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Special Education

Special Needs and Education Rights

Raising special needs children can be a challenge when it comes to education. Sometimes it is difficult to determine a child's particular needs. A child's needs will likely change throughout their educational development as well. Parents need somewhere to turn in order to ensure that their children receive the best possible education to foster their intellectual growth.

As such, the federal government created the Individuals with Disabilities Education Act (IDEA) to provide rights to children with disabilities. This law provides parents of special needs children the means to obtain appropriate education and mental development for their children. It also provides parents with the means to fight against any unfair treatment of their child.

Is my Child Eligible for Special Education?

Children ages 3 through 21 who have any of the following disabilities are eligible for special education under the Individuals with Disabilities Act (IDEA):

  • mental retardation
  • a hearing impairment or deafness
  • a speech or language impairment
  • a visual impairment, including blindness
  • emotional disturbance
  • an orthopedic impairment
  • autism
  • traumatic brain injury
  • other health impairment
  • a specific learning disability
  • combination deaf-blindness or multiple disabilities

What Rights Do my Child and I Have to Special Education?

IDEA gives families of disabled students the right to:

  • have their child tested to determine eligibility for special education
  • inspect and review their child's school records
  • work with teachers and administrators to create an Individualized Education Program (IEP)
  • attend an annual review meeting of the IEP
  • have their disputes with the school district resolved through an impartial administrative and legal process

Laws such as the Americans with Disabilities Act (ADA) coincide with the  to protect the civil rights of disabled students.  The ADA also extends protection to college and graduate students.  Furthermore, your state may have enacted more laws protecting the education rights of disabled children.  These additional rights vary from state to state.

What are Some Important Features of the IDEA?

The IDEA provides free access to education to students who have learning disabilities. It can apply to both school age children, as well as babies and toddlers. Under the IDEA, a wide range of learning disabilities will qualify. This includes the following disabilities:

  • Hearing;
  • Speech;
  • Visual impairment;
  • Autism;
  • Mental retardation;
  • Emotional disturbances; and
  • Orthopedic impairment.

The IDEA lays out a mechanism for schools and parents to work together in order to figure out an individual child's specific needs. Each public school must have an Individualized Education Program (IEP) for special needs children. When a special needs child intends to enroll in school, the parents, teachers and other designated staff will need to meet to determine the parameters of the child's IEP for the year.

Keep in mind that what will go into an IEP can vary between jurisdictions, so be sure to discuss this with the school before starting the process. An IEP will be reviewed each year and can be changed at any time if the school and parents agree.

For example, if a student is excelling in a math class that is being taught in a special education setting, the parents and school might agree to integrate the student into a general curriculum math class for the remainder of the year.

Regardless, special needs children are entitled to a re-evaluation once every three years to determine if they still qualify for the program or have changing educational needs.

I Think My Child May Be Eligible for Special Education, What Should I Do?

If you think your child may be eligible for special education, you should write a letter to your school's principal, or to the Superintendent, asking the school to evaluate your child. The school may also believe that your child has a disability and request an evaluation. In some cases, the evaluation must be done at no cost to you. An evaluation will determine if your child has a disability and if your child needs special education to deal with that disability.

A parent can request that their child be assessed for a learning disability. If a school or parents suspect a child has a learning disability, the school, along with the parents, conduct an evaluation of the child.

To qualify for special education services, a child must meet the following conditions:

  • Have a disability; and
  • Require special education in order to progress in their education and benefit from school.

Infants and toddlers can also receive benefits if they show signs of developmental delay or disability. To be eligible, the child is evaluated for signs of developmental delay and disability. These are conditions that may be present at birth, or they may manifest themselves later in infancy.

The process of identifying a disability varies by state, but it generally requires a child to be assessed by qualified professionals in a manner that is appropriate given the nature of the suspected disability. A child may be given assessments of their academic progress. They would probably be observed in their daily educational setting. If they have speech articulation issues, they would be assessed by a qualified speech-language pathologist. If they have motor skill deficits, an occupational therapist might assess them as well. 

The School Refused to Evaluate My Child, What Can I Do?

The school does not have to evaluate your child just because you ask. If the school believes that your child is not eligible for special education, you will be notified and no evaluation will be held. If you strongly believe that the school is mistaken and your child needs special education, there are some options available to you:

  • You may ask the school for information about its special education policies
  • You may contact your state's Parent Training and Information Center, where you can learn more about your rights, and the laws pertaining to special education
  • You may request mediation or a due process hearing

How Does the School Evaluate My Child?

The school should evaluate in all aspects that might affect his academic performance. This includes:

  • Your child's overall physical health, including eyesight, hearing, physical ability and strength
  • Your child's intellectual ability
  • You child's emotional state
  • You child's social skills

The school will evaluate these factors by:

  • Conducting tests
  • Interviewing you and other interested parties (teachers, counselors) about your concerns about your child's education

What if the School Needs More Information about My Child to Make an Evaluation?

If your child's school needs extra information about your child's history and performance, they may conduct further testing and evaluation. However, to do this extra evaluation, the school must get your informed written permission. Some of the ways the school may collect extra information include:

  • Reviewing your child's medical history
  • Reviewing the observations and opinions of professionals who may have worked with your child
  • Having your child evaluated by a psychologist, physical therapist, or speech therapist

What Are My Rights if I Disagree with My Child's Evaluation?

If you disagree with the results of the school's evaluation of your child, you have to right to have someone outside your school perform an Independent Educational Evaluation. You may be able to request that the school pay for this evaluation.

How are Special Education Disputes Handled?

If you have a special education child and feel that the school is not appropriately meeting your child's needs, you have legal recourse available to you. Some ways your special needs child's rights may be violated include:

  • The school failed to implement an appropriate IEP;
  • The school failed to allow your child into their special education program;
  • The school failed to hire qualified teachers; and
  • Your child was the subject of unfair treatment at the school.

First, you should talk to the designated contacts at the school and try to remedy the issues. If this does not help, you have legal recourse available to you. However, before you can pursue litigation, you must file an IDEA claim with your appropriate state agency.

Keep in mind that every state will handle IDEA claims differently. You should contact your state agency or consult a local education attorney to determine what needs to be included in your IDEA complaint. If the required information is not included, your case will be dismissed.

The state agency will then perform an investigation and determine whether the school violated any aspects of the IDEA. They may interview each side and request further documentation in order to put together all of the pieces of the puzzle.

The state agency will likely try to get the parties to reach a settlement first. The agency may find in your favor and directly order the school to comply with the law. However, if they find in the school's favor, then you can still file a civil lawsuit. There are deadlines for all of these actions which will vary between the states.

Whether you are filing an IDEA claim or a lawsuit, be sure to provide as much detail as possible. Hold on to all notes, text messages, letters, emails, and other evidence relating to your claim. This can help you prove your case and reach a positive outcome for your child.

Are the Rules for Student Discipline Different for Disabled Students?

In cases of minor disciplinary measures, such as time-outs, detentions, and short-term (less than 10 days) suspensions, students with disabilities generally are treated the same as any other student. However, in cases of long-term suspension or expulsion, disabled students are offered more protection.

How Are Students in Special Education Treated Differently in Expulsion Cases?

Students with special education are offered greater protection under the Individuals With Disabilities Education Act (IDEA) in order to keep them in school. Some of the protective measures provided by IDEA are:

  • The student's Individualized Education Plan (IEP) must address any behavioral problems that may affect the student's education and also include alternative ways to deal with these problems aside from the standard disciplinary measures of suspension and expulsion.
  • The school must also prepare a Functional Behavioral Assessment (FBA) that evaluates when the student's behavior problems are most likely to occur, what environment the behavior is likely to occur in, and why the behavior occurs. The school must then prepare a behavioral intervention plan that addresses the behavior problems and implements ways of dealing with them.
  • If a student with a disability faces a long-term suspension that is greater than 10 days or expulsion, the school must first hold an IEP meeting before making a decision to suspend or expel the student.
  • The law ensures that even if a student with a disability is expelled or suspended from a school, he will still have access to free and appropriate public education.

Are There Any Exceptions to This Protection?

Yes, there are three cases in which the school can impose a change in placement (long-term suspension or expulsion) without a parent's consent:

  • The student brings a weapon to school, or uses, sells, or solicits illegal drugs at school or during school activities
  • The student's behavior was in no way caused by or related to his disability, which must be determined by the IEP team
  • The district requests a due process hearing and proves by substantial evidence that the student is a threat to himself or others

What If a Disabled Student Is Not in Special Education?

A student who has not yet been found eligible for special education may be eligible for special protection if the school had knowledge of the student's disability before the incident took place. 

Do I Need to Contact an Attorney for My Child's Special Education?

If you believe that a school is not appropriately meeting your child's special education needs in violation of the IDEA, you may wish to contact a local education attorney. An attorney can help you both file an IDEA complaint before the designated state agency and a civil lawsuit, if needed. Your attorney can ensure that all required information is submitted to the agency or court, and that no deadlines are missed.

An attorney can also review your case and counsel you about whether the school actually violated the IDEA, or whether they met their obligations under the law. If the attorney believes that you have a case, they can help you advocate on your child's behalf to receive fair educational treatment.