Legal Files Archives

Basic Terminology
By Phil Stinson, Esq.

The ugly reality of special education in the public schools of this country is that, quite often, a free appropriate public education ("FAPE") is reserved for children with special needs whose parents have learned the art of zealous advocacy. As the parent of a child with any disability, you must learn how to be an effective advocate so as to ensure that your child is given the opportunity, not only to make meaningful educational progress, but also to reach his or her potential in school.

In my law practice, the biggest complaint that I hear from parents is that they do not understand the acronyms, or bureaucratic legalese, rattled off by school administrators, teachers, and special education supervisors. Indeed, I too was alarmed when I attended my first IEP meeting as a parent of a child with special needs in 1993. Through this series in Special Child, I will attempt to give you the self-advocacy skills that you need in order to successfully secure a free appropriate public education for your child.

Any child requiring specially designed instruction is entitled to receive special education and related services pursuant to the Individuals with Disabilities Education Act ("IDEA"). On the other hand, a child requiring accommodations at school because of a disability is entitled to such accommodations by virtue of Section 504 of the Rehabilitation Act of 1973 ("Section 504").

If you suspect your child is "exceptional" and entitled to special education and related services, you should request that the school district perform a multidisciplinary evaluation. The time allotted for completion of the evaluation is determined by state regulation (and not determined by federal law). All parent-initiated requests for evaluations should be in writing, and sent to the school district by Certified U.S. Mail, return receipt requested. Be sure to familiarize yourself with the relevant time-lines for completion of the evaluation. It is not uncommon that school districts will initially refuse to conduct an evaluation at the request of a parent, and it is even more common that evaluations are not completed in a timely fashion. Once an evaluation is requested in writing by a parent, the IDEA protections regarding school discipline apply (limiting the removal of exceptional students from school in certain disciplinary situations).

If a child requires specially designed instruction in order to make meaningful educational progress in school, the child is deemed to be exceptional and eligible for special education and related services under the IDEA. If the child does not require specially designed instruction in order to make meaningful educational progress, but does require accommodations, the school district must accommodate the child pursuant to Section 504. By way of example, providing multisensory presentation of materials is considered to be specially designed instruction, whereas seating in close proximity to the blackboard in a classroom is considered to be an accommodation. I always recommend that a parent secure an IEP in favor of an accommodation plan to ensure that the document is revised at least annually based on the child’s attainment of annual goals and short-term benchmarks. There is no such requirements under federal law regarding services or accommodations provided by a school pursuant to Section 504. Also, only an IEP provides protections against arbitrary disciplinary actions by school administrators in the "post-Columbine" era.

Federal law requires that parents of exceptional students receiving special education under the IDEA be provided with a copy of their rights under the law. This document is called a Procedural Safeguards Notice. The document should be provided to you at the time of each evaluation and reevaluation, as well as at IEP meetings. Be sure to read the Procedural Safeguards Notice thoroughly, and ask the school district to provide you with a copy of the state regulations regarding special education. The Procedural Safeguards Notice provides information on dispute resolution processes, as well as where and how to obtain legal help.

With this basic understanding of terminology and the law, you are now ready to start your duties as a zealous advocate on behalf of your child. In upcoming issues of Special Child, watch for columns on the following topics and more: Compensatory Education; Preparing for an IEP Meeting; Preparing for a 504 Meeting; Extended School Year Services; Independent Educational Evaluations; School Discipline and the Exceptional Student; Winning at a Pre-Hearing Conference; Mediation and Alternative Dispute Resolution under the IDEA; Special Needs Trusts; and, School Nursing Services.

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Phil Stinson, Esq. is a senior partner at Stinson Law Associates, P.C., a Philadelphia-based law firm dedicated to representing parents of children with special needs in federal courts throughout the country, is Director of the Special Education Law Clinic in Chester, Pennsylvania, is President and General Counsel of the Center for Education Rights (http://www.edrights.org) and is the editor of SpecialEdLaw.net, a multidisciplinary Internet resource portal (http://www.specialedlaw.net). Parents of children with special needs may contact Phil Stinson by e-mail at stinson@specialchild.com.

The Legal Files are provided by Special Child, The Resource Foundation for Children with Challenges, and Stinson Law Associates, P.C., for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. Persons accessing this site are encouraged to seek independent counsel for advice regarding their individual legal issues.

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