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  • John C. Whitbeck, Jr.

    Partner

    John C. Whitbeck, Jr. practices in the following areas of law: Family Law, Divorce, Child Custody, Child Support, Visitation Rights, Adoptions, Spousal Support, Mediation, Arbitration, Relocation Cases, Domestic Violence, Criminal Law, DUI/DWI, Reckless Driving, All Felonies, All Misdemeanors, Juvenile Crimes, Mental Health Law, Civil and Business Litigation, Construction Litigation, Education Law, Election Law, Debt Collection, Consumer and Lemon Law.

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  • Ruth M. McElroy

    Partner

    Ruth M. McElroy practices in the following areas of law: Family law, Divorce, Child Custody, Child Support, Visitation Rights, Adoptions, Spousal Support, Relocation Cases, Pre and Post Marital Agreements, Domestic Violence, Reckless Driving, DUI/DWI, Juvenile Crimes, Felony and Misdemeanor Crimes, Traffic Offenses, Debt Collection, Civil and Business Litigation. She serves the Virginia Court system as a Guardian ad litem.

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  • Jennifer D. Cisneros

    Partner

    Jennifer D. Cisneros practices in the following areas of law: Family law, Divorce, Child Custody, Child Support, Visitation Rights, Adoptions, Spousal Support, Relocation Cases, Domestic Violence, Juvenile Crimes, Reckless Driving, DUI/DWI, Estate Planning, Wills and Probate, Trusts, Civil and Business Litigation and Debt Collection.

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Special Education Rights

SpecEd3

Every child has the right to learn and go to school, based on their individual capabilities and unique qualities. The education system prides itself on focusing on student’s individuality, therefore there should be the same level of pride when focusing on students with any sort of intellectual and psychical disability. However, when the focus is not centered on a child’s individual needs and circumstances, the effects can be detrimental to their education. Therefore, it is imperative to understand the importance behind the Individuals with Disabilities Education Act (IDEA).

Purpose and Breakdown of the IDEA:

The purpose of the IDEA is simple, requiring the state to offer funds to assist in the education of students with disabilities. IDEA states that each student, at any school, that identifies as having a disability is entitled to a Free Appropriate Public Education (FAPE). FAPE must be offered in the Least Restrictive Environment (LRE). This means that whenever possible, a child with disabilities will participate in activities and attend class with fellow peers without disabilities. The strategy for how to provide FAPE for each student is developed every year, based on their progress, and is called the Individualized Education Program (IEP).

Individualized Education Program (IEP):

IEP’s are written by the child’s IEP team, which will always include the parents of the child with a disability. IEP’s will include the following parts: present level of academic achievement, statement of aids and services being provided, annual goals, explanation regarding why the child will not be spending a certain amount of time in regular education classes, list of necessary accommodations, and a plan for how the child will take part in the state’s accountability system. However, the school division cannot start to conduct an assessment or make and IEP for your child and their capabilities without doing the following: providing prior written notice and obtaining your consent.

Options When Disagreements over IEP’s Arise:

If parents disagree with the initial evaluation of their child done by the school division, then they have the right to obtain an Independent Educational Evaluation. This evaluation will be conducted by a qualified examiner who is not employed by your child’s school district. Also, this examination is conducted at public expense; which means the evaluation will be done at no cost to the parents.

Parents and the child’s educators can resolve IEP differences in an informal environment like a meeting or an actual mediation. If the informal environment fails to solve disputes regarding the IEP, then more formal steps can be taken like due process.

Due Process

If you and the school district cannot agree about your child’s education, you have the right to ask for a due process hearing. This due process can be for any matter regarding the FAPE of your child.

As of 2005, the IDEA established a stricter requirement for providing a responding party with notice of the disputes and possible resolution. Either party that is issuing a due process notice must include the following information regarding the child: description of the problem with valid facts along with a proposed resolution to the extent known. The notice of a due process hearing request will be deemed sufficient unless the responding parties notifies the hearing officer otherwise. The notification of the insufficiency must be done within 15 calendar days, then the hearing officer will decide if the request for due process meets the requirements.

Before the due process hearing is held, you have the right to meet with the school in regard to the issues in the due process case to try to solve the apprehensions. You and the school district can agree to utilize a resolution meeting or mediation. Within 15 calendar days of receiving the request of due process, you can conduct the resolution meeting. The intent of this meeting is to discuss the request for due process and the facts that form the foundation of the request.

If the request for due process has not been resolved to your satisfaction within 30 calendar days, the due process hearing may occur. The 45 calendar day time line for issuing a final due process decision will begin at the expiration of the 30 calendar day resolution period. If a resolution is made at the meeting, you and the school division will enter a legally binding agreement. This agreement will be signed by you and a representative of the school division, and it will be enforceable in any state court or Federal District Court.

However, any party who does not agree with the decision in the due process hearing, has the right to bring a civil action on the topic of the due process hearing. The party bringing the action forward has 90 calendar days from the date of the decision to file a civil action, or 180 days in state court.

Old Standard vs. New Standard

In regard to education of students with disabilities, there has been a loosely understood “old standard.” Under this “old standard”, education for children with disabilities was calculated to provide that schools on had to provide the bare minimum effort to provide FAPE. However, the Supreme Court resoundingly and unanimously rejected this “bare minimum standard.”  Instead, the Court said that schools must provide an IEP that is “reasonably calculated to enable a child to make progress (in his/her education) appropriate in light of the child’s circumstances.”  For parents, this means a school has to do more than the bare minimum when creating an IEP.  Essentially, the school is required to work out an IEP that actually has a chance of educating a special needs child, and if it doesn’t work, change the IEP so it actually has a chance of working.  This can even mean a public school system paying for a private school education.

Special Circumstances

If your child’s behavior involves drugs, dangerous weapons, or a bodily injury then the school division has greater opportunity to disciple your child. Even if the behavior was not a demonstration of the child’s disability, the school can still remove a student to an alternative educational setting for up to 45 days. When the decision to remove the student is made, the school division must notify the parents and provide them with a procedural safeguard notice.

504 Plan and How to Get One

The process for getting a 504 Plan is simpler.  For instance, children do not need a full evaluation. Schools often suggest getting a 504 Plan if a student doesn’t fully qualify for an IEP but, is still in need of support. Instead a full evaluation, schools might look at the student’s grades, test scores, and other teacher recommendations. Parents or schools can request, in writing, a 504 Plan through the school’s district 504 coordinator. After the request is made, the school will then hold a meeting to decide if the child qualifies and determine what support they need.

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