© 2017 by the law office of Patricia S. Phelan

99 Main Street, Suite 221

Nyack, NY 10960

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DISCLAIMER: None of the content on this website is intended as or constitutes legal advice nor

does it indicate an intention or commitment to represent any particular child, parent or family. Decisions

to represent families are made on a case-by-case basis. NOTE: Prior results do not guarantee a similar outcome.

 

ATTORNEY ADVERTISING: This site is intended in part to educate and inform the public

of the availability of my services. As such, I am required by New York State regulation to advise that

the website is attorney advertising.

Frequently Asked Questions ~ FAQs

 

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 Mrs. Phelan’s 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, I am told all children develop differently. 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 FREE special education and other related services. Therefore, if you suspect your child has a developmental issue, it makes sense to look into whether your child needs special education services.   This process is not only FREE but is also confidential.   The proven benefits of early intervention suggest there is no downside to having your child evaluated.  However, the consequences of not exploring your child’s needs, and not intervening as early as possible to remediate these issues, can be significant.

 

Who should I contact for a free evaluation?

 

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

  • 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], you should make a written referral to the Director of Special Education of your local school district, requesting an evaluation and an IEP meeting to explore if your child is, under the law, a student with a disability entitled to special education. If so, the school district is legally and financially responsible for providing your child with a “Free and Appropriate Public Education” (=“FAPE”).

 

Is my child too young to be evaluated?

 

  There is 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.  Be mindful that depending upon your child's age, the evaluation process will differ.

 

If the County or my school district will pay for an evaluation, why would I ever need a private evaluation?

 

   A public evaluation, such as through the school district or Early Intervention, focuses on the issue of a child's eligibility for educational services through the special education system.  On the other hand, a private evaluation consists of diagnostic testing, which is often more comprehensive then a public evaluation, and frequently contains a diagnosis and recommendations on the child's behalf. A private evaluation justifying the appropriateness of a desired placement or service is often a crucial advocacy tool. 

 

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

 

   You can ask the district for an “independent educational evaluation” [IEE] at district’s expense. This is an evaluation provided at no expense to you, who is independent from the district.  Your district must respond to your written request, without undue delay, in one of two ways:  (1) They may grant your request; or (2) They must bring you to a hearing to justify their evaluations and establish you are not entitled to an IEE.  The district cannot simply deny your request for an IEE at district expense.  With the IEE, you are entitled to select the evaluator, as long as the evaluator meets the qualifications set by the district; while your school district may have a list of potential independent evaluators, from which you can, if you want, choose one, you are also free to pick an evaluator who is not on the school district’s list.  You are entitled to only one independent evaluation per district evaluation.  If the independent evaluation is at district’s expense, you are required to share the evaluation with the district.  If on the contrary you privately seek an evaluation from a professional independent from your district, at your own personal expense, you have no obligation to share the evaluation with the district.   

 

What type of professional should I seek to evaluate my child?

 

    There are many types of evaluations you can obtain on your child’s behalf.  Who should conduct the evaluation depends on what you hope to gain from it.  There is no “right” or “wrong” professional to consult.  It depends upon what you are looking to get out of the evaluation.  In addition to evaluations by speech/language pathologists, physical and occupational therapists, reading specialists, vision specialists, audiologists, behaviorists, etc., there are four types of professionals to be familiar with prior to selecting one to perform a “comprehensive evaluation”:

 

Neurologist:

 

  • A medical doctor who specializes in diseases of the nervous system

  • Pediatricians often recommend Neurologists as the “first stop” on the evaluation trail

  • Will give a diagnosis, if appropriate to do so

  • Subjective evaluation – usually involves a brief medical exam, brief observations of the child, and interview with parents; usually does not include any psychological or other standardized tests unless the neurologist is working in conjunction with another professional such as a psychologist

  • Might order additional medical tests (MRIs and EEGs) to rule out certain neurological conditions (i.e. seizures)

  • Report tends to be shorter - - usually contains diagnosis and brief outline of educational plan with methodology and suggested hours of therapy; usually does not contain many substantive suggestions or much of a description of the evaluation process itself

  • Try to look for neurologist who specializes in the disability of concern (i.e. Autism, ADHD, etc.)

  • Limited value of evaluation/report due to absence of standardized testing

 

Developmental Pediatrician:

 

  • A medical doctor with specialized training in developmental and behavioral problems of children/adolescents

  • Will give a diagnosis, if appropriate to do so

  • Subjective evaluation – usually involves a brief medical exam, limited observations of the child, and information provided 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

  • Similar disadvantages to a neurologist, unless works in conjunction with others who do standardized testing, in which case a developmental pediatrician can be a wonderful addition to the evaluation team

 

Psychologist:

 

  • Has a Doctorate in Psychology

  • Is not a medical doctor so cannot prescribe medicine

  • Conducts objective, psychological evaluations through standardized tests

  • Often provides therapeutic services in addition to evaluation services

  • Report explains the tests conducted and the results arrived at

  • Report usually includes specific recommendations of student’s needs, including type of class, related services, modifications and accommodations, methodology, frequency /duration/ groups size of services, etc.

  • Reports tend to be longer than those where the student did not participate in standardized testing

 

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

  • Report tends to be even more comprehensive than a psychologist’s report; will provide a diagnosis and strategies to address concerns

  • Report usually includes specific recommendations of student’s needs, including type of class, related services, modifications and accommodations, methodology, frequency /duration/ groups size of services, etc.

  • Can be particularly instrumental if child has difficulty in cognitive functioning

  • If affordable, or obtainable through an IEE, my first choice to perform a comprehensive evaluation would usually be a qualified neuropsychologist

 

What is an IFSP?

 

 An “Individualized Family Service Plan” or “IFSP” 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 young 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 child’s evaluators and of course, the parent(s).

 

What is an IEP?

 

An “Individualized Education Program” or “IEP” is a roadmap guiding your child’s special education. It explains how your child is performing presently, academically, socially & emotionally, physically (including OT, PT and Sensory) and it addresses your child’s management needs.  An IEP documents what services, including but not limited to type of class placement, special education services, related services, modifications and accommodations, the district is legally required to provide your child.  Further it outlines the annual goals your child will work on for the school year.  The district is legally responsible to comply with the IEP.

 

What is an IESP?

 

An “Individualized Education Service Plan” or “IESP” is a Plan similar to an IEP.  However, an IESP is developed for a student who is parentally placed at a non-public school, by the district where the private school is located. The district of location of the private school, as opposed to the district of the student’s residence, becomes responsible to provide for the student’s special education needs.

 

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 in which the child resides.  The IEP team includes district employees, teachers and you — the parents.  The team can also include a parent member, and people who know your child.

During the meeting the team makes recommendations about special education services for the child, which are then memorialized on the IEP.

If the child is over 3 but less than 5, the IEP meeting in NY is run by the CPSE (“Committee on Preschool Special Education”).   If the child is 5 years of age and older, the IEP meeting in NY is run by the CSE (“Committee on Special Education”) or, in certain districts, a subcommittee of the CSE.  Under the law, the parent is entitled to attend and meaningfully participate in all 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 your child needs. If possible, you want to have documentation/data from professionals to support your child’s needs. It is also necessary to have your child’s records organized (i.e. in date order in a binder) and be familiar with their contents.

To help you prepare for your child’s meeting, download and fill out the Strengths and Weaknesses Chart, the Meeting Agenda, 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?

See form

 

Who should be at my child’s CSE Meeting?

See Form.

 

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

See Form.

 

What is the IDEA?

 

The Individuals with Disabilities Education Act of 2004.

 This is the Federal law guiding special education. The IDEA ensures students a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment and independent living.  The IDEA also strengthens the role of parents to afford them meaningful participation in their child’s education. Finally, the IDEA entitles a student 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 case law.

 

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. Factors that impact the restrictiveness of a placement include:  Distance From Home School; size of class; whether access to any typically developing students; residential v. day program; public v. private; NYS approved (not same as approved by other state).

Although parents not held to as strict a LRE as SD, recent cases support parents are held to some LRE requirement when selecting a school for their child.

 

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, I will explore all of these possibilities.

 

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

 

The State of NY has 13 different "Classifications:"

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.    Intellectual Disability

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?

 

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.

 

Section 504 defines “disability” in broader terms than the IDEA does. Therefore, if students are not eligible for an IEP, they still may qualify for a 504 plan.  If a student has an IEP, there is no need for them to have a 504 plan. Section 504 defines a person with a disability as someone who:

  • Has a physical or mental impairment that “substantially” limits one or more major life activity (such as reading, listening, writing, breathing, etc.).

  • Has a record of the impairment.

  • Is regarded as having an impairment, or a significant difficulty that isn’t temporary.

Having a disability does not automatically make a student eligible for a 504 plan. As with an IEP, the school district must first evaluate the student in order to decide if his/her disability “substantially” limits his ability to learn and participate in the general education classroom.

Either the parent or school district may initiate the evaluation. If the school initiates the evaluation, it must notify the parents and get the parents’ consent to evaluate a child for a 504 plan. If the school wants to move ahead without the parents’ consent, it must first request a due process hearing to get permission to work around the parents’ refusal.  When doing an evaluation for a 504 plan, the school considers information from several sources.

 

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 memorialize your disagreement at the meeting (ask that your concerns/disagreement be made a part of the IEP's summary/minutes), and consider writing a letter to the district after the meeting documenting your concerns. 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 in the Resources section of this site.  You should contact the law office of Patricia S. Phelan for an initial consultation, during which I will provide you with a greater understanding of your rights and options under the law.  

 

When should I consult with or perhaps hire a special education attorney to help advocate for my child's special education needs?

 

  • To help you navigate the special education system

  • To help you collaborate with your district and/or county to identify/obtain an appropriate educational program for your child

  • To understand and weigh/analyze your child's educational options

  • To determine if district is providing your child FAPE in his/her LRE

  • To help you gain additional evidence to support your child's needs, i.e. quality evals, letters from doctors, creative student input, etc.

  • To accompany you to your child's IEP meeting, take notes, help set the tone, keep track of the Agenda/what needs to be covered during the meeting, and to remain non-emotional/in control to leave opportunity for you to become emotional

  • To accompany you to your child's IEP meeting, take notes, help set the tone, keep track of Agenda/what needs to be covered during the meeting, and to remain unemotional /in control to leave opportunity for you the parent to become emotional

  • To determine "next steps" if you disagree with recommendations made at the IEP meeting

  • If you are considering mediation or a due process hearing

  • IF YOU ASKED YOURSELF, "Should I hire a special education attorney?"

 

Shall I hire an Advocate or an Attorney?  What is the difference?

 

ATTORNEY

  • Is a lawyer

  • Graduated from law school, has a law degree, and passed at least one state’s bar exam

  • Has had formal training in a variety of legal subject matters

  • Has had formal training in trial practice and procedure, and often in negotiating strategies

  • In many states, including NY, lawyers are required to keep current on the law through continuing legal education/professional development requierments

  • 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, strategic decision to make

 

ADVOCATE

  • Is not a lawyer

  • Is not required to have any formal legal training

  • Has not graduated from law school and does not have a law degree

  • 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 as an Advocate at an impartial due process hearing

  • Tend to have lower fees than an attorney

  • Is NOT the same as a “Parent Member” on the CSE or CPSE

 

What will happen during an initial consultation?

 

I will review some of your child’s educational records in advance of the consultation.  I will meet with you for approximately 1 hour (or longer, if you prefer, under certain circumstances).  During this time, you and I will speak face-to-face about your current concerns regarding your child’s special education needs. We will discuss how we can work together to address your concerns, identify and weigh your/your child's legal options, and take steps to advocate for a Free and Appropriate Public Education (FAPE) for your child.

 

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? Will this effect my other children in the 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 you advocate for your child, make sure you hire a person who has the approach and style with which you are comfortable.  Contact the law office of Patricia S. Phelan for help in advocating on your child’s behalf.