Legal Rights of

Children with
Disabilities

Special Education
Early Intervention Services
Special Education
 Federal and state laws provide certain
services, free of charge, to preschool and
school-age children with disabilities
 Ages 3 – 21
 Coordinated through Exceptional Children’s
Division in each public school district
 Durham: 919-560-3774
 Begins with free, multidisciplinary
evaluation within 90 days of referral
 Eligible children qualify for an IEP –
Individualized Education Program
Special Education
 Eligibility
 Child must have a disability that
interferes with educational progress

 As a result of the disability, the child

must need special education (i.e.,
specialized instruction and related
services)

 Disability must fit in one of the 13

eligibility categories
Special Education Categories
 Autistic
 Seriously emotionally
disabled
 Deaf-Blind
 Hearing impaired
 Multi-handicapped
 Intellectually disabled
 Orthopedically impaired
 Developmentally
delayed (up to age 8)
 Other health impaired
(includes ADHD)
 Specific learning
disabled (includes
dyslexia)
 Speech/language
disabled
 Traumatic brain injured
 Visually Impaired
“Other health impaired”
 A disability category that includes any –
 Chronic or acute health problem that

 Results in limited strength, vitality, or alertness OR a heightened

alertness to environmental stimuli, and

 Adversely affects a child’s educational performance

 Examples: attention deficit hyperactivity disorder, asthma, diabetes,

epilepsy, a heart condition, hemophilia, lead poisoning, leukemia,
nephritis, rheumatic fever, sickle cell anemia, Tourette syndrome

 A medical evaluation is needed for determination of eligibility for

this category
The Basic Promise
 All children with disabilities
are entitled to --

 A “free, appropriate,
public education”

 In the “least restrictive

environment”

 Pursuant to an
Individualized Education
Program (IEP)
What is a “FAPE”?
 A “free, appropriate public education”
is
 Special education (i.e., specially designed
instruction to meet the unique needs of the
child); and
 related services (such as transportation
and specialized therapies)
that allow the child to make reasonable
educational progress
-- in academics, socialization, adaptive skills,
language and communication, and behavior
 What is the “least restrictive environment”?

 The LRE is the setting in which children with

disabilities may be educated with typical children
to the maximum extent possible
What is an IEP?

 IEP is “blueprint” for the child’s special

education
 Contains annual goals
 Specifies how much/what kind of special
education student will get
 Specifies the setting in which the services
will be delivered
 Specifies accommodations

 IEP must be written by a team of persons

knowledgeable about the child and the
child’s needs, including parents

 IEP must be revised at least once a year

The Special Education Process
 Child must be “referred” to be evaluated for
possible special education services

 Referral: in writing, dated, addressed to

principal, state reason for referral in terms
of lack of educational performance

 Child can be referred by the parent or an

educator

 If a medical provider sends a letter of

concern, the school district has 30 days to
decide whether to move forward with a
referral

 The parents must agree for the evaluation

to proceed
The Special Education Process
 Initial evaluation is usually
conducted by a school
psychologist

 Parent may wish to submit

information from treating
physician to supplement
evaluation

 “IEP Team” -- parent & relevant

school personnel – make
decisions about eligibility and
child’s individualized education
program
Special Education Process
 Parents have the right to
challenge decisions of the IEP
team
 Eligibility
 Amount & duration of services
 Placement in LRE
 Discipline

 Legal team can represent

parents in IEP disputes
Case examples
 Jeremy – age 9 – fourth grade
 average intelligence
 Asperger’s syndrome
 regular behavioral problems; “meltdowns”
 Can function in a regular classroom with an aide available to
interpret for him, calm him
 New classroom – no aide
 He spirals down, both behavior and academic performance
worsen
 Jeremy has a legal problem: he is not getting appropriate
services in school that allow him to make educational progress.
Advocacy can help him get the classroom aide that will allow him
to make progress.
Case examples
 Denise, age 13,
 severely visually impaired
secondary to albinism
 Been in special ed since kindergarten
 Academic level is 1st-2nd grade level, and has been for the
last several years; she can barely read or do even
elementary math

 Denise has a legal problem. She needs new

evaluations to determine why she isn’t learning, and
specialized services to allow her to make
reasonable academic progress
What’s a “504 Plan”?
 A plan for students with
disabilities that don’t qualify for
special education
 Child doesn’t need “specialized
instruction”
 Child does need accommodations in
regular classroom and for testing,
such as --
 Preferential seating
 Testing in separate room
 Accommodations for physical
disabilities
“504 Plans”
 Based on federal anti-
discrimination law

 Guarantees students full access to

the educational facilities and
programs

 Tend to be less formal and less

structured than IEPs
Special Education Screening Questions

 Watch for children with—

 Autism, ADHD, mental retardation, learning disabilities,
depression, bi-polar disorder, communication difficulties, other
disabilities
 ASK –
 Is your child making good progress in school and passing End-of-
Grade tests?
 Does your child have an IEP or 504 Plan?
 Have you had any trouble getting your child appropriate services
in school?
 Does your child have any behavior problems at school?
Referral to legal team
 Child with disability has not been evaluated
for special education (note especially pre-
school children, ages 3-5)
 Child’s parent expresses concerns about
 Lack of educational progress
 Lack of, or inappropriate, special education
services
 Frequent suspensions from school
Referral to legal team
 Lawyers can --
 Provide advice
 Negotiate with school personnel
 Accompany parents to IEP meetings
 Represent parents in dispute resolution forums
 Mediation
 Administrative hearings

 Can achieve goals such as:

 different classroom placement;
 behavior intervention services;
 additional OT, Speech services, PT;
 reversal of suspensions;
 specialized reading instruction;
 modification of testing setting
Early intervention services
 Federal and state laws provide certain
services, free of charge, to infants and
toddlers with disabilities
 Birth to age 3
 Begins with free, multidisciplinary evaluation
within 45 days of referral
 Coordinated through Children’s
Developmental Services Agency
 919-560-5600 in Durham
 Eligible children qualify for an IFSP –
Individualized Family Service Plan
 Child Service Coordinator will help family
access array of services (which may involve
fees)
Early intervention services
 Eligibility
 Developmental delay
 Cognitive development

 Physical development

 Communication development

 Social-emotional development

 Adaptive development

 2.0 standard deviations below the mean

on one or 1.5 SD below on two; or
 30% delay on one, or 25% delay on two
(when scores are in months)
Early intervention services
 Eligibility
 “Established Conditions”
 Congenital anomaly (fragile X, Down
syndrome, fetal alcohol syndrome)
 Congenital infections
 Autism
 Attachment disorder
 Hearing loss (permanent)
 Visual impairment (not correctable)
 Neurologic disease (Spina Bifida,
CP, epilepsy, Microcephaly)
 Neonatal conditions
Early intervention services
 Legal problems are rare

 Parents have right to challenge

decision regarding timely evaluation,
eligibility, or services offered through
the IFSP

 Parents can be assisted by lawyer in

mediation or administrative hearing
process to challenge decisions
Early intervention services
 Screening questions
 For parents of child with developmental delay
or one of established conditions –
 Have you been to Children’s Developmental
Services Agency (CDSA)? (115 Market St.
downtown Durham)
 Do you have an Individualized Family
Service Plan (IFSP)?
 Is your child getting services (therapies,
assistive technologies, audiology, family
training, social work, etc.)
 If answers suggest problems, refer to legal
team
Referral to legal team
 Fill out referral form
http://law.duke.edu/partnershipforfamilies/referr
als.php

 Fax to Duke Clinic