Legal Rights In Educating A Special Needs Child In Georgia
by: Atlanta Legal Aid Society
Legal Rights In Educating A Special Needs Child In Georgia
Many children with disabilities have needs which must be met in order to have educational success. To ensure that schools meet those needs, several federal laws give children and their parents specific rights.
I. THE LAWS
A. The Individuals with Disabilities Education Act (IDEA)
(1). Birth to Age 3
IDEA requires that infants and toddlers with developmental delays receive early intervention services. A child must first be referred to the early intervention service provider in Georgia (Babies Can’t Wait) and then evaluated to determine eligibility. Within 45 days of finding the child eligible for services, a meeting to create an Individualized Family Service Plan (IFSP) must be held. At the meeting, the parent, the service coordinator, all evaluators, all service providers, and any other person that the parent requests to participate. The IFSP will include information about the child’s present developmental levels, a statement of major outcomes expected, and a statement of the specific early intervention services necessary to meet the unique needs of the child and the family. These services may include services such as physical therapy, audiology, parent training, transportation services, and other services that are agreed upon in an Individualized Family Service Plan (IFSP). In the event that the Family disagrees with any decision made regarding their child’s eligibility or services, the Family may file a request for an administrative due process hearing seeking a decision from an administrative law judge. Families may initiate the early intervention process by contacting Babies Can't Wait at (800) 229-2038.
(2). Age 3 to Age 21 in Public (Not Post-Secondary) Schools
(a) Identification – Child Find
School systems are required to identify all students with disabilities in need of special education. In Georgia, all school systems have Student Support Team’s to fulfill this obligation. Either the school or the Family can initiate the Student Support Team process, or SST. Once an SST Plan is created and implemented, the student is monitored to determine if there is any educational progress. If there is no progress, the student is referred to the special education department for an evaluation. At this point, the student is evaluated to determine if any need for special education services exists.
(b) Evaluation
Once referred for an evaluation, the school must obtain the parent or guardians informed consent for evaluation. The school must explain the proposed evaluations and the assessments tools to be administered. The school must also then provide the Family with a complete statement of their special education rights under IDEA. Once the consent is secured, the school has sixty days in which to fully evaluate the student, prepare a written evaluation report and convene an eligibility determination meeting to discuss the student’s educational needs.
If the parents disagree with the results of the school’s evaluation, the parents have the right to ask the school to pay for testing by an independent evaluator outside the school. The school must pay for that independent evaluation unless it immediately requests a due process hearing and the hearing officer decides that the school’s evaluation is correct.
A student must be re-evaluated every three years unless the parents agree otherwise. A school system and parent may agree that the student does not need to be re-evaluated because there is no dispute as to whether the student continues to meet certain eligibility categories. A parent, however, may request that the school system re-evaluate his or her child at least every three years for any reason. Parents who want their child to continue receiving services under IDEA can request a due process hearing if the child is determined to be no longer eligible.
(c) Eligibility
To be eligible for special education and related services and accommodations under IDEA, a child must be disabled and in need of special education. The eligibility criteria must meet the standards for at least one of thirteen categories. The Eligibility category of "Other Health Impaired," for example, includes a number of disabling conditions such as ADD/ADHD, asthma, diabetes, and other medical conditions.
Eligibility categories do not correspond directly with medical diagnosis. To be eligible for special education, the student must be 1) disabled and 2) in need of individualized instruction to meet the student’s unique needs. Eligibility categories do not determine the services or placement for the child. No matter what eligibility category designated for the child, the educational plan must be individualized to meet that particular child’s needs.
(d) Individualized Education Plan (IEP)
IDEA requires the school to encourage parents to participate in the meeting to develop the child’s individualized education plan. The school must schedule the meeting at mutually convenient time and notify the parents early enough that they will be able to attend.
The child has a right to a free (without cost) appropriate (meeting the child's essential educational needs) public education (FAPE). The IEP is the guideline for the FAPE. The IEP reviews that child's progress, sets goals for the student, and lists the services the student will receive. A regular education teacher must be a member of the Committee to help consider what is the least restrictive environment for the child's educational needs to be met. To the maximum extent possible, children with disabilities are to be educated with children who do not have disabilities--the least restrictive environment consistent with the child's needs.
Services may include various therapies, a paraprofessional to assist the student in a classroom, a sign language interpreter, assistive technology, special transportation or any number of supplies or people to ensure that a child progresses in his or her education. Sometimes, a child is placed in a specialized classroom or program. While a school system need only provide educational and not medical services, many health-related services are considered educational if a child cannot be educated without the service; for example, catherization of a child with paraplegia who cannot attend school daily without this service.
For children age 16 and above, the IEP must include transition service needs that focus on courses that will help prepare the student for postsecondary education, community life and/or employment after completion of school. Once a student reaches age 16, the IEP must cover transition services based on the students individual needs, including community experiences and specific post-school goals. The school must invite to the IEP other agencies, such as vocational rehabilitation, which might provide these services to the child.
Parents are important members of the IEP Committee and parents who are dissatisfied with an IEP have a right to challenge it in a due process hearing. Sometimes negotiating with the Committee or with supervisors in the school system can bring about the change parents want.
(e) Mediation
Whenever a parent disagrees with the school about evaluation, eligibility, placement, or the services provided by the school, the parent has a right to free mediation. In mediation, a neutral mediator helps the parents and the school negotiate an agreement. Mediation is often successful and it can be scheduled by writing the school system's special education director to schedule mediation. The mediator will travel to the child's county if everyone prefers.
(f) Due Process Hearings
A parent can request a due process hearing by notifying the school system special education director in writing which includes the name and address of the child, name of the school the child is attending, a description of the issues including facts, and a proposed resolution. The school system special education director can provide the Georgia Department of Education form a parent must use. Once the school system receives a request for a due process hearing, it must promptly notify the Office of State Administrative Hearings (OSAH) so that this agency can appoint an administrative law judge to hear the case. An Administrative Law Judge from the OSAH will hear the case.
Before a hearing will be scheduled, the school and Family must conduct an Informal Resolution Session within 15 days of the hearing request being submitted. The IRS can be waived, however, both parties must agree to such a waiver. Following an IRS where no resolution is reached, the hearing will be scheduled. At least five days before the hearing, each side must submit any and all evidence they intend to use at the hearing. The hearing is a formal proceeding at which rules of evidence apply. It is suggested that parents consult or use an attorney if possible. Further appeal of the decision can be made into either State court or Federal court.
(g) Stay Put
Generally, a child's current placement can continue while a change in placement is being challenged by a parent through due process. A placement is the program and services listed in the child’s IEP. Whenever a parent does not agree with an IEP decision and does not sign the plan, the parent can demand that the current placement of the child remain in effect (stay put) until all legal proceedings have been exhausted.
(h) Discipline
If a child is being considered for expulsion or long-term suspension, the IEP Committee must conduct a Manifestation Determination Meeting to decide whether or not the conduct for which a child is disciplined is a manifestation of his disability. This Manifestation Determination is only conducted if the child is removed from his educational placement for more than 10 days. The IEP team will convene to determine whether the conduct leading to the proposed discipline is directly and substantially related to the student’s disability. Further, the Team will consider whether the school has provided an appropriate educational plan for the child. If both questions are answered in the negative, then the child may be disciplined just as any non-disabled student. However, if the change in placement is because of violence or the possession of weapons or drugs, there are limitations to this rule.
If the child's conduct is not a manifestation of the disability, then the child may be disciplined including suspension and expulsion. Children can be suspended for up to 10 days each school year whether or not the underlying conduct is a manifestation of the disability. A child who is suspected of having a disability but who has not been identified or evaluated by the school system has the same rights if the parents properly requested the child be evaluated or if the school had notice of the disability.
B. Section 504 of the Rehabilitation Act of 1973
Section 504 outlaws discrimination against persons with disabilities in any school or college receiving federal funds. Section 504 guarantees that disabled students will not be denied any benefit or privilege of the educational program to which they seek access and guarantees to all disabled students the right to a free appropriate education.
Public school children with disabilities may obtain a 504 Plan in which they can receive all reasonable accommodations for their qualifying disability. Examples of accommodations are oral tests for children with dyslexia or blindness, less written homework for children with disabilities affecting reading, a behavior management plan for a child with a behavior disorder, or an accessible restroom for a child who uses a wheelchair. Many students that are disabled and not served via an IEP will be eligible for a Section 504 plan to address their educational needs.
The process of creating an 504 Plan is initiated by notifying a school’s 504 Coordinator or school administrator about the student’s disabling condition and the need for appropriate accommodation. A 504 Plan can be enforced by the U.S. Department of Education's Office for Civil Rights or privately by an individual. A parent dissatisfied with the accommodations under the 504 Plan may have mediation and a due process hearing.
In postsecondary schools (colleges and universities), students must receive reasonable accommodations such as redesign of equipment, reassignment of classes, the assignment of aides, provision of interpreters of the deaf, or the alteration of buildings. The campus and each school program, when taken as a whole, must be accessible to persons with disabilities.
C. The Americans with Disabilities Act
The Americans with Disabilities Act applies to every school or university except most religious schools. Schools from day care centers through post-graduate schools must make such reasonable accommodations and modifications as are readily achievable, even if the school is completely private and receives no federal funds. A school which is religious in nature is not subject to this law. This law also covers public schools which cannot exclude persons with disabilities from participating in the benefits of school programs.
What if You Feel Your Rights are being Violated?
This pamphlet only sketches the rights of a special needs child in the broadest context. It is not intended to give legal advice. Certain organizations can advise you with more specificity about your rights should a question arise and they may be able to assist you. These include PEPPAC (Parents Educating Parents) ((770) 761-2745), Parent to Parent ((800) 229-2038), and the Georgia Advocacy Office ((800) 537-2329). The Georgia Department of Education's Exceptional Students Division can provide some information. Certain problems can be filed as a complaint with the U.S. Department of Education's Office for Civil Rights at (404) 562-6350. Georgia Legal Services ((404) 206-5175) and Atlanta Legal Aid ((404) 524-5811) may be able to assist you if you meet their income eligibility criteria. Finally, if you need a lawyer, you can always call the Lawyer Referral Service of the State Bar of Georgia at (404) 527-8700 or (800) 334-6865. Also, your local Board of Education office is supposed to maintain a list of low-cost attorneys.
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