By Marion M. Walsh, Esq.

After two years of living in a pandemic, many parents may wonder if their child has a learning or emotional disability or special needs.  For some children, parents know about the challenges at birth or in early childhood.   For other parents, they may not suspect a disability until a child is an adolescent or even a young adult, as some complex and invisible challenges, such as emotional disabilities, become pronounced in adolescence.  Special education law covers a broad continuum of students.   The Individuals with Disabilities Education Act (“IDEA”) requires that every public school district in our country identify and evaluate students suspected of having a disability and, if eligible, provide a free appropriate public education (“FAPE”) to every student until graduation or the year after the student turns 21.

What Steps to Take if You Suspect Your Child Has a Disability?

If you suspect that your child has a disability that impacts their education and the school district has not identified your child and provided services, you as a parent can refer a child to your school district for special education services.  Even if a parent does not refer a child, a school district has the affirmative obligation to conduct an evaluation if he or she is suspected of needed special education or related services.  This “child find” obligation extends to children who are suspected of being a child with a disability and in need of special education— even though they are advancing from grade to grade. Keep in mind that struggle.

It is important for parents to know that school districts and parents often view children’s progress through a very different lens.  Districts, in general, may tend to underestimate student needs, as districts face counter-pressure to not overclassify students. 

A strong psycho-educational evaluation for a student is critical.  Instead of just relying on school district evaluations, parents may obtain private evaluations and present them to the school district. If you disagree with a school district evaluation and provide appropriate notice and a request, a public school district must, subject to certain limitations, provide an independent educational evaluation at public expense.

What Disabilities are Covered?

Under the IDEA, disability categories include:  autism, deaf-blindness, deafness, an emotional disturbance, a hearing impairment, an intellectual disability (formerly known as “MR”), multiple disabilities, other health impairment (which can include ADHD), an orthopedic impairment, speech/language impairment, a specific leaning disability, traumatic brain injury, or a visual impairment.  

Remember, a diagnosis alone is not enough.  The school district must find that the disability has an education impact and that the student needs special education and related services.  Regression or struggles during COVID will not be sufficient alone to merit special education services.

What is an IEP?

Once a child is evaluated, a team of special education professionals must meet to decide if the child meets the criteria to receive special education services. If so, the IEP team then must develop an Individualized Education Program (“IEP”). An IEP represents the “centerpiece of the IDEA” and is a written statement outlining a plan for providing a FAPE.  

The IEP must include the student’s present levels of academic achievement and functional performance, and detail academic, physical, management and social emotional needs.  It must contain an annual goal for every special education need identified.  Of course, the IEP must include the special education program and services, as well as any accommodations, including for testing.  The continuum of services can range from general education (with related services) up to a restrictive residential placement.

What is a FAPE?

To provide a FAPE, a district must provide the special education and related services outlined in the IEP.  The district must adhere to all substantive and procedural requirements of the IDEA. 

How do you measure a FAPE?  The U.S. Supreme Court held in 2017, in a case known as “Endrew F.,” that the IDEA “requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”   The Court rejected the position that this progress must only be merely more than just “de minimis” or minimal.   Rather, a child’s “educational program must be appropriately ambitious in light of his circumstances.” Advancement from grade to grade is appropriately ambitious for most children in the regular classroom.  The Court emphasized that the goals may differ, but every child should have the chance to meet challenging objectives. 

What are Transition Services?

An IEP must also contain transition services and goals, which are absolutely essential for helping children with disabilities attain independent living.  The IDEA requires that, beginning not later than the first IEP to be in effect when the child turns 16, and New York requires transition services the year the student turns 15.   The IEP must include contain transitional goals and services which will facilitate movement from school to post-secondary activities.   

 What are Some Parental Remedies?

The law gives parents specific rights under the IDEA.  Parental advocacy is important.  Parents need to know that they have rights under the IDEA of participation in the process and on notification and consent. Parental participation represents one of the fundamental tenets of the IDEA. Parents also have the right to seek and review all of their child’s educational records and school districts have the obligation to keep such records confidential.  

If parents disagree with a school district IEP decision, they have the right to file for due process. This means that a school district must conduct a due process hearing before an impartial hearing officer, appointed through the state. The hearing can take one day or some last for many months. Either side can appeal to state or federal court.

Parents have the right to seek various remedies in an impartial hearing. They may seek compensatory or made-up services. They cannot seek money damages but may be able to recover reimbursement for certain evaluations or services that a school district should have covered. Under the IDEA, parents have the right to unilaterally place child in a private school and seek tuition reimbursement.  Parents have the burden to show the private school is appropriate under the IDEA and must show that they cooperated with the District.

What Happens When A Child Graduates or after 21? 

After your child graduates with a regular education diploma or turns 21 or 22, depending on which state, the protections of the IDEA end.  In New York, currently, students age out the year they turn 21. Section 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Education Act, do still protect the young adult from discrimination. These laws apply to colleges that receive federal funds, most employers and places of public accommodation. Your state will administer additional programs for young people with developmental disabilities.  However, the laws do not require a FAPE or services to the extent of the IDEA.  This is why special education advocacy up to age 21 is so important.  If you have questions about whether your child is being appropriately served or needs an IEP, it is a good idea to consult with a special education attorney in your state.