The Essential Guide to Special Education Law for Parents
- Bonnie Spiro Schinagle, Esq.
Table of Contents
I can’t say it often enough: make every request to your child’s school IN WRITING. Communicate with school personnel IN WRITING. Every time you send written communication, make sure it has a DATE, your name and the name of the person who is being addressed. Bonus points if you state their position at the school. Send the communication in a way that shows it was delivered - email works.
Keep copies of your child’s work. It could end up being useful evidence in the future. If not, it will be a keepsake of your child’s school days.
1) Who needs this guide?
If you’re a parent with concerns about your child’s performance in school and wonder what you can do, this book is for you We’ll explain what you need to ask and how to ask for it - based on the law. What concerns? Well, it depends on the child’s age. Let’s break it down very broadly, and remember that this is a guide to legal rights, not a book about child development:
Infancy through preschool: Your child may have been born with a disability. Others, like speech delays, motor delays (like coordination) or autism may emerge during this period of life.
Elementary school: At this phase, you may be concerned that your child is having difficulties learning basic academic skills, like reading and mathematics. They may have difficulty holding a pen or pencil or they may have difficulty forming sentences, remembering information, following directions or finishing tests or homework. Whether the child is able to follow classroom routines and behave like a student is another concern.
Late elementary school: At this point, we start expecting increased responsibility. Older children are expected to keep track of their assignments and to hand in their work on time. That means they have to be organized and manage their time. This is called ‘executive function.’ A child who isn’t starting to be independent about their work may have a disability.
Junior high school and high school: As if this phase of life isn’t tough enough, it’s when emotional issues can start to interfere with a child’s life at school. Even though emotional issues can interfere with a child’s school life at earlier ages, this is when mental health issues, such as depression and anxiety, generally emerge. Issues parents may be facing include school refusal, excessively frequent visits to the nurse for physical complaints (called ‘somatization’). The child’s grades may or may not fall. These are perhaps the most heart-wrenching cases of all.
2) When do you need this guide?
The sooner the better! The moment you have a concern about your child’s performance in school, you need to learn about your rights in special education law. I can’t stress this enough: make sure that you start communicating with your child’s school in writing. Email is great. You’re trying to create a record of events at the time that they’re happening. Later on, you might remember phone conversations that you had about your child.
3) When do I need to start keeping records?
Right now! Records include:
Copies of tests
Emails or notes between you and school personnel, including your child’s teacher
Copies of your child’s work
Any consent forms you sign allowing the school to ‘evaluate’ your child
Any letters telling you of an upcoming meeting regarding your child
A letter called a “Prior Written Notice” (PWN)
Any consent for the provision of special education services
Individualized education programs (IEPs)
IEP progress reports
Any evaluations - psychoeducational evaluations, speech-language evaluations
4) Your legal road starts here!
There are two laws that you need to know about: The Individuals with Disabilities in Education Act (IDEA) and Section 504 of the Rehabilitation Act of 1973. Laws are also known as statutes. These two laws were enacted by the federal government - that’s the Congress of the United States. The states get involved with the IDEA through something called ‘regulations’ issued by the State Education Agency (SEA) that are supposed to be followed by your local public school district. The IDEA confers, in my view, more rights than section 504 because the IDEA looks to a student’s progress, while Section 504 doesn’t.
What’s an evaluation?
An evaluation is a set of non-invasive tests. Schools psychologists give the test that will give you the broad picture of your child’s academic strengths and weaknesses and can test for emotional issues. More specialized tests may be needed if special types of weaknesses are suspected - like speech, language. Even if your child attends a private school, you can ask the public school district where the private school is located to conduct an evaluation.
You must ask for an evaluation in writing. The school can also ask for an evaluation. Whether you start this process or the school starts it, your consent is required for the testing to begin. Evaluations must be completed within 60 days from receipt of your written consent. At this point, it is recommended that you consult with a special education lawyer.
In order to get the rights guaranteed by the IDEA or Section 504, a child must be evaluated. Public school district psychologists will perform a psychoeducational evaluation. NOTE: school evaluations generally do not include recommendations.
The evaluation will be reviewed with you and a determination will be made whether your child gets the special protections under the IDEA. In New York, the team is called the committee on special education. IEP stands for Individualized Education Program. IEPs aren’t contracts, but they confer important rights - they’re significant. But before we dive into IEPs, there are some other rights you need to know.
Students with IEP have special protections when it comes to discipline. If a child is subject to discipline for more than 10 days, they are entitled to a manifestation determination review (MDR). This is a proceeding to determine whether the infraction was a manifestation of the child’s disability, in which case discipline is adjusted.
You are allowed to disagree with the school district’s evaluation and ask for an outside evaluation by a private neuropsychologist or other specialists. This is called an Independent Educational Evaluation (IEE). The people who do these evaluations are generally more qualified than school psychologists. Your school district will provide you with a list of evaluators, but you aren’t restricted to that list. However, the public school district can limit the amount they will pay for an independent evaluation.
This is any evaluation you pay for directly.
When will I need to have my child evaluated?
Basically, if you see that your child isn’t learning or behaving like most other children their age, that’s a good time to ask the school to do an evaluation. Some examples of what might cause a parent to ask for an evaluation is seeing that your child has difficulty learning to read, to do the math and to make friends. As children are expected to become more independent, be on the lookout for a child who can’t get organized or keep track of daily or long-term assignments.
In older children - preteens - if you see a shift in mood, which might include changing groups of friends, resisting going to school, and abandoning activities that they used to love, a psychiatric evaluation might be indicated. There are many different evaluations.
Keep in mind that many children exhibiting signs of disabilities will fail classes. This is when a paper trail is really important! Here’s an example:
Josiah is an adorable 8-year-old child boy, but he can’t seem to follow directions at home. Every day, you tell him to put away his shoes, let the cat in and put the milk back in the refrigerator. An hour later, the cat is crying at the door, you trip over Josiah’s shoes and the milk is still on the table. You let the cat in, call for Josiah and ask him what happened. Josiah says he didn’t hear you or that he forgot. and you’re getting really frustrated at home. Last week, Josiah’s teacher sees you at school and complains that Josiah isn’t paying attention and he’s completely disorganized, but he’s getting great grades on tests. You let it go, but the teacher keeps complaining and refuses to send you an email or write you a note, so, this is what you write:
Dear Mr. Jones:
Thanks for talking to me about Josiah today. I’m sorry you’re concerned that he can’t seem to follow directions in class. I’ve noticed something like that at home - I tell him to do three things and he does none of them, then tells me he didn’t hear me or that he forgot. He also seems really disorganized. I know you mentioned this to me a few times in the past few weeks, too. I would like the school to evaluate Josiah. I am sharing this with the Principal and school psychologist.
DON’T count on the teachers and school to point out all of your child’s issues
DO get educated about different types of disabilities
DO learn about the different types of evaluations.
I know that this is really difficult to do, but you are not alone. You’ve got this!
5) What’s an IEP?
An IEP stands for Individualized Education Program. After the evaluation, you will meet with the school to discuss whether your child qualifies for an IEP. In New York, the meeting where an IEP is developed is called a Committee on Special Education meeting, or CSE. It must be in place by the beginning of the school year, but can be amended without meeting during the year.
Note: It is the District’s responsibility to call an annual review, not the parent’. If you plan to remove your child to a specialized private school and the District fails to call an IEP meeting, don’t initiate the meeting!
The IEP must afford the child a Free, Appropriate Public Education - referred to as a FAPE. An “appropriate” program is one that is reasonably calculated to induce meaningful progress considering the child’s unique needs. The District has the burden to show that it developed an appropriate program.
The IEP must contain information about your child’s academic, social-emotional development and physical needs, concerns you raised at the meeting, annual goals and a reporting schedule, a list of related services, identification of the type of class in which your child will learn whether the child needs a behavioral program and whether they are to be in school for an extended school year (12 months versus 10). Testing accommodations can also be given. Please beware the accommodation of having a test read to a child; the child should be taught to read.
You are allowed to record the meeting. In New York, it is customary to let the CSE know that you are going to record the meeting.
The section stating the type of class in which your child will be placed is important. There is a legal mandate to educate children in the ‘least restrictive environment.’
The ‘team’ will decide what type of classroom the child needs. Note that the names of the different types of classes and services may change, depending on location. For example, some districts in New York state provide for the services of a consultant teacher to provide specialized instruction or support in or outside of the classroom. In New York City, consultant teacher services are called “special education teacher support services,” or SETSS.
In New York, there are general education classrooms, integrated co-taught (ICT) classrooms that have a general education and a special education teacher. Some children in ICT classes have IEPs and the others don’t. There are also smaller classrooms that work with special education students only. If you are within New York City, you can find descriptions of the different options on the New York City Department of Education, www.schools.nyc.gov/special-education/preschool-to-age-21/special-education-in-nyc
Students small, specialized classes may not have the same behavior or learning profile as your child. In New York, public schools do not have small, specialized classes that deal exclusively with children of average intelligence with language-based learning disabilities, like dyslexia.
Suburban districts do have some credible small class alternatives that can truly help certain children. Some of these options are located within community schools and others are separate. Again, whether the option will work for your child’s needs that you investigate what’s available and whatever is offered to you.
You are entitled to learn about the needs of the other special education students who will be in class with your child.
Note that program is one thing, and placement, which is where the program will be delivered, are different. In New York City, parents are sent a placement notice separately from the IEP.
You do not have to agree with the IEP.
You may object at the meeting
You should visit placements that are offered.
What’s a learning environment?
Learning environment refers to all of the features of the school your child attends - the total number of students in the class, the total number of students in the school. Learning environment can impact whether your child is comfortable in school so that they are ready to learn.
What’s a related service?
A related service is defined in the New York State regulations and New York education law as “audiology, counseling including rehabilitation counseling services, occupational therapy, physical therapy, speech pathology, psychological services, school health services, school social work, assistive technology services, orientation and mobility services, parent counseling and training and other appropriate developmental, corrective or other support services and appropriate access to recreation.” These are ongoing services that will be provided in school, if the CSE decides the child needs them. New York defines diagnostic “medical services” as a ‘related service’ to determine if a child needs special education. The IEP must describe the frequency of the related service and whether it is to be delivered in the classroom or in a separate location.
Paraprofessionals or ‘teaching assistants’ and medical issues:
Paraprofessionals are known outside of the N.Y.C. Department of Education as “teacher assistants.” They’re the same thing. There are several different levels Paraprofessional/teacher assistants must have a high school diploma, take the New York State Teacher Assistant exam and participate in workshops on child abuse identification, school violence prevention and the prevention of, bullying, harassment, discrimination, cyberbullying and discrimination in schools. At the end of 3 years, nine college credits and one year of work experience must be obtained. Higher levels of certification require additional college credits and work experience. Note that there is no requirement for the teacher assistant/paraprofessionals to obtain training in particular areas in order to work with particular populations.
If you are located within the New York City Department of Education, your child will not receive transportation unless it is specified in their IEP. In the New York suburban area, your right to transportation depends on how far you live from a school. If you are sending your child to a private school, you must submit a request for transportation by April 1st. This is governed by state law, but there are instances where the IDEA deals with transportation.
What’s a Due Process Hearing?
A due process hearing is how disputes are resolved under both the IDEA and Section 504. They are also called impartial hearings. They are not lawsuits. The person who hears the case is called an Impartial Hearing Officer. The complaint is not filed with a court; it is filed directly with the school district. Because this first phase of the legal process is not considered a ‘lawsuit,’ parents sometimes start these claims on their own or use non-attorney parent advocates.
Filing a complaint on your own or using a non-attorney:
A parent may certainly file their own due process complaint, and there are non-attorneys who will offer to do that for you. However, the IDEA has become a complex area of the law and if an issue isn’t raised in the actual complaint, it’s waived. That means the claim is completely lost. Lawyers are trained to spot issues. That’s why it’s a good idea to work with someone with the legal background to understand and identify all of the legal rights at stake. Also, even though the hearing itself is not considered a trial, it really is a trial; evidence is submitted, witnesses testify under oath and the proceedings are transcribed by a court reporter. It’s a good idea to work with someone who knows how to prepare a case for trial (and can handle the preparation stress!).
There are other routes to resolution of disputes under the IDEA, but generally the Due Process proceeding is the most effective way to get what your child needs.
Attorneys are professionals. We must have specialized training and must be licensed by with the bar of our state - New York in this case. If you have a problem with an attorney, you can report it to the state bar through the Office of Court Administration. You can also look up to see whether the attorney you are planning to hire has ever been subject to discipline. I received the most awful call from a parent in tears because an unscrupulous, unreliable non-attorney promised representation - without a written contract - and then ran off with the parent’s money and there was nothing I could do to help. Attorney’s will always provide you with a written retainer. Read it please!
Attorney fees are reimbursed to the substantially prevailing party under the IDEA! If your attorney prevails on any issue, then the fees for litigating can be sought from your school district. This can take a while. Note that you may need an expert to testify. Expert witness fees cannot be reimbursed.
Non-attorney advocates are not attorneys and, if you pay them to represent you in a due process proceeding and you win, you will not be reimbursed. If the non-attorney advocate misses an issue and doesn’t bring it up in your hearing request, it’s waived and you have no recourse against the advocate.
7) What relief is available under the IDEA?
Relief is legal shorthand for the question, what can I get under the IDEA? Here’s a list of possibilities:
Demanding placement in a less restrictive environment in school for their child;
Demanding implementation of the IEP;
Demanding an independent neuropsychological evaluation or other evaluations, like speech language, occupational therapy, assistive technology, for example, paid for by the District. NOTE: in response to a request for an independent evaluation, the District can start a Due Process proceeding to defend their evaluation - get a lawyer. Demanding special education teacher support services at an enhanced rate (primarily within the New York City Board of Education jurisdiction);
Private School tuition reimbursement and, if the child is too young to get to school independently and does not have transportation on their IEP, transportation;
Compensatory education – services to make up for the education or support services that should have been provided.
The most common forms of relief sought are private school tuition reimbursement, compensatory education and independent evaluations
These are services that should have been delivered, but were not. Either the child’s need for the service was never identified, or it was identified in the IEP and not delivered. Here are examples:
Jane is in 2nd grade. She was getting speech language instruction 3 hours a week in first grade for 42 weeks for a total of 126 hours. She got half that in 2nd grade (62 hours). Skills she developed in 1st grade were lost. Compensatory education would require the District to pay for outside speech language therapy for the amount of time it would take for Jane to regain lost skills.
Sandra never received specialized reading instruction. She’s at the end of 3rd grade and not meeting grade level standards. Her classroom teacher measures her instructional level as being at the end of 1st grade and complains that Sandra has difficulty with word problems. Sandra’s parents can ask the district to pay for specialized reading instruction outside of school as compensatory education.
Payment of Private School Tuition
Note: In order to ask for this relief, you must have actually enrolled your child in a specific private school.
When to think about removing your child to a private school
My rule of thumb is that it’s time to leave when you realize things aren’t working out, they aren’t going to change and the District is never going to offer your child a program that will work. Basically, the time to start looking around is as soon as you feel your child isn’t learning in school How you measure that depends on the type of disability involved and what’s happening at school, but here are some examples:
With the child attending a small class in a small, specialized pre-school, start looking at private schools as your child approaches mid-year of their last year in preschool. Look for schools that are similar to the pre-k school and pre-k class TIP: Make sure that transportation is checked in your child’s IEP if you are within Manhattan, Bronx, Brooklyn, Queens or Staten Island.
Your child is in 2nd or 3rd grade. They can’t read, but they’re very verbal. They’ve failed a grade and been left back or, more likely, promoted anyway they’re and is still not meeting grade level standards - they’re getting 1’s and 2’s on their report cards, consult with a lawyer and start looking at private schools - this is a common profile of children I’ve worked with who have language-based learning disabilities.
Your child has sensory issues and their behavior is getting worse in their self-contained class or their integrated co-taught class.
Your child is in 4th or 5th grade. They can’t follow multi-step directions at home. They are completely disorganized and can’t keep track of their assignments. Getting homework done takes forever and it’s a nightmare. This child can be of average intelligence and starting to have difficulty passing or brilliant and still passing tests, but not meeting standards in terms of completing homework and long-term assignments. These kids are just hitting a wall somewhat later. This child might be a super-social athlete or may have difficulty maintaining friends and they may be super talented in one area.
Emotional issues such as depression and anxiety hit your high achieving, bright youngster like a ton of bricks in late middle-school to high school. They aren’t necessarily involved with illegal substances, but that’s something that could be seen in this profile. Eating disorders may show up and possibly other very frightening self-destructive behaviors might be seen. In some cases, there are extreme socialization changes. Tourette Syndrome symptoms may increase. The child may start to avoid going to classes or avoid going to school or, at some point refuse to go to school altogether. You are very rightfully concerned. Immediate, detailed written communication of your observations and concerns with the school is crucial. Also, get professional help for the child immediately. Many of the children in this category are highly intelligent and continue to perform academically despite their suffering - and that makes these cases extremely delicate.
NOTE: Private school admissions season starts in the mid-fall BEFORE the next school year. Spots are generally filled by late spring. Shop around for schools around October and November and apply by mid-January.
Letting the District know you’re leaving
At this point, you should have legal counsel. At this point, you should have had an IEP meeting at which you have OBJECTED to the program. Then, you must inform the District that you are removing your child from public school at least 10 days before you do so. Within the New York City Department of Education, this may be done by email.
Filing the hearing request, your counsel may file a hearing request seeking tuition reimbursement
Hearing requests are sent to the board of education of your public school district. Within the New York City Department of Education, hearing requests can be submitted by email. This is followed by a 30-day resolution period, during which time a hearing officer is appointed. A hearing may follow, or the case may settle. Though the District must prove it offered a FAPE, the parent has the burden to show that the new placement they selected is appropriate. Parents must also show that they cooperated with the district by attending all meetings, making their child available for evaluations, seriously considering all offered placements and notifying the District of their objections to the IEP and timely notifying the District of their intent to move the child into a private school. If you’re missing any of the parts of the cooperation prong, you might win a reduced tuition reimbursement.
Note: Specialized private schools in New York can be extremely expensive with tuition exceeding $100,000 in some cases. If you are unable to pay tuition, you may seek direct payment to the school. Financial arrangements must be made directly with the private school.
8) Section 504
Section 504 requires equal access and prohibits discrimination. Students qualify for Section 504 accommodations if they have a disability that interferes with a major life activity, even if they are making progress in school. Section 504 plans do not track progress. They can specify the delivery of related services, but there are no goals. If a child receives the services and doesn’t make progress, under 504, it doesn’t matter. Section 504 does not permit the award of private school tuition or compensatory education. Unlike the IDEA, damages can be awarded under Section 504, but the standard for recovery is extremely high; bad faith and gross misjudgment. There are also no manifestation determination reviews for students with Section 504 plans.
Section 504 accommodations apply to extracurricular activities. Students with disabilities must be granted reasonable accommodations in order to access to extracurricular activities on the same basis as their peers.