By Craig Goodmark

Many children with disabilities have needs which must be met in order to have educational success.  To ensure that schools meet those needs, several federal laws give children and their parents specific rights.

I.   THE LAWS

A. The Individuals with Disabilities Education Act (IDEA)

(1).  Birth to Age 3

These services may include services such as physical therapy, audiology, parent training, transportation services, and other services that are agreed upon in an Individualized Family Service Plan (IFSP).  Parents may seek these services by contacting Babies Can't Wait at (800) 229-2038.

(2).  Age 3 to Age 21 in Public (Not Post-Secondary) Schools

       (a) Eligibility

To be eligible for special education and related services and accommodations under IDEA, a child must meet the standards for at least one of thirteen eligibility categories.  The Eligibility category of "Other Health Impaired," for example, includes a number of disabling conditions such as ADD/ADHD, asthma, diabetes, and other medical conditions.  A school can begin evaluating a child only after obtaining the permission of parents.  If the parents do not give permission, the school can do nothing unless it proceeds to a formal evidentiary hearing at which it is successful.  Once everyone agrees to an evaluation, it should be completed within 90 days excluding school holidays.

Either a parent or the school can ask that a child be evaluated to learn if the child has a disability and is eligible for services.  A school must get parents' permission before it does an evaluation.  If the parents do not want an evaluation, the school must ask a hearing officer at a due process hearing for permission.  A school psychologist usually performs the evaluation

If the parents disagree with the results of the school's evaluation, the parents have the right to ask the school to pay for testing by an independent evaluator outside the school.  The school must pay for that independent evaluation unless it immediately requests a due process hearing and the hearing officer decides that the school's evaluation is correct.

After the evaluation, parents can attend the eligibility meeting to help decide whether, based on the results of the evaluation and other information, the child is eligible for services.  . 

A student must be re-evaluated every three years unless the parents agree otherwise.  A school system and parent may agree that the student does not need to be re-evaluated because there is no dispute as to whether the student continues to meet certain eligibility categories.  A parent, however, may request that the school system re-evaluate his or her child at least every three years for any reason.  Parents who want their child to continue receiving services under IDEA can request a due process hearing if the child is determined to be no longer eligible.

       (b) Individualized Education Plan (IEP)

IDEA requires the school to encourage parents to participate in the meeting to develop the child's individualized education plan.  The school must schedule the meeting at mutually convenient time and notify the parents early enough that they will be able to attend.

The child has a right to a free (without cost) appropriate (meeting the child's essential educational needs) public education (FAPE).  The IEP is the guideline for the FAPE.  The IEP reviews that child's progress, sets goals for the student, and lists the services the student will receive.  A regular education teacher must be a member of the Committee to help consider what is the least restrictive environment for the child's educational needs to be met.  To the maximum extent possible, children with disabilities are to be educated with children who do not have disabilities--the least restrictive environment consistent with the child's needs.

Services may include various therapies, a paraprofessional to assist the student in a classroom, a sign language interpreter, assistive technology, special transportation or any number of supplies or people to ensure that a child progresses in his or her education.  Sometimes, a child is placed in a specialized classroom or program.  While a school system need only provide educational and not medical services, many health-related services are considered educational if a child cannot be educated without the service; for example, catheterization of a child with paraplegia who cannot attend school daily without this service. 

For children age 14 and above, the IEP must include transition service needs that focus on courses that will help prepare the student for post secondary education, community life and/or employment after completion of school.  Once a student reaches age 16, the IEP must cover transition services based on the students individual needs, including community experiences and specific post-school goals.  The school must invite to the IEP other agencies, such as vocational rehabilitation, which might provide these services to the child.

Parents are important members of the IEP Committee and parents who are dissatisfied with an IEP have a right to challenge it in a due process hearing.  Sometimes negotiating with the Committee or with supervisors in the school system can bring about the change parents want.

       (c) Mediation

Whenever a parent disagrees with the school about evaluation, eligibility, placement, or the FAPE, the parent has a right to free mediation.  In mediation, a neutral mediator helps the parents and the school negotiate an agreement.  Mediation is often successful and it can usually be scheduled within twenty (20) days by contacting the Justice Center of Atlanta ((404) 523-8236) or writing the school system's special education director to schedule mediation with the Justice Center.  The mediator will travel to the child's county if everyone prefers.

       (d) Due Process Hearings

A parent can request a due process hearing by notifying the school system special education director in writing which includes the name and address of the child, name of the school the child is attending, a description of the issues including facts, and a proposed resolution.  The school system special education director can provide the Georgia Department of Education form a parent must use.  Once the school system receives a request for a due process hearing, it must promptly notify the Office of State Administrative Hearings (OSAH) so that this agency can appoint an administrative law judge to hear the case.

An Administrative Law Judge from the OSAH will hear the case.

The hearing will be scheduled within twenty (20) days.  At least five days before the hearing, each side must submit any evaluations and recommendations they may use at the hearing.  The hearing is a formal proceeding at which rules of evidence apply.  It is suggested that parents consult or use an attorney if possible.  Further appeal of the decision can be made into either State court or Federal court.

       (e) Stay Put

Generally, a child's current placement can continue while a change in placement is being challenged by a parent through due process.

A placement is the program where services are provided, e.g., regular education classroom, special education program, or alternative school. 

Whenever a parent does not agree with an IEP decision and does not sign the plan, the parent can demand that the current placement of the child remain in effect (stay put) until all legal proceedings have been exhausted.  However, if the change in placement is because of violence or the possession of weapons or drugs, there are limitations to this rule.  If a child is being considered for expulsion or long-term suspension, the IEP Committee must conduct a Manifestation Determination Meeting to decide whether or not the conduct for which a child is disciplined is a manifestation of his disability.  If the child's conduct is not a manifestation of the disability, then the child may be disciplined including suspension and expulsion.  Children can be suspended for up to 10 days each school year whether or not the underlying conduct is a manifestation of the disability.  After the tenth day of suspension in a school year, children are entitled to receive special education and related services in an appropriate environment even if expelled.  And a child who has a disability but who has not been evaluated may have some of these same rights if the parents properly requested the child be evaluated or if the school had notice of the disability.

B.  Section 504 of the Rehabilitation Act of 1973

Section 504 outlaws discrimination against persons with disabilities in any school or college receiving federal funds.

Public school children with disabilities who do not have an IEP may obtain a 504 Plan in which they can receive speech therapy and physical therapy, related services, as well as reasonable accommodations.  Examples of accommodations are oral tests for children with dyslexia or blindness, less written homework for children with disabilities affecting reading, a behavior management plan for a child with a behavior disorder, or an accessible restroom for a child who uses a wheelchair.

A 504 Plan can be developed by contacting a school system's 504 Coordinator.  A 504 Plan can be enforced by the U.S. Department of Education's Office for Civil Rights.  A parent dissatisfied with the accommodations under the 504 Plan may have a mediation and even a due process hearing in some cases.

In post secondary schools (colleges and universities), students must receive reasonable accommodations such as redesign of equipment, reassignment of classes, the assignment of aides, provision of interpreters of the deaf, or the alteration of buildings.  The campus and each school program, when taken as a whole, must be accessible to persons with disabilities.

C.  The Americans with Disabilities Act

The Americans with Disabilities Act applies to every school or university except most religious schools.

Schools from day care centers through post-graduate schools must make such reasonable accommodations and modifications as are readily achievable, even if the school is completely private and receives no federal funds.  A school which is religious in nature is not subject to this law.  This law also covers public schools which cannot exclude persons with disabilities from participating in the benefits of school programs.

II.  OTHER CONSIDERATIONS

A. Student Support Team (SST)

Public schools offer Student Support Teams (SST).

SSTs can support and/or help evaluate students who have or may have disabilities as well as other difficulties.  While the Team may prove a useful mechanism for these purposes, any SST plan cannot be enforced by parents like a 504 Plan.

B. What if you feel your rights are being violated?

This pamphlet only sketches the rights of a special needs child in the broadest context.  It is not intended to give legal advice.

Certain organizations can advise you with more specificity about your rights should a question arise and they may be able to assist you.  These include PEPPAC (Parents Educating Parents) ((770) 761-2745), Parent to Parent ((800) 229-2038), and the Georgia Advocacy Office ((800) 537-2329).  The Georgia Department of Education's Exceptional Students Division can provide some information.  Certain problems can be filed as a complaint with the U.S. Department of Education's Office for Civil Rights at (404) 562-6350.  Georgia Legal Services ((404) 206-5175) and Atlanta Legal Aid ((404) 524-5811) may be able to assist you if you meet their income eligibility criteria.  Finally, if you need a lawyer, you can always call the Lawyer Referral Service of the State Bar of Georgia at (404) 527-8700 or (800) 334-6865.  Also, your local Board of Education office is supposed to maintain a list of low-cost attorneys.