Special Education - Winter Law Firm LLC - Special Education & Business Litigation

"It is doubtful that any child may reasonably be expected to succeed in life if he [or she] is denied the opportunity of an education.”

Brown v. Board of Education, 347 U.S. 483 (1954)

Let's get your child the education that they need and deserve.

According to the U.S. Department of Education’s National Center for Educational Statistics, over 7 million children—about 15 percent of all public-school students—receive special education. A third of those students receive special education for a specific learning disability.

Yet getting the education that your child needs and deserves, including special education, can be a trying experience. Special-education laws are cumbersome, complex, and comprehensive. It is easy to get disoriented in the myriad statutes, regulations, and cases. One misstep can end your child’s case before it even begins. The school system you are dealing with likely has experienced lawyers and other professionals on its side. In short, it can feel like an uneven playing field.

Here’s the good news: Winter Law Firm LLC can level the playing field, put your mind at ease, and help you fight for your children’s educational rights.

Below are answers to some common questions. But no two cases are identical. So, for questions about your child’s situation, please request a consultation.

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Though various laws affect special education (and education, in general), there are two federal laws that have specific application to special education: the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. (“IDEA”), and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (“Section 504”). Though these laws and their implementing regulations (34 C.F.R. Part 300 (IDEA regulations); 34 C.F.R. Part 104 (Section 504 regulations)) are comprehensive and detailed, the must be applied on a case-by-case basis based on the unique factors and circumstances relevant to each child. The question and answers below are meant only as an introduction and are by no means a substitute for legal advice.

Eligibility and evaluation for special education and related services.

My child gets good grades and is being promoted to higher grades, but I believe that they have special needs that aren’t being met. Do I have a case?

Potentially. It is a myth that good grades or grade promotion defeats any claim related to special education. Grades and grade promotion can sometimes mask a student’s special-educational needs, especially if the student’s needs have not yet been challenged. Further, because your child is entitled to a “free and appropriate education” under federal law, whether your child’s education is “appropriate” for your child requires an analysis that goes beyond their grades and academic progress.

What disabilities qualify a student to receive special education?

Federal law entitles any “child with a disability” to special education so long as the child, due to a qualifying disability “needs special education and related services.” 20 U.S.C. § 1401(3). The qualifying disabilities under the IDEA include:

Autism;
Hearing impairments (including deafness);
Intellectual disabilities;
Orthopedic impairments;
Other health impairments;
Serious emotional disturbance;
Specific learning disabilities;
Speech or language impairments;
Traumatic brain injury;
Visual impairments (including blindness); and
For children aged three through nine: developmental delays in one or more of the following areas: physical development, cognitive development, communication development, social or emotional development, or adaptive development.

Regardless of disability, the law requires that the district evaluate and consider how the disability—including single symptoms or in any combination, including with respect to other disabilities—present in a particular student and directly affect the student’s ability to learn and progress.

If your child has one of the above disabilities and are not getting the special education that they need, request a consultation today.

What is considered a “specific learning disability”?

IDEA’s regulations define a “specific learning disability” as “a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, that may manifest itself in the imperfect ability to listen, think, speak, read, write, spell, or to do mathematical calculations, including conditions such as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia.” 34 C.F.R. § 300.8(c)(10)(i). But a “specific learning disability” excludes problems caused by other disabilities, by “emotional disturbance” or by “environmental, cultural, or economic disadvantage.” Id. § 300.8(c)(10)(ii).

There are numerous disorders that fall within the category of “specific learning disability.” Beyond dyslexia and developmental aphasia—both specifically identified by the regulations—dysgraphia (difficulty with written expression) and dyscalculia (difficulty with numbers and math concepts) certainly fall within the scope of “specific learning disability.” Whatever the particular diagnosis, the key is that the student have a particular difficulty with their ability to learn, process, or otherwise perform in school.

If you have questions or concerns about your child’s learning disability, and how it may be affecting their education, please request a consultation today.

What about attention deficit hyperactivity disorder (ADHD)?

IDEA’s regulations specifically include ADHD as within the scope of “other health impairment.” 34 C.F.R. § 300.8(c)(9)(i). But as is the case with every impairment, not every student who has ADHD—even if they have a diagnosis—is eligible to receive special education. The student’s ADHD must instead “[a]dversely affect” their “educational performance” to be eligible for special education. Id. § 300.8(c)(9)(ii).

ADHD can be particularly tricky because the condition can be misdiagnosed as another disorder or vice versa. For example, a child may be diagnosed with ADHD but a true diagnosis would be Autism. These diagnostic errors may result from weakness in testing, especially if the school district is performing the evaluation.

Relatedly, a student with ADHD may be very intelligent and may receive good grades. Schools might therefore believe that student has no need for special education. The student’s good grades could be masking the student’s struggle to compensate for their symptoms and could use help, whether academically or socially. To that end, courts recognize that an appropriate education includes more than academics but the ability of students to gain social skills and to grow emotionally.

If you have questions or concerns about your child’s ADHD (or related diagnosis) or their education, please request a consultation today.

How can I have my child evaluated for special education?

You should write to your child’s building principal, or district’s coordinator/supervisor of special education, and request a special-education evaluation. Within 10 calendar days of receiving your request, the district should provide you with a “permission to evaluate” form related to your child. After you return and complete that form, the district will decide whether it agrees with your request for a special-education evaluation. If so, the district has 60 calendar days to complete its evaluation. If the district declines your request for a special-education, you will the opportunity to challenge that decision by filing a due-process complaint. If you have further questions, please request a consultation today.

The right to a Free Appropriate Education (FAPE) to be provided in the Least Restrictive Environment (LRE).

What is a “free appropriate education”?

The term “free appropriate education”—sometimes abbreviated as “FAPE”—is a term defined by the IDEA as special education and related services that:

Have been provided at public expense, under public supervision and direction, and without charge;
Meet the standards of the State educational agency;
Include an appropriate preschool, elementary school, or secondary school education in the State involved; and
Are provided in conformity with the individualized education program required under [section 1414(d)] of [IDEA].

20 U.S.C. § 1401(9).

Regulations and court cases confirm that a free appropriate education under IDEA requires the following components:

Specifically designed instruction: Students with disabilities are entitled to instruction personalized and tailored to meet their unique needs;
Appropriate peer group: When possible, students should be educated with peer groups including students of about the same age and developmental levels;
Least restrictive environment: To the extent possible, students with disabilities must be educated with peers who are not disabled;
Educational benefit: The special education and related services that students receive should be designed to assist them in making meaningful progress towards the goals and objectives of their Individualized Education Programs, which themselves must be tailored to their individual circumstances;
Sufficient procedures: Individualized Education Programs must be developed in accordance with the reequipments of the IDEA and state law;
Related services: Students with special needs are entitled to supportive services if they are required for them to benefit from their IEPs;
Assistive technology: Schools must provide students with special needs with assistive technology services and devices if necessary for the students to receive educational benefit; and
Public expense: Students with special needs must be provided with programs and all components—whatever the cost—at no cost to them or their parents or guardians.

If you believe that your child is not receiving all the services and resources listed above, and you believe that you child should be, please request a consultation.

What does Least Restrictive Environment (LRE) mean and how does it apply to my child?

The Least Restrictive Environment is a concept required by IDEA requiring that students with disabilities are educated, “[t]o the maximum extent appropriate,” together “with children who are not disabled, and special education classes, separate schooling, or other removal of children with disabilities from the regular educational environment.” 20 U.S.C. § 1412(a)(5)(A). In general, this means that a school cannot educate students with disabilities, whatever they may be, completely away from students without disabilities. In practice, though, ensuring that a specific student is receiving education in the LRE can involve a lot of competing factors and will depend on the student’s specific needs and resources available to the school.

There may be times when a student must be placed in a more restrictive environment, such as:

The student has not progressed in current places, even with the use of supplemental aids and services;
The cost of educating the student in a LRE is unreasonably high;
The student requires a specialized environment to receive a Free Appropriate Education;
The student requires 24-hour programs of instruction and care;
The student requires a consistency of approaches between environments at home and school;
Without total immersion in their education, the student will not make progress;
The student’s presence in the LRE is disruptive to the student’s general-education peers; and
There is a heightened risk of harm to themselves or another if the student were placed in an LRE.

If you have concerns about whether your child is receiving their education in the LRE, please request a consultation.

Individualized Education Program (IEP) requirements.

What must be included in my child’s Individualized Education Program (IEP)?

The IDEA sets forth the following seven requirements:

Statements about the student’s current levels of academic achievement and functional performances;
Measurable annual goals, including academic and functional goals;
Descriptions of how educators plan to measure the student’s progress toward meeting their annual goals and when they will provide periodic reports;
Statements specifying the special education, related services, and supplementary aids and services that the student will receive, based on peer-reviewed research to the extent practicable, along with descriptions of program modifications and support;
Explanations of the extent to which the student is excluded from participating in regular classes with peers who do not have disabilities;
Information detailing individual appropriate accommodations necessary to measure the academic achievement and functional performance of the student on state and district assessments; and
The projected date of initiation and duration of special-education services that the student is to receive.

Once the student reaches the age of 16, IDEA requires the following be part of their IEP:

A statement of appropriate, measurable postsecondary education goals, to be updated annually, and transition services; this requires that at least one year before students reach the age of majority, officials must provide them with notice of the rights that transfer to them, such as those associated with their education records, on reaching the age of 18.

Do I have input into my child’s IEP?

Yes. You may–and should!–participate in the development of your child’s IEP as a member of your child’s IEP team. It is a violation of IDEA for a school to create an IEP without allowing for parental involvement.

Who is part of my child’s IEP team?

The IDEA requires that the following be part of a student’s IEP team:

The parents of the child with a disability;
At least one of the student’s regular-education teachers (so long as the child is, or may be, participating in the regular-education environment);
At least one special-education teacher;
A school-district representative who is qualified to provide, or supervise the provision of, special education, is knowledgeable about the general-education curriculum, and is knowledgeable about the availability of resources of the district;
If not someone identified above, an individual who can interpret the instructional implications of the student’s evaluation results;
At the discretion of the district or the student’s parent, any other individuals who have knowledge or special expertise regarding the child, including related services personnel as appropriate; and
Whenever appropriate under the circumstances, the child with a disability.

20 U.S.C. § 1414(d)(1)(B).

If you have quessions about your child’s IEP team or believe that the team is not properly composed, please request a consultation.

Student discipline.

Can a school discipline a special-education student for conduct related to the student’s disability?

Generally, yes. So long as a school applies the same disciplinary standards to students in regular education, a school can generally discipline a student receiving special education. This discipline may include suspension and expulsion. If a school decides that the student’s conduct giving rise to discipline is not a manifestation of the student’s disability, the school must prepare and implement a functional behavioral assessment (a comprehensive evaluation of the student’s observed behavior and related characteristics) and a behavioral intervention plan (guidance tailored to the student to help the student understand and perform appropriate behavior).

A district cannot expel a special-education student if the student’s misbehavior is a manifestation of their disability. In short, a “manifestation” of a student’s disability means that there is a direct connection between the student’s behavior and any of their disability (or combination of disabilities).

But a student who is expelled or suspended does not lose their right to special education. Instead, federal law requires that schools provide a free appropriate education to students who have been expelled or suspended. 20 U.S.C. §§ 1412(a)(1)(A), 1414(k)(1)(D)(i); 34 C.F.R. § 300.530(d)(1)(i).

Disciplinary matters are often contentious and may involve multiple parties. If your child is facing discipline, or may soon face discipline, request a consultation today.

The dispute-resolution process under the IDEA: from complaint to court.

How do I challenge an action or decision of my child’s school concerning my child’s Individualized Education Program, their entitlement to a Free Appropriate Education, or any other issue related to the special education that I believe my child should be receiving?

Step 1: Complaint and request for a due-process hearing. With rare exception, the first step in initiating the dispute-resolution process is to file with your child’s school district a complaint and request for a due-process hearing.

Step 2: Resolution session or mediation. Within fifteen days of receipt of that request for a due-process hearing, the school district must convene a meeting—a resolution session—with the child’s parents/guardians (and attorney, if applicable) and relevant members of your child’s IEP team. The purpose of this resolution is session to try to resolve the underling dispute. The district must include in the meeting a representative with decision-making authority. If the resolution session succeeds, the parties will sign and execute a legally binding settlement agreement (which is voidable by either side within 3 days after signing). If you and the district agree to waive the requirement of a resolution session, or agree to mediation, the district will not convene a resolution session.

Step 3: Due-process hearing. If the parties are not able to come to an agreement at a resolution session, either side may request a due-process hearing before an independent hearing examiner. Parents have a right to be represented by a lawyer at the hearing and to offer testimony, documentary evidence, and expert-witness testimony supporting their case. The school district can do the same. The hearing may take place over the course of multiple sessions or days. Following the hearing, the independent hearing officer will issue a written decision.

Step 4: Appeal, if necessary. If either party disagrees with the decision of the hearing officer, they can appeal the hearing officer’s decision to state court within 30 days of the hearing officer’s decision or federal court within 90 days of the date of the hearing officer’s decision. Any party who disagrees with the decision of the court can seek further appeals, some of which require permission from the appellate court, up to and including the Supreme Court of the United States.

Failing to follow the steps outlined above, with strict precision, could result in your case being rejected, which could result in the school seek attorney’s fees and costs against you. If you prevail against the school, you may be entitled to the recovery of attorney’s fees and some costs.

While it is possible to perform any of the above steps without the assistance of legal counsel, doing so is fraught with risk. Any statements—oral or written—that you make to the school district can be used against you by the school district in its defense. It is therefore vital to consider and implement a strategy that is both procedurally and substantively sound.

If you have questions about the dispute-resolution process or would like to initiate it to fight for your child’s rights, please request a consultation.

What remedies are remedies are available against my school district for failing to provide a Free Appropriate Education, follow my child’s Individualized Education Program, or otherwise failing to follow the law?

The purpose of legal remedies is to compensate you and your child in a way to make them as whole as possible were it not for the school’s wrongdoing. Not all remedies are automatic and sometimes are conditioned upon specific notice to the school district. Below are some examples of remedies for prevailing parents/guardians:

To the extent not covered above, compensatory damages are not available. Punitive damages are also not available.

If you have questions about what remedies may be available to you and your child, please request a consultation.

Section 504.

How does Section 504 relate to my child’s education?

Section 504 is a law that prohibits the discrimination of otherwise qualified individuals with disabilities in the education setting. It is broader than IDEA, which only provides rights for to students that have a disability identified in that statute, and, as a result, require special education or related services. Students who are covered by the IDEA are therefore, in most circumstances, covered by Section 504.

Unlike the IDEA, Section 504 does not require schools to provide a specified array of services. Rather, Section 504 requires that schools provide otherwise qualified individuals with disabilities with reasonable accommodations for their disabilities.

An individual is “otherwise qualified” for Section 504 purposes if, despite their disability, they can meet all program requirements. But because the individual does have a disability, they cannot meet the program’s requirements without a reasonable accommodation.

What do I need to do to ensure that my child receives a reasonable accommodation under Section 504?

In contrast to IDEA—which requires schools to actively identify children suspected of needing special education—Section 504 does not require schools to identify students who need a reasonable accommodation. That burden is instead placed on the student (through their parents or guardians) to request a reasonable accommodation. You can do so by requesting in writing to your child’s school for your child to receive a reasonable accommodation. Schools may require that the student (through their parents or guardians) prove that they have an impairment requiring a reasonable accommodation to allow the student to take full advantage of the school’s programs.

What reasonable accommodations are available under Section 504?

The particular accommodations available to your child will depend on the precise needs of your child and the ability of school to accommodate those needs. The key here is “reasonableness,” which is a fact-specific inquiry.

The requirement under Section 504 for schools to provide reasonable accommodations to otherwise qualified individuals does not mean that a school needs to lower its standards or eliminate essential prerequisites. For example, when it comes to testing, a school need not modify the content of the test, but can (and should, under the right circumstances) modify how the test is administered to a student. In general, schools must offer qualified students comparable materials, teachers, quality, length of school term, and daily hours of instruction. And, unless necessary, children receiving accommodations should not be separated from those who do not have impairments.

Some examples of potential reasonable accommodations include:

Providing quiet rooms without distractions;
Using readers or Braille versions of school materials, including tests;
Allowing for special classroom seating arrangements;
Providing scribes, notetakers, or other aides;
Permitting the use of hardware or software; and
Other tailored measures aimed at allowing the student to have full participation in the school’s education programs.

A school need not provided the accommodation requested just because the student (through their parents or guardians) requested it. A school, in general, may instead provide an alternative accommodation if that alternative allows the student to fully participate in the school’s programs. Further, a school does not need to provide an accommodation that would result in: (a) a fundamental alteration in the nature of the program; (b) an undue financial burden on the school; or (c) a substantial risk of injury to any person, including the student seeking an accommodation.

If you have further questions or concerns about accommodations that your child should be receiving, please request a consultation.

What are Section 504 Plans (sometimes referred to as Section 504 Service Plans)?

A Section 504 Plan is the name given to a written agreement between a school and a student’s parents or guardians that sets forth the accommodations and services that the school will provide to the student. Unlike the IDEA, which requires Individualized Education Programs for each qualified students, Section 504 does not mandate the creation of written documents outlining the accommodations to be provided. But it is helpful for the student’s parents and the school to have a Section 504 Plan in place to reduce the chance of a dispute.

Partnering with Winter Law Firm LLC.

When should I contact a special-education lawyer?

You should contact a special-education lawyer any time that you believe that (a) your child might not be receiving an appropriate education or (b) is at a risk of not receiving an appropriate education. As a few examples:

Your child is not academically progressing;
Your child’s school has eliminated or reduced services;
Your child has an Individualized Education Program (IEP), but your child’s school is not following it; or
Your child has received a special-needs diagnosis, which you have shared with the school, but the school has not taken action to provide for your child’s special needs.

Because there are strict time limits, it is important not to delay speaking with a special-education lawyer. Request a free consultation.

How much does it cost to hire a special-education lawyer?

The exact amount depends on many factors and amount of work required. Winter Law Firm LLC requires a retainer and a signed engagement letter to form an attorney-client relationship. In certain circumstances, and if you prevail against the school, you may be entitled to an award of attorney’s fees. 20 U.S.C. § 1415(i)(3)(B)(i)(I). If you have further questions, please request a consultation today.