When it comes to educating your special needs children, you have certain legal rights and
knowing basic terms is important. You’ll be impacted by two Federal laws; the Individuals with Disabilities in Education Act (“IDEA”) and Section 504 of the Rehabilitation Act of 1973. The two statutes confer different rights.
The IDEA is a Federal statute protecting children from birth until high school graduation or age 21, whichever is sooner. State implementation of the IDEA is overseen by the U.S. Department of Education, Office of Special Education Programs The trigger is a disability that adversely impacts learning, the way a child functions in school and social/emotional development. Here are the basic terms you need to know:
Either a school or parent can ‘refer’ a child for ‘’evaluation.’ The child has the right to be
evaluated for all suspected disabilities. You, the parent, have the right to ask for ‘an
independent educational evaluation at public expense.’ After evaluation, a determination will be made whether to classify your child under the IDEA. Classified children are entitled to triennial evaluations. Even if your child has never attended public school, they are entitled to an evaluation and classification under the IDEA, if they qualify.
2) ‘Free Appropriate Public Education’ [FAPE] in accordance with an ‘Individualized Education Program’ [IEP].
Many of you are familiar with the IEP it’s
contents are mandated in detail by the IDEA, as well as the Federal and State regulations. It must be reviewed annually and must track progress, among many other things. IEPs are developed by ‘teams’ and parents are essential team members. It must include annual goals and periodic reporting to the parents.
3) Meaningful parent participation
Parents have the right to meaningful participation in creating their child’s individualized
education program. That means that parents have the right to visit programs offered by public school districts, to obtain information about the other students in proposed classes [not names or other identifying information, but general information, like IQ, classification, gender, whether the children have aides or are verbal]
4) FAPE in the ‘Least Restrictive Environment’ [LRE]
The IDEA requires that classified students be educated with typically functioning children to the maximum extent, so long as the placement enables a child to make progress. If appropriate, parents have the right to
5) Private school tuition reimbursement, compensatory education and attorneys fees
If it can be shown that a) the district failed to provide a FAPE b) that the private school selected by the parent is appropriate and c) the parent attended meetings, considered options offered by the public school district and objected to the program at the IEP meeting and gave written notice of their rejection of the public school program. “Equitable relief” can be requested in the form of “compensatory education” payment
for related services a parent secures outside of school to make up for services that the school failed to provide or should have provided. Plus, attorneys fees can be awarded to the “substantially prevailing party.” Expert witness fees and fees charged by other nonattorney consultants are not reimbursable.
Section 504 of the Rehabilitation Act of 1973 is a completely different statute. It protects people with disabilities that impact a “major life activity” are protected and learning is considered a “major life activity.” 504 prohibits discrimination against qualified people by any school, public or private, that accepts any money from the Federal government. There is something called a ‘504 plan’ and school districts can provide all sorts of supports and services under a 504 plan, however, those plans don’t require any sort of accountability. Section 504, however, offers important protections to students with disabilities when it comes to extracurricular activities and protects people who have graduated from high school or after the age of 21.
Contributed by: Bonnie Schinagle, Esq