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Robert H. Farley, Jr. writes and publishes on disability and disability law regularly. Below is a sampling of currently available articles and publications.
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Parents and guardians need to know their child with a disability is entitled to a free appropriate education and that the individualized education program must address their children's' unique needs. Unfortunately, good or appropriate programs cost money and school officials are sometimes reluctant to make a commitment to their children. The following glossary of terms and information is provided to help parents, guardians and other caregivers understand their rights and become effective advocates for their children.
Please contact us if you need more information or assistance.
Under the Individuals with Disabilities Education Act, or IDEA, the term "child with a disability" means a child (i) with mental retardation, hearing impairments, speech or language impairments, visual impairments, serious emotional disturbance, orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities; and (ii) who, by reason thereof, needs special education and related services.
"Special education" means specially-designed instruction, at no cost to the parents, to meet the unique needs of a child with a disability, including instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings, as well as instruction in physical education.
Related services refers to transportation, developmental, corrective, and other supportive services required to assist a child with a disability to benefit from special education, and includes the early identification and assessment of these disabilities. Services sometimes include speech-language pathology and audiology services, psychological services, physical and occupational therapy, therapeutic recreation, social work services, rehabilitation counseling services, orientation and mobility services, and medical services for diagnostic and evaluation purposes.
Under the law, to the maximum extent appropriate, children with disabilities are to be educated with those who are not disabled. Special classes, separate schooling, or any other removal of children with disabilities from the regular educational environment should occur only when the nature or severity of the disability prevents a satisfactory education in regular classes with the use of supplementary aids and services.
Extended School Year services (ESY) may be warranted if the child would experience severe or substantial regression during the summer months in the absence of an educational program. The IEP team is the only entity that can determine the need for year round services. It is critical to understand whether benefits accrued to the child during the regular school year would be significantly jeopardized if the child is not provided a program during the summer months. If learning recoupment time is more than several weeks after summers without continuous, structured programming, the child may be entitled to an extended school year. It is also important to note that non-academic learning, including social and emotional skill development, can regress and cause learning recoupment challenges, and thus should not be overlooked when considering the need for ESY.
The school district can neither unilaterally limit extended school year services to a particular type or category of disability, nor can it limit the amount or duration of these services. For example, one school district offered eligible special education students a six-week summer program of half-days, Monday through Thursday. The parents of an autistic child with pervasive developmental delay felt it insufficient for their child and requested a more extended program. The school district was not aware of other longer summer services than the one they had offered; however, after the district’s initial resistance — and the likely prospect of litigation from the parents — the parents obtained a 10-week program of full days, Monday through Friday.
When the unique needs of a child require more than 6 hours a day of services, the district must provide an extended school day. Just as it is inappropriate to assume a child with a disability need only 180 regular school days and none during the summer — as cited above — it is likewise inappropriate for a district to assume a six-hour school day unilaterally fulfills an obligation to provide services to a child. If some children need 24 hours of services, there are undoubtedly those requiring services for more than six hours and less than twenty-four.
The Individuals with Disabilities Education Act (IDEA) ensures children with disabilities are given a free appropriate education emphasizing special education and related services designed to meet unique needs, while preparing individuals with disabilities for further education, employment, and independent living.
A school district is obligated to tailor a transition program for your child's specific needs, as opposed to simply putting him or her in a program labeled "transition." IDEA describes the need for "effective transition services to promote successful post-school employment and/or education."
"Transition services" are coordinated, result-oriented activities based on the needs, preferences, potential, ability, and interests of a child with a disability. These services should improve a child's academic and functional achievement AND facilitate his or her movement from school to post-school activities, such as post-secondary education, vocational education, integrated employment — including supported employment — continuing and adult education, adult services, independent living, or community participation.
The transition plan should contain, at a minimum, the following offerings:
The plan should consider and prepare for the following areas of adult life:
The "stay-put" provision of the law requires a child with disabilities to remain in his or her current educational placement pending completion of any review proceedings, unless the parents and the school district otherwise agree. For example, a child's current education placement, or IEP, calls for two hours of speech therapy per week and the school district wants to reduce it to one. If the parents do not agree to the reduction, the current educational placement of two hours per week remains in place if the parents file for a due process hearing. In another example, if a hearing officer awards private placement to a child with a disability, this becomes the current educational placement. If the school appeals the decision, they must pay for the child's private placement during the pendency of the appeal.
A school must reimburse a parent for expenses incurred before the development of a proper individualized education program, or IEP. If, for example, the parents decide to purchase outside related services like speech or occupational therapy or private education, they may be entitled to reimbursement.
In the event the parents and school district cannot agree on the IEP and the parents are successful in obtaining appropriate services for a child as the result of an impartial due process, or administrative hearing, or court action, then attorneys' fees — part of the costs to the parents — may be awarded the parents, and the school will have to pay the legal costs of the parents.