The Child and Family Law Center
Should my Child Attend the IEP? A Perspective
There is no clear answer to this question. There are several variables to take into consideration and I want to share that with you. I am writing this piece for a few reasons:
- The IEP season is around the corner.
- Several clients have recently reported that attendance at IEP meetings have traumatized their son or daughter. The child attended because the school told the parents they must be in attendance.
- I have witnessed first hand as an attorney for the child and family the stress and yes, sometimes damage, that participating in an IEP can cause if a child isn't emotionally or developmentally ready to participate.
There is no requirement that the student attend the IEP. Their opinion and preferences are essential for transition purposes but that doesn't mean that they must be at the entire meeting. IEP meetings and evaluations often focus on a student's deficits. This can be hard to hear fro any student. For students with disabilities, the impact of sharing information with a table full of adults can be daunting. Clearly, it is important for a student to be aware of their disabilities and educational needs and to develop self-advocacy skills. However, this is a process.
Suggestions for determining whether a child should attend:
- Determine whether your child is meaningfully able to participate in the IEP. If the answer is no, make your position clear to the school. Consider both the positive and negative side effects of their participation.
- Ask for all reports or evaluations in advance of the meeting. You, as parents, can determine what you want to share with your child and in what context. An IEP meeting isn't the best forum to relay information.
- Be firm with the school. It is your decision.
- Consider having your child participate in part of the IEP rather than the entire meeting. This is not an all or nothing situation.
- Talk to your son or daughter about their willingness or ability to participate in the meeting. Ask them about their priorities for the meeting.
- Request an informal meeting with the student outside an IEP to share information.
Navigating a Residential Placement Request
In the world of special education, residential placements are a rare occurrence. However, as a special education attorney who represents parents, they are one of the primary reasons families seek out a lawyer. It is one of those issues that almost always requires skilled legal help to navigate the process. Residential placements are very expensive, and often beyond the ability of a family to pay out of pocket. The need for a residential placement is usually a result of a crisis or a series of failures in the public -school system. The stakes are high for parents and children in these situations and for school districts' budgets as well. In order to make informed decisions regarding the best placement parents often turn to private educational consultants and the internet. They may not know of or utilize the website known as the Harrisburg Project, a site that lists current Illinois State Board of Education (ISBE) approved placements.
Homebound of Hospital Instruction for Students
Under federal law, school districts have an obligation to provide an eligible student with a disability a free appropriate public education, or "FAPE." The Individuals with Disabilities Education Act, or "IDEA", requires that such special education is offered in the least restrictive environment. 20 U.S. Code § 1400,
At times, the least restrictive environment available in the continuum of placements for a student is homebound or hospital instruction, either temporarily or indefinitely. When a student receives homebound or hospital instruction, rights to a FAPE still are governed by the student's IEP or Section 504 Plan, as well as the same legal requirements as for other placements.
Homebound or hospital instruction differs from homeschooling. While the latter is developed and led by the parent primarily, homebound or hospital instruction, including the school materials
and teachers, are provided by the school district at no cost to the parents. To qualify for special education in a homebound or hospital setting, the student must be eligible for special education and the IEP team must find that this placement is most appropriate and the least restrictive in light of that individual student needs. Specifically, the student must be unable to attend school due to a medical condition that will cause absence for two or more consecutive weeks or on an ongoing intermittent basis. Illinois School Code, 105 ILCS 5/14-13.01(b). Under the statute, "ongoing intermittent basis means" that the medical condition is of such a nature or severity that the student will be absent from school for a least two days at a time for multiple periods during the school year.
The parents of the student need to ensure that the school district receives verification from a physician of the medical condition, the impact on the student's ability to participate in educational instruction, and the anticipate duration of the student's absence from school.
105 ILCS 5/14-13.01(b).
Once the student is eligible, homebound or hospital instruction should begin no later than five school days after the district's receipt of the physician's statement. 105 ILCS 5/14-13.01(b).
It is important for parents of the student to be aware that special education and related services or accommodations as outlined in the IEP or Section 504 Plan must be implemented as part of the homebound or hospital instruction. This means that goals and benchmarks remain in place, and all perimeters of the IEP must be followed. The legal exception to this requirement is when the IEP team or Section 504 Plan team determines that modification are necessary during the period of homebound or hospital instruction, such that the team wojld have to make this determination with proper involvement with the parents of the student. Accordingly, communication is essential between the family and the IEP team when the student is not in the school setting. It is important to remember that the content of direct instruction received when a student is at the hospital or homebound should not be limited unnecessarily; the law states that the IEP still controls services.
105 ILCS 5/14-13.01(b).
At the IEP meeting, the IEP team must consider whether the student satisfies eligibility requirements for homebound services and what special education and related services will be provided. The cost of transportation to take advantage of special education should be included. Finally, the amount of instructional time for a student receiving hospital or homebound instruction cannot be less that five hours per week,
or one hour of instruction for each school day, unless the child's physician certifies otherwise.
105 ILCS 5/14-13.01(c).
School Residency in Divorce and Parentage Cases
When parents are divorced or separated and share the allocation of parental responsibilities (formerly known as "joint custody"), often the question arises of which school their child should attend. The answer is not always straightforward, even if both parents agree, and depends on the specific circumstances of each case.
The district in which a child is allowed to attend school is governed both by the Illinois School Code and by the parenting plan entered in a divorce or parentage case (i.e. "domestic relations"). In the parenting plan, there should be a statement indicating "the child's residential address for school enrollment purposes only." 750 ILCS 602.10(e)(6). When developing the plan, the domestic relations court determines what that address is using a legal standard of the best interest of the child.
A careful reading of the law reveals that t
his is different than determining where to send a child to school only based on which parent lives in the superior school district. Per the statute governing school residency, school residency is never determined by which district is preferable. The law states that the child's residence should be the place where the child has a "regular fixed night-time abode for purposes other than to have access to the educational programs of the district." 105 ILCS 5/10-20.12b(a)(1). This statement means that a child's residence is the same as the home of the parent who has the majority of school overnights with the child.
For instance, if the parents share decision-making, the residence of the parent who has the majority of school overnights prevails. In such a case, the child legally must attend that parent's school district, even if the district of the other parent offers better education or programs. Cases have held that
owning a residence in a school district solely to take advantage of the schools there is not enough to establish residency. Further, residency becomes more complicated with the inception of the new child support statute in Illinois that encourages parents to have 50/50 parenting time. If parents have equal amounts of parenting time and the child has no fixed night-time residence, then an argument for best interest should be made in the domestic relations context.
An Illinois State Board of Education affidavit suffices as proof of residence, but ordinarily, schools only require that a family produce documentation of residency before allowing the child to enroll. There is no specific documentation that all school districts require; many schools ask for a lease and a school may ask for a Court Order, where relevant. There also is no requirement that the child or the parent live in the school district for a specific number of days, and a child has the right to complete the entire school year in the school he or she enrolled that year, regardless of whether the child moves to another district later in the school year. Residency is determined only once per year. 105 ILCS 5/14-1.11(4).
IEP Season: Getting Ready for Your Annual Review
February 8, 2017, 6:30-7:15 p.m.
Although not everyone has an IEP meeting between February and May, this is typically a very busy time of year. The webinar will focus on what you need to do to prepare for your Annual Review IEP meeting and how to ensure that your child's educational needs are being met. We will cover the following areas:
- Data Driven IEP Goals
- Developing and Agenda
- Related Services
- How to ensure that the IEP is implemented
- Parent/School Communication
- Functional Behavioral Analysis and the Behavior Intervention Plan
- Research Based Interventions
Click here to Register!
Call 847-926-0101 for more information
The Child & Family Law Center of the North Shore
1950 Sheridan Road, Suite 201
Highland Park, IL 60035