The education lawyers of Jacobson & John LLP have provided answers to several frequently asked questions about special education law below:
Can parents really afford to retain legal counsel to pursue their child’s rights?
While everyone’s situation is different, in most cases obtaining legal representation to pursue your child’s rights under the IDEA is more affordable than you might otherwise think. Depending on the specific circumstances surrounding your case, there may be options available to defray or lessen the direct cost to you. Moreover, because the IDEA is what is known as a fee shifting statute, if you as the parent initiate due process proceedings against your school district and prevail, you may be entitled to reimbursement for all reasonable attorney’s fees and costs.
What is the Individuals with Disabilities Education Act (“IDEA”)?
The “IDEA” is a federal law that ensures special education to eligible children with disabilities. The IDEA governs how states and public agencies address the educational needs of children with disabilities from birth to the age of 21. Pursuant to the IDEA, each child with a disability must be provided with a free, appropriate public education (“FAPE”) that prepares them for further education, employment, and independent living.
The IDEA is formerly known as the Education for All Handicapped Children Act, and has been amended several times since its enactment in 1974.
What is a free, appropriate public education?
A free, appropriate public education, or “FAPE,” is the standard of education that is guaranteed by the IDEA to be provided to all eligible children between the ages of 3 and 21. FAPE requires that each eligible child receive a program of special education and related services individually designed to meet his or her unique needs, from which that child must obtain meaningful educational benefit. FAPE must be provided in conformity with an Individualized Education Program, at public expense, under public supervision and direction, and without charge to the parents.
How does my child become eligible for special education under the IDEA?
In order for your child to become eligible for special education under the IDEA, he or she must first be evaluated by your school district. In order to complete an evaluation, the school district will issue a Permission to Evaluate form seeking your permission for the evaluation that it is proposing. The district’s evaluation must assess all areas of your child’s disability or suspected disability and will often consist of standardized testing, curriculum based assessments, a classroom observation, and input from the parents and your child’s teachers. In addition, the evaluation may, where needed, include behavior checklists or rating scales, speech and language assessments or occupational or physical therapy assessments. Once the evaluation is complete, the school district will issue an Evaluation Report (“ER”), which will contain the results of the evaluation as well as a determination of whether your child has a disability and, if so, whether he or she requires specially designed instruction. If your child meets both of these criteria, i.e., has a disability and requires specially designed instruction, he or she will be eligible for special education under the IDEA.
What happens once my child is found eligible for special education under the IDEA?
Once your child has been determined to be eligible for special education, an IEP team meeting will be held to develop an Individualized Education Plan (“IEP”) for your child. The IEP team will consist of the parents, your child’s teacher, a special education teacher, and a school district representative known as the “LEA” (the local educational agency representative.) This team will develop an IEP which will set forth your child’s special education program. There are several required components of an IEP, including present education levels which describe where your child is currently functioning, measurable annual goals, expected levels of achievement, a statement of the specially designed instruction that will be provided to your child, any related services that are necessary for your child, and a statement of the child’s special education placement. You will then be asked to either approve or disapprove your child’s proposed IEP and educational placement by signing a Notice of Recommended Educational Placement (“NOREP”). Once you approve the NOREP, your child will begin receiving the services outlined in the IEP.
In order for my child to receive special education, must he or she be instructed in a special education classroom?
No. Although special education is often thought of as something that occurs only in a special education classroom, special education is a level of service and not a location. Public school districts are required to maintain a “continuum of placement options” where special education services may be provided to eligible students based upon their individual needs. These placement options range from the regular education classroom to full-time special education classrooms outside of the school district. More importantly, the IDEA mandates that students with disabilities be educated in the least restrictive environment (often referred to as LRE) to the maximum extent appropriate, requiring school districts to educate students with disabilities with non-disabled peers. In fact, Pennsylvania case law requires school districts to provide students with disabilities the full array supplementary aids and supports in the regular education environment (or at the very least, be able to demonstrate that the student cannot be successfully included in the regular education environment with supplementary aids and supports) prior to recommending a more restrictive placement on the continuum. It is also important to remember that determining the success of a student with disabilities in the regular education environment is based upon his or her own ability levels and not what would be expected of a non-disabled peer in the same class.
What is a 504 plan? How does it differ from an IEP?
Section 504 of the Rehabilitation Act of 1973 was one of the first federal laws passed to protect the civil rights of the disabled. A student may be eligible under Section 504 if he or she 1) has a record of having, or is regarded as having a disability that 2) interferes with a major life activity, such as learning. Although largely a discrimination statute, Section 504, much like the IDEA, requires schools to provide eligible disabled students with a free and appropriate public education (“FAPE”). In order to ensure that eligible students receive FAPE under Section 504, schools must develop 504 plans (also called 504 service agreements) that articulate specific accommodations that will be provided to the child as part of his or her educational program.
While 504 plans are similar to IEPs in that they both provide a written description of the educational supports that will be provided to an eligible student, they differ in that generally a 504 plan concerns only accommodations to be made for a student “to level the playing field” in the educational environment, as opposed to modifications to actual instruction. Conversely, while an IEP may include accommodations as well, an IEP will always contain specially designed instruction and could affect instructional content.
What if my special needs child attends a Pennsylvania charter school, do they still have educational rights?
Yes, for most relevant purposes, Pennsylvania charter schools are considered to be public schools just like any other public school district in the State. As such, save for a few minor distinctions, Pennsylvania charter schools are largely required to adhere to the same obligations as public schools in terms of providing eligible children a free and appropriate public education (“FAPE”). In other words, like all public schools, Pennsylvania charter schools must identify, evaluate and develop an appropriate program for all children who require special education.
What educational rights do gifted students have?
Although there is no federal statute (like the IDEA) that requires school districts to provide supports to children who may be gifted, Pennsylvania is one of several states that have elected to make gifted programming in public schools mandatory for all qualifying students. Public schools in Pennsylvania are therefore obligated to identify all children who may require gifted support services, appropriately evaluate such students, and if eligible, provide a gifted individuated education program (“GIEP”) to those children. The laws pertaining to gifted students do differ in several significant ways from those protecting disabled students however, particularly with respect to available remedies and fee-shifting provisions.