When children are struggling in school, it is important to determine whether a learning, cognitive, and/or physical disability is affecting your child’s educational performance. If this is the case, your child may be eligible for special education services and related services that can help your child to succeed. This article from the Friendship Circle Blog discusses the evaluation process and your child’s legal rights in the classroom setting. Special education law is expansive and thorough. This article will serve as only a brief summary of the pertinent laws.

What is Special Education?

The Individuals with Disabilities Education Act (“IDEA”) is the governing statute for the delivery of special education services, giving eligible children with disabilities the right to receive special services and assistance in school. IDEA defines special education as, “specifically designed instruction at no cost to the parents, to meet the unique needs of a child with a disability”.

Special education refers to education for students who may require additional support to be successful students in a general education classroom. Special education also refers to education for those students who will not be able to compete in a general education classroom setting.

Thus, some special education services may involve separate classrooms for students unable or unready to be in a mainstream course. Other times, special education services may help children with a particular issue. For example, students with speech delays may have speech therapy and students with physical problems might take special occupational therapy courses. This is often done on a pullout basis. A student will attend his or her regular classes but will be called out of the classroom to receive needed services.

Occasionally, students with ongoing disabilities like autism may work with a special aide in the classroom so that all work can be mainstreamed. Special education does not necessarily imply that a child’s cognitive abilities are poor. In many cases, very intelligent children receive services to help them better handle the school environment.

Who Is Eligible for Special Education Services?

Children with disabilities are eligible for special education and related services when they meet IDEA’s definition of a “child with a disability” after a full and individual evaluation by the school. There are 13 categories of eligibility which include:

1. Intellectual disabilities
2. Hearing impairment (including deafness)
3. Speech of language impairment
4. Visual impairment (including blindness)
5. Serious emotional disturbance
6. Orthopedic impairment
7. Autism
8. Traumatic brain injury
9. Other health impairment (commonly referred to as “OHI”)
10. A specific learning disability
11. Deaf-blindness
12. Multiple disabilities.

The specific criteria for each category and can be found in your specific state’s guidelines and the federal implementing regulations, 34 CFR Parts 300 and 30.

How Do I Request a Determination by the School?

A parent or guardian of a child simply needs to put into a simple letter that they are requesting their child be evaluated for special education services. In the initial letter, you may want to list the struggles your child is having or evidence of a specific disability manifesting itself.

Each school district, and typically each school, has a point person that would handle the receipt of such a request. If you do not know whom to address the request, ask your child’s teacher, counselor, or principal.

Refusal to Evaluate

Just a warning, the school does not have to evaluate your child just because you have requested it. The school may believe that your child has a disability or needs special education or related services. In that case, the school may refuse to evaluate your child. The decision not to evaluate must be given to you in writing with the reasons why the school has refused to evaluate. This is called giving you “prior written notice.” If you disagree with the decision not to evaluate, the school should provide you with materials on how to appeal the decision.

The Evaluation Process

Once the school agrees to evaluate and you have consented to the evaluation, the school must conduct the initial evaluation within 60 days of receiving parental consent. The initial evaluation must consist of procedures to determine if the child is a child with a disability and to determine the educational needs of the child.

Using Assessment Tools

The school is required to use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the child, including information provided by the parent(s) that may assist in determining whether the child is a child with a disability and what the content of the child’s IEP should include. The child is to be assessed in all areas related to the suspected disability, including, if appropriate, health, vision, hearing, social and emotional status, general intelligence, academic performance, communicative status, and motor abilities.

Reviewing Current Information

Further more, the evaluating team and other qualified professionals as part of an initial evaluation must review existing evaluation data on the child including evaluations and information provided by the parent(s) of the child (this would include your own observations and reports from treating physicians, psychologists and therapists); current classroom-based, local, or state assessments, and classroom-based observations, and observations by teachers and related service providers.

Upon Completion

Upon completion of the administration of the assessments and other evaluation measures, team members and the parent(s) of the child determine whether the child is a child with a disability as defined by state and federal law. The school must provide a copy of the evaluation reports and documentation of determination. Read up on the state-based eligibility requirements for the specific disability or disabilities that you believe your child has before attending this final meeting.

If your child is found to be eligible for special education services, you and the school will work together to develop an IEP.

What Happens if After Evaluation, My Child is not Deemed Eligible?

If the evaluating team decides that your child is not eligible for special education services after evaluating him or her, the school must tell you this in writing and explain why your child has been found to not be eligible to receive special education services. Under IDEA, the school must give you information about what you can do if you disagree with the decision. This includes mediation and due process. IDEA includes these mechanisms and the school is required to give you the information on how to appeal.

Conclusion

Entry into the world of special education can be very daunting. Acronyms and legal terms are abounding. If you believe your child has a disability that qualifies for special education services, research the issue. Come in prepared to describe and sell your child’s needs. There are many different agencies, advocates, and attorneys that can also help guide you through the process. You don’t have to do it alone. Advocating for your child in the school setting is one of the greatest gifts a parent can give a child.

Written by Michael Dorfman, an attorney and partner at Nykanen Dorfman, PLLC in Farmington Hills, Michigan. In his special education law practice, Michael represents students and their families when there is a conflict with the school district or when an appropriate education is not being provided.