Parents of children with special needs are warriors. A critical part of parenting a child with a disability is assembling the proper team of people and experts around you to address your needs and the needs of your entire family. Langer Law, P.A. believes that your team must include a legal component. Someone who can advise you and guide you on your legal rights and responsibilities and step in quickly if ever necessary. Langer Law, P.A. is available to be the legal arm of your team. We are here to assist you with information, consultation, to attend meetings and mediations, provide resources and if necessary for litigation.
In order to successfully navigate the special education system you must be prepared. The most difficult thing about entering the world of special education is understanding its unique lanague. Here is a list of just some of the terms used:
- ABA = Applied Behavior Analysis
- ADA = Americans with Disabilities Act
- ADHD = attention deficit hyperactivity disorder
- ALJ = Administrative Law Judge
- ASD = Autism Spectrum Disorder
- AT = assistive technology
- BIP = behavior intervention plan
- DD = Developmentally Delayed (ages 3 – 5 years old)
- DHH = Deaf and Hard of Hearing
- DOAH = Department of Administrative Hearings
- DOE = Department of Education
- DSI = Dual- sensory impaired (deaf & blind)
- E/BD = Emotional or Behavioral disability
- ED = emotional disturbance
- EOC = end of course (exam)
- ESE – Exceptional Student Education
- ESY = extended school year
- FAC = Florida Administrative Code
- FAPE = free appropriate public education
- FERPA = Family Educational Rights and Privacy Act
- HH = hospitalized or homebound
- ID = intellectual disabilities
- IDEA = Individuals with Disabilities Education Act
- IEE = independent educational evaluation
- IEP = individualized education program
- IHO = impartial hearing officer
- InD = Intellectual disability
- LEA = local educational agency
- LI = language impairment
- LRE = least restrictive environment
- LSLS – Listening and Spoken Language Specialist
- ODD = oppositional defiant disorder
- OHI = other health impaired
- OI = Orthopedic impairment
- OT = occupational therapy
- PBIS – Positive Behavior Intervention and Support
- PBS – Positive Behavior Support
- PWN – prior written notice
- SI = speech impairment
- S/L = speech and language
- SLD = specific learning disabilities
- SLP – Speech Language Pathologist
- SP & P = School Policies and Procedures
- TBI = traumatic brain injury
- VE – varying exceptionality
- VI = visually impaired
- WNR – Written Notice of Refusal
The laws that apply to the educational matters are as follows:
Laws that apply in the public school setting:
- Individuals with Disabilities Education Act (IDEA)
- American with Disabilities Act (ADA)
- Section 504 of the Rehabilitation Act (Section 504)
- The Family Educational Rights and Privacy Act (FERPA)
- Equal Educational Opportunities Act (EEOA) – which prohibits public schools from discriminating on the basis of race, color, or nationality.
- Title VI of the Civil Rights Act of 1964 – prohibits schools that receive public funding from discriminating on the basis of race or religious belief.
- Title IX of the Education Amendments of 1972 – bans discrimination on the basis of gender or sex.
- 14th Amendment of the Constitution – prohibits denying individuals the equal protections of the law
Laws that apply to the private school setting:
- American with Disabilities Act (ADA) but only if the school is open to the public
- Section 504 of the Rehabilitation Act (Section 504) but only if the school accepts federal funding
- Title VI of the Civil Rights Act of 1964 – but only if the school accepts public funding
- Title IX of the Education Amendments of 1972 – but only if the school accepts public funding
- 14th Amendment of the Constitution – prohibits denying individuals the equal protections of the law
As reflected above, students with disabilities have many more rights and protections in the public school setting. The law which provides the most protection for students and their parents is the Individuals with Disabilities Education Act or the IDEA. The IDEA is a Federal Civil Right created by law in 1975. The IDEA ensures that all children with disabilities have access to a free appropriate public education (FAPE) that emphasizes special education and related services designed to meet the child’s unique needs and prepare them for further education, employment, and independent living. 20 USC Section 1400, et.seq.; 34 CFR part 300 et.seq.; 6A-6.03011 through6A-6.0361, F.A.C. (Florida Administrative Code). The IDEA also contains procedural safeguards that are intended to ensure that a FAPE is being provided.
The IDEA, previously named the Education for All Handicapped Children’s Act of 1975, was enacted with a clear purpose:
- “to assure that all children with disabilities have available to them…a free appropriate public education which emphasizes special education and related services designed to meet their unique needs”
- “to assure that the rights of children with disabilities and their parents…are protected”
- “to assist States and localities to provide for the education of all children with disabilities”
- “to assess and assure the effectiveness of efforts to educate all children with disabilities”
Source: Education for All Handicapped Children’s Act of 1975
In Florida, each school district is responsible for identifying and evaluating students with disabilities and those students suspected of having a disability. Rule 6A-6.03011, F.A.C. Once identified and evaluted, the school districts must provide appropriate specially designed instruction and related services. Rules 6A-6.03011 through 6A-6.03023 and 6A-6.03027, F.A.C.
In Florida, in order to trigger the rights and protections under the IDEA:
- the child must be between the ages of 3 – 21;
- the child must have a disability. In Florida, a child must fit into one of 14 eligibility categories; AND
- the child must be in need of special education. In Florida, this means that the child needs special education and related services because of their disability.
Special education is defined as instruction that is specially designed to meet your child’s unique needs.
Specially designed instruction means adapting the content, methodology, or delivery of instruction:
- to address the unique needs of your child that result from his or her disability, and
- to ensure your child’s access to the general education curriculum so that he or she can meet the educational standards that apply to all children within the jurisdiction of the school system.
Related Services are defined in IDEA’s regulations as transportation and such developmental, corrective, and other supportive services as are required to assist a child with a disability to benefit from special education. Some examples of related services are:
- Assistive Technology
- Audiology services
- Counseling services, including rehabilitation counseling
- Early identification and assessment of disabilities in children
- Interpreting services
- Language pathology services
- Medical services for diagnostic or evaluation purposes only
- Occupational therapy
- Orientation and mobility services
- Parent counseling and training
- Physical therapy
- Psychological services
- Recreation, including therapeutic recreation
- School health services and school nurse services
- Social work services in schools
- And any other developmental, corrective, or support services that are required to help a child benefit from special education.
This list is not complete. Anything that will help a student can be considered a related service.
Eligibility in Florida
A child must fit into at least one of these 14 categories to be eligible for services in a public school. The categories are as follows:
- Autism spectrum disorder (ASD)
- Deaf or hard‐of‐hearing (DHH)
- Developmentally delayed (DD) (Ages 3-5 only)
- Dual‐sensory impaired (deaf & blind) (DSI)
- Emotional or behavioral disabilities (EBD)
- Homebound or (HH)
- Intellectual disabilities (InD)
- Language impaired (LI)
- Orthopedic impairment (OI)
- Other health impairment (OHI)
- Traumatic brain injury (TBI)
- Specific learning disabilities (SLD)
- Speech impaired (SI)
- Visually impaired (VI)
There are no separate eligibility codes for dyslexia or ADHD. These are normally covered under OHI or SLD.
If a child qualifies for services under the IDEA, they are entitled to a Free Appropriate Public Education (FAPE).
- Free – without charge to parents or children
- Appropriate – in keeping with an individualized education program (IEP)
- Public – at public expense, under public supervision and direction
- Education – preschool, elementary and secondary school
The IDEA also contains important procedural safeguards. If the school violates any of these procedural safeguards, it can be considered a violation of the FAPE requirement of the IDEA. Some of the procedural safeguards to be aware of are as follows:
Prior written notice: the right to be notified before the district makes a change or when the district refuses to do something. Also referred to as a written notice of refusal.
Native language: the right to communicate in your native language. This includes receiving all forms and documents written in your native language.
Participation rights: the right to be an equal member of the IEP team and part of the entire process and bring anyone to a meeting that will assist you in understanding the process or provide information to the IEP team. This includes the right to receive reasonable notice to meetings and for meetings to be held at a mutually convenient time, date, and location.
Independent Educational Evaluation (IEE): the right to a private evaluation at public expense when the parent disagrees with the results of a school evaluation or when the school refuses to conduct an evaluation that is deemed necessary.
Access to student records: the right to inspect and review any and all records related to your child. This right is not limited to reviewing just the cumulative file. It is broader. You have the right to view anything and everything that is identifiable to your child. This includes video tapes, therapy logs and testing protocols of a student. There is no need or requirement to make a public records request to see any educational records related to your child. They school district can charge a reasonable copying fee, but not a labor fee for gathering the documents. A parent cannot be charged a copying fee if they are under a certain income level. Usually if you are entitled to receive a free and reduced lunch you are entitled to obtain copies without being charged.
Consent. A parent must give consent before a school district can act, in many circumstances. For example, the parent must consent before the school can evaluate the student. A parent must consent before the school can speak to a treating doctor. A parent must consent before a student can be moved into a separate school.
Confidentiality of information. The student’s information and details about the disability and services provided, is confidential unless the parent waives that confidentiality.
Amendment of records at parent’s request (34 CFR §300.618). If you believe that information in the education records is inaccurate or misleading you may request that the school change the information. The school then decides to change the information in accordance with your request within a reasonable period of time or inform the parent of the refusal and advise the parent of the right to a hearing
Also contained in the procedural safeguards is the right to enforce your rights. There are several mechanisms available:
- Mediation. This is a process where the parents and the school have a meeting with a neutral third party (the mediator) present. The mediator is assigned by the Florida Department of Education at no expense to the parents. The mediator’s role is to assist the parents and the school district in resolving their disputes.
- State complaint. This is a process wherein the parent files a written complaint and sends it to the Florida Department of Education to investigate the complaint, at no expense to the parents.
- Due process hearing. The parents file a request for a due process hearing. Once filed, there is a requirement to have a resolution meeting, unless waived by both the parent and the school. A resolution meeting is similar to a mediation, but without the mediator to facilitate. The parents and the school are required to sit down and resolve any issues they can before going to a hearing. A hearing is an administrative hearing held before an Administrative Law Judge (ALJ) assigned by the Florida Department of Administrative Hearings (DOAH). The parents usual have the burden of proof. There is no fee involved with filing a request for a due process hearing and the school district incurs the trial related expenses such has hiring a court reporter, paying for the transcript of the hearing and paying the expenses of the ALJ if they appear in person. There is no entitlement to expert fee reimbursement, even if successful at hearing.
- Appeal. Appeals are made directly to federal court.