Special Education/suing school


Hi, Not sure if you can answer my Q. I live in upstate New York. I pulled my son out of school last month to homeschool. They were supposed to do an FBA and didn't, was in his IEP. Instead, they had a totally inept psychologist doing everything wrong because she had her handbook of autism management none of which worked on my son because he has OCD. You cannot get rid of it with rewards. Anyway, I cannot possibly sue them this year because I do not have the resources and I am overwhelmed having to work at home and tutor him and hire help and train them. It's been a huge adjustment but honestly he is happier so I am too. But I can't see it being a forever arrangement and my district is horrid, horrid. Their solution is to move my son to a class with kids who are nonverbal when my son is entirely verbal. And was performing in 25th percentile passing all subjects, not stellar but he was fine. Anyway, has anyone ever been able to sue after two years if they have financial hardship and if you sue before two years, does it affect outcome longer you wait? in your experience. I don't get the system actually. I have to pay to sue but they have a lawyer, it's pretty insane. Thanks much!

Hello, Janet,

Thank you for writing to me, and using this service. I'll do my best to answer your questions, but I want to be sure you know I'm not an attorney. Ok? So I will give you my best understanding of your and  your child's rights.

I have not heard of an exception to the 2 year statute of limitations. It is my understanding that remedies for a denial of a free appropriate public education can only go back 2 years.

However, a parent who removes the child from the school district to a unilateral placement at her own expense must give the district notice of that unilateral placement either 10 days before the removal in writing, or at the most recent IEP meeting. The notice must say why the parent is removing the child and selecting the parent's placement, and it must state that you are seeking funding for the cost incurred.

If the parent does not give such a notice, the judge or hearing officer may reduce or deny reimbursement. And it's my experience that is usually what happens.

If your son needs a proper FBA and behavior intervention plan, perhaps you should consult with an expert like me to analyze it, and the IEP. I have an audit service that may be of interest and value to you.

You'll need experts anyway, for a hearing, so it's important to get us involved sooner than later. If your son is verbal, it could be that placement with students whose needs are significantly different is an issue for least restrictive environment. The placement may be too restrictive. Also, are you aware that you can request an independent evaluation to be paid by the district if you disagree with the psychological evaluation?

Be aware, though, that the school can request a hearing to prove that the district evaluation is proper. In this situation, I often advise parents to have a private psychologist to examine the evaluation so you can have evidence why it's deficient.

If a parent waits until close to two years to request a hearing, it may be more difficult for the parent to prove a FAPE denial. I would suggest you consider two things-
1. Consult an attorney who specializes in special education. You may find one at copaa.org. Some attorneys will do cases on contingency, because attorney fees can be paid if they prevail.
2. Continue meeting with the school district (hopefully with support by someone like me) because the current situation, as you stated is unlikely to continue, and you may need to have an appropriate IEP and behavior plan when you re-enroll your child. And, doing this in a way that compels the right placement may be beneficial to keep the school responsible for FAPE.

And lastly, your child may be eligible for something called a services plan, which provides special education and related services for students who are privately placed and or homeschooled.

For sure, it's my view that the system is stacked against parents due to the school having attorneys, experts, resources, and experience with disputes. But, if a parent perseveres with the process, the parent can be an equal partner and use dispute options so the child will benefit.

I hope my answer has helped you think through these issues. Thank you again for writing to me. I wish you all the best as you advocate for your exceptional child's education!  

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Michelle R. Davis, M. Ed.


I can answer questions about disability definitions and criteria for services, the Individuals with Disabilities Education Act 2004, No Child Left Behind, 504 plans, how to craft an IEP that drives the appropriate services, school placement, dispute options, and least restrictive environment. I worked in the public school system as a special educator and am now in private consulting practice where we assist parents as they navigate the special education process. I have expertise in all educational disabilities except blind/visual impairments and deaf/hard of hearing. This includes ADHD and other health impairments, medical conditions, dyslexia and learning disabilities, Autism, emotional disabilities, language processing problems, and interfering behaviors.


10 years as special educator and administrator in public school system; Director of ABCs for Life Success since 1998; Expert services such as analysis and testimony; Author: Special Needs Advocacy Resource Book: What you can do now to advocate for your exceptional child's education; Special Needs Advocacy Training Institute; internet radio show Teach Your Children Well: Hot Topics in Education; author School Success for Kids with Emotional and Behavioral Disorders released March 2010 (Prufrock Press).

Masters in Special Education with Emphasis on Inclusive Education (Johns Hopkins University); B.S.in Special Education (James Madison University); Conduct training for Universities, public and private schools, parent groups. Adjunct professor current George Washington University and prior George Mason University.

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