Making Sure Special Needs Are Met

A federal law passed 50 years ago mandates that school districts provide a free, appropriate education to students with special medical, mental or psychological needs. But obtaining the rights guaranteed by the Individuals with Disabilities Education Act (IDEA) can sometimes be a challenge. 

“A school district is obligated to identify, locate, and evaluate every student who they suspect has a disability,” says Marion Walsh, a schools and education attorney at Littman Krooks in Rye Brook. “However, many school district evaluations are not sufficiently thorough.” 

And if a parent disagrees with the school’s findings? Attorneys recommend getting an independent evaluation. “Very early on, you should have private providers weighing in to make sure that there’s a highly qualified and unbiased look at what’s going on with the child and what the child’s potential really is,” says White Plains schools and education attorney Gina DeCrescenzo.

For students found eligible, the school district collaborates with the parents and student to provide an Individualized Education Program. “The IEP has to provide appropriate placement and services,” Walsh explains. “The legal standard is, it has to be reasonably calculated for educational benefit based on the student’s unique needs and circumstances.”

Adds schools and education attorney Anthoula Vasiliou, at Gutman Vasiliou, “There really is a lot that kids are entitled to that parents may not be familiar with.

“For a student with dyslexia, their IEP might require assistive technology, such as text-to-speech tools, or extended time on tests,” Vasiliou says. “A student with autism might require applied behavior analysis therapy on their IEP if it’s essential to their progress, or parent counseling and training to assist parents in understanding their child’s needs. 

“If a student struggles with behaviors that interfere with their learning, the IEP could include a behavior intervention plan, which should have specific guidelines for how often the school staff will track data on the frequency, duration and intensity of the targeted behaviors.”

Sometimes the school a student would normally attend can’t meet their needs. In this case, says DeCrescenzo, “We’re going to see if any other local schools can, either in neighboring districts, public school districts, or in state-approved schools. And if there’s no appropriate approved option out there, that entitles the parent to place the child in a private school and sue the district for tuition reimbursement.”

However, Walsh notes that a public school with the right program may actually be the best option. “The public school may  be less restrictive, students may have access to typical peers, and may have more services.”

Another option throughout New York City’s boroughs are separate classes and schools for severely disabled kids, though many parents prefer to keep their children in schools where not everyone is disabled.

“If [parents] have not had a challenge or a disagreement with their district, they’re probably not fighting hard enough.” —Gina DeCrescenzo

Under-resourced school districts may push back against providing and paying for at least some of the asks, especially if private school is among them. That may be time to seek legal help, Vasiliou notes. 

“Schools might be dismissive of parents’ requests,” she says. “A parent might feel like they hit a dead end, and they don’t know what to do. Or they might agree to some services from the school district that actually aren’t enough to remedy the issue.” 

DeCrescenzo goes so far as to say, “In my view, if they have not had a challenge or a disagreement with their district, they’re probably not fighting hard enough. They’re probably not asking for everything that the child is entitled to.” 

She offers an example: “The district may say, ‘We never offer kids speech five times a week,’ but if that is what it will take to allow a particular child to make progress, that is what they are entitled to.” 

The process of defining and meeting a student’s needs is complicated, and often requires vigorous advocacy and litigation, Walsh says—but the payoff is worth the effort. “Once there’s an appropriate IEP in the right placement, students can make progress and achieve their goals.” 

Vasiliou warns parents, however, to keep paying attention: “You might be going to parent-teacher conferences and hearing, ‘Your child’s doing great! They’re making progress in X, Y, Z. But I always tell parents to not just accept the narrative explanation of, ‘This is what I’m seeing in class,’ but to get some data to base that on. Schools should be using various testing measures and assessments throughout the year.”

“Every area of special education has so many disputes and pitfalls,” says Walsh. “The process can get adversarial very quickly. School districts and parents have a very different lens in viewing the child’s progress. If possible, as an attorney I try to work with school districts to reach settlements and compromises. That’s generally the goal, because both sides can spend substantial resources arguing or litigating the cases. And it’s better to use those resources for the student and other programs.” 

How to Get Help

• Join the nonprofit Council of Parent Attorneys and Advocates (copaa.org)—DeCrescenzo says, “If I had a parent who was really new to the system and to the acronyms and to the labyrinth that is the system, I would undoubtedly turn them on to this amazing resource.” 
• Communicate with the school and the district—Walsh says, “We always advise parents to be cooperative, but in a very careful way so that you document everything; you write in a professional manner.”
• Find an affordable attorney—Vasiliou says, “In New York City, a lot of nonprofit legal organizations have special education units. There are also a lot of private attorneys who rely on the ‘fee shifting provision’ of the IDEA. If a parent prevails at the hearing, they can have the school district pay for the attorney’s fees.”