Under federal law, every child is entitled to receive a free and appropriate public education. The Mental Health Law Group advocates on behalf of children and their parents to obtain the services and support that public school districts are legally required to provide.
Special education is instruction specially designed to meet the unique needs of a child with a disability. A child with a disability is one who has been evaluated and determined to have: autism, deafness, deaf-blindness, developmental delay (in some school divisions), emotional disability, hearing impairment, intellectual disability, orthopedic impairment, specific learning disability, speech or language impairment, traumatic brain injury, visual impairment, and/or other health impairment. In order to be eligible for special education and related services, the child’s disability must affect his or her educational performance.
If you are concerned that your child’s school is not providing an appropriate educational experience, or your child has been denied services, the Mental Health Law Group can help.
Our attorneys advocate for children and their parents at evaluations, meetings, due process hearings, district court litigation, and more. We will also help you understand various options, including mediation and complaint resolution with the State Department of Education, the United States Office of Civil Rights, the Division of Education, and other local, state and federal agencies.
When a child has a learning disability, the child’s school is required to develop an individualized education program (IEP) for the child. The IEP details the child’s disability or disabilities and the ways in which the school will address the child’s needs. If your child has a learning disability and the school has failed to develop an IEP, or if the IEP the school has developed is not adequately meeting your child’s needs, the Mental Health Law Group can assist you in developing, appealing or amending your child’s IEP.
In the context of special education, dispute resolution may take many forms, including due process hearings, mediation and state complaint processes.
A due process hearing is the most frequently used form of special education dispute resolution. A parent may demand a due process hearing if he or she disagrees with the child’s identification, evaluation, or educational placement, or if the parent believes the child has been denied a free and appropriate public education (FAPE). In deciding the dispute, a hearing officer will hear evidence presented by the parent and the school and will then issue a decision.
Mediation is another form of special education dispute resolution. In this process, a neutral mediator assists both parties in negotiating issues arising under the Individuals with Disabilities Education Improvement Act of 2004 (IDEIA). Mediation may be used only if both parties agree to it.
The third way to resolve special education disputes is through the Virginia Department of Education (VDOE). VDOE operates a complaint system that investigates alleged violations of special education law. Any individual or organization may file a complaint with the VDOE. If the VDOE finds that the school did not follow the law, it will order corrective action, such as compensatory services or monetary reimbursement.
If your child breaks school rules, your child’s educational placement may be changed. However, before the school removes a child with a disability, the relevant members of the individualized education program (IEP) team must meet immediately. In this meeting, the team will consider whether your child’s disability caused the misconduct, or whether the misconduct was a direct result of the school’s failure to implement your child’s IEP. If it is determined that the conduct was a manifestation of the child’s disability, the IEP team must conduct a functional behavioral assessment.
A functional behavioral assessment examines the underlying cause or functions of the behavior that interferes with the learning of the child or the learning of his or her peers. The functional behavioral assessment determines whether a behavioral intervention plan (BIP) is needed. A BIP uses positive behavioral interventions and supports to address behaviors that interfere with the learning of the child with the disability, interfere with the learning of others, and/or require disciplinary action.
If a parent disagrees with the IEP team’s behavioral assessment, the parent may request an expedited due process hearing.
Some disabled students are not eligible for IEPs under the IDEA; however, the law still requires that schools meet the educational needs of all disabled students “as adequately as the needs of non-handicapped persons.” Section 504 plans are alternative protections that accommodate for a disabled student’s differences within the regular education environment. A Section 504 plan may require that a school provide regular aids or services (as opposed to special education services) in order to adequately meet the child’s individual education needs. Examples of Section 504 accommodations include preferential seating in the front of the classroom, a longer period of time to complete assignments, modified assignments and behavioral management plans.
It is important to consider whether your child may be eligible for a 504 Plan if your child shows a pattern of not benefitting from the instruction provided, the school is considering retention, or a disability of any kind is suspected.