Every child in this country is entitled to a free public education. If your child has a disability, it can be difficult to figure out what that looks like for your child when their current classroom situation is causing them distress. As a parent, you want your child to have the best possible education available to them, and your child has a legal right to an educational environment where they can thrive. It isn't enough for your child's school to ensure them a place in the classroom; if your child has a disability, accommodations and modifications must be made under the law.
Fighting with your child's school over their educational needs can be angering and upsetting. You may feel like you are yelling at a brick wall and the school isn't taking your or your child's needs seriously, but at the Lento Law Firm, we hear you, and we care. You don't have to fight alone to get your child the special education services they need. Our Education Law Team is well-versed in navigating the special education system in West Virginia. Your Lento Law Firm Education Law Team attorney will guide you through obtaining special education services for your child and ensure your child's school district follows through with their legal obligations to your child. Call us today at (888) 535-3686 or contact us online to schedule a consultation.
What is Special Education?
Special education is a broad term used to describe "the education of children who differ socially, mentally, or physically from the average to such an extent that they require modifications of usual school practices." What special education looks like in practice can vary drastically from student to student. Schools are legally obligated to place children in the least restricted learning environment; this means that schools will try to keep students within the general classroom to the extent possible to keep their learning environment and experience as close to a typical experience as possible.
Relevant Laws
Students with disabilities are protected under a few main federal laws: Individuals with Disabilities Education Act (IDEA), the Americans with Disabilities Act (ADA), and Section 504 of the Rehabilitation Act of 1973 (Section 504). Generally, K-12 students qualify for and access special education services under IDEA, which mandates that children with disabilities receive a free appropriate public education in the least restrictive environment for the student. Under this law, students with qualifying disabilities are entitled to an Individualized Education Plan (IEP).
An IEP is a formal written document between you, your child, and their school district that outlines the unique educational program designed for your child to meet their specific educational needs. Every IEP will be tailored to the individual child. The document will detail the accommodations and services your child will be receiving as well as set educational goals and benchmarks for your child's success.
Section 504 and the ADA work differently than IDEA. At the same time, IDEA entitles your child to a free, appropriate public education; these other two laws are antidiscrimination laws that protect your child differently. Section 504 prohibits any entity receiving federal funding from discriminating against persons with disabilities and extends civil rights protections to disabled persons as a protected class. Educational plans can also be developed under Section 504; these plans are called Section 504 Plans. Eligibility requirements to gain services are less than under IDEA, and Section 504 Plans are less formal. Under the law, a Section 504 plan doesn't even need to be written, but at the Lento Law Firm, we always advise writing down any plan you develop with your child's school to ensure they can be held accountable if a conflict arises later down the line.
The ADA, another antidiscrimination law, prohibits discriminating against those with a disability accessing federal, state, and local government services, including public schools. In addition to federal law, West Virginia has its own policy on special education called Policy 2419, which outlines the state and local responsibilities for special education in West Virginia schools.
Who is in Charge of Special Education in West Virginia?
The West Virginia Department of Education Office of Special Education ensures children with disabilities access special education. The Office does this mainly through leadership and financial support to local education agencies. They are also tasked with the administration of IDEA.
While the Office of Special Education plays an important role in special education access throughout the state, your local school district and your child's school will be the entity you work most closely with.
Who Qualifies for Special Education in West Virginia?
Your child will likely qualify for special education services in their West Virginia school if their disability falls within one of these disability categories:
- Autism
- Deafblindness
- Developmental delay (DD)
- Emotional disturbance (ED)
- Hearing impairment/deafness
- Intellectual disability (ID)
- Orthopedic impairment (OI)
- Specific learning disability (SLD)
- Speech-language impairment (SLI)
- Traumatic Brain Injury (TBI)
- Visual impairment (VI)
- Multiple disabilities (MD)
- Other health impairment (OHI)
In West Virginia, gifted students also qualify for special education services. A child is considered to be gifted for purposes of special education if they possess exceptional intellectual abilities and potential for achievement that requires designed instruction and services beyond those normally provided in general classroom instruction.
What is the Process for Getting My Child Special Education Services?
The journey to getting your child special education services can be long and arduous. While you might think a doctor's note would be sufficient, unfortunately, the process is much more extensive. Your Lento Law Firm attorney can walk you through each step and assist you in collecting documentation and preparing for meetings with your child's school district. A brief overview of the process is here:
Referral
All special education services begin with a referral, and referrals can happen in a few ways. The state of West Virginia is required to locate and identify students with disabilities for potential placement in special education programs. This is typically achieved through the Child Find program, which locates, identifies, and refers students from special education services through hosting activities in the community to connect with local families and other public awareness efforts.
Parents and teachers may also refer a child for special education services. Essentially, the referral is just notifying the appropriate people that a child may need services and getting the ball rolling on determining eligibility.
Evaluation
Evaluations play a valuable role in determining your child's eligibility for special education services. Evaluations can make or validate a diagnosis and provide insight into which special accommodations are most appropriate for your child. As the parent, you must consent for your child to undergo any evaluations; no specialist or school district can conduct evaluations without your explicit consent.
The evaluations will generally be conducted by specialists such as physiatrists, psychologists, physicians, social workers, and teachers. Which evaluations your child undergoes will be determined based on their suspected disability, but common assessments include:
- Psychological evaluations
- Educational evaluations
- Speech-language processing evaluations
- Behavior evaluations
- Fine motor skills evaluations
The school district must obtain your written consent for every evaluation before conducting the evaluation on your child.
Eligibility Determination
The school district's Eligibility Committee will meet to determine whether your child's evaluations suggest they are eligible for special education services. At this meeting, the Committee will discuss and decide the following:
- If your child meets the eligibility criteria for any of the disability categories
- If your child experiences an adverse effect on education performance related to that disability
- If your child needs special education services
The Committee will finalize an Eligibility Report following the meeting, which will be provided to you for your IEP meeting.
Developing the IEP
If your child is eligible, you, the parent, and your child's school district will meet to develop your child's IEP; collectively, you are the IEP Team. As discussed above, this document will include all services your child is to be provided, set goals for their educational progress, and set timelines for reviews and reevaluations. Your school district must implement your child's IEP as soon as possible once the document is completed.
Review and Revision of the IEP
IEPs must be reviewed annually at a minimum and can be reviewed more than once per year if needed. The annual review aims to ensure that your child's IEP is working as intended. At the reviews, the IEP Team can take stock of the situation: is your child meeting their goals and benchmarks? This assessment will allow you to determine if modifications to the IEP are required for your child's success.
Reevaluation
Your child must be reevaluated every three years to continue with their IEP. Reevaluation allows the IEP Team to be aware of any changes to your child's diagnoses or potential special education needs. They may no longer require some of the special education services they did when they were younger or may require new ones. Once reevaluations are complete, the IEP can be adjusted as necessary.
West Virginia Resources for Students with Disabilities
Many organizations in West Virginia are to support students with disabilities and their families. There are too many to discuss, but a few great resources include:
Mountain State Parent-Child Adolescent Network
Mountain State Parent-Child Adolescent Network is an organization that focuses on training parents and caregivers to overcome shame, blame, guilt, and stigma surrounding childhood mental illness. The organization supports parents in partnering with their child's providers and schools to implement individualized, strength-based care for their children with mental health conditions.
West Virginia Assistive Technology System
The West Virginia Assistive Technology System (WVATS) program is through West Virginia University's Center for Excellence in Disabilities. The program provides services and resources to West Virginia residents with disabilities and the people in their support circles, such as educators, family members, social services providers, and more. The program allows you to borrow assistive technology devices and learn about making informed purchasing decisions for such devices.
West Virginia Developmental Disabilities Council
The West Virginia Developmental Disabilities Council was created by the Governor of West Virginia in 1972; its purpose is to “assure that West Virginia citizens with developmental disabilities receive the services, supports, and other forms of assistance they need to exercise self-determination and achieve independence, productivity, integration, and inclusion in the community. The Council itself is comprised partially of West Virginia citizens with developmental disabilities and their family members.
Pathways to the Future
Pathways to the Future is a website run by the West Virginia Division of Rehabilitation Services that maintains a collection of resources and tools for students with disabilities, their families, educators, and employers interested in hiring people with disabilities. Resources focus on education and training to work towards successful careers and independent living for students with disabilities as they transition to adulthood.
Retain a Special Education Law Attorney to Help Your Child
Each child has their own specific challenges, and their differences should be embraced. Your child deserves and has the right to a tailored educational experience in an environment where they can thrive and achieve long-term success. As a parent, you must do everything in your power to ensure your child's school district is providing everything your child needs to feel educationally, emotionally, and physically supported. This can be an overwhelming task for even the most seasoned parent; let the Lento Law Firm help you. We work with you to hold your school district accountable and make sure your child receives all the necessary special education services. We fight for your child. Contact us online or at (888) 535-3686 today to get started.
