The United States guarantees all children the right to a free appropriate public education. For students with disabilities, this right extends to the services, support, and accommodations they require to benefit from and access that education. This support is commonly known as special education.
Students must have a disability to qualify for special education support. Their disability may be mental, physical, or behavioral, although they generally must affect some aspect of a student's academic performance or ability to attend classes and events.
Once a student has a recognized disability, schools have a legal obligation to support them. If and when a school fails to provide these services, families have ways to address these issues and find a solution.
Lento's Education Law Team works with families nationwide. We focus on collaborative resolutions that center on their student. Parents and guardians can call us at 888-535-3686 or fill out an online form to learn more about how we can assist you.
What is Special Education?
The Corvallis School District provides the following definition of special education:
“Special education means specially designed instruction (SDI), at no cost to the parents, to meet the unique needs of a child with a disability. Specially designed instruction means adapting as appropriate to the needs of an eligible child that result from the child's disability and ensuring access to the general curriculum so that the child can meet the educational standards that apply to all children.”
Special education has no relation to a child's intelligence or ability to succeed in school. Some studies indicate that students with disabilities may be more likely to be considered gifted than their non-disabled peers.
Students require special education for a variety of reasons. Support can range from extra time on tests to requiring a one-on-one aide throughout the school day. Some students may thrive in general education classrooms, whereas others benefit from specialized schools and programs.
Special education should be unique to the student and their disability. Even when two students have the same disability, they may require different support and accommodations.
Federal Laws
Three federal laws establish the foundation for disability rights in the United States. 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
IDEA is generally the most relevant for K-12 students. The law applies to all children who haven't graduated from high school and all public school systems. IDEA establishes Individualized Education Programs (IEPs), which are written documents that list the services and support a school must provide to a student with disabilities.
Some of the key requirements of IDEA:
- Public school districts must identify all children within their boundaries who have disabilities
- Public schools must provide services and support to students with disabilities at no cost to their families
- Students may receive services from their local school district even if they are not enrolled in that district
- Public schools must provide all students with a qualifying disability with an IEP
- IEPs must be revised annually
Section 504
Section 504 bans disability-based discrimination. For students, this protection is for both the classroom and school activities.
Section 504 uses a broader definition of disability than IDEA. This means more students will qualify for protection under 504. Students who qualify under Section 504 are eligible for a 504 Plan.
Dispute Resolution
If and when schools and families disagree over a child's special education services or placement, several dispute-resolution options exist.
When possible, families should first seek an informal resolution, such as meeting with their student's teacher or special education staff. In some cases, once both families and schools explain their side and their reasons, the two may be able to find a resolution.
Oregon provides the following dispute resolution options:
- IEP facilitation meeting
- Mediation
- State complaints
- Due process hearing
The state has a chart that gives a general overview of the difference between these options. Of the four, due process hearings are the most formal and are similar to traditional courtroom trials. IEP facilitation meetings and mediation are similar in that both involve a neutral third party guiding the conversation. State complaints focus less on a specific child and more on violations of the law.
Which option is best for you depends on your child and your situation. The Lento Law Firm helps families understand the pros and cons of each dispute resolution option and select the best choice for their circumstances.
Special Education Terms and Acronyms
Special education has a variety of terms and acronyms that can be overwhelming for families. Some may be specific to certain disabilities, and others may be used in general discussions about special education.
Beaverton School District provides families with a list of special education acronyms. Three frequently used terms are free appropriate public education (FAPE), least restrictive environment (LRE), and reasonable accommodations.
All children have the right to FAPE. For students with disabilities, this includes special education.
LRE refers to the practice of placing students with disabilities in general education classrooms. The goal of LRE is to include students in the general school community as much as possible and when in a student's best interests.
Reasonable accommodations are what schools must provide to students with disabilities. These accommodations must be effective to meet this standard. They do not have to be the most expensive, most effective, or newest. Schools also do not have to provide accommodations that place an undue burden, such as high cost, on the school or another member of the school community.
Who Qualifies for Special Education
Students must qualify for special education services. What meets the eligibility criteria depends on whether a student qualifies under IDEA or Section 504.
When school districts list eligibility criteria, they're often relying on IDEA, which uses a narrow list of eligible disabilities. The Gresham-Barlow School District lists the disability categories under IDEA, which are:
- Intellectual disability
- Emotional disturbance
- Specific learning disability
- Autism Spectrum Disorder
- Communication disorder
- Other health impairment
- Vision impairment
- Hearing impairment
- Traumatic Brain Injury
- Deaf-Blindness
- Orthopedic impairment
- Developmental delay
In comparison, Section 504 protects students when they meet at least one of the following criteria:
- They have a physical or mental impairment that substantially limits one or more major life activities or
- They have a record of such an impairment or
- They're regarded as having such an impairment
How to Qualify for Special Education
Just as special education services should be based on a student's unique needs and strengths, the evaluation and assessment process should focus on the individual student. The process will vary depending on what's already known and diagnosed about a student's disability, a student's potential disability, and the student's age and abilities.
The general steps for qualifying for special education services are:
- Referral
- Evaluation and Assessment
- If services are needed, creating an IEP or 504 Plan
- Reassessment as needed
All school districts should have contact information to help identify students with disabilities. Referred to as Child Find, these programs comply with the federal requirement for schools to identify toddlers and children with potential disabilities. This contact and referral information is often available on a district's special education page, such as Bend-LaPine Schools.
Lake Oswego School District provides flowcharts on how to qualify for services under IDEA and Section 504. These charts provide more details about the various steps of the process.
Families may contest a district's decision at any point during the eligibility process. Whether a school district declines to evaluate a student, provides insufficient assessment, or creates an ineffective IEP, families can appeal a district's decision.
Early Intervention
For parents of babies and toddlers, determining when a child may have a disability versus a developmental delay can be difficult. The University of Oregon hosts the Oregon Screening Project, which helps families understand their child's development. That a toddler or child has a delay does not automatically mean they require additional support. Developmental benchmarks are averages.
Why Evaluation Matters
IDEA requires that assessments be “sufficiently comprehensive.” The results of a student's evaluation determine the type and extent of special education services a student receives. Evaluations that are incomplete or improperly administered may result in an inaccurate diagnosis.
Assessments should focus on identifying the student's suspected disability. Hood River County School District lists some of the potential components of an evaluation but stresses that these are just examples and that each evaluation should focus on what's appropriate for the specific student and situation. Some potential parts of an evaluation:
- File review of the student's academic grades
- State assessment scores
- Behavior
- Academic assessments
- Observations of the student in the school setting
- Assessments of the student's receptive and expressive language ability
- Assessments of functional living skills
- Developmental history
- Fine and gross motor abilities
Special Education Staffing
Oregon, like the rest of the country, currently faces staffing shortages in special education. These shortages can affect what services and support a student receives, as well as teacher-to-studio ratios. Parents and guardians should ask about a school's staffing and other resources when meeting with school staff, such as during an IEP meeting.
Given that special education covers a wide spectrum of disabilities and services, families should ask about the resources and support specific to their student. Families should ask what type of specialists a district has on staff or has access to.
A district's size and budget can influence the type of services a school offers. David Douglas School District has the following special education personnel on its staff:
- Instructional Assistants
- Learning Specialists
- Teachers in the Supported Learning Classroom – Academic and Functional Skills
- Teachers in the Supported Learning Classroom – Social/Emotional/Behavioral
- Teachers in the Community Transitions Program
- Speech/Language Pathologists and assistants
- Occupational Therapists and assistants
- Physical Therapist
- School Psychologists
- Autism Consultants
During meetings, parents and guardians may wish to ask about how a district employs specialists and whether they have any vacancies. Staffing issues can detrimentally impact continuity in education, and research shows the importance of consistency for all students. For students with disabilities, continual disruptions can negatively influence their education and ability to reach their goals.
Individuals with autism, for example, often have trouble adapting to change. For children with autism, it may be difficult to learn how to adjust to change without having consistency in their education or with staff members.
Schools can only do so much to address a nationwide shortage. Even when schools have the funding and desire to hire qualified staff, they may be unable to find qualified applicants. The question then becomes how schools are creating alternatives to address these staffing issues and provide students with consistent support.
State- and District-Specific Programs
While districts may offer similar services and support, federal law doesn't list specific services schools must offer. Schools are following the law when they provide reasonable accommodations. That a school does not offer the same program as other schools doesn't mean they are breaking the law.
Parents and guardians should know the services and support that are specific to Oregon and their local school district. The Oregon Department of Education provides a variety of resources about special education. These resources can be a good starting point for families.
Even if not required, districts often provide similar services. Most districts offer some type of speech or language therapy, for example. The West Linn-Wilsonville School District includes five categories of support for their students with disabilities.
Specialized Districts and Schools
School districts may form partnerships with other districts to pool resources and provide more opportunities for students with disabilities. The Lane Education Service District, located in Eugene, supports Lane County school districts in supporting students with special needs. Lane ESD provides a wide array of services, including the Lane School, which provides intensive support for students with social, emotional, and/or behavioral needs.
While including students with disabilities in general education classrooms is a priority, some students need or prefer more specialized support or learning environments. The state funds the Oregon School for the Deaf, which supports students via a residential campus and programs throughout the state.
Early Childhood Education
The first five years of a child's life are crucial for development. This is especially true for children with significant developmental delays or disabilities.
School districts offer a range of preschool programs, including early intervention and special education. The Northwest Education Service District operates the Hillsboro Early Childhood Education Center.
For families who reside in Portland, the age of the child determines the referral process and where they receive support. For children over five years of age, families should contact Portland Public Schools. For parents and guardians of babies and toddlers, the Multnomah Early Childhood Program (MECP) handles both referrals and education services.
MECP works with all eight school districts in the county:
- Centennial
- Corbett
- David Douglas
- Gresham-Barlow
- Parkrose
- Portland
- Reynolds
- Riverdale
Transition Programs
Districts can vary as far as the support they offer to students graduating from high school. While IEPs must include a transition plan, the services and programs a district offers above and beyond federal and Oregon requirements can influence a student's adult life and career.
Salem-Keizer Public Schools offers three transition programs for older students. The Community Transition Program, an Independent Living Program, and a Youth Transition Program all support a different component of adjusting to post-high school life.
Your Student's Education Matters
All students have the right to a K-12 education in the United States. When your child isn't receiving the support and accommodations they require, you don't have to simply accept the status quo.
The Education Law Team helps families find solutions that help their children participate in their education. We know how a child's education can influence their life and future. When your child has a disability, they have a right to special education. When that right is violated, the Lento Law Firm can help. Families can call us at 888-535-3686 or contact us online.
