I have a deaf son, grade 7. Just recently, I have attended an IEP meeting and requested that my son (who is currently homeschooled) be registered as a full time student. I asked that he be placed in the local junior high, who currently have no interpreter on staff. The school refused, saying that the IEP team’s recommendation was he attend an out of district day-school program (about 30 minutes away) because they have a deaf program set up through the state deaf school. I basically said that my son has the right to attend the local school, and providing him with an interpreter through an IEP is their responsibility. They refused, and for the first time ever – and my son attended public school many years ago in a different state, so I’ve been ot plenty of IEP meetings – the person in charge of special education services said that we could file a due process hearing and that he had plenty of lawyers that would argue against what we want. Never ever in over 30 plus IEP meetings had someone basically say, sue us, we dare you. Wow. but anyway, can a local school (district) refuse services to a deaf student based on the arguments of a) we aren’t set up for a deaf student, b) this other program already is set up and c) the IEP team recommends it (IEP team of 3 people and the 2 parents and deaf student disagreeing). Obviously they can, but do they have the legal right? Can we do anything other than sue, sue, sue?!
Although the Individualized Education Program Team includes the parents of the child, and the group that decides placement must include the parents, the Individuals with Disabilities Education Act (IDEA) does not automatically require schools to follow the placement preference of the parents. IDEA requires placement decisions to be made on the basis of the child’s Individualized Education Program (IEP) goals and services. According to the U.S. Department of Education:
The overriding rule . . . is that placement decisions for all children with disabilities must be made on an individual basis and ensure that each child with a disability is educated in the school the child would attend if not disabled unless the child’s IEP requires some other arrangement. However, [IDEA 2004] does not require that every child with a disability be placed in the regular classroom regardless of individual abilities and needs.
[The Least Restrictive Environment provision] of [IDEA 2004] presumes that the first placement option considered for each child with a disability is the regular classroom in the school that the child would attend if not disabled, with appropriate supplementary aids and services to facilitate such placement. Thus, before a child with a disability can be placed outside of the regular educational environment, the full range of supplementary aids and services that could be provided to facilitate the child’s placement in the regular classroom setting must be considered. Following that consideration, if a determination is made that a particular child with a disability cannot be educated satisfactorily in the regular educational environment, even with the provision of appropriate supplementary aids and services, that child could be placed in a setting other than the regular classroom.
71 Fed. Reg. 46587-46588
The [Least Restrictive Environment] requirements . . . express a strong preference, not a mandate, for educating children with disabilities in regular classes alongside their peers without disabilities . . .
[IDEA] . . . clarifies that the IEP Team, in developing the IEP for a child who is deaf or hard of hearing, must consider the child’s language and communication needs, opportunities for direct communication with peers and professional personnel in the child’s language and communication mode, and the child’s academic level and full range of needs, including opportunities for direct instruction in the child’s language and communication mode.
[E]ach child’s educational placement must be determined on an individual case-by-case basis depending on each child’s unique educational needs and circumstances, rather than by the child’s category of disability, and must be based on the child’s IEP . . .
71 Fed. Reg. 46585-46586
Prior written notice
But parents do have recourse when their preference is not satisfied. IDEA requires schools to give “prior written notice” whenever it:
· proposes to initiate or change, or
the educational placement of the child (among other things). The prior written notice must include:
If the school is refusing to provide the placement you are requesting, it is required to provide this notice. You can request that it do so. If the school does not already have a form you can request that the school use the form provided by the U.S. Department of Education at www2.ed.gov/policy/speced/guid/idea/modelform-notice.doc
This notice can serve as a starting point for discussions about appropriate settings for the child. It can also serve as part of the record if you decide to file a due process complaint.
If you are considering filing a due process complaint I recommend you contact a special education attorney. The National Disability Rights Network, http://www.ndrn.org/index.php, is a good source for an attorney.