For students with disabilities, special education is a crucial part of their education. Receiving effective services and accommodations can be the difference between a student succeeding or failing in school. That's why both South Carolina and the United States have laws that require special education services for students with disabilities.
That a student requires special education services does not mean a student isn't intelligent or can't succeed in school. For many students, special education simply means they learn differently or require more or different support as part of their learning process. For students who do require more personalized or specialized support, special education is all the more important for their education and quality of life.
If and when school districts fail to provide students with the special education services they require, families have options to address the issue. Whether you live in Charleston or Sumter, the Upstate, or along the coast, the Lento Law Firm can help you navigate the issue and get your student the help they deserve. Our Education Law Team focuses on solutions that best support your child's education. You can 888-535-3686 or connect with us online.
What is Special Education?
Federal law defines special education as “specially designed instruction, at no cost to parents, to meet the unique needs of a child with a disability.” Put another way, special education recognizes that some students learn differently, and special education accommodates and supports students' differences, disabilities, and special needs.
South Carolina law defines special education services to include:
- Special classes
- Special housing
- Homebound instruction
- Special rental facilities
- Braillists and typists for visually handicapped children
- Transportation
- Maintenance
- Instructional materials
- Therapy
- Professional consultant services
- Psychological services
- Itinerant services
- Resource services
In short, special education services cover a broad array of support systems and services.
Federal Laws about Special Education
The Americans with Disabilities Act (ADA), Section 504 of the Rehabilitation Act of 1973, and the Individuals with Disabilities Education Act (IDEA) are federal laws that create the foundation for disability rights in the United States. While states can add to these laws, the ADA, Section 504, and IDEA set the minimum requirements for disability rights.
IDEA
Of the three, IDEA is the most relevant for children. The law covers K-12 public schools as well as children and teenagers who have not yet graduated from high school.
IDEA requires that schools identify children with potential disabilities within their boundaries and provide services to these children and teens at no cost to their families. Families may request that their local public school provide these services even if their student does not attend a district school.
IDEA also establishes Individualized Education Programs (IEPs). These written documents list the special education services and support students with qualifying disabilities will receive as part of their education. Once created, IEPs should be revised at least once a year. For older students, IEPs will include a post-high school transition plan.
Section 504
Section 504 prohibits discrimination on the basis of disability, including in schools. This protection extends beyond the classroom and into all school-related activities. Section 504 uses a broader definition of disability under IDEA, meaning more students qualify for protection under Section 504 than IDEA.
In general, all students who qualify for protection under IDEA also qualify for protection under Section 504. In comparison, not all students who meet Section 504's requirements are eligible for protection under IDEA.
Students who qualify for support under Section 504 are eligible for a 504 Plan. These plans do not have to be written and have fewer requirements than IEPs. They're similar as far as providing a guide for how a school will support a student with disabilities.
Even though it isn't required, families should request that their student's 504 Plan be in writing. Having a written document can decrease miscommunication about what support a student will receive in school.
IDEA is more commonly cited and discussed in K-12 schools. School districts should have Section 504 resources available for students and families, such as what Fort Mill School District provides.
Dispute Resolution
IDEA requires that states offer dispute resolution options for special education. Each state is in charge of administering its own dispute resolution program and offering a variety of processes. South Carolina provides families with the following dispute-resolution:
- Ombudsman
- Facilitated Individualized Education Programs (FIEPs)
- Mediation
- State Complaints
- Due Process Hearings
Facilitated IEPs and mediation are more informal. Both involve a neutral third party whose role is to encourage conversation between the two sides. Due process hearings, in comparison, are the most formal and similar to a court case.
Anyone can file a state complaint. Complaints do not have to relate to a specific student and can instead focus on potential violations of the law.
The Education Law Team can help families determine which dispute resolution option is best for their situation. They can also help families assemble evidence and build a fact-based case.
Ombudsman
Not required by federal law, working with an ombudsman is the first step to resolving special education disagreements in South Carolina. The Office of Special Education Services (OSES) has an Ombudsman office.
These individuals are neutral third parties who answer questions about special education eligibility and programming. Their role is one of general assistance and serving as an impartial party to direct both sides to the approach process and dispute resolution options.
Common Terms
Families are likely to encounter several terms and education that are unique to special education. Three that are especially common are free appropriate public education (FAPE), least restrictive environment (LRE), and reasonable accommodations. These terms also have meanings that may not be obvious on the surface.
FAPE
The United States gives all children the right to FAPE. This right applies to the K-12 school years. For students with disabilities, FAPE extends to and includes special education.
If someone says that a student with disabilities isn't receiving FAPE, it likely means that a student is not getting the special education services and support they need. It often means a school isn't meeting its legal obligation to a student.
LRE
As much as possible, students with disabilities are part of the school community and general classrooms. This is known as LRE. The majority of students with disabilities will spend the majority of their school day as part of the general school community and in general education classrooms.
The exception for LRE is when such a placement would not be in a student's best interests. When students require more specialized support or if their placement would place a burden on other students, placements in general education classrooms are less likely.
Families may also want their children in specialized settings or programs. For example, a student with a hearing impairment may prefer to attend one of the schools that are part of the South Carolina School for the Deaf.
Reasonable Accommodations
Schools do not have to provide students with all possible services or accommodations. Rather, schools must provide students with reasonable accommodations. Reasonable accommodations are those that are effective, put a student on a similar footing to their classmates, and do not place an undue burden on the school or a member of the school community.
Accommodations do not have to be the most expensive, the newest, the most effective, or identical to what another school district offers. Accommodations should not give students with disabilities an advantage over other students. Neither do accommodations have to make the educational experience equal or identical for a student with disabilities compared to their classmates.
Undue Burden
For both LRE and reasonable accommodations, an undue burden is a placement, accommodation, or service that would disadvantage the school or another member of the school community.
Two commonly cited examples are the cost of an accommodation or the amount of work or time it would require of a school staff member. Moreover, if either a classroom placement or accommodation would interfere with another student's access to FAPE, a school may deny a requested accommodation or service.
Who Qualifies for Special Education
Families cannot simply declare their child is eligible for special education services. Both IDEA and Section 504 have requirements for what qualifies as a disability.
Of the two federal laws, IDEA has the more restrictive definition. Students must not only fall into one of the disability categories, but that disability must also affect their education. South Carolina defines the following as eligible disabilities:
- Autism
- Deafness
- Deaf-Blindness
- Hearing Impairment
- Intellectual Disability
- Developmental Delay
- Multiple Disabilities
- Orthopedic Impairment
- Other Health Impairment
- Emotional Disturbance
- Specific Learning Disability
- Speech or Language Impairment
- Traumatic Brain Injury
- Visual Impairment, including Blindness
Greenville County Schools includes a definition of each disability category as part of its special education resources.
Spartan School District 7, as part of its Special Services Department, provides families with Section 504's definition of a disability. Under Section 504, an individual qualifies as having a disability when they:
- Have a physical or mental impairment that “substantially” limits one or more major life activity
- Have a record of an impairment
or
- Are regarded as having an impairment or a significant difficulty that isn't temporary
Students who meet the definition of a qualifying disability under IDEA are eligible for an IEP. Students who meet the Section 504 definition will qualify for a 504 Plan.
How to Qualify for Special Education
Under IDEA, all public school districts must have a Child Find program. These programs identify, locate, and evaluate students who may have disabilities.
Some districts may use Child Find to refer to early intervention services. The term actually applies to identifying all toddlers, children, and teenagers who are under the age of 21 and have not graduated from high school.
Horry County Schools lists the general steps to qualify for special education services:
- Identification or referral
- Evaluation and assessment
- If a child has a disability, a meeting to establish an IEP or 504 Plan
These steps are general and can vary depending on a student's disability and what's already known about a student's disability. A student with a vision impairment, for example, may not need to undergo assessment and will instead submit a letter for their doctor or medical records.
A proper and comprehensive assessment is crucial for determining the type and extent of special education services a student receives. Incomplete or inadequate assessments may result in not properly identifying a disability or the extent of a disability.
IDEA requires that students be reevaluated every three years. School districts and parents can agree to waive it if not necessary.
Families can contest a school's decision at any point during the qualification process. Whether a school declines to assess a student or if they provide a student with an ineffective IEP, families can pursue various dispute resolution options to contest that decision. The Lento Law Firm can help parents and guardians determine the best course of action.
School Districts and Special Education
School districts may offer different special education services and support options. That one school district offers a program or service does not mean another district must offer an identical program or service.
Knowing what other districts offer, however, can be useful. Parents can learn about what resources are available for students or even request that their district provide a similar option.
Dorchester School District 2 provides a list of their continuum of special education services. While these can vary between districts, this list is a good example of common services and support:
- Direct or indirect consultant teacher services
- Resource rooms
- Behavioral and mental health support
- Preschool and early intervention programs
- Adaptive classes, such as P.E. or fine arts
- Integrated co-teaching
- Inclusion, or LRE
- Specialized classes
Schools also commonly offer speech and language support.
Charleston County School District
Special education services fall under the purview of the district's Department of Exceptional Children. The district's Child Find page is a good example of what information should be readily available about the program through most school districts. Charleston's Child Find information includes summaries of:
- Screening and eligibility
- Parental rights
- IEPs
- Preschool
- Transition from early childhood education to elementary school
Lexington and Richland Counties
Schools may also offer programs or services above and beyond federal requirements. District 5 of Lexington and Richland Counties operates Project SEARCH with local area partners.
A one-year, non-diploma track program, Project SEARCH works with students who have disabilities and are between the ages of 18 and 21. This job-placement program provides hospital internship experience that includes three 11-week rotations.
Special Education is Education
Students with disabilities have the right to an education. When students with disabilities do not receive the special education support and services they require, they can't fully access and benefit from their education.
The Lento Law Firm assists families nationwide with resolving disputes involving special education. We focus on collaborative solutions that keep your student's education as the focus. Contact us 888-535-3686 or online to learn more about how we can assist you and your student.
