Education rights and the special needs child.
A child with a disability has a federally protected right to special education and related services when he or she needs them to benefit from education. The term "disability" is not limited to physical disability but rather includes mental disability, including mental retardation, serious emotional disturbance, autism, traumatic brain injury, specific learning disabilities, and other health impairments. A parent may request that a child be evaluated by the school district for special education and related services. The law sets forth specific guidelines for the evaluation, assessment, and eligibility determination. Unique to each child, the IEP is the written plan that documents the child's special education and related services. The initial IEP is developed at a meeting among parents, various school personnel, and others whom the parents may wish to invite. Parents are an integral part of the team and are involved in all decisions by the team. The IEP must be reviewed annually, with attention given to whether educational objectives have been met. For a child with mental health issues, the IEP likely contains "related services," such as counseling, and measurable goals to improve behaviors in the school setting. When a child's condition is such that he or she cannot benefit from education in the regular school setting, other placements are considered. The school district maintains the ultimate responsibility of the cost of all such education placements, including residential care. A child with behaviors that result in frequent suspensions should have a functional analysis assessment by the school psychologist. The results of the assessment can be used to create a behavioral intervention plan. (If the school refuses to perform an assessment or develop a plan, the usual remedy of a due process hearing is available to the parents.) This plan should address problem behaviors and include strategies for redirecting the child's behavior. Even if a special education child is "expelled" from school, the district maintains the responsibility of providing FAPE. For this reason, districts--even in their own interests--should be proactive in dealing with these children, which often has not been the case. The Supreme Court has said that a child with services under IDEA (a child with an IEP) must receive some benefit from his or her education [31]. The issue of "how much benefit is enough benefit" is still troubling to parents and schools alike. The court also has ruled that related services, even costly ones such as a one-to-one nursing aide, must be provided if a qualifying child needs such services to access education [29]. Children with disabilities were long excluded from the public education system in this country. Obvious exclusion rarely occurs in the current education system, although exclusion through isolation does. Children with disabilities, especially mental disabilities, need and deserve the same educational benefit offered to children without those differences.
Dalton
Margaret A
MA
Patient Advocacy Program, Legal Clinics, University of San Diego School of Law, 5998 Alcala Park, San Diego, CA 92110, USA. mdalton@SanDiego.edu
D000293:Adolescent; D002648:Child; D002651:Child Advocacy / Q000331:legislation & jurisprudence*; D019988:Children with Disabilities / Q000193:education / Q000331:legislation & jurisprudence*; D004519:Education, Special / Q000331:legislation & jurisprudence*; D005104:Expert Testimony / Q000331:legislation & jurisprudence; D005555:Forensic Psychiatry; D006801:Humans; D014481:United States