The phrase "special education" evokes different ideas for
different people: Some complain about increasing costs that burden
underfunded school districts, while others argue that schools do
not provide enough services for children in need. I see special
education law as ensuring equal educational opportunity for all
students by protecting the rights of disabled children in our
public schools.
State and federal laws mandate that specialized instruction be
provided for children ages 3 to 21 who have one or more recognized
disabilities. Examples of disabilities include autism, a physical
impairment, a specific learning disability or a psychological
disorder. Students are entitled to a free appropriate public
education (FAPE) in the least restrictive environment (LRE).
Specialized instruction comes in the form of services and
accommodations in order to achieve FAPE for a particular student
based on his or her needs. LRE recognizes the value of not removing
children from the general population of students unless educational
needs demand otherwise. Students may require relatively minor
modifications while remaining in all general education classes, or
a residential school, or anything in between.
The special education team makes decisions about all issues from
eligibility to post-graduate concerns. The team is composed of
school staff and the family. Families often have other, non-legal
professionals involved to support their goals, including special
education advocates, to guide them through the process. Parents may
also get independent evaluations of their children from
neuropsychologists, educational consultants and other
professionals. Independent evaluations are sought to supplement a
school district's evaluations of a student. Attorneys may be
involved in a consulting role.
Ideally the team discusses a student and reaches a consensus on
eligibility and what specialized instruction is required. An
individualized education plan (IEP) is written to document the
services and accommodations to be provided for the student. The
team must convene at least once a year to discuss the student's
progress and, if necessary, redraft the IEP. A school district is
required to conduct its own evaluations of a student at least every
three years.
Parents and the school members of a team may disagree on any
number of things. Attorneys usually get involved when these issues
cannot be resolved either within the team process or through
mediation. When a family does not accept the school district's
final proposal, then the family can turn to litigation, which
begins by filing a complaint with the Bureau of Special Education
Appeals (BSEA), the administrative agency designated to hear
disputes between families and school districts. The BSEA falls
within the Division of Administrative Law Appeals, and has several
hearing officers and its own set of procedural rules. A BSEA
decision may be appealed to state or federal court.
A lot is at stake for families and school districts, both
financially and programmatically. For example, take a student who
has both a specific learning disability and a severe emotional
disability that contributes to school avoidance. What is required
for the student to make effective educational progress? The school
district feels it has a program within the district that can
provide academic services and counseling to ensure the student gets
FAPE, yet the student has struggled for years with the same issues.
The situation has become progressively worse. The parents believe
the school's proposed program cannot offer FAPE, as the school has
failed over the past several years to provide the necessary
services for the student, and that a more restrictive environment
is necessary in the form of a costly residential program. Can the
school district manage the student in the same school program with
additional modifications? Is the residential component of the
out-of-district placement educationally necessary or merely
something that is in the best interest of the child but not
required by special education law? The parents' evaluators believe
the student cannot be educated without a full-time program. But the
school members of the team, including the school psychologist, do
not think such a drastic measure is necessary. The BSEA hearing
officer must weigh the documentary evidence and expert testimony to
make the decision. The school district is responsible financially
and programmatically for the program determined appropriate by the
hearing officer, unless an appellate court says otherwise if one of
the parties appeals into the court system.
Special education matters are more than just legally interesting
because they offer a unique insight into how communities value
children. We all agree that every child must have a good education.
But how far are we willing to go for a child with disabilities? We
must hope that the law ultimately provides the right answer.
Peter A. Hahn, Esq., represents clients in special
education cases in addition to juvenile, criminal and estate
planning matters.