Being a parent of a child with a developmental disability or other special needs can be challenging without additional obstacles. But when an educational facility or other institution fails to live up to their obligation under the law, you need a place to go to get the support you need. Attorney Stuart M. Nachbar uses the legal system to defend the rights of children with special needs. If your child has a developmental or emotional challenge, Law Office of Stuart M. Nachbar can ensure that they have every advantage that they're entitled to under the law.
On May 17, 1954, the United States Supreme Court decided the landmark case of Brown v Board of Education. In that case, the Court determined that segregated schools were inherently unequal and deprived students of equal treatment under the law. This was the true beginning of a revolution in the field of Education Law. This was because the Court stated that the segregation of children of similar age and qualifications causes feeling of inferiority in their social status and community. This led to families with children with disabilities filing suit against their individual school districts for segregating their children based on the children's disability.
Since that time (fifty-eight years ago), our government has implemented the Elementary and Secondary Education Act of 1965, Public Law 94-142 (Education for all Handicapped Children Act of 1975), the No Child Left Behind Act of 2001 and the Individuals with Disabilities Education Improvement Act of 2004. Each of these pieces of legislation have helped to create the system that allows all children to have a fair, equal and significant chance at a proper and appropriate education.
Children with developmental disabilities are usually entitled to receive additional services or accommodations through the public schools. Federal law mandates that every child receive a free and appropriate education in the least restrictive environment possible. To support their ability to learn in school, three Federal laws apply specifically to children with special needs :
- The Individuals with Disabilities Education Ace (IDEA) (1975)
- Section 504 of the Rehabilitation Act of 1973
- The Americans with Disabilities Act (ADA) (1990)
Different states have different criteria for eligibility, services available, and procedures for implementing these laws. It is important for parents to be aware of these laws and related regulations in their particular area.
IDEA is a federal law (1975), amended by the Office of Special Education Programs (1997) that governs all special education services for children in the United States with special needs. Under IDEA, in order for a child to be eligible for special education, they must be in one of the following special needs categories:
- serious emotional disturbance, learning disabilities, mental retardation
- traumatic brain injury, autism, vision, and hearing impairments
- physical disabilities, or other health impairments
Section 504 is a civil rights statute (1973) that requires that schools not to discriminate against children with disabilities and provide them with reasonable accommodations. It covers all programs or activities, whether public or private, that receive any federal financial assistance. Reasonable accommodations include untimed tests, sitting in front of the class, modified homework and the provision of necessary services. Typically, children covered under Section 504 either have less severe developmental disabilities than those covered under IDEA or have disabilities that do not fit within the eligibility categories of IDEA. Under Section 504, any person who has an impairment that substantially limits a major life activity is considered disabled. Learning and social development are included under the list of major life activities.
The ADA (1990) requires all educational institutions, other than those operated by religious organizations, to meet the needs of children with psychiatric disorders. The ADA prohibits the denial of educational services, programs or activities to students with disabilities and prohibits discrimination against all such students.
As a parent, you may request an evaluation of your child to determine his or her needs for special education and/or related services. The evaluation may include psychological and educational testing, a speech and language evaluation, occupational therapy assessment and a behavioral analysis. These are the steps you need to take:
- Meet with your child's teacher to share your concerns and request an evaluation by the school's child study team. Parents can also request independent professional evaluations.
- Submit your requests in writing for evaluations and services. Always date your requests and keep a copy for your records.
- Keep careful records, including observations reported by your child's teachers and any communications (notes, reports, letters, etc.) between home and school.
The results of the evaluation determine your child's eligibility to receive a range of services under the applicable law. Following the evaluation, if the child is eligible, an Individualized Education Program (IEP) is developed. Examples of categories of services in IEPs include: Occupational Therapy, Physical Therapy, Speech and Language Therapy, and/or the provision of a classroom aide.
Parents do not determine whether their child is eligible under the law, however, parents are entitled to participate in the development of the IEP. Additionally, the findings of the school's evaluation team are not final. You have the right to appeal their conclusions and determination. The school is required to provide you with information about how to make an appeal.
Children with special needs are entitled rights to services in school under federal and state laws. Parents should always advocate for their child and must be proactive and take necessary steps to make sure their child receives appropriate services.
If the school district refuses services under the IDEA or Section 504 or both, you may choose to challenge this decision through a due process hearing (a legal hearing in which you and your child have an advocate who can help express your views and concerns.)
It may also be necessary to retain your own attorney if you decide to appeal a school’s decision. Contact Stuart M. Nachbar, Esq. today!
We serve clients in Livingston, West Orange, Newark, Belleville, Clifton, Irvington, East Orange, Paterson, Passaic, and Verona.