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Indianapolis – Records show some of Indiana’s schools aren’t following individualized education plans established for special needs students, per the law.

The law

The Individual with Disabilities Education Act states public schools are required to provide children with disabilities with free and appropriate education in the least restrictive environment and at no cost to the child’s parents. It also required each student with a disability to have an individualized education plan, otherwise known as an IEP. It is designed to address the student’s educational and functional needs. The document is often designed by the child’s parents and the school. It is supposed to include observations regarding the child’s past and educational status, measurable goals and objectives for the child, and considerations on what type of instruction the child will receive to meet those goals.

“The Individual with Disabilities Education Act is a federal law that has money tied to it,” Tom Blessing, an education attorney with Massillamany Jeter and Carson, LLP, said. “The state implements the federal law in order to receive those federal monies.”

The Indiana Department of Education has to report to the federal government yearly to show how well Indiana is following IEPs and implementing the law. If schools fail to comply, the federal government could take away some of the funding.

The statistics

According to the Indiana Department of Education, there were more than 182,000 students who received special education services last school year. The number of students needing such services has increased every year.

“Many of those families live in poverty,” Margaret Jones, the executive director of Disability Legal Services of Indiana, pointed out. “I think Marion County alone has about 25 percent of its population living in poverty below the federal poverty levels.”

According to Jones, there were about 25,000 kids in Marion County that received special education services.

The problem

CBS4 discovered 663 complaints filed with the Department of Education between 2016 and 2020. DOE investigated 291 of them and ultimately reported findings of non-compliance 164 times. The records indicated some schools were not establishing IEPs as required and, in some cases, not following or updating them correctly.

“The only thing that surprises me is that its hundreds and not thousands,” Tom Blessing, an education lawyer with Massillamany Jeter and Carson, LLP, told CBS4.

Blessing, who has represented dozens of Hoosier families, claims he has sued almost every Indiana school district in the past.

“Parents don’t necessarily know what to look for,” he explained. “They get an IEP. It’s a document. They read it and they sign it. They’re being assured by the school that this is what your child needs, here are the services we recommend and here are the goals. And the parent says, ‘ok, you’re the experts.’”

Yet, Blessing said he often identifies problems in those documents.

“Your child’s IEP has one goal. And mom would be like, ‘yeah, what’s wrong with that?’ Well, the one goal is for communication but I’m reading the psychologist’s evaluation and this child has needs in social skills, behavior writing, spelling, reading and comprehension. All those should have goals in the IEP,” Blessing said.

Several experts said parents simply do not know what to expect or look for in their children’s IEPs.

“It’s all in legal terms,” Shawn O’Connor, a local mother, told CBS4. “And there’s no one to say, ‘this is how you interpret that,’ or says what that means for your child. They hand it to you and say, ‘read it and if you have any questions, go find yourself an advocate and or attorney.’ Not all parents have the ability to do that.”

“A lot of parents don’t realize that a, they have rights, b, what those rights are c, what to do if those rights are being violated,” Blessing admitted.

Blessing said he has sued nearly every Indiana school district for education-related rights in the past. He in part blames the law itself, which entitles students with disabilities to a “free and appropriate education.”

“If your child has a disability, he’s not entitled to an awesome education or a great education or a good education. Just an appropriate education, which is a pretty low bar. So knowing that – and there are exceptions – schools do what they think is sort of the bare minimum necessary to comply with the law and if parents don’t know their child needs more in the way of services, accommodations, or goals, modifications, nothing is going to change.”

Tom Blessing

According to Blessing, there is also an issue with schools updating student IEPs. The law requires them to review and revise it every 12 months.

“And they just don’t in my experience. Parents will come to me with five or six IEPs and they’re all the same year after year after year. The school changes the date. They just recycle it and everything else stays the same because they’re lazy.”

Often, he added, schools are not held accountable if they violate the law.

“No one ever gets fired. If something happens that is a legal violation, from the schools perspective, the worst thing that’s going to happen a parent is going to file a hearing request or a complaint,” Blessing explained. “The result of either of those actions is not going to be public humiliation or the expenditure of hundreds of thousands of dollars. It’s going to be, ‘oh, gee, yeah, we screwed up. We will fix it.”

Maddox’s story

When CBS4 was putting this story together, Anchor Angela Brauer asked parents what their experiences with IEPs were. The response was overwhelming. Often, parents said they had no problem getting their child an IEP, but when it came time to following it correctly, that was a different story.

Maddox, 10, is one example of a local school district not following an IEP. Maddox was diagnosed with mitochondrial disease as an infant. It means his body does not produce the necessary proteins to produce and maintain energy.

“It’s kind of like running your entire house on two AA batteries,” his mom, Shawn, told CBS4. “Your body only has so much energy. In those batteries you only have so much energy If you want to run your refrigerator, you have to unplug the stove because the battery can’t do both at the same time. With mitochondrial disease, over time, it will cause his body to lose its ability to produce energy to the point where it causes cell death.”

Doctors have not yet found a cure or treatment for mitochondrial disease.

The disease has been a daily struggle for Maddox. On one day, he can walk and function like a typical child. The next day, he may not be able to walk at all. In those cases, he has to rely on a power wheelchair. Maddox is fed through tube-fed daily and takes dozens of medications to survive. At any given moment, his blood sugar could drop to a dangerous level or he could go into anaphylaxis. According to his mother, the school has had to call 911 multiple times before.

Still, despite all those complications, Maddox is desperate to go to school. His family wants him to attend, too.

“He cries. He is devastated because he wants to be with his friends. He wants to get an education,” the O’Connors said.

Maddox’s special needs at school were why they moved to the Hamilton Southeastern School District in particular.

“A counseling center that my older son was going to said HSC had a lot of special education programs and that were a good district. ‘You need to move them there, they told us’” Shawn recalled.

According to the family, Maddox’s doctors and school administration designed his IEP. They reportedly agreed he was entitled to a home nurse, homebound services, and special education transportation. Yet, in 2021, Maddox’s home healthcare nurse had to take a leave of absence because of medical reasons. The district informed the O’Connors they would not be able to further fulfill their promises.

“Since then, they wouldn’t provide a nurse to go to school with him so that he could go in into the classroom,” Shawn told CBS4. “They kept saying, ‘well, we don’t have anyone in our district. We don’t have anyone.’”

Halfway through the school year, Shawn said her son had only been in the classroom for a short period of time.

“He has only been in school approximately six, um, for the whole year. He’s never gone a full week,” she pointed out. “When we went to our mediation hearing in October, they agreed they owed him 400 hours of school.”

Shawn believes it equated to about two and a half years of education total.

After holding multiple meetings with the school and trying to mediate the situation via email, text and phone, the family ended up retaining Blessing for assistance. 

“The law tells me that my child gets both. My child gets to be safe at school. My child gets to be educated,” she continued. “If he were asthmatic, you wouldn’t take his inhaler and make him run, but because he has mitochondrial disease and the only safe way for him to go to school is with a nurse, you say, ‘I’m not going to provide it. Sorry about your luck. It’s too much money.’ Why is there a price tag on my son’s life or his education?”

What Hoosier parents need to know

A child is eligible for special education services if they have Autism Spectrum Disorder, a cognitive disability, a developmental delay, if they are deaf or blind, have an emotional disability, a hearing impairment, language or speech impairment, a learning disability, orthopedic impairment, a traumatic brain injury or other health impairments.

If a parent is concerned that their child is behind in school or knows that their child has a disability, they can request their child be referred for an initial evaluation. The parent must make that request in writing. The evaluation is free.

The school then has up to 50 instructional days to complete the evaluation.

If the school agrees the child should have an IEP, they will meet with the parent and notify them. The parent has a say in what the IEP looks like. A case conference committee will write out the student’s accommodations and other services in the documents. They must include how the child’s educational instruction will be modified, whether the student will receive speech, physical or occupational therapies and whether the student will be on a behavior intervention plan. The school must review and update the IEP every 12 months.

If a parent disagrees with the initial evaluation, they can appeal the results and ask for an independent evaluation at the school’s expense. Parents can dispute the school’s findings through mediation or a due process complaint.

Parents can also request a “504 plan,” which are different than IEPs, or request an “independent educational evaluation,” which is typically done by professionals outside of the school.

If a family determines the school is not following their child’s IEP, they can file a complaint with the Department of Education. They have to be within a year of the reported issues. The school and parents have ten days to resolve the matter. According to the spokesperson for DOE, “many” complaints are resolved within that 10-day time period. If the issues are not resolved, though, the state will assign an investigator and publish a report that includes conclusions and a directive on corrective action.

Records show in fiscal year 2021, there were 86 due process hearings filed with the state of Indiana. Eighty-one were settled without a need for a hearing.

Some parents, though, ended up hiring an attorney, like Blessing, for help.

“By the time they call me, they’re sort of at the end of their rope,” Blessing told CBS4.

If families cannot afford representation, though, there are other agencies that can help.

“At what point do families turn to your organization?” Brauer asked Disability Legal Services of Indiana.

“Generally, the calls we receive are when the families have said, ‘I’m concerned that the school’s not implementing my child’s I E P appropriately. I’m concerned that the level of services in my child’s IEP are not sufficient. I’m concerned that my child was disciplined at school for behavior that I think is a manifestation of their disability and now my child has been disciplined or maybe suspended or maybe facing expulsion. I need help,’” Jones said. “We sit down with the family, let them tell us their story, look at their educational records and then come up with a game plan. Like, what’s your next step? Where do we go from here?”

The Department of Education’s response

CBS4 asked what happens when a school is found in violation of developing or following an IEP.

“If a school is found to be in violation of appropriately implementing an IEP after going through one of the formal dispute resolution processes, then the school will be required to implement the corrective action detailed in the decision. IDOE’s Office of Special Education is available to provide guidance and support to both schools and families through this process.”

Indiana Department of Education

We requested an on-camera interview but was told there wasn’t anyone from the department available.

State lawmaker weighs in

CBS4 then turned to Indiana’s House Education Committee chairperson, Representative Robert Behning. We asked why the state of Indiana doesn’t hold school districts more accountable to make sure they’re providing a free, appropriate public education to everyone, despite disabilities. We asked whether this was something lawmakers would be willing to address and what they would tell parents of special needs students.

Representative Behning responded with this statement:

“It is incredibly troubling to hear that any child is not receiving the support they need to succeed in the classroom. I will be reaching out to the Indiana Department of Education to learn more about their process and policies to hold schools accountable. Every student deserves to receive a high-quality education, and parents and teachers should work collaboratively to ensure students do not fall behind. If there are gaps in the law, I will look at how the state can address this issue or share our concerns with the U.S. Department of Education.”

Representative Robert Behning