There is a federal law that protects children who have special needs in education. The Individuals with Disabilities in Education Act (“IDEA”) requires school districts to identify, locate, and evaluate all children with disabilities in need of special education and related services. Once a child is classified as having special needs, the district must develop an individualized education program (“IEP”) tailored to the child’s specific needs. If the district fails to provide a free appropriate public education (FAPE) to a child with disabilities, parents may seek tuition reimbursement if they have placed their child in a private school. Doing so is risky because if you place your child before the conclusion of the dispute resolution process (more below), you stand a chance of not being reimbursed. But if you prevail, you get reimbursed for the tuition paid and legal fees.
What is a Special Needs Child Under the Law?
The IDEA defines a “child with a disability” as one with intellectual, physical, or specific learning disabilities who needs special education services. The “Child Find” provision requires school districts to identify, locate, and evaluate
all children with disabilities in need of special education and related services. Once a child is identified, the district must develop an Individualized Education Plan (“IEP”) tailored to the child’s specific needs. If you believe your child has a learning disability, you must notify your local public school district and ask that the child be evaluated. The school must, within a specified period, either evaluate the child or send you what is commonly known as a “prior written notice” that the school does not believe the child needs special services. If this happens, you may follow the dispute resolution process provided by the IDEA. See below for more information.
What Types of Testing Are Done to Determine Whether My Child Requires Special Needs Accommodations?
If the school district agrees that your child may require special services, it must have the child tested by whatever specialists are appropriate. This may include speech therapists, the school psychologist, a behavioral intervention specialist or other experts as may be required. Parents are also interviewed. You should give the school as much information (in writing) as possible about your child’s behavior and overall issues you think are problematic. Before your child is tested, the school may opt to delay classification until other steps are taken that do not require the level of intervention that you seek. But testing can and should take place during this time period. Once testing is completed, the Committee on Special Education (“CSE”) will meet to discuss options for your child. You must attend and may bring your attorney with you if you think it is warranted. If you do, the school district is likely to bring its attorney too. Parents can, and often do, pay for their own testing when the school’s testing seems flawed. The reports of private testing must also be considered by the CSE.
A “Free Appropriate Public Education”
The IDEA also requires school districts to provide a Free Appropriate Public Education (“FAPE”) to all children with disabilities. If a school district fails to provide a FAPE, parents may seek tuition reimbursement. To be eligible for reimbursement, parents must show that the proposed IEP failed to provide an appropriate public education, that the private placement was appropriate to the child’s needs, and that equitable considerations support the claim.
When You Might Need the ‘Due Process Demand’
If you are not satisfied with the services offered by the school district, you can make a Due Process Demand for an impartial hearing before a designated ( impartial) hearing officer. The hearing officer may be an attorney but need not be; she/he must be expert is special education law in order to understand the complexities of the service options and the procedures followed in the impartial hearing. Once you have made the demand for an impartial hearing (the due process demand), you will go through the hearing process unless you can come to an agreement with the school district. You may go through mediation first to see if you can come to an agreement with the school district. If you do not, negotiations generally continue throughout the impartial hearing process and many, if not most, cases are settled before the hearing even begins. You would be very well served to have an expert attorney represent you in the due process hearing, as there will most certainly be a special education attorney representing the school district through completion of the process, including settlement negotiations. Without able counsel by your side, you will be at a significant disadvantage.
If you have any questions, feel free to reach out. I handle all matters related to special education concerns and disputes.
