By Felicia Lebewohl Rosen, Esq., Ed.M. (Edited by Marion M. Walsh, Esq., Littman Krooks LLP)
Take a deep breath … It can be emotionally difficult to accept and deal with the fact that your child has a disability. If you want your child with a disability to receive appropriate services to make his or her life (and yours) easier and more productive, you should acknowledge the possibility and consider seeking services. First, you need a good diagnosis, to which interventions can be geared. This diagnosis can occur at any point during a child’s development, most commonly during infancy or early childhood. However, some parents only realize that their child has a disability in adolescence, when work and social demands become more difficult. If your doctor or psychologist makes a diagnosis, keep in mind that you need to share this information with your school district or preschool and determine whether your child is eligible for services.
The Law Protects Students with Disabilities and Requires Evaluations and Services
The Individuals with Disabilities Education Improvement Act of 2004 (“IDEA”), protects children with disabilities ages birth to 21 or until a student graduates with a regular high school diploma. The IDEA requires each state and school district to identify and evaluate all children who need special education and/or related services. Related services include physical, occupational and speech and language therapy and more depending on need.
Early Intervention (EI) is a system of services, free of charge to parents, that help children with disabilities or at risk for a disability, ages birth – 3 years old, and their families. For a child to receive EI services pediatricians, other service providers and parents may refer a child for EI. The Center for Disease Control and Prevention recommends that children be screened for developmental delays and disabilities during regular well-child doctor visits at 9, 18 and 24 or 30 months and additional screening may be warranted if a child is at high risk.
Once your child is school age and you suspect a disability or receive a diagnosis, parents may contact their school district and request that their child be evaluated for eligibility for special education and related services. School districts are responsible to provide educational and related services, free of charge to parents, for children with disabilities ages 3 – 21 or until a student receives a high school diploma. The law requires that school districts receive informed consent from parents before the child is evaluated by the school district to determine if the child has a disability under the IDEA. The individual evaluation must include a variety of assessment tools and strategies. A school district must conduct the evaluation within 60 days from the date that the parent consents to testing. At a minimum, an evaluation must include: a psychological evaluation, a classroom evaluation, a social history, a physical examination and other appropriate assessments or evaluations.
An evaluation is intended to address the following three questions:
- Does the child have a disability that requires special education and related services?
- What are the child’s specific needs? and
- What special education and related services are appropriate for addressing those needs?
If parents disagree with the school district’s evaluations, they have a right to an Independent Educational Evaluation (IEE) and request that the school system pay for the IEE. A diagnosis from a doctor or psychologist of a disability does not guarantee that a child will be eligible for special education or related services. The law requires that the disability impacts the child academically.
In New York, a Committee on Special Education (CSE) for students in grades K-12, and a Committee on Preschool Special Education (CPSE) for students ages 3-5, are multi-disciplinary teams that include, at the very minimum, the parent, a general and special educator, a school psychologist or another professional who is qualified to interpret evaluations, and a district representative. The CSE and CPSE will convene to review the evaluations and determine if the child is a “student with a disability”, as defined by the IDEA. If the parents do not agree with the evaluation decision, they may ask for an impartial hearing to challenge the decision. Some neurological conditions, such as Autism Spectrum Disorder (ASD), Attention Deficit Hyperactivity Disorder/Attention Deficit Disorder (ADHD/ADD) and a Learning Disabilities (LD) are often difficult to diagnose because there is no medical test, like a blood test or an MRI, to diagnose these disorders. Further, many other conditions have symptoms that are similar to those of ADHD/ADD and there is a great deal of comorbidity with other conditions. For example, anxiety can mask as ADHD.
At the CPSE and CSE meetings, if a child is deemed eligible, the team will draft an Individualized Education Program (IEP). The IEP is a legal document which discusses the child’s strengths and areas of need. It specifies the special education and related services that the child will receive free of charge to the parents. If the parents disagree with the IEP or the placement recommended by the CSE, the parent may request a Due Process Hearing. In some cases, filing a complaint with the New York State Education Department may be appropriate. Parents may proceed pro se (without a lawyer) or be represented by counsel.
Personal Advice on Keeping it all in Perspective
If your child has a disability, try not to waste your emotional energy on self-blame. Disorders such as autism, ADHD, and emotional and learning disabilities can be disorders in certain regions in the brain. They are not caused by bad parenting, chaotic home environments, ineffective teachers, too much sugar in the child’s diet or the child himself. Your child is still the same child you had before the diagnosis. Love, play, engage, have fun, enjoy, hug and laugh with your child. If your child is an adolescent, give your child support along with the space he or she needs to grow at their own pace.
Take care of yourself or you will not be able to take care of your child. We are all familiar with the stewardess’ message on airplanes to put your oxygen mask on before you place one on your child. So take care of yourself so you can better take care of your child. Put on your oxygen mask by joining support groups, finding solace in supportive family and friends or religion, joining support groups, exercising and eating well and remembering to enjoy and laugh. It can be a long journey.
For more detailed information about disability laws, see www.nysed.gov/specialed.
Felicia Rosen is a legal intern with Littman Krooks LLP and is an attorney. She graduated from New England School of Law and Columbia University Teachers College.
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