for alternative assessment annually. 

Parents who do not believe their child has a significant cognitive disability and does not qualify for alternative assessments should request an IEP meeting to discuss and document their disagreement by refusing consent. 

Refusing consent:  When a parent refuses consent for an alternative assessment, the IEP team/school district must either accept the parents' refusal and continue the child on a diploma track and continue to provide the student with a free appropriate public education (FAPE) or pursue mediation or due process.  If a school district seeks mediation or due process, they would be asking an administrative law judge to override the parents refusal and allow the school district to teach the student using alternative curriculum, test the child using the alternative assessment, and to ultimately be removing the child from pursuing a diploma.  

Neither consent nor refuse:  When a parent does not want to make a decision as to their child qualifying for alternative assessments, they can choose to neither consent nor refuse to consent.  In other words, they would not indicate consent either way.  In abstaining from consent or refusal, the school-based members of the IEP team's recommendation will go into effect once prior written notice has been provided.

If a parent consents to their child taking an alternative assessment, the child will be taught using alternative curriculum. 

The decision as to whether a student qualifies for an alternative assessment is extremely important. Taking the alternative assessment means the student receives significantly modified curriculum.  The longer the student is taught using the modified curriculum, the less likely the child will be prepared to attain a diploma.  The Maryland State Department of Education (MSDE) provided guidance that, "IEP teams should be especially cautious about students with significant cognitive disabilities participating in an alternate assessment in their early school years."  Maryland Guidance for IEP Teams on Participation Decisions for the Alternate Assessments Until an IEP team is absolutely certain a student meets all of the eligibility criteria, the team should err on the side of caution and continue instructing the student in the general curriculum.  

Alternative Education Program:

An alternative education program is one that does not issue or provide credits towards a Maryland High School Diploma.  Students who qualify to take an alternative assessment are instructed using modified curriculum and therefore are not working towards earning credits and a diploma.  Some school districts call these programs life skills programs, community based instruction, or alternative academic curriculum programs.  The required consent as to whether a student participates in an alternative assessment is a separate consent from the alternative education program.  MSDE has clarified that, "While instruction and assessment generally align, the law separates the two in the event that the IEP team determines that only one is appropriate and necessary to meet the student’s needs at a given time." 

For example, if an IEP team were to determine that a student should take the regular assessments (i.e., PARCC, HSA) but was to also determine the student required an alternative education program, the instruction and assessment decisions would not be aligned.  The parents would then have the opportunity to consent to the alternative education program, refuse to consent, or neither.

If you have questions as to whether your child qualifies for a alternative assessment or whether they need an alternative education program, contact me at ashley@lawforparents.com or 410-206-5997.

Disclaimer:  This blog is made available by the Law For Parents, LLC for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using this blog site, you understand that there is no attorney client relationship between you and the publisher. The blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

Parental Consent in the IEP Process. Part 1: The Basics

Parent Consent in the IEP Process
Part 1: The Basics

What The Law Says:
Parents in Maryland now have the right to consent or refuse to consent if the Individualized Education Program (IEP) team proposes to:

1) enroll their child in an alternative education program that does not issue or provide credits towards a Maryland High School Diploma;

2) identify their child for the alternative education assessment aligned with Maryland’s alternative curriculum;

3) include restraint or seclusion in their child’s IEP if the behavior and circumstances are described. *Restraint and seclusion may be used in an emergency without parental consent in accordance with Maryland law.

What Are the Options:
Consent, refuse to consent, neither.

Consent:  If a parent consents to one of the actions described above, the IEP team will implement the action.  For example, if a parent consents to an alternative assessment, the school staff will instruct the student on alternative learning outcomes and will assess them using the alternative education assessment.  The student would be on a certificate track.

Refuse to Consent:  If a parent, refuses to consent to one of the actions described above, the school district cannot implement the proposed action. For example, if a parent refuses to consent to an alternative assessment, the school staff must instruct the student on the Maryland Content Standards and will assess the student using the grade level state assessments.  The student will be on a diploma track.  The school district has the option to pursue mediation or a due process hearing to seek consent for the proposed action.

Neither Consent nor Refuse to Consent:  If a parent does not want to risk the possibility of a due process hearing, they can choose to do neither (consent or refuse). The IEP team must then provide the parent written notice of their right to consent or refuse to consent.  The notice must explain that if the parents do not respond/provide written consent or refusal within 15 business days, the IEP team’s proposed action will be implemented.

IEP teams must review these determinations annually.

The Maryland State Department of Education (MSDE) Parent Consent Technical Assistance Document provides additional guidance related to these new requirements.


Watch For Our Next 2 Parts in this Blog Series:
Part 2:  Alternative Education Assessment and Alternative Learning or Certificate Programs
Part 3:  Restraint and Seclusion


If you have questions about how these new requirements relate to your child's IEP, please contact me at ashley@lawforparents.com to schedule a consultation.  

Disclaimer:  This blog is made available by Law for Parents, LLC for educational purposes only as well as to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site, you understand that there is no attorney client relationship between you and the publisher. The blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

IDEA Regulations Updated Again - Finally MR is replaced with ID

Rosa's Law finally reaches the Individuals with Disabilities Education Act (IDEA) regulations.  On July 11, 2017, the IDEA regulations were revised to change the term mental retardation (MR) to intellectual disabilities (ID).  This significant change started with a family in Edgewater, Maryland who would not allow the "R" word to be used in the home.  When the family learned the school wanted to label Rosa with MR, they took action.  Rosa's brother, Nick, could not of said it better when he testified at a hearing stating, "What you call people is how you treat them.  What you call my sister is how you will treat her. If you believe she's 'retarded,' it invites taunting, stigma. It invites bullying and it also invites the slammed doors of being treated with respect and dignity."

On October 5, 2010, President Obama signed Rosa’s Law creating legislation requiring the federal government to replace the “r” word with intellectual disability.

You can find a copy of the revised IDEA regulations here.  The regulations become effective on August 10, 2017. 

If you have questions about how these new requirements relate to your child's IEP, please contact me at ashley@lawforparents.com to schedule a consultation.  

Disclaimer:  This blog is made available by Law for Parents, LLC for educational purposes only as well as to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site, you understand that there is no attorney client relationship between you and the publisher. The blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

Updates to IDEA Regulations

On June 30, 2017, technical amendments were made to the Individuals with Disabilities Education Act (IDEA) in order to align to the Every Student Succeeds Act of 2015.  These amendments include updating terms such as limited English proficient, regular high school diploma, scientifically based research, and defining charter schools.  The updated regulations can be found by clicking here.  For a summary of the amendments, click here.

If you have questions about how these new requirements relate to your child's IEP, please contact me at ashley@lawforparents.com to schedule a consultation.  

Disclaimer:  This blog is made available by Law for Parents, LLC for educational purposes only as well as to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site, you understand that there is no attorney client relationship between you and the publisher. The blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

IDEA Amendments Address Discipline Disparities

USDE Addresses Disparities in Discipline of Students with Disabilities Based on Race or Ethnicity

On December 13, 2016, the United States Department of Education (USDE), Office of Special Education and Rehabilitation Services amended regulations to the Individuals with Disabilities Education Act (IDEA).  

The amendments are aimed at promoting equity in disciplinary actions involving students with disabilities.  The amendments establish a standard methodology States must use to determine whether significant disproportionality based on race and ethnicity is occurring in the State and in its local educational agencies (LEAs). They clarify that States must address significant disproportionality in the incidence, duration, and type of disciplinary actions, including suspensions and expulsions, using the same statutory remedies required to address significant disproportionality in the identification and placement of children with disabilities.  The amendments also clarify requirements for the review and revision of policies, practices, and procedures when significant disproportionality is found.  They require that LEAs identify and address the factors contributing to significant disproportionality as part of comprehensive coordinated early intervening services (comprehensive CEIS) and allow these services for children from age 3 through grade 12, with and without disabilities.

While it will be 2018-2019 before the requirements take effect, we are hopeful that the continued focus on disparities will create significant change in school climates and cultures.

To read the draft copy, click here.

Also issued was a Dear Colleague Letter by the Office for Civil Rights (OCR) which reminds schools and parents of their obligation under Title VI of the Civil Rights Act of 1964 (Title VI) not to discriminate on the basis of race, color, or national origin in the administration of special education or related aids and services.  OCR cited their enforcement activities have confirmed that there continues to be over-identification of students of color as having disabilities, under-identification of students of color who do have disabilities, and unlawful delays in evaluating students of color for disability and their need for special education services.

If you have questions about how your child is being disciplined, please contact me at ashley@lawforparents.com to schedule a consultation.  

Disclaimer:  This blog is made available by Law for Parents, LLC for educational purposes only as well as to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site, you understand that there is no attorney client relationship between you and the publisher. The blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

When Do I Need a Special Education Attorney?

If you are asking yourself this question, you probably have concerns with your child’s education or have questions as to the process.  Both are indicators it’s time to set up a consultation with an attorney in order to have your child’s educational program analyzed and receive the information you need to protect your child’s right to a free appropriate public education.

Whether it’s taxes, purchasing a home, seeking medical attention, or getting a car repaired, we seek information and expert opinions to educate ourselves regarding the matter.  While there are a multitude of resources available on the internet, not all of these resources are trustworthy but more importantly the application of this information is typically not applicable to your individual child’s circumstances.  I can read or watch a You-Tube video on how to change the air filter in my car, but if I get the hood open and the part is not as described, I will most likely end up causing damage to the engine rather than saving the money I had intended to save by trying to DIY.  The same unintended damage can happen to your child’s education.

We have clients who after researching their particular concern thought they should advocate for their child’s disability code to be changed not realizing the repercussions that would hold for their child’s future.  We have had clients agree to changes in placement for their child not realizing what types of behaviors their child would now be exposed to.  The list of Individualized Education Program (IEP) missteps, misunderstandings, and misguided good intentions is innumerable.  This is why the best answer as to when to hire an attorney is before there is a concern or a problem. It goes back to the old saying – be proactive rather than reactive.

The following scenarios provide examples of when you might also need a special education attorney:

• If you are unsure as to whether your child is making progress.
• If you have disagreed with school-based members of your IEP team.
• If you have filed for mediation or due process without an attorney.
• If your child has been disciplined in ways that you feel are not appropriate.
• If your child is continually being sent home without being suspended or is suspended more than 10 days.
• If you have been invited to a manifestation determination meeting and don’t know what it is.
• If your child has been recommended for expulsion.
• If the school team is recommending your child be sent to another school/program.

Do not put your child’s right to free appropriate public education at risk due to a lack of knowledge or understanding.  Special education involves not only the intricacies of the law but also knowledge of educational research and instructional methodologies.  Attorneys who practice in special education can guide you through the paperwork, processes, and advise you as to the appropriate actions to take based on your child’s individual needs. 

If you would like more information, please contact me at ashley@lawforparents.com to schedule a consultation.  

Disclaimer:  This blog is made available by Law for Parents, LLC for educational purposes only as well as to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site, you understand that there is no attorney client relationship between you and the publisher. The blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

Are Your Child’s Suspensions Denying Them a Free Appropriate Public Education?

Are Your Child’s Suspensions Denying Them a

Free Appropriate Public Education?

The United States Department of Education (USDE) released guidance this week through a Dear Colleague Letter indicating that short term suspensions or disciplinary removals may result in a denial of free appropriate public education (FAPE) for students with disabilities.  The guidance serves as a reminder to school staff to consider the child’s needs and the effects that suspension may have on the child and to provide alternatives to excluding the child from school.

The USDE identified many supports Individualized Education Program (IEP) teams could include in a student’s IEP that could assist a child to benefit from special education including the following:

• instruction and reinforcement of school expectations;
• violence prevention programs;
• anger management groups;
• counseling for mental health issues;
• life skills training; or
• social skills instruction.

The guidance also emphasized the importance of providing behavioral supports to students in the least restrictive environment.  IEP teams may not remove the child from the general education environment solely due to the child’s behavior when behavioral supports could be effective in the regular education setting.  The USDE included social skills instruction, meetings with a behavioral coach, and training for school personnel as examples of such behavioral supports for IEP teams to consider.

Determining whether a child has been denied a FAPE is based upon the facts in individual case by case situations.  The Dear Colleague Letter listed the following, “circumstances that may indicate either a procedural or substantive failure in the development, review, or revision of the IEP include, but are not limited to, the following:

• The IEP Team did not consider the inclusion of positive behavioral interventions and supports in response to behavior that impeded the child’s learning or that of others;
• School officials failed to schedule an IEP Team meeting to review the IEP to address behavioral concerns after a reasonable parental request;
• The IEP Team failed to discuss the parent’s concerns about the child’s behavior, and its effects on the child’s learning, during an IEP Team meeting;
• There are no behavioral supports in the child’s IEP, even when the IEP Team determines they are necessary for the child;
• The behavioral supports in the IEP are inappropriate for the child (e.g., the frequency, scope or duration of the behavioral supports is insufficient to prevent behaviors that impede the learning of the child or others; or consistent application of the child’s behavioral supports has not accomplished positive changes in behavior, but instead has resulted in behavior that continues to impede, or further impedes, learning for the child or others);
• The behavioral supports in the child’s IEP are appropriate, but are not being implemented or not being properly implemented (e.g., teachers are not trained in classroom management responses or de-escalation techniques or those techniques are not being consistently implemented); or
• School personnel have implemented behavioral supports not included in the IEP that are not appropriate for the child.”

The Dear Colleague Letter also identified, “circumstances that may indicate that the child’s IEP is not reasonably calculated to provide a meaningful educational benefit include, but are not limited to, the following:

• The child is displaying a pattern of behaviors that impede his or her learning or that of others and is not receiving any behavioral supports;
• The child experiences a series of disciplinary removals from the current placement of 10 days or fewer (which do not constitute a disciplinary change in placement) for separate incidents of misconduct that impede the child’s learning or that of others, and the need for behavioral supports is not considered or addressed by the IEP Team; or 
• The child experiences a lack of expected progress toward the annual goals that is related to his or her disciplinary removals or the lack of behavioral supports, and the child’s IEP is neither reviewed nor revised.”

Not only do removals from school potentially result in a denial of FAPE, the USDE also provided a sampling of the research which demonstrates that the removals rarely result in a change in the behavior.  In addition, they include research that has shown that the adverse results include a decline in academic performance and greater potential for students to drop out of school.  The USDE includes resources and training for school personnel available at www.ed.gov/rethinkdiscipline and http://ccrs.osepideasthatwork.org.

If you have questions about this post, please contact me at ashley@lawforparents.com to schedule a consultation.  

Disclaimer:  This blog is made available by Law for Parents, LLC for educational purposes only as well as to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site, you understand that there is no attorney client relationship between you and the publisher. The blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.