No. 83; September 2016
Some children experience difficulties in school, ranging from physical differences, problems with concentration, learning, speech, language, and perception to problems with behavior and/or making and keeping friends. These difficulties may be due to one or more of the following:
- physical disorders
- psychiatric disorders
- emotional problems
- behavioral problems
- learning differences
Children with such special needs are usually entitled to receive additional services or accommodations through the public schools. Federal law mandates that every child receive a free and appropriate education in the least restrictive environment possible. To support their ability to learn in school, three federal laws apply specifically to children with special needs:
- The Individuals with Disabilities Education Act (IDEA) (1975)
- Section 504 of the Rehabilitation Act of 1973
- The Americans with Disabilities Act (ADA) (1990)
Different states have different criteria for eligibility, services available, and procedures for each of these laws. It is important for parents to be aware of these laws and how they are applied in their state.
IDEA is a federal law (1975, amended in 2004) that governs all special education services for children in the United States. Under IDEA, in order for a child to be eligible for special education, they must have issues in one of the following categories:
- a serious emotional disturbance
- a learning difference
- intellectual disability
- having had a traumatic brain injury
- being diagnosed on the spectrum of autism
- vision and hearing impairments
- physical disabilities
- developmental delays (including speech and language difficulties)
- other health impairments
Section 504 is a civil rights statute (1973) that requires that schools not discriminate against children with disabilities and provide them with reasonable accommodations. It covers all programs or activities, whether public or private, that receive any federal financial assistance. Reasonable accommodations include untimed tests, sitting in front of the class, modified homework and the provision of necessary services. Typically, children covered under Section 504 either have less severe disabilities than those covered under IDEA or have disabilities that do not fit within IDEA. Under Section 504, any person who has an impairment that substantially limits a major life activity is considered disabled. Learning and social development are included under the list of major life activities.
The ADA (1990) requires all schools, other than those operated by religious organizations, meet the needs of children with these differences or disorders. Under the ADA children who qualify cannot be denied educational services, programs or activities and it prohibits discrimination against all such students.
Evaluation of Your Child
As a parent, you may request an evaluation of your child to determine any needs for special education and/or related services. The evaluation may include psychological and educational testing, a speech and language evaluation, occupational therapy assessment and a behavioral analysis. These are the steps you need to take:
- Meet with your child's teacher to share your concerns and request an evaluation by the school's child study team. Parents can also request independent professional evaluations.
- Submit your requests in writing for evaluations and services. Always date your requests and keep a copy for your records.
- Keep careful records, including observations reported by your child's teachers and any communications (notes, reports, letters, etc.) between home and school.
The results of the evaluation determine your child's eligibility to receive a range of services under the applicable law. If qualifying disabilities or differences are found, an Individualized Education Program (IEP) or a Section 504 plan (often less strict in its definitions) would be developed. Examples of categories of services in IEPs include: Occupational Therapy, Physical Therapy, Speech and Language Therapy, and/or the provision of a classroom aide.
Parents do not determine whether their child is eligible under the law, however, parents are entitled to participate in the development of the IEP. Also, the findings of a school's evaluation team are not final. You have the right to appeal their conclusions and determination. The school is required to provide you with information about how to make an appeal.
What a Parent Can Do
Children with special needs are entitled rights to services in school under federal and state laws. Parents should always advocate for their child and take necessary steps to make sure their child receives appropriate services. The process can be confusing and intimidating for parents. Here are some tips:
- Parents should request copies of their school district's Section 504 plan. This is especially important when a school district refuses services.
- If the school district does not respond to your request, you can contact a U.S. Department of Education Office of Civil Rights Regional Office for assistance.
- If the school district refuses services under the IDEA or Section 504 or both, you may choose to challenge this decision through a due process hearing (a legal hearing in which you and your child have an advocate who can help talk about your views and concerns).
- It may also be necessary to hire your own lawyer if you decide to appeal a school's decision.
- Other resources for parents include: the State Department of Education, Bazelon Center for Health Law at www.bazelon.org.