By Marion M. Walsh, Esq.

The Individuals with Disabilities Education Act (IDEA) protects the rights of students with disabilities and requires the appropriate local agencies to identify, evaluate and refer children suspected of having a disability to determine eligibility for services. The IDEA protects students up to age 21 and in some cases, older.

Transition to Committee on Special Education (CSE) for Elementary School

All Committee on Preschool Education Students (CPSE) students will have an exit meeting in the spring prior to “the turning 5 meeting” for kindergarten. The CPSE determines whether to refer the student to the CSE for special education support under the school-aged system. For referred students, the CSE will determine eligibility and recommend programming and services as appropriate. Under New York State Education Law addressing special education programs, a “preschool child” means a child with a disability who is eligible for special education services, but who will not have become five years of age on or before December first of the relevant school year. Unlike in preschool, when a student is turning five, a CSE will review whether a child is eligible for special education services, under certain categories of disability.

Covered Disabilities

Under the IDEA, disability categories include: autism, deaf-blindness, deafness, an emotional disturbance, a hearing impairment, an intellectual disability, multiple disabilities, other health impairment (which can include ADHD), an orthopedic impairment, speech/language impairment, a specific learning disability, traumatic brain injury, or visual impairment. Remember, a diagnosis alone is not enough. The school district must find that the disability has an educational impact and that the student needs special education and related services.

If you disagree with the CSE decision, you may challenge it through due process. If you suspect that your child has a disability affecting their education, you can refer them 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 evaluations of students suspected of needing special education or related services. This “child find” obligation extends to children who may be advancing from grade to grade.

A strong psycho-educational evaluation for a student is critical. Instead of 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 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. This 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 the free appropriate public education to which the child is entitled.

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 those for testing. The continuum of services can range from general education (with related services) up to a restrictive residential placement.

Districts Must Provide a Free Appropriate Public Education (FAPE)

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

How do you measure a FAPE?  Supreme Court decisions, coupled with the statute itself, provide the structural framework for this critical term. A school district provides a FAPE when it offers “special education and related services tailored to meet the unique needs of a particular child, [which are] ‘reasonably calculated to enable the child to receive educational benefits. 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 anything more than “de minimis,” or minimal, progress is acceptable. 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. Many parent advocates are using this important precedent to advocate for higher standards in special education.

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 IEPs begin addressing transition no later than age 16. In New York IEPs must address transition needs the year a student turns 15. The IEP must include transitional goals and services which will facilitate movement from school to post-secondary activities.

Parental Remedies

The law gives parents specific rights under the IDEA concerning participation in the special education process and on notification and consent. Parents 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’s IEP decision, they have the right to file for due process. This means that a school district must conduct a hearing before an impartial hearing officer, appointed through the state. While the hearing may take a single day, 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, including compensatory or made-up services. They cannot seek monetary 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 a 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.

When A Student Graduates or Turns 21

After your child graduates with a regular education diploma or turns 21 or 22, depending on the state, the protections of the IDEA end. 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. NYS administers additional programs for young people with developmental disabilities, such as OPWDD programs. 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.

Keep in mind that under New York State law, school districts now have the authority—although not the mandate—to allow qualifying students who turned 21 during 2021-22 to continue to receive services until they turn 23 in the 2022-23 and 2023-24 school years. It’s important to review the criteria and the specifics.