Skip directly to content

Georgia Special Education Law Blog

Transition Planning and Dating

on Fri, 05/10/2013 - 21:06

I recently ran across this excellent article from Autism Speaks about helping children with autistism deal with potential dating and relationship pitfalls. It is both a blessing and a curse that the issues our children face become more complex as our children get older. And the IDEA recognizes that the school district will not always be involved in a child’s life.  

That’s why one component of an IEP is a transition plan to address what will happen when the child is no longer in school. Starting in the IEP to be in place when the child turns 16, the plan needs to include (a) goals related to post-secondary education, employment, and / or living skills, and (b) services to be provided to help the student reach those goals.1  

The most important point to make about this statutory requirement is what it does not require. Specifically, nothing in the statute prohibits transition planning services before a student turns 16. Some children have severe impairments and need to learn multiple life skills, such as taking the bus, cooking, cleaning, or other independent living skill. It might take a year to teach just one skill. If the school district waits until the child is 16 to start teaching the skills, there might not be enough time to teach all the skills the child needs before the child ages out of public schools. In those circumstances, the school district is obligated to start transition planning earlier than the statutory minimum at age 16.  

But what made me think of transition planning after reading the relationship blog post was uncomfortable topic of relationships and sex. As children get older ang go through puberty, decisions about sex will inevitably become part of their life. We would like all children to make the appropriate choices, but it is an uncomfortable fact that many children with special needs do not always have the capacity to think through all the implications of a particular decision. And this shortfall will continue even after the child is old enough to be an adult under the law.   

It would be awful if others took advantage of a special needs person’s poor decision-making – even if the consent was legally given, the decision to give consent could be poorly reasoned or pressured by others. Worse, it would be a tragedy if a person’s lack of understanding led them to do or appear to do something that violated the law. For example, some people with special needs might seek a partner with similar cognitive capacity, yet the typically developed person with that capacity is not age appropriate.  

For that reason, transition planning needs to consider all the future life skills a person will need after leaving the public schools. If a student is not able to understand and apply the information from a tradition sex education class, then the school district is obligated to provide the information in a way that the child will understand.2 Otherwise, a school district fails its obligation to prepare the students under its care for life after schooling.  

1 20 U.S.C. § 1414(d)(1)(A)(i)(VII).  

2See David D. v. Dartmouth School Committee, 775 F.2d 411 (1st Cir. 1985), Mohawk Trail Regional School Dist. v. Shaun D., 35 F.Supp.2d 34 (D. Mass 1999).  


Upcoming Events:  

I will be speaking at the SPECTRUM parent support group monthly meeting on Thursday, October 3 at 6:30 pm.  

Have your own event for children with special needs? Submit it here for inclusion in future events lists.

Confirmation Letter

on Fri, 03/29/2013 - 18:31

Today I want to talk about the practical application of some advice you’ve probably already heard: “Get it in writing.” In other words, whenever the school agrees to do something you asked for, refuses to do something you asked for, or described how it will provide a service it has agreed to provide, you should try to get that in writing instead of relying on your memory or the memory of the school employee who told school district’s position. This is excellent advice, and you don’t need an official form or a mailed letter. For example, an email is a written statement because it is recorded in a way that some third party could later see the content of the message.  

Unfortunately it is sometimes very hard to get school officials to give you a written statement. There are many reasons for this fact, including that school officials are very busy folks have a lot of drains on their time. Even when they have agreed to do something and want to help your child, they may not be able to find time to prepare a written description of what they already said. In that circumstance, I recommend that you write what I call a confirmation letter. The essential ingredients of a confirmation letter are:

• Thanking the recipient for the conversation

• Polite list of what the other person said

• Description of when the conversation occurred

• Request for clarification  

For example:

Dear Principal Smith,

Thank you so much for your conversation on Friday, March 1, 2013. You told me that the school would be providing a math tutor during study hall and would be changing which gym class my child was placed in. Additionally, the school will not be providing additional occupational therapy time because the school did not feel it was necessary given the current levels of performance. Thank you again for taking the time to talk with me. If I have misunderstood you in any way, please let me know.

Sincerely, Concerned Parent

The most important part of this letter is that it is written towards agreement. In other words, you should describe the facts so that the person receiving the letter will agree that you have accurately described the conversation. Do not write a description that the district could think was spinning or twisting the facts. It does not matter whether someone from the school district responds to your letter because if the district later claims that you misunderstood the conversation, you can always note that no one said anything at the time you sent the letter.  

In a confirmation letter, you should try as much as you can not to ask for things or accuse the school district of doing anything wrong. The purpose of a confirmation letter is not to change the school district’s mind but simply to show them that you are paying attention and that you are trying to engage with the school district. You should ask for what you think are appropriate services for your child, but the confirmation letter is probably not the right time to do so.  

There are two benefits to writing a confirmation letter. First, your calm tone and ability to agree on the facts shows that you willing and capable of actively collaborating with the school district to prepare your child’s IEP. This is very important because judges will look for parents to collaborate with the school district whether the school district deserves collaboration or not. Second, if a case is in front of the judge, neither you nor the person you spoke with will remember the conversation clearly because the conversation will have been some time in the past. Further, both the school official and you will have strong incentives to remember the conversation favorably to your own side and the judge will recognize that when evaluating and deciding who to believe. By contrast, a written statement made at about the time of the conversation is very helpful for the judge in deciding what was or was not communicated or promised to you as part of your child’s special education plan.


Upcoming Events:

April 19: I will be presenting “Understanding the Basics of Special Education Law” at the Art it Out Therapy Center in Marietta at 10 am. The presentation is free, but please RSVP to 770‑726‑9589.

Have your own event for children with special needs? Submit it here for inclusion in future events lists.

Medicaid Rule Change

on Tue, 02/26/2013 - 20:44

Earlier this month, the U.S. Department of Education issued revised regulations on school district use of Medicaid funds, which will go into effect on in the middle of March. For those who did not know, Medicaid is a program that provides medical insurance to those with financial need. Additionally, children with severe medical need can receive a waiver to be accepted into the program (commonly known as the Katie Beckett Deeming Waiver).  

Anyway, the regulations require that a child’s parents consent to use of Medicaid to pay for services in school.1 Further, the use of Medicaid benefits may not:  

(A) Decrease available lifetime coverage or any other insured benefit;  

(B) Result in the family paying for services that would otherwise be covered by the public benefits or insurance program and that are required for the child outside of the time the child is in school;  

(C) Increase premiums or lead to the discontinuation of benefits or insurance; or  

(D) Risk loss of eligibility for home and community-based waivers, based on aggregate health-related expenditures;2  

Under the old version of the rule, the school district was required to get parental consent each time the public benefit (i.e. Medicaid) was used to pay for something. Under the new rule, parental consent is only required the first time Medicaid is used.  

Now, I represent children with special needs who are dealing with the public schools. In short, I am an IEP lawyer and a Section 504 plan lawyer, not a Medicaid lawyer. I do not know how likely it is that school district use of a child’s Medicaid benefit could screw up that child’s health insurance in the future. But if it were impossible for school districts to mess things up, no regulation would be required to tell school districts not to mess things up.  

Most importantly, the school district is obligated to provide a free, appropriate, public education whether or not you authorize use of Medicaid. The school district is expressly prohibited from conditioning services in school on your authorization to use Medicaid benefits.3  

My readers whose children receive Medicaid should be informed advocates. As a practical matter, I suggest you ask the school district (a) whether they are using your child’s Medicaid benefits, and (b) what services are being paid for with Medicaid. Perhaps the school district is providing services above the basic “floor of opportunity”4 required by law, and you want to continue providing those services in school.  

But if those services are necessary for providing a free, appropriate, public education, then consider revoking your consent to use up your child’s Medicaid benefit and save your child’s benefits for medical services that are not provided by the public schools. The school district is required to do what is necessary, and the whole point of free appropriate education is that you are not required to help pay, even indirectly.  


1 34 C.F.R. § 300.154(d)(2)(iv)(A) 

2 34 C.F.R. § 300.154(d)(2)(iii

3 34 C.F.R. § 300.154(d)(2)(i

JSK v. Hendry County Sch. Bd., 941 F.2d 1563 (11th Cir. 1991)  


Upcoming Events:  

February 27-28: I will be among the speakers at the “Across the Spectrum” Autism / Asperger Conference and Expo. Information here.  

March 7: Allison Vrolijk, a special education attorney colleague of mine, will be presenting “Parental Rights in Special Education: Advocating for Your Child in the Public Schools” at Kids R Kids in Johns Creek. More information here.  

April 19: I will be presenting “Understanding the Basics of Special Education Law” at the Art it Out Therapy Center in Marietta at 10 am. The presentation is free, but please RSVP to 770‑726‑9589.  

Have your own event for children with special needs? Submit it here for inclusion in future events lists.

Delaying Federal Rights

on Fri, 02/08/2013 - 21:04

In addition to interventions like the Individual Education Program (IEP) and the Section 504 plan, the State of Georgia has created the Student Support Team process to try to help students struggling to achieve academic success.1 SST is a state law process, not part of your child’s federal rights. Nothing in federal law requires (or prohibits) the use of the SST process. 

SST is implemented in three tiers.  The first tier is basically the level of support provided to any student in the public schools. In the second tier, more intensive support is provided. If that does not turn around the problem, more intensive third tier interventions are put in place. If that does not work, it is pretty clear that a medical disability of some kind exists, which means that a special education plan must be put in place. 

The process is intended to provide support for children who are having academic difficulty, but do not have a disability and therefore do not require an IEP or 504 plan. The problem is that some school districts require or strongly press for completion of the SST process before beginning to create a special education plan. However, federal law does not incorporate or address the SST process. In short, nothing in federal law requires that state education interventions be exhausted before creating an IEP. School districts that discourage parents from asking for an expert evaluation are placing a barrier between children and their legal rights. 

In fact, your child is entitled to evaluation at the school district’s expense to determine if a special need exists. That right exists whether or not the SST process is complete, or has even started. The evaluation process can be very time consuming, and that delay is only made worse if the school district declines to start the clock until third tier SST interventions are unsuccessful. I appreciate the skills of teachers, but there is no shame in getting an expert involved to figure out what special needs are present and to suggest more effective strategies for educating a child. 

Under the Individuals with Disabilities in Education Act, a school district has 60 days from when it receives your consent to evaluation to complete the evaluation.2 There is some dispute about how the 60 days are calculated, but the relevant Georgia regulations do not require that the district finish SST before your child can begin the initial evaluation process.3 Keep in mind that you have a right to a second opinion of this evaluation, also paid for by the school district. 

In short, invoking your rights under federal law requires you to make a written request for an evaluation. In the letter (or email), you should plainly state what you believe are your child’s learning deficits and request your federal right to appropriate evaluation designed to discover the relative contribution of cognitive, behavioral, physical, or developmental factors on your chid’s difficulty learning. Be sure to explicitly say that you consent to the appropriate evaluations. This is not the place to complain about the problems, failed solutions, missed opportunities, or miscommunications in the education process. Instead, the only purpose of the letter is to start the clock on the evaluation timeline I described above. 


1 Student Support Teams are defined in GA Dept. Edu. R. 160-4-2-.32

2  See 20 U.S.C. § 1414(a)(1)(C)(i)(I). Federal law allows a State to create a different timeline, but Georgia has not required completion of SST in the regulations on evaluation timelines.

3 Georgia's regulations on evaluations are found in GA Dept. Edu. R. 160-4-7-.04


on Fri, 02/01/2013 - 16:23

Our hearts and thoughts go out to those who have been affected by the tragedy yesterday at Prince Middle School, part of the Atlanta Public Schools. But for those of us who follow public education closely, it is not news to learn that some students come to school with substantial difficulties – whether medical problems or difficult home lives. In short, the tragedy that happened yesterday is also a symptom of larger problems that constantly trouble public education.  

Solving these types of problems is hard, and cannot be done solely through the school system. I wish I knew what could be done to prevent these shooting incidents in the future, from keeping kids from getting access to guns to a better mental health safety net to helping people generally to deal with difficult circumstances in their lives. If I know one thing, it is that society does not truly know how to address these types of problems, because we would already be doing what was needed if we knew what that was.  

I hope that psychologists, sociologists, and other experts are studying this issue and come up with good solutions soon, because every dollar we mistakenly spend on some intervention that is not working is a dollar that we could have used to make our education system better.