Raffaele & Associates LLC

MyKidsLawyer: The Legal Team for Students, Kids & Families.

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Bryn Mawr, Pennslyvania

Parents’ FAQs About Special Education

FAQs About Special Education

Hiring a lawyer does not necessarily mean suing your District. Indeed, although challenges with school districts are all too common, lawsuits are relatively rare. By educating you on your child’s rights, evaluating the unique facts of your case and advising you on your legal options, we help our clients avoid costly and frustrating conflicts, including litigation. This is why we strongly encourage all parents of children with special needs to come in for a “legal check up” before problems arise with their District. Just as every child has unique needs, so too is every client’s case unique. By providing you with a comprehensive and professional analysis and assessment of your child’s educational records and legal rights, we can help you map out an effective and efficient strategy for your unique situation. Sometimes that’s all there is to it. In addition, we can provide valuable support and advocacy, such as participation in IEP meetings or negotiations with the District’s counsel, all with an eye toward helping you achieve your goals without litigation. Finally, in cases where litigation is necessary, we have all of the skills and experience necessary to get the job done right.

Bullying is dangerous, intolerable and illegal. If your child is being bullied, harassed or otherwise abused in school – whether by peers or adults – you need to know his/her rights so that you can make it stop immediately. Schools are required to maintain and enforce effective anti-bullying policies. In addition, there are several major federal and state laws that prohibit many common types of harassment. Whether your child is being bullied because of race, religion, disability, gender, sex, sexual orientation, gender identity, appearance, or any other trait – or for no reason at all – the school must take immediate and effective action to make it stop. Whether you’re thinking about notifying the police, informing school administrators, contacting the parents of the bullies or filing a lawsuit, an experienced education attorney can help you determine the best course of action in your particular situation.

It is definitely not too early. Children with special needs might be qualified for important educational and related services (e.g., speech therapy, physical therapy, occupational therapy, preschool services, behavioral support, etc.) even when they are infants and toddlers. Because the early years of development are often the most critical, it is extremely important for parents to understand their children’s right to receive these services. An experienced special education attorney can help you determine whether your child is eligible for Early Intervention services and can help you advocate for an appropriate Individualized Family Service Plan (IFSP) for your 0-3 year old child, or an Individualized Education Plan (IEP) for your child who is three or older. Whether your child already has an IFSP or IEP and you not sure if it is legally adequate, or your child does not have an IFSP or IEP and you think he/she might need one, contact us. It is never too early to understand your child’s educational needs and legal rights.

Yes! Before you withdraw your child from your District and enroll him in private school you should consult with an experienced special education attorney. Failure to provide your District with proper notice of your intent to withdraw your child could prevent you from being able to obtain valuable tuition reimbursement from the District later. Costly mistakes such as this can be easily avoided with proper legal advice. The decision to send your child to private school is a big one. That’s why we strongly recommend a consultation beforehand regarding the reasons for your decisions and the legal implications, including your potential rights to recover tuition.

Trust your instincts. If you are concerned that your child is not making progress, or that she is regressing, you are probably right. But being right is, unfortunately, not enough; you need to be able to prove it. Proving that a child is not making appropriate progress usually requires input from experts such as psychologists, therapists and/or other skilled educational professionals. An experienced special education attorney can help you develop an effective strategy to determine whether the District is meeting its legal obligation to provide your child with a Free and Appropriate Public Education (FAPE). Whether by reviewing and analyzing your child’s current evaluations, or recommending that you obtain independent educational evaluations for your child, we know what it takes to help you prove your case.

A lot! An IEP is an Individualized Education Program that affords qualified students with a wide array of services and legal protections under the federal Individuals with Disabilities in Education Act (IDEA) and Pennsylvania’s state special education regulations (“Chapter 14”). A 504 Plan is also a service agreement between the child and the District, but the laws that govern these plans (the federal Rehabilitation Act of 1973 and Chapter 15 of Pennsylvania’s state education code) do not provide nearly the same level of services and legal protections for students and parents as those that govern IEPs. Unfortunately, as a result of these important differences, we have found that Districts all too often attempt to use 504 Plans in place of IEPs (a sort of “IEP Lite”) in order to avoid the more comprehensive obligations that come with servicing an IEP. If your child has a 504 Plan but not an IEP, there is a good chance that he is entitled to more services and protections than he is currently getting. Although eligibility for a 504 Plan does not automatically trigger eligibility for an IEP, it is what we call a “major red flag” that a child is not receiving the full range of services and protections to which he is entitled by law.

Yes. If your child has an Individualized Education Program (IEP), the District must reevaluate your child at least once every three years, and you can request a reevaluation up to once every year. If your child does not have an Individualized Education Program (IEP), you can request that the District evaluate him/her in all areas of suspected disability to determine whether he/she is eligible for special education and related services. Once you make the request and provide the requisite consent, the District must complete the evaluation within 60 days (in Pennsylvania; in New Jersey it’s 90 days). NOTE: The 60 days (or 90 in NJ) does NOT include summer vacation, so timing is everything! An experienced special education attorney can help you determine whether your child is entitled to an evaluation or reevaluation and can advise you on the best way to make that evaluation happen in a timely manner. In addition, you will need to understand your child’s right to an Independent Educational Evaluation (IEE) at the District’s expense. Before requesting District funding for an independent evaluation, we strongly recommend that you come in for a legal check up. Failure to understand the rules and regulations governing this request can result in costly and unnecessary litigation, as Districts often respond to such requests by filing Complaints for Due Process against parents. Proper evaluations, whether by the District or by independent evaluators, are absolutely essential for all children with special needs. Let us guide you through this important process.

Yes. As we often tell our clients, beware any time the District uses words like “never” or “always” in the context of special education. The “I” in IEP mean “Individualized.” That means the District has to meet the unique needs of each child who has (or who is eligible for) an IEP. If the District is unable or unwilling to meet those individual needs in accordance with the law, it will need to pay for that child to attend another school that can (including a private school if necessary). Thus, your response to the District’s statement will depend on whether your daughter is eligible for an IEP. If she is, then the issue is whether the District can provide appropriate special education and related services for your daughter, or whether it needs to pay for her to receive those services elsewhere. If you have been told “we never,” “we can’t,” “we don’t,” “we always,” or “we only,” it’s probably a good time for you to speak with an experienced special education attorney. After reviewing and analyzing your child’s educational records and meeting with you to discuss your child’s unique situation, we will be able to help you respond effectively to these very common “red flags.”

It depends. As a general rule, it is unlawful to punish students in school for behaviors that are the result of a disability. Because schools have a duty to maintain safety and order, however, there are some limited exceptions to this rule. Certain measures, such as the use of restraints, seclusion or corporal punishments, are never lawful if used as punishment. In Pennsylvania, the use of “prone restraint” is never lawful, no matter the reason it is used. At the same time, other forms of “discipline,” such as positive behavioral supports, might be perfectly lawful, or even legally required, depending on the facts and circumstances. Students with special needs are at much higher risk than their typically developing peers of receiving inappropriate or even dangerous discipline in school. An experienced special education attorney can help you determine whether your child has been subjected to unlawful discipline in school and can help you ensure that it never happens again. Whether your child has been expelled, suspended, restrained, secluded or subjected to harmful or degrading punishment, we can help.

Not necessarily. For one thing, the District already has legal counsel, so when you hire a special education attorney you are simply leveling the playing field. Sometimes we work behind the scenes and advise parents without ever dealing directly with the District. In those cases, the District might never need to know that you have hired counsel. In cases where we deal directly with the District we are always mindful that our clients have important relationships with the teachers, therapists and other professionals in the District. We work very hard to advocate for our clients without burning any bridges. You might be surprised to learn that Districts sometimes even appreciate it when parents hire an attorney who is experienced in this field. While this certainly isn’t always the case, we find it happens more frequently than one might expect, especially in cases where the parents and the District have reached a frustrating impasse. A good attorney can often help break the logjam and clear the way for an amicable resolution to even the most difficult problems.

The federal Individuals With Disabilities in Education Act (IDEA) defines Extended School Year services as “special education and related services that are provided to a child with a disability beyond the normal school year . . . in accordance with the child’s Individualized Educational Plan (IEP), and at no cost to the parents[.]” 34 CFR 300.309(b). Simply put, if you child has an IEP, her IEP team must determine each year whether she needs to continue receiving services from the school beyond the typical 180 day school year.

A common myth about ESY is that it only applies to summer vacation. This is false. Some children with special needs require services before or after the regular school day, or over other school vacations. Remember, the I in IEP is Individualized. This means that schools cannot impose “blanket” limits on the types of ESY services they provide, such as “only over the summer” or “never before school.” Another common myth is that all children with IEPs are legally entitled to ESY services. This is also false. Again, eligibility depends on the special needs of the individual student.

To read more about ESY, go to this article in the Media Center.

It depends, most of our staff works at an hourly rate, We charge a flat fee for an initial comprehensive case review (a “legal check up”), which includes: (1) a complete review of all of your child’s educational records (IEPs, 504s, evaluations, private testing, report cards, etc.); (2) an in-person consultation of up to two hours to discuss our analysis and legal recommendations; and (3) a reasonable number of e-mail and phone follow-up communications. If you choose to engage us to continue representing you after the initial case review, we will discuss the terms of our fee agreement with you in detail then. The total cost of an engagement varies widely and depends largely on the complexity of the case and whether there is a due process hearing. We also take some cases on a contingency or partial contingency basis which can mean no cost or very little cost to families. We will be in a better position to estimate the cost of your particular engagement after we complete our initial case review.

We can help. We recognize that many situations can be handled very effectively by an experienced Education Consultant/Advocate, which is why we have one on our team! When you engage our firm to represent you, you are getting the best of both worlds: an experienced Advocate/Education Consultant who can provide highly effective support, and experienced attorneys who will provide critical legal support and services when needed. We have found that our clients appreciate the flexibility this team approach gives them to develop an effective, comfortable and cost-effective relationship with our firm that works for them.