Every school district is legally required to identify, locate, and evaluate children with disabilities (20 U.S.C. §1412(a)(3)). After the evaluation, the district may provide the child with specific programs and services to address special needs.
IDEA defines "children with disabilities" as individuals between the ages of three and 22 with one or more of the following conditions:
For your child to qualify for special education under IDEA, it's not enough to have one of these disabilities. There must also be evidence that the disability adversely affects your child's educational performance.
Under IDEA, special education develops and implements an individualized education program, or IEP, that meets your child's unique needs. The acronym IEP refers to several related things:
Every written IEP document must include the same information, although forms will vary from one school district to another.
The IEP should call for services that are necessary to ensure the child receives a "free and appropriate education" (FAPE). Depending on a child's needs, here are some services that might be included in an IEP:
After the school or district decides that a child is eligible for services, the district will set up an IEP meeting to create an IEP. The meeting will take several hours.
The child's teacher, the parents, the student, and other staff members like special education teachers will make up the "IEP team" that writes the IEP at the meeting. Once the IEP is written, parents should be given a copy of the IEP and be asked for consent to begin services.
The school is responsible for measuring the students' progress toward annual goals as stated in the IEP. This progress and the IEP will be reviewed by the IEP team at least once a year.
Once a child is found eligible for special education, subsequent evaluations take place at least every three years. If you aren't satisfied with the initial evaluation or you feel your child's disability or special education needs have changed, your child is entitled to more frequent assessments, and even outside or independent assessments (20 U.S.C. §1414; 34 C.F.R. § §300.301-306).
The Department of Education issues regulations interpreting the IDEA. These regulations add requirements and rules that go well beyond the scope of the actual law. If you have a child in special education, it's important that you understand how the regulations affect your child's rights.
You can download and read the text of the regulations on the website of the Department of Education's IDEA website at https://sites.ed.gov/idea/. Or, contact your state department of education, your school district, or local support groups to learn more about special education in your community.
For more information on the IDEA, get The Complete IEP Guide: How to Advocate for Your Special Ed Child, by Lawrence Siegel (Nolo).
]]>Fortunately, there are laws that protect students with disabilities who have health-related needs and there are steps families can take to help prevent denials of health needs and discrimination from occurring. These laws generally require most schools to meet children’s health-related needs during the school day and during school-sponsored extracurricular activities. In addition, they prevent schools from restricting the activities of students with disabilities due to speculation or to avoid having to address health-related needs.
The Individuals with Disabilities in Education Improvement Act (IDEIA), 20 U.S.C. § 1400 et seq., ensures that public schools provide a free appropriate public education to children whose disabilities impact learning. (IDEIA, which was passed in 2004, is commonly referred to as IDEA, an 1997 education act that IDEIA replaced.)
IDEIA requires that schools develop an Individualized Education Program (IEP) for each covered student. If a child with an IEP also has health problems, his related health needs can be addressed within the IEP. For example, the health section of a child’s IEP may require additional time on tests to accommodate her learning disability or an extra snack break to help control her diabetes. For more information, see Nolo's article on IEP plans.
Section 504 of the Rehabilitation Act (commonly called Section 504), 29 U.S.C. § 701 et seq., prohibits public schools and private schools which receive federal funds from discriminating against children with disabilities. If a student is covered by IDEIA, he will also be protected by Section 504. (The opposite is not true, however. A child who only has a health disability such as asthma will be covered by Section 504 but not the IDEIA. Children who only have health-related disabilities are not eligible for IEPs.)
Section 504 requires schools to develop Individual Health Plans (IHPs) to address any health-related needs students may have. So, for example, a child with a peanut allergy may need an IHP, which ensures school personnel can quickly give her an injection with an epi-pen in the event an allergen causes an anaphylactic reaction. For more information, see Nolo's article on Section 504.
The Americans with Disabilities Act (ADA), 42 U.S.C. 12101 et seq., prohibits all public schools and most private schools from discriminating against children with disabilities. Because the IDEIA and Section 504 cover public schools, the ADA’s protections are often superfluous (unnecessary) in that setting. In contrast, the ADA is the only protection available to children with disabilities in private schools that do not receive federal funds.
Unlike the IDEIA and Section 504, the ADA does not require schools to develop written plans to address the needs of students with disabilities. At the same time, the ADA does require schools to grant reasonable modifications in rules, policies and practices when necessary to allow students with disabilities to fully participate in school programs and services including extracurricular activities. For example, the ADA generally requires that a school that requires all student medications to be kept in the nurse’s office grant an exception to a student with asthma who frequently needs to use his inhaler.
Other than schools that are operated by churches and receive no federal funding, all schools are covered by at least one of the laws discussed above. This means that children with disabilities who have health-related needs are legally protected in the vast majority of school settings. Unfortunately, the existence of potential legal protection does not mean such protection will automatically be granted.
There are steps that parents of students with disabilities can take to help ensure their children receive the health-related protections they need in school.
Parents need to develop a thorough understanding of their child’s disability and related health needs in order to explain those needs to a school. Speaking regularly with your child’s doctor is generally the best way to develop a full understanding of a disability and related needs. It is important to know the diagnosis, symptoms (including frequency and duration), treatment, medications, and whether it is likely there will be a need for treatment or medications during the school day and/or during school sponsored extracurricular activities.
It is essential for parents to let their child’s school know in detail about the disability-related health needs their child may have while at school and/or when participating in school-sponsored extracurricular activities. As an initial step, parents can contact the special education coordinator, 504 coordinator, or other individual designated by the school to handle disability-related health issues. (If it is not apparent who to contact, call the school’s administration to ask who should be contacted.)
Parents who are requesting that a school accommodate their child’s disability-related health needs should provide detailed information to the school regarding the disability and needs. You can request that the school add a health section to your child's IEP, develop an IHP (Individual Health Plan), or a provide reasonable modification. These requests can include providing an aide for your child.
It is particularly important to provide information that shows a connection between the disability and requested accommodation. It may be apparent to a school why a child with osteogenesis imperfecta (brittle bone disease) needs to be given alternate activities to rough and tumble play during gym time. In contrast, unless the parent explains the child gets tired easily, it will likely not be apparent why he may need a rest break in the afternoon. In addition to a detailed explanation by the parent, it is often helpful for the doctor to write a letter to the school supporting a parent’s request that the school develop a health section of an IEP, an IHP, or a reasonable modification. Keep in mind that a school may request a copy of a child’s medical records.
A key part of ensuring a child’s health-related needs are met during the school day is providing age-appropriate information to a child about his or her disability. This information enables children to advocate for themselves when they are at school without you. For example, if a child who has migraines can be taught to recognize triggers or symptoms early on, he can let the school know when he needs to see the nurse to take his medication.
In order to accomplish the three steps described above, it can be helpful for parents to contact organizations focused on the disability with which their child has been diagnosed. Those organizations can often provide tips for making sure a school meets a child’s health-related needs. National organizations that provide information about school-related health needs due to specific disabilities include:
If a school refuses to provide accommodations and/or services necessary to meet a child’s disability-related health needs, or otherwise discriminates against him or her due to the disability, it may be necessary for a family to seek legal assistance. The organizations listed above may be able to direct families to legal assistance in their own state.
For families with children in public schools or private schools that receive federal funding, the Office of Civil Rights for the Department of Education (OCR), www.ed.gov/ocr, provides resources to ensure that schools met the health-related needs of students and do not engage in disability discrimination. OCR provides information about filing complaints against schools that do not do so.
In addition, each state houses a federally mandated protection and advocacy agency that addresses selected disability-related issues. The National Disability Rights Network, www.ndrn.org, can provide more information about protection and advocacy agencies in your state.
If your school is not cooperating with you to address your child's needs, or you'd like representation at an IEP meeting, you can consult with a disability lawyer or education lawyer.
]]>Historically, Section 504 has been used to require public agencies to install wheelchair-accessible ramps, accessible restrooms and other building features, and to provide interpreters at meetings. Section 504 also requires school districts to ensure that children with disabilities are provided access to educational programs and services through physical modifications (such as ramps, widened doorways, and accessible restrooms and other school facilities) and intangible modifications (such as testing accommodations and assistance from interpreters, note takers, and readers).
Your child may be entitled to assistance under Section 504 even if he or she is not eligible under IDEA. The first step in the process of getting assistance is to refer your child for Section 504 services—this simply means asking the school to consider your child’s eligibility under Section 504. Some school districts automatically consider children who are found ineligible under IDEA for Section 504 services; if yours does not, request—in writing—that it do so.
Once a child has been referred, the school will evaluate your child’s eligibility. It will look at:
Major life activities are defined as tasks such as walking, seeing, eating, hearing, speaking, breathing, learning, working, reading, thinking, communicating, practicing self-care, and performing manual tasks.
No particular medical condition automatically qualifies a child for Section 504 protection. ADHD, diabetes, dyslexia, food allergies, cancer, asthma, cerebral palsy, learning disabilities, or depression may or may not limit a child’s major life activities, depending on the severity of the condition.
In addition to requiring that all children have access to classrooms, bathrooms, recreational areas, and so on, Section 504 requires that students with disabilities be given appropriate educations. This can include accommodations to take care of health issues, supplemental services such as speech or occupational therapy, classroom aides, or a separate special education environment.
If your child is found eligible for help under Section 504, the school must develop a written plan describing the modifications, accommodations, and services your child will receive. Like an IEP, the Section 504 plan must be individually tailored to meet your child’s needs. Many schools have developed a standard form for Section 504 plans; ask your school if it has one. Sometimes 504 plans are called “accommodation plans.”
A Section 504 plan may include details on the following:
Placement. Section 504 requires that schools place a student with physical or mental disabilities in a mainstream classroom to the extent possible. Only if the school can show that the student can’t receive a satisfactory education when surrounded by children without disabilities, even with the use of supplementary aids and services, is the school allowed to remove the child from a mainstream classroom.
Evaluation. Section 504 requires tests to be selected and administered to ensure that students with impaired sensory, manual, or speaking skills are not at a disadvantage. Schools need to attempt to make sure that test results accurately demonstrate the student’s knowledge or aptitude, rather than reflecting the student’s impaired sensory, manual, or speaking skills. For more information, see Nolo’s article on testing accommodations.
Accommodations. Students with medical conditions may need a Section 504 plan to give them permission to disregard certain school rules and guidelines in order to manage their condition. For instance, a student with Type 1 diabetes may need to be able to carry insulin and a testing kit for blood glucose levels at all times. The American Diabetes Association offers a comprehensive sample Section 504 plan.
The eligibility, procedural, and other requirements of Section 504 are different from IDEA’s requirements. Section 504 is an anti-discrimination law, while IDEA provides funds for special education.
To be eligible for an IEP plan under IDEA, a student must have a disability or impairment that negatively affects his or her performance at school. In contrast, Section 504 requires that a child have an impairment that limits a major life activity. While not all children who are eligible for Section 504 protection are eligible for an IEP plan, all children who eligible for an IEP plan are protected under Section 504.
Note: Section 504 is enforced by the Office of Civil Rights (OCR), a component of the U.S. Department of Education. IDEA is administered by the Office of Special Education and Rehabilitative Services (OSERS), also a component of the U.S. Department of Education, in combination with state educational agencies.
Section 504 applies to private schools that receive any federal financial assistance, including grants from nonprofit organizations that receive money from the federal government. In addition, the Americans with Disabilities Act (ADA) extends the protections of Section 504 to private schools that don't receive any financial assistance.
Under Section 504, private schools may not exclude a student with disabilities if the student can receive an appropriate education with minor accommodations. In addition, a private school may only charge higher fees to a student with special needs if the higher fees are justified by a substantial increase in the school’s costs in proving that child an appropriate education.
Lastly, Section 504 applies to charter schools just as it does the regular public schools.
If you are unhappy with your child's Section 504 plan or decisions made around it, first talk to your child’s principal informally and try to work it out. If you still feel your child’s rights to a free and appropriate education are not being met, you can file a written complaint. Give the complaint to the principal and, if necessary, the district superintendent or the district’s “Section 504 designee.” If appropriate action still isn’t taken, you can hire a disability rights lawyer or education lawyer to help. Read Nolo’s article about finding an education attorney.
You can learn more about protecting your child from discirmination for a disability or health-related condition in Nolo's article on disability discrimination at school.
Adapted from Nolo’s book The Complete IEP Guide: How to Advocate for Your Special Ed Child, by Attorney Lawrence Siegel.
]]>There are many different kinds of learning disabilities (LD) that can require testing accommodations, but the three most common forms of learning disabilities are reading disabilities such as dyslexia, written language disabilities, and math disabilities.
Intellectual disabilities, emotional disorders, and sensory impairments are not considered learning disabilities. However, some disabilities that are not LD impact a child’s ability to learn and are covered under the special education laws. For example, Attention Deficit Hyperactivity Disorder (ADHD) is not a learning disability but does make it hard for children to control their behavior and to focus. Other disabilities that affect memory, social skills, or cognitive processes such as multi-tasking also affect learning.
The federal Individuals with Disabilities Education Act (IDEA) guarantees every child with a disability a free and appropriate public education designed to meet her individual needs. IDEA provides some funding for state-administered special education programs and guarantees education services for children with disabilities, including LD, from birth through high school.
Some children with LD do not qualify to receive services under IDEA but fortunately do qualify for similar protections under another law, Section 504 of the Rehabilitation Act. Section 504 of the Rehabilitation Act provides that children with disabilities cannot be excluded from or discriminated against under any federally funded programs or activities because of disability.
Section 504 applies to public school districts, higher education institutions, and other state and local government education agencies. In addition, the Americans with Disabilities Act extends the range of Section 504 to cover the full range of state or local public schools, programs, or activities even if they do not receive any federal funding.
For more information, see Nolo's article on Section 504. Both Section 504 and IDEA permit testing accommodations. For an overview of the differences between IDEA and Section 504, go to ldonline.org.
A testing accommodation is any change made in testing in order to “level the playing field” and prevent children's disabilities from interfering with their ability to demonstrate their actual skill level. Testing accommodations are not intended to alter or lower the standards or expectations for a subject or test, or to give learning disabled children an unfair advantage.
To receive testing accommodations either IDEA or Section 504, a child must first be formally identified as having a learning disability. The child must then obtain an individualized plan from her school that details, among other things, what testing accommodations the child may receive in order to help increase their educational success. For children protected under IDEA, this plan is referred to as an Individualized Education Program (IEP). For those who qualify under the Rehabilitation Act it is called a “504 plan.”
To find out more about the process for obtaining an Individualized Education Program (IEP) for your child, see Nolo’s series of articles on IEPs and special education.
There are many different possible testing accommodations to consider when developing an IEP or 504 Plan. Testing accommodations may affect the presentation of the exam, permissible ways for the child to respond, the timing of the exam, and the setting in which the exam is given.
Some examples of testing accommodations include:
Under IDEA, the protections provided to children with disabilities enrolled in private school vary depending on two factors: whether the child was placed in private school by her parents or by the public school district, and whether this occurred before or after the child was found to be IDEA eligible. Children enrolled in private schools by their parents do not necessarily have the same rights to special education and testing accommodations as children in public schools. The National Center for Learning Disabilities provides more information on when children in public schools are entitled to special education services at www.ncld.org.
]]>You may be tempted to hire the attorney who did your will, your sister-in-law who just graduated from law school, or the attorney whose ad in the phone book promises the lowest rates. But special education law is highly specialized. Hiring an attorney who does not know the law or have experience in special education will significantly increase your chance of failure and can ultimately cost you more rather than less. When you pay an attorney, you are paying for all the time spent on your case, including time spent on research. You don’t want to pay an attorney for on-the-job training, nor do you want to hire an attorney who won’t be able to master the subject matter and legal issues quickly enough to serve you and your child well.
To find the “right” education lawyer, you’ll need to compile a list of potential candidates. Here’s how:
Once you have a list of recommended attorneys, you can either narrow it down to one or two individuals who were enthusiastically recommended or make initial contact with everyone on your list.
Try to have a brief phone conversation or ask for a short meeting. Some attorneys will briefly chat with you over the phone to determine the nature of your case and whether or not you need an attorney. Other attorneys may have you speak with an assistant, complete a form describing your case, or make an appointment to come in and talk about the case. Some attorneys will not talk to you without at least a minor retainer or fee; others will not charge for the first discussion. Before making an appointment, find out the following information:
Make an appointment with the candidates who seem like the best prospects. Naturally, if there is a fee for the initial intake, you may only want to see one or two attorneys. Be sure to ask what records the attorney needs to evaluate your case.
When you meet with an attorney, you should ask about your specific case, of course. You should also ask about the attorney’s:
Does the attorney clearly answer your questions about fees, experience, and your specific legal issues? Does the attorney objectively assess your chances in due process? If the lawyer makes you uncomfortable, think carefully about whether the lawyer’s expertise and success rate are worth putting up with a difficult style.
Will the attorney provide the type of help you want? Is the attorney willing to advise you now, but hold off on full participation unless and until you need it? If the attorney wants to take over the case but you only want a consultant, you have the wrong attorney.
Will the attorney be accessible? This is important: The most common complaint about lawyers is that they don’t return phone calls, respond to faxes or email, or make themselves available when a client calls. Discuss the attorney’s response time. While no attorney should be expected to respond instantly, you shouldn’t have to wait more than a day or two, except in rare circumstances.
A good attorney will evaluate your evidence before giving you any advice. After reviewing your case materials, a good special education attorney should be able to:
See also Bolling v. Sharpe, 347 U.S. 497 (1954) (racially segregated education facilities in the District of Columbia violated the equal protection guarantee of the Fifth Amendment due process clause).
Here are some factors to consider when trying to decide whether you need a lawyer who specializes in special education.
Generally speaking, an attorney can help you in one of two ways. A lawyer can provide advice and assistance as needed throughout the IEP process while you do most of the work, or a lawyer can be directly involved as your formal representative. You might choose to have a lawyer do everything from beginning to end in the IEP process, or you may have the lawyer handle only certain tasks.
Here are some of the specific tasks a lawyer can help you with:
For information on how to find a lawyer and choose a special education attorney, see our article on finding an education lawyer. And for information on how special education lawyers are paid (including when the school district is required to pay your legal fees), read The Complete IEP Guide: How to Advocate for Your Special Ed Child, by Lawrence Siegel (Nolo).
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