For students with disabilities, special education is a right. While all children in the United States have the right to a free appropriate public education, for students with disabilities, that right includes special education services.
The idea that students need special education has no direct relationship to their intelligence or academic potential. Needing special education simply means a student learns differently or requires different support as part of the learning process.
Your child's K-12 education influences the rest of their life. If and when a school is limiting your student's right to special education services, you have options to address the problem and keep your child's education on track.
The Education Law Team at the Lento Law Firm works with families throughout Nebraska and the United States to address problems with special education and find collaborative, student-centered solutions. Whether you live in Omaha, Scottsbluff, or somewhere in between, we can help your student. To tell us more about your situation, call us at 888-535-3686 or fill out an online form.
What is Special Education?
The purpose of special education is to provide support for students beyond what they can get in a general education classroom. It isn't a bonus or luxury but a needed and crucial part of a student's education.
Nebraska's Family Guide to Special Education uses the following definition:
“Special education is specially designed instruction and related services to meet the unique needs of a child with a disability. The purpose of special education is to ensure that children with disabilities receive a Free Appropriate Public Education (FAPE). If a child is tested and found to need special education, schools must provide the student with special education services at no cost to the parents.”
Federal Laws
Three federal laws are key for protecting disability rights for K-12 students. They are The Americans with Disabilities Act (ADA), Section 504 of the Rehabilitation Act of 1973, and the Individuals with Disabilities Education Act (IDEA).
IDEA
For K-12 students, IDEA is the most relevant federal law. It applies to all public schools and to all children and teenagers under the age of 21 who have not graduated from high school.
Any baby, toddler, child, or teenager with a qualifying disability can request special education services from their local school. They don't have to be old enough to attend school or enroll in a public school to receive this support. Students at private and charter schools or students who are homeschooled can receive help from their local public school district.
Under IDEA, public schools must identify, assess, and support all children with qualifying disabilities who reside within their boundaries. While early intervention is important, students can be referred for assessment at any point if they haven't graduated from high school.
The law also establishes Individualized Education Programs (IEPs). IEPs are written documents that list what services and support a school must provide to a student. Once a school and family agree on an IEP, it's legally binding.
Private and charter schools may offer services similar to those required under IDEA, including IEPs. These policies do not have the same backing under federal law.
If and when disagreements occur between families and a private or charter school, avenues to resolve the disagreement can be more complicated. The Lento Law Firm's Education Law Team can help families of students attending private or charter schools navigate dispute resolution for special education.
Section 504
Students who aren't eligible for an IEP under IDEA may qualify under Section 504, which uses a broader definition of disability. One of the challenges facing families of students who qualify under Section 504 can be a lack of resources and information. The majority of information for K-12 students with disabilities focuses on IDEA and IEPs, and some schools don't mention Section 504 at all on their special education pages.
Section 504 prohibits disability-based discrimination in schools. This protection is not just for the classroom and includes participating in school events and extracurriculars. The U.S. Department of Education has an FAQ for Section 504, including how it works with IDEA.
Papillion La Vista Community Schools is an exception in that it provides students and families with multiple resources about Section 504. While these resources are intended for district families, many of them are useful for families throughout Nebraska. Some of the information Papillion La Vista provides:
- A checklist for when schools should consider whether a student has a disability under Section 504
- A guide for parents about Section 504
- Parents' rights under Section 504
That a student doesn't qualify under IDEA doesn't mean they don't have a disability. It simply means they don't meet the requirements under IDEA but may qualify under Section 504.
Dispute Resolution
In an ideal world, families and schools easily agree on a student's need for special education and what services they will receive. When disagreements do occur, they're easily resolved with a conversation.
While families should begin by seeking to resolve disagreements through conversation or meetings, these informal options may not result in a workable solution. Given the high stakes involved in a child's education, these disputes are an expected part of the special education process.
IDEA requires that states offer dispute resolution options to resolve issues under IDEA. Nebraska offers four:
- IEP Facilitation
- Mediation
- State Complaint
- Due Process Hearings
IEP facilitation and mediation both involve a neutral third party guiding families and schools in conversation. These neutral third parties won't make any decisions or offer any opinions. Their role is to encourage a productive conversation between the two sides.
State complaints are less about a specific student and more about concerns that a school has failed to follow federal or state law about special education in the last year. Anyone can file a complaint.
Due process hearings are similar to courtroom trials. A third party oversees the hearing, including issuing a decision. Both sides will present evidence.
Which dispute resolution option is best for you – including knowing when another option under another federal or state law would better serve your situation – can be difficult to determine. Our Education Law Team helps our clients understand the pros and cons of each avenue and which best fits their circumstances.
Terms
Special education uses dozens of terms and acronyms. Some are specific to certain disabilities. Others are more general. Three that appear frequently are FAPE, LRE, and reasonable accommodations.
FAPE, short for free appropriate public education, refers to the right of all children to a free public education. For students with disabilities, FAPE includes special education.
LRE, or least restrictive environment, focuses on placing students in general education classrooms and having students participate in the school community as much as possible. The exception is if a different placement would be in a student's best interests.
Reasonable accommodations help a student access instruction and assessment and participate in classes and their education. These accommodations must not place an undue burden on a school or fundamentally alter a class or activity.
Who Qualifies for Special Education?
Students can qualify for special education services under either IDEA or Section 504. If a student qualifies under IDEA, they will get an IEP. If they're eligible under Section 504, they'll get a 504 Plan. Schools will generally evaluate a student first under IDEA and consider Section 504 if they don't meet the criteria under IDEA.
To get an IEP, a student must:
- Have a qualifying disability and
- That disability must affect their education
In Nebraska, the following are qualifying disabilities:
- Autism
- Behavior Disorder
- Deaf-Blindness
- Developmental Delay
- Hearing Impairments
- Mental Handicap
- Multiple Impairments
- Orthopedic Impairments
- Other Health Impairments
- Specific Learning Disability
- Speech-Language Impairment
- Traumatic Brain Injury
- Visual Impairment, including Blindness
Omaha Public Schools provides a definition of each qualifying disability.
Students who don't qualify under IDEA may qualify under Section 504's broader definition of disability. Both Section 504 and the ADA define disability as an impairment that affects at least one major life activity. Both consider education a major life activity.
How to Qualify for Special Education
Students must qualify as having a disability before they can receive services. The specifics of establishing a student's eligibility may vary depending on a child's age, suspected disability, and what's already known about that disability.
Nebraska uses the following general process for determining a child's eligibility:
- Referral
- Evaluation
- Eligibility
- IEP / 504 Plan
- Placement
- Annual Review
- Reassessment
Evaluations and assessments must be sufficiently comprehensive. Assessments matter not just for determining whether a child has a disability but also for what support and services a student will receive.
If a student is eligible, parents or guardians will meet with school officials to draft their student's IEP. Nebraska's Family Guide to Special Education provides a list of questions families may want to ask during these meetings.
IDEA requires that families and schools meet once a year to review and revise a student's IEP. Families can request a meeting at any point if they believe an IEP is no longer providing effective support or if they have concerns about school staff using and implementing their student's IEP.
While the law requires that students be reassessed every three years, families and schools can agree to waive this requirement. Reassessments can be useful if a child's disability has changed or if better or more recent information on a child's disability and skills would be useful for the student's IEP or 504 Plan.
What are Special Education Services?
Special education is an umbrella term for support services. Services will differ depending on factors such as an individual's disability, age, and severity of disability.
Schools meet legal requirements as long as they offer reasonable accommodations. While schools often offer similar services, the fact that one district offers a service or accommodation doesn't mean another district must provide the same support.
Kearney Public Schools provides those services. Knowing the difference between occupational and physical therapy, for example, can help parents and guardians better participate in IEP and other school meetings.
Special Education and Moving
Switching schools can be challenging for any student. Children and teens aren't just moving away from what they know. They're often losing their support system as well.
This can be especially true for students with disabilities. While change can be difficult for everything, individuals with autism, for example, generally have a harder time acclimating to transitions than most. A new school means not only new teachers and special education staff. It may also mean a change in the services and accommodations a student receives.
As part of the transition to a new school, parents and guardians should plan to meet with the new school's staff to revise their student's IEP. Recognizing the unique challenges that students with disabilities face, Lincoln Public Schools created a list of steps to help students adjust to their new school.
Families may also want to talk to their student's current IEP team about how to minimize the disruption the move to a new school may cause. By preparing, parents can assist their children in understanding and accepting their new school and routine.
If and when a new school fails to revise a student's IEP or otherwise fails to support a new student, the Education Law Team at the Lento Law Firm can help your child's special education services get back on track.
Transition Services
Districts provide a wide range of programs and services to help students transition from their K-12 years to their adult years. Common programs include preparing students for independent living and providing job training.
Bellevue Public School's B.E.S.T. program is one such example. The program builds on the district's Life Skills curriculum and helps students become active members of their local communities.
Grand Island Public Schools' Project SEARCH is a school-to-work program. Offered in partnership with CHI Health St. Francis, the program rotates participants through departments and positions to give students a range of workplace experiences.
Whether your student plans to attend college or head immediately to the workforce, once a student is in high school, families should work with schools to include their student's post-high school goals in their IEP. Preparing for the transition can make a student's move into college or a career easier.
The Right to Special Education
Whether you live in Valentine, McCook, or one of hundreds of cities and towns in between, your student has the right to an education. For children and teens with disabilities, that right extends to special education services.
You can contest a school's decision or inaction at any point in the special education process. If a school has denied your child has a disability, provided ineffective accommodations, or failed to follow your student's IEP or 504 Plan, you have options to address and solve the problem.
The Education Law Team at the Lento Law Firm assists families throughout Nebraska in protecting their students' right to an education. If your student isn't receiving the special education services they require, contact us at 888-535-3686 or fill out an online form.
