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Your Children’s Educational Rights

I have worked with children and families for over a decade and the one thing that I’ve found through the years that parents are least knowledgeable about regarding their children is how to access special educational services for them. In fact, it might surprise you to know who actually qualifies for these services. It is not just the learning disabled or physically disabled student, but the student with emotional struggles as well, which includes, but is not limited to, depression, anxiety, and post traumatic stress.

Children’s educational rights seem to be unknown to parents until that child begins to show some struggles in school. Unfortunately, the academic or behavioral problems that arise for some kids aren’t shared with their parents until it’s too late. “Too late” for some kids may be failing grades. For others it may be truancy, suspension, or even expulsion from school. Whatever the case, if parents do not know what services may be available to their children, then the services are often not granted. In some cases, they’re not even offered because it’s easier to rid the school of the problem child than it is to try to find a solution that may take extra time, effort, and manpower that our schools do not have.

There are two laws, which provide educational services to students with special needs whose disability adversely affects their educational performance. I’m going to talk about the first law in this article and the second one in an article to follow.

The first law is IDEA (Individuals with Disabilities Education Act), which is generally referred to as special education. The term “special education” means instruction that is specially designed to address the unique needs of the student that result from the disability and to ensure access to the general curriculum. Specially designed instruction means adapting, as appropriate, to the needs of an eligible child the content, methodology, or delivery of instruction. There are several different ways that a child may be eligible for special education services. They can qualify under one of thirteen categories in which their disability adversely affects their educational performance.

Specific Learning Disability.

A severe discrepancy exists between the intellectual ability and achievement in one or more of the following academic areas: oral expression, listening comprehension, written expression, basic reading skills, reading comprehension, mathematics calculations, mathematics reasoning, or dyslexia.

Or, the district may use a process that determines if the child responds to scientific, research-based intervention.

Hearing Impairment.

A permanent or fluctuating impairment that impairs processing of linguistic information through hearing even with amplification, which adversely affects educational performance.

Hearing and Visual Impairment.

If a child has both hearing and visual impairments, the combination of those causes severe communication, developmental, and educational problems.

Language or Speech Impairments.

An articulation disorder that significantly interferes with communication and attracts adverse attention.

Visual Impairment.

Even with correction, this adversely affects a pupil’s educational performance.

Severe Orthopedic Impairment.

Adversely affects a pupil’s educational performance.

Other Health Impairment.

The pupil has limited strength vitality or alertness due to chronic or acute health problems including but not limited to heart condition, cancer, leukemia, etc. This includes ADHD and can include Bipolar disorder.

Autism-Like Disorders.

Any of the pervasive development disorders ranging from Autism to Asberger’s Syndrome that adversely affect the pupil’s educational performance.

Mental Retardation.

Serious Emotional Disturbance.

A child exhibits one or more of the following characteristics over a long period of time, to a marked degree, which adversely affects educational performance:

  • An inability to learn which cannot be explained by intellectual, sensory, or health factors
  • An inability to build or maintain satisfactory interpersonal relationships with peers and teachers
  • Inappropriate types of behaviors or feelings under normal circumstances exhibited in several situations
  • A general pervasive mood of unhappiness or depression
  • A tendency to develop physical symptoms or fears associated with personal or school problems


Multiple Disabilities.

Traumatic Brain Injury.

Deafness.

A child who qualifies for services under IDEA has an IEP, which stands for Individualized Education Plan. IDEA seeks to ensure that all children with disabilities (from birth to age twenty-one) have a free and appropriate public education (FAPE) available to them. This FAPE emphasizes special education and related services designed to meet their unique needs and prepare them for employment and independent living.

All schools have an affirmative duty to identify, locate, and evaluate all children with disabilities residing in the district boundaries, including homeless students and students in private schools. When an IEP is granted, it must contain several things. First, there must be a statement of the child’s present levels of academic achievement and functional performance. Second, there needs to be a description of how the child is progressing toward meeting the annual goals. Third, a statement of special education and related services as well as supplementary aides and services based on peer-reviewed research should be present. Fourth, a statement of individual appropriate accommodations necessary to measure academic and functional performance on state and district wide assessments must be documented. Fifth, the IEP must contain appropriate measurable post-secondary goals based upon age-appropriate transition assessments that relate to training, education, employment, and independent living skills. These should occur no later than the first IEP when the child is sixteen and at all IEPs thereafter.

If you believe that your child qualifies for an IEP, then as a parent, it is your written request for a special education assessment that starts the process. Your letter to the school should state your child’s disability and how it is affecting his school performance. Parents need to make all requests in writing and should document the results of any phone conversations with a follow up email or letter.

The school has fifteen days to give you a written assessment plan in all areas of suspected disability. You may want to have the assessment plan reviewed by your child’s doctor or therapist to make sure it covers all areas of suspected need, such as academic testing, social emotional testing, executive functioning, and testing for attention or distractibility. Once you return the signed assessment plan to the district office, they have sixty days to complete the assessment and hold the IEP meeting to discuss the results. Sometimes school districts ask for extensions; however, extensions should not be granted unless the district can show good cause for needing an extension (i.e., the child was not available for evaluation). A parent must give written consent for the assessment(s) and informed consent for any special education or related services to their child.

The alternative law that enables a child to have eligibility of accommodations at school is a 504 plan, which is under the rehabilitation act of 1973. This law enables any child with a disability (learning, physical, or emotional) to be eligible for accommodations for that disability in their educational setting so they are at an equal playing field as everyone else. In other words, a disability should not cause a student to have less of a chance to do well than non-disabled students at the school. Students who are eligible for services under IDEA will always meet the definition of eligibility for Section 504. However, the converse is not true. The non-categorical criteria for determining eligibility under Section 504 are generally broader, or more inclusive, than the categories of eligibility under IDEA. As a result, there are students eligible for educational program adaptations and services under Section 504 who are ineligible under IDEA. I’ll discuss the 504 plan in detail in my next article.

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