FREQUENTLY ASKED QUESTIONS…

Please Note:  The information provided on this web site is solely for educational purposes. It is not intended to serve as legal advice nor is it intended to create an attorney/client relationship.   Please contact The Law Office of Patricia S. Phelan if you would like to retain our legal services and receive legal advice regarding your child’s and your special education rights under the law.

I am concerned about my child’s development.   But, all children develop differently, right?  How do I know if my child needs to be evaluated?

Under state and federal law, you can get a FREE evaluation to determine if your child qualifies for special education, speech, physical therapy, occupational therapy and other related services.

Therefore, if you even suspect your child has a developmental problem, it makes sense to look into whether your child needs services.   This process is confidential and free.   There is no real downside.  However, the consequences of not exploring your child’s needs, and not intervening as early as possible to remediate these issues, can be significant.

Is my child too young to be evaluated?

There is really no such thing as “too young” for an evaluation.   In fact, research has shown that the earlier we intervene with a child’s developmental concerns, the better success we have to help the child.  Of course, depending upon your child’s age, the evaluation process will differ.

I think my child may be “Gifted.” Does that mean she does not need to be evaluated?

 Not necessarily.  A number of children with a gifted level IQ also have a disability.   For example, often children diagnosed with Asperger’s Syndrome also have a gifted level IQ.  In addition, it is estimated that as many as 20% of the gifted population also have learning difficulties.  These children are known as “twice exceptional.”  

 Finally, regardless of whether your gifted child ultimately qualifies for special education services, children who have a gifted level IQ often need individual or specialized attention.  They have their own unique set of challenges, which parents and teachers must keep in mind in order to assure the “gifted” child’s academic needs are being met.   An evaluation will help you and your child's school understand your child's strengths and needs.

Who should I contact for a free evaluation?

• If your child is 0-3 years old, contact EARLY INTERVENTION (“EI” -- through the County Department of Health), or the equivalent in your State.

• If your child is over 3 but less than 5 years old, make a referral for an evaluation to your local school district. In NY, your school district is legally responsible for providing the evaluation/services for this age group; however the County is fiscally responsible for doing so.

• Finally, if your child is “school aged” [5 and older], make a referral to your local school district for an evaluation. The school district  is legally and financially responsible for providing your child with a “Free and Appropriate Public Education” (=“FAPE”), which includes special education and related services, if appropriate.

If the County or my school district will pay for an evaluation, do I also need a private evaluation?

 This depends.  A school district’s evaluation or the Health Department’s evaluation through Early Intervention will give some indication of your child’s needs.  However, it will usually not contain a diagnosis, nor will they necessarily address all of your child’s needs.

 The public evaluation will understandably be tailored to what the District/State/County feel your child is entitled to, by law.   Therefore, it will give you some idea of what you are dealing with, and what direction to go to address your child’s individual needs.  However, it might not be as extensive as a private evaluation.

Also, while the public evaluation might be complete and accurate, and you might agree with it in its entirety, you must be prepared for the fact that may not be the case.  One must keep in mind that these agencies come from a different perspective than you do as the parent.  Also, the public agencies have a more limited amount of resources than do many private evaluators.

 Therefore, for many reasons, one of three things might happen:

• First, you as the parent might disagree with the evaluation altogether. In this case, you want to ask for an “independent evaluation,”  at no expense to you.
• Second, you might agree with the evaluation, but disagree with the level of services the District/County is willing to recommend.  Indeed, you might legitimately and reasonably argue that the law entitles your child to more than what the District or County says your child is entitled to under the law.
• Third, you might agree that the District or County is providing appropriate services under the law. However, you may feel that this is not enough.  Indeed, what they are willing to provide to your child under the law might be less than what your child needs to develop to his or her full, maximum potential.  Therefore, while you have no legal right to this “best” education, as a parent, you might decide to supplement your child’s free services with some private services.

If either the second or third situation exists for you and your child, you might need to get a private evaluation.  This evaluation would be at your expense (possibly with the help of your medical insurance).  Whether you share the results of this evaluation with the County or your school will depend on the particular facts of your child’s case.  Please contact The Law Office of Patricia S. Phelan to help you make the best decision for your child.

What do I do if I do not agree with the evaluation by my school district?

You can ask for an “independent evaluation.” This is an evaluation provided under the law, at no expense to you.   You are entitled to select the evaluator, as long as the evaluator meets the qualifications necessary to conduct the evaluation.   Your school district will likely provide   you with a list of potential independent evaluators, from which you may, if you want, choose the evaluator.  You are also free to choose an evaluator which is not on the school district’s list, as long as they have the necessary qualifications.

 If your school district does not wish to provide you with an independent evaluation, the district must bring a due process hearing against you.  

You are only entitled to one independent evaluation per district evaluation.  You might also consider bringing your child for a private evaluation.  Keep in mind, however, that certain psychological tests cannot be repeated within a specified time. Therefore, if you are looking for testing after the school or EI has already conducted testing, you must inquire as to what the evaluation will consist of.

In order to best weigh your options, please contact The Law Office of Patricia S. Phelan.

What type of professional should evaluate my child?

 That will depend on what you hope to gain as a result of the evaluation.  Do you want a “diagnosis” for your child?   Do you want to know what type of therapy/services your child needs? Do you want to know if your child needs more services than what they otherwise might be entitled to through Early Intervention (the County) or your school district? Do you simply want to know if you are on the right track with what services you/County/school district are currently providing for your child?  

 Essentially, there are four types of professionals to go see: Neurologist; Developmental Pediatrician; Psychologist; and Neuropsychologist.

Neurologist:

• A medical doctor
• Will give a diagnosis, if appropriate
• Subjective evaluation – usually involves a brief medical exam, brief observations of the child, and information from parents; usually does not include any “psychological tests”, unless neurologist is working in conjunction with a psychologist
• Might order additional medical tests (MRIs and EEGs) to rule out certain neurological conditions
• Report tends to be short - - usually contains diagnosis and brief outline of educational plan with methodology and suggested hours of therapy; usually does not contain many substantive suggestions
• Try to look for neurologist that specializes in disability of concern (i.e. Autism, ADHD, etc.)

Developmental Pediatrician:

• A medical doctor
• Will give a diagnosis, if appropriate
• Subjective evaluation – usually involves a brief medical exam, brief observations of the child, and information from parents
• Often works in conjunction with a psychologist, speech therapist, OT, PT etc. who might administer more objective tests which would then be included in the report - - this is preferable

Psychologist:  

• Has a Doctorate in Psychology
• Is not a medical doctor
• Conducts objective psychological testing
• Report usually includes specific recommendations as to methodology, number of hours of therapy, etc.

Neuropsychologist:

• Has a Doctorate in Psychology
• Is not a medical doctor
• Has specialized training in how and why the brain does what it does looks into how different functions of the brain are related to thinking, learning, behavior and emotions.
• Uses objective tests to determine why a child is not learning as expected or why they are performing a certain way.
• Their report tends to be even more comprehensive than a psychologist’s report; will provide a diagnosis and strategies to address concerns.
• Can be particularly instrumental if child has difficulty in cognitive functioning including:

o        intellectual functioning

o        sensory and perceptual functioning

o        language comprehension and expression

o        attention

o        concentration and alertness

o        problem solving and judgment

o        flexibility of thought process

o        memory

o        rate of information processing

o        sequencing ability

o        executive functioning

o        temporal and spatial abilities

NOTE: The quality of evaluator and report varies greatly, from one professional to another.  Try to get references from other people before you see a professional.  Ask other parents, your pediatrician, schools or even your District.  If possible, try to see a sample report from a professional to get an idea of what you would be getting.  Unfortunately, these professionals tend to be quite expensive, and often are not participating providers on insurance.  You might be able to have a District pay for such an evaluation if you can justify the need for an “independent evaluation.” 

What is an IFSP?

 An “Individualized Family Service Plan”  or “IEP” is a written plan between the County and a parent of a child ages 0-3.  This Plan defines the special education programs and services to be provided to the child.

 The IFSP is made at an IFSP meeting. This usually takes place in the child’s home. Those present include a representative from the County, at least one of the evaluators and of course, the parent(s).

What is an IEP?

An “Individualized Education Program” or “IEP” is a roadmap guiding your child’s education. It explains to you and the district what special services your child will receive and outlines the goals to work on.  The district is legally responsible to give your child the services listed in the IEP.

What is an IEP Meeting?

An IEP meeting is a team meeting about a child who is over 3 years of age.  It is run by the school district.  The IEP team includes district employees, teachers and you — the parents.  The team can also include a parent member and others who know your child.

During the meeting the team makes recommendations about available special education services. These are later put into a written document – the IEP.

If the child is over 3 but less than 5, the IEP meeting in NY is known as a CPSE (“Committee on Preschool Special Education”) meeting.   If the child is 5 years of age and older, the IEP meeting in NY is known as a CSE (“Committee on Special Education”) meeting.  Under the law, the parent is entitled to attend and be an integral part of these meetings.

How do I prepare for my child’s IEP meeting?

Before the meeting, it is important to understand your child’s strengths and needs. You also want to think about what services you want to ask for on your child’s behalf. It is also necessary to have your child’s records organized in date order in a binder.

To help you prepare, download and fill out the Present Levels of Performance List, the IEP Meeting Agenda form, and the Master Document List (all are downloadable in .PDF format).

For additional help in preparing for your child’s IEP meeting, read my article, “How to Prepare for an IEP Meeting”.   Do not hesitate to contact The Law Office of Patricia S. Phelan for help reviewing and understanding your child’s records and preparing for his or her next IEP meeting. 

Who should be at my child’s CPSE Meeting?

Members of the CPSE (who must be at your meeting) consist of:

1.       Parents

2.      At least one regular education teacher (if child is in a regular education environment at all)

3.      At least one special education teacher

4.      Representative of the school district both qualified to provide or supervise special ed AND knowledgeable about general ed curriculum

5.      Person who can interpret evaluation results

6.      Additional parent member - - can waive; THIS IS NOT A PARENT ADVOCATE!

7.      Other persons with special expertise or knowledge of the child - - you can invite family, friends, and/or people who work with your child

8.      If child has been in EI, representative from the agency responsible for the preschool child

9.      Representative of the municipality of the preschool child’s residence

Who should be at my child’s CSE Meeting?

 Members of the CSE (who must be at your meeting) consist of:

a.       Parents

b.      At least one regular education teacher (if child is in a regular education environment at all)

c.       At least one special education teacher

d.      School psychologist

e.       Representative of the school district both qualified to provide or supervise special ed AND knowledgeable about general ed curriculum

f.        Person who can interpret evaluation results

g.       School physician if requested at least 72 hours before meeting

h.      Additional parent member - - can waive; THIS IS NOT A PARENT ADVOCATE!

i.        Other persons with special expertise or knowledge of the child - - you can invite family, friends, and/or people who work with your child

j.        Student (if appropriate)

What is the Subcommittee of the CSE?

The Board of Education in cities with a population larger than 125,000, can appoint Subcommittees on Special Education [“SCSE”], in addition to CSEs, to the extent it is necessary to make sure evaluations and student placements are done in a timely manner.  The Board of Education or trustees in any other city can also appoint SCSEs where it is necessary to help the Board of Education.

The SCSE can do everything that a CSE can do, except when a child is being considered for initial placement in:

A special class;
A special class outside the school the child currently attends;
A school primarily serving students with disabilities; or
A school outside the student’s district

If a parent at any time makes a written request for a review of the SCSE’s recommendations, the SCSE must refer its recommendations to the CSE.

Mandatory attendance of the SCSE is slightly different than that at the CSE.  The SCSE does not require either a Parent Member or a School Physician if requested.

Who should be at a meeting of the Subcommittee of the CSE?

Members of the Subcommittee of the CSE (who must be at your meeting) consist of:

A.     parents

B.      at least one regular education teacher (if child is/may participate in regular education)

C.      at least one special education teacher

D.      representative of the school district qualified to provide or supervise special ed AND knowledgeable about general ed curriculum

E.      school psychologist

F.      person who can interpret evaluation results

G.      others with knowledge or special expertise of the child

H.     student (if appropriate)

What is the IDEA?

The Individuals with Disabilities Education Act of 2004.
  
 This is the Federal law guiding special education.  It entitles a child to an IEP which provides them with FAPE.

What does FAPE stand for?

Free and Appropriate Public Education.

Although included within the “Definitions” section of the IDEA [20 U.S.C. §1401(9)] this term is not clearly defined.  Its meaning is however interpreted in caselaw.

In an effort to interpret the meaning of FAPE, the US Supreme Court explained in the 1982 landmark Case of Rowley that a child’s program must be “individually designed to provide educational benefit.” To date, courts continue to interpret what the Supreme Court in Rowley meant in order to gain a further understanding of the meaning of FAPE.

What does LRE stand for?

 Least Restrictive Environment.

 The law ensures that, “To the maximum extent appropriate, children with disabilities…are educated with children who are not disabled, and…removal of children with disabilities from the regular educational environment occurs only when…education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.” 20 U.S.C. § 1412(a)(5)(A)

 A child should be placed in the least restrictive setting which still allows the child to learn.  His or her placement should be as close as possible to the school the child would have attended if not disabled.  The LRE for each child is therefore different.  Indeed, due to his or her disability, one child might require a more restrictive placement (such as smaller group, special class, different school) to learn.  However, the more restrictive placement might still be that individual child’s LRE.

Who is eligible for services under Early Intervention?

A child under three years old with either (1) a confirmed disability; or (2) an established developmental delay, as defined by the State, in one or more of the following areas of development: physical, cognitive, communication, social-emotional, and/or adaptive.

Who is eligible for services under the IDEA?

A child with a disability AND who by reason of the disability needs special education and related services.  According to the IDEA , each state also has the discretion to provide services under the IDEA to a child aged 3 through 9 who has developmental delays in one or more of the following areas: physical, cognitive, communication, social or emotional, or adaptive development, AND, as a result, needs special education and related services.

Even if your child is not eligible for services under the IDEA, he or she is protected under the NCLB and may be eligible for protections under Section 504.  When you contact The Law Office of Patricia S. Phelan, we will explore all of these possibilities.

What types of Disabilities qualify a child for services under the IDEA?

1.  Autism
2.  Deafness [NY law; not Federal law]
3. Deaf-blindness [NY law; not Federal law]
4.  Emotional disturbance
5. Hearing impairment
6.  Learning disability (includes dyslexia; does not include solely motor problems)
7. Mental retardation
8.  Multiple disabilities
9.  Orthopedic impairment
10.  Other health-impairment (includes ADD and ADHD)
11.  Speech or language impairment
12.  Traumatic brain injury
13.  Visual impairment

What is a 504 Plan?

This is a plan that can be arranged to help a student with a disability.  However, the student does not need to be receiving special education services.  This plan enables a child to receive accommodations in school but does not entitle a child to an IEP.  A 504 plan is provided through SECTION 504 of the Rehabilitation Act.  This federal law protects a student with a disability from being discriminated against or excluded when in a program which receives federal financial assistance.

What do I do if I do not agree with the recommendations made at my child’s IEP meeting?

If you do not agree with the recommendations made by the CPSE or CSE at your child’s IEP meeting, you should educate yourself on your rights under the law.  I suggest you first review some of the recommended books and websites listed for educational purposes on the Resources section of this site.  Then contact the Law Office of Patricia S. Phelan.  We can schedule an initial consultation during which we will discuss your options under the law.

When do I need to hire an attorney to help advocate for my child?

• At any point, to learn your options
• At any point, to weigh your options
• To help you work with your school district and/or County to find an
  appropriate educational program for your child
• To direct you if you disagree with the recommendations made at the IFSP, CPSE or CSE meeting
• If you feel you and your district are at an impasse and you are considering mediation and/or bringing a due precess hearing.

 Please go to Services for a description of how The Law Office of Patricia S. Phelan can help you and your child.

What are some of the differences between a lawyer and an advocate?

ATTORNEY

• Is a lawyer
• Graduated from law school and passed at least one state’s bar exam
• Has had formal training in a variety of subject matters
• Has had formal training in trial practice and procedure and often in negotiating strategies
• In many states, including NY, is required to keep education current by completing a certain number of hours of continuing professional development every two years
• May represent a client at either a Due Process hearing or in a court of law
• Representation by an attorney invokes all the protections of the attorney-client privilege
• If an attorney attends your IEP meeting, usually the school district will bring their attorney. Whether an attorney should come to your IEP meeting therefore becomes a case-specific, strategical decision to make.

ADVOCATE

• Is not a lawyer
• Is not required to have any formal legal training
• Is not required to have any formal trial practice
• Cannot represent a client in a court of law
• In some states, including NY, may be able to represent a client at an impartial due process hearing
• Fees tend to be less than an attorney
• Is NOT the same as a “Parent Member” on the CSE or CPSE

What will happen during an initial consultation?

We will meet for approximately 1½ hours.  During this time, we will review your child’s IEP, if one exists. We will also look at any evaluations conducted on your child.  We will discuss your child’s current educational program.  You will have the chance to explain your concerns, and what it is you are looking for on your child’s behalf.  You will have the opportunity to ask me questions.  We will talk about your options under the law, based upon the information I have at that point.  Finally, we will review my standard fee agreement and how I can help you obtain what you want for your child.

Because I realize that childcare is often difficult, I often conduct our first meeting in your home.  Many parents feel this is more relaxing.  It also gives me the chance to meet your child.

 Please contact The Law Office of Patricia S. Phelan for all of your special education needs.  For more information about how I can help you, please go to About Us and Services.

I do not want my school district to be mad at me. But I need to help my child. Is it bad to make waves by disagreeing with the school district?

Speaking up for your child’s rights does not have to be adversarial.  If you keep in mind the following few tips, you can be a successful advocate for your child without alienating your school district:

• Be professional at all times
• Be polite at all times
• Be as cooperative and collaborative as possible with the district
• Know what you want; be thorough, prepared and educated - - about the law and your goals for your child
• Be assertive, but not combative
• Be relentless, but not angry,
• Advocate, don’t fight

Should you seek the help of an attorney or other professional to help y0u advocate for your child, make sure you hire a person who has the approach and style with which you are comfortable.  Please contact The Law Office of Patricia S. Phelan for help in advocating on your child’s behalf.

For additional information, please visit The Law Office of Patricia S. Phelan’s blog at:  http://phelanspecialedlaw.wordpress.com/