Special Education

What educational rights do children with disabilities have?

The IDEA (Individuals with Disabilities Education Improvement Act of 2004) is a federal law that applies to all public schools in every state and territory. Its main purposes are:

“. . . to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment and independent living” and “to ensure that the rights of children with disabilities and parents of such children are protected . . .”

Federal funds are provided to states in order to implement the IDEA. Although resources are not unlimited, services that are necessary for a child to receive a “free appropriate public education” (also known as “FAPE”) must be provided.

What are “special education and related services”?

Special education is “specifically designed instruction” which includes adapting the general education curriculum by changing the content, methodology or delivery of services.

Related services are those services that are needed for the child to benefit from special education. For instance, occupational therapy may be needed before a child can learn how to manipulate a pencil to write. Transportation, nursing, counseling, speech/language therapy, and an interpreter are other examples.

Assistive technology is another service that IDEA requires schools to use if needed “to maximize accessibility for children with disabilities.”

All of these services are determined by a team that includes the parents or guardian, the child (if appropriate), the child’s regular ed teacher and special ed teacher, a school district representative, someone who can interpret an evaluation, and “others with knowledge or expertise about the child.” This team works together to come up with an Individualized Education Program, or IEP.

Who is eligible for special education and related services? 

Eligibility is a two-part test: First, the child must be found to have one or more of the “disabilities” set out in the IDEA. Second, because of the disability, the child must need special education and related services. In other words, the disability must be adversely affecting the child’s educational performance.

If a child meets the first test (has a disability), but not the second, the child won’t be eligible for IDEA but still may be able to receive some accommodations under Section 504 of the Rehabilitation Act.

Who is considered to be a “child with a disability”?

The following is a list of the areas considered in a determination of “disability”: Mental retardation, visual, hearing, orthopedic impairment, speech or language impairment, emotional disturbance, autism, traumatic brain injury, other health impairment, and specific learning disability.

For very young children – birth through 6 years – the category of “developmental delay” is also considered.

What is a “free appropriate public education” (FAPE)?

FAPE is not defined in IDEA, but has been the subject of numerous lawsuits. In the US Supreme Court case of Board of Education v. Rowley, 458 U.S. 176 (1982), the Court stated that FAPE requires the state to comply with procedural requirements (like notice and parent participation) and that the IEP must be “reasonably calculated to enable the child to receive educational benefits.” Although this sounds like a minimal standard, some later cases have held that the benefit must be “meaningful.” For example, setting goals of a 4 month grade-level gain over the course of a full year for a child of average intelligence was not FAPE.

Is “educational benefit” only related to academic success? 

No. Academics are just one element of an education. The functional, developmental and social needs of the child should also be considered. The goal of the IDEA is not only to prepare a child for further education, but also for employment or independent living.

How are my child’s unique needs supposed to be considered? 

When the IEP team meets to come up with appropriate services, they must look at the child’s strengths and weaknesses, figure out the child’s “present level of performance,” determine what the child needs, and come up with measurable goals and objectives. The team must also decide what is the best placement for the child to achieve those goals and whether there needs to be any accommodations for testing. Placing a child in a certain class or program just because that’s where all children with a particular diagnosis are placed may not be appropriate.

Does the school have to place my child in the least restrictive environment? 

Yes. The least restrictive environment is one that allows, to the maximum extent appropriate, a child with disabilities is to be educated with children who are not disabled. It is also one that is as close to a child’s home as possible, preferably in the zoned school. This is a decision that must be based on the child’s unique needs which can, of course, change over time.

What are my rights and how are they protected? 

At IEP meetings, parents are usually given a lengthy document called “Notice of Procedural Safeguards for Parents of Students with Disabilities.” Click here to read this. All parents should know their legal rights and how the “system” works. You will always be your child’s primary advocate.

Briefly, the school must give you, as a parent, written notice whenever it seeks to change your child’s “identification” (whatever classification has been given to describe your child’s disability), evaluation, placement, or the provision of FAPE. They also need to notify you if they refuse to make these changes. Other rights address parental consent for initial evaluations, access to school records and how to change or add to records, how to file a state complaint, how to request a “due process” hearing and what to expect at the hearing, how to appeal the hearing results, and when you can recover attorneys’ fees.

If my child’s disability results in behavioral problems, how can they be disciplined? 

The school must make a “manifestation determination” to determine whether or not the child’s behavioral problems are a “manifestation” of their disability. If so, the school’s ability to suspend a child is limited to no more than 10 consecutive school days (except in certain special circumstances – like illegal drug use, carrying a weapon or causing serious bodily harm.) The school must develop a “functional behavioral assessment” and put into place positive behavioral interventions, or review any plan currently in place.

The use of restraint and seclusion as disciplinary techniques is very controversial. Florida law now requires that school districts develop written policies, that a school must document and report the use of restraint or seclusion within 24 hours of its use, and that parents must be notified each time manual physical restraint or seclusion is used. Mechanical restraints, like the use of a wrap or tie downs on a chair, are not included in the notification requirement. Any restraint that restricts breathing is prohibited.

It is a good idea to ask the IEP team for a functional behavioral assessment before a child’s behavior results in the threat of discipline.

Does the IDEA just apply to school-aged children? 

No. The IDEA requires a state to actively “find” children with disabilities. From birth to age 3, the State must offer early intervention services to any child with a physical disability (visual, orthopedic or hearing), an established medical condition (e.g., Down Syndrome, spina bifida, cerebral palsy) OR a developmental delay (cognitive, motor, communication, social/emotional, adaptive/self-help.) The child’s pediatrician or parent can refer a child for an evaluation at no cost to the parent. Early Intervention Services are established through an Individualized Family Service Plan and provided in the home as much as possible. Click here to find the referral agency in your area.

The importance of early intervention cannot be stressed enough.

When a child reaches the age of 3, services shift from Early Intervention to Special Education services provided through the school district.

The IDEA continues to apply until a child receives a standard diploma or reaches the age of 22, whichever comes first.

What is a 504 Plan? 

A 504 Plan refers to Section 504 of the federal Rehabilitation Act, which provides that “No otherwise qualified person with a disability… shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance….” The definition of “disability” is broader than that of the IDEA: Any physical or mental impairment that “substantially limits” at least one major life activity, e.g. walking, speaking, breathing, seeing, hearing, reading, writing, math, or caring for self. A student can have both a 504 Plan and an IEP.

A 504 Plan is developed to provide accommodations and modifications to remove barriers and allow access to general education. The Plan does not need to be in writing. Every school district should have a 504/ADA Coordinator. Parents can file grievances with the coordinator or through the US Office of Civil Rights.

What is a McKay Scholarship? 

Florida offers a unique program for children who have an IEP (and now, for children who have a 504 Plan) that allows parents to use a voucher system to pay for education at a private school. There is also a “public school option” that allows for placement in a public school in a nearby school district, as long as there is space.

The timing of the request for a McKay Scholarship and the amount of the scholarship can be confusing. Although this program offers many children opportunities for excellent and innovative instruction, be aware that once the McKay Scholarship is in place, the amount of the voucher will not change while the student stays in private school and the protections of the IDEA disappear.

What is RtI? 

Response to Intervention is a process where children involved in the general education curriculum are identified if they are struggling and offered a stepped series of interventions based on research-based evidence and with collection of data to monitor progress. It is not “special education.” The theory behind RtI is that with an influx of help, the child may get “back on track” without the need for more extensive or continued services.

RtI is not appropriate for all students, particularly those with more severe disabilities who need immediate or intensive intervention. A parent can request that their child be evaluated for a disability at any time, including during the RtI process. If that happens, the school can continue to collect data, but should also comply with deadlines for evaluations.

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