Navigating the educational process can be difficult for any parent,* but it can be doubly so for parents of students with disabilities.
However, it’s important to be aware that you and your child have legal rights throughout this process, and knowing these rights will make you a better advocate for your child.
Child Find
Each school district in Florida has a duty to identify, locate and evaluate all children with disabilities in their district who need special education. This is called Child Find. This includes children who are too young to attend school (birth to 3 years old), those who are homeless, and those who are hospitalized or in a nursing home.
As a parent, if at any time you believe your child may have a developmental delay or disability, you can reach out to Florida’s Child Find network, called Florida Diagnostic & Learning Resources System (FDLRS), and they can assist in screening your child for delays.
If your child is school age, you should send the school a formal request, in writing, to have your child evaluated for a disability. In all cases where a school district has reason to believe a child has a disability, within 30 days it must ask the parent(s) for consent to evaluate the child for a possible disability. Once the parent(s) consents, the school district then has 60 days (minus school holidays and breaks) to conduct the evaluations.
What comes next?
Once evaluated, the school district will set up a meeting to discuss whether your child has a disability, and, if so, whether they need special education services or other accommodations.
An IEP team, which includes you, teachers, evaluators and a district representative, will ultimately make the determination as to whether your child has a disability and what the related educational needs might be.
If your child is determined to have one or more disabilities as defined by the Individuals with Disabilities Education Act (IDEA), and they need special education or other services, then an individualized education plan (IEP) will be created.
An IEP must be developed within 30 days of a determination of eligibility. An IEP is a legally binding contract that the school district must follow. It will include:
- Specialized instruction to focus on academic weak spots. For instance, a student who struggles in reading may receive small group or individualized instruction in reading in addition to the general education curriculum;
- Services that help improve the effects of the disability, like language or occupational therapy;
- Accommodations, which are supports or changes the school can provide to your child to help them access their education. For instance, accommodations can include more time on tests or using headphones in a loud lunchroom; and
- Measurable and reasonably ambitious goals to assist the student in making educational progress.
The most important thing about an IEP is that it is unique to the child. As the parent, you likely know your child best, so your advocacy is essential during an IEP meeting. In addition to the required annual IEP meetings, you have the right to request an IEP meeting if you have concerns about the IEP or its implementation. You also have the right to receive written notice of all IEP meetings at least 10 days ahead of time. This notice must include the purpose, time and location of the meeting, and who will attend. You can invite anyone to the meeting who has knowledge or special expertise of the child, including private service providers.
For all IEP meetings, the district has a duty to send someone to the meeting that can make decisions on behalf of the school district.
Your student must be re-evaluated every three years, unless you and the district agree that it is unnecessary. If re-evaluations are completed, an IEP meeting must be held to review the results. The IEP will end at graduation or age 21.
If eligibility isn’t met
If it is determined that your child does not meet eligibility for an IEP (which can occur if the child does not have a disability as defined by IDEA, or if the child does not need specialized instruction or services), they may qualify for accommodations under a different federal statute. Section 504 of the Rehabilitation Act (504) has a broader definition of disability. You child may qualify for a 504 plan if they have a physical or mental impairment that substantially limits one or more life activities.
In determining eligibility, the district cannot consider any mitigating measures, like medication or hearing aids that may be available to the child that assist in limiting the significance of the impairment. However, it can be considered when determining what accommodations are needed.
Accommodations must be designed to keep children with disabilities from being excluded from school activities that are available to their non-disabled peers. This includes access to field trips, physical education, after-school activities funded by the district, graduation ceremonies and more. Also, 504 accommodations can be provided in college.
If your child has an IEP or 504 plan, the school district is required to provide a free and appropriate education (FAPE) to them. This means that any special instruction, services and accommodations have to be provided free of charge.
The school district cannot require a parent to use their insurance or pay out of pocket for these services. An appropriate education under IDEA means that the student has an IEP that allows them to make meaningful progress. An appropriate education under 504 means that the child is receiving an education comparable to their non-disabled peers.
Added protections
If your child has a disability or is suspected of having a disability, there are added protections from certain disciplinary action. If your child has been suspended for more than 10 days in the school year, then a manifestation meeting must occur within 10 school days. This meeting is to determine if the behavior was the manifestation of the child’s disability or a result of the district’s failure to implement the IEP.
If the answer to either of these questions is yes, then the student may not be removed from the educational placement unless: the student carried or possessed a weapon at school or a school function, the student knowingly possessed or used illegal drugs at school or a school function, or the student inflicted serious bodily injury on another person while at school or a school function.
If the district has violated IDEA, you have the right to file a due process complaint or a state complaint with the Florida Department of Education. If the district has violated 504, you have the right to file a complaint with the U.S. Department of Education’s Office of Civil Rights. There are time limitations for each complaint process, and so it’s very important to file as soon as possible if you intend to log a complaint.
If a student has a disability but does not need any special education, services or accommodations, they will not qualify for either an IEP or 504 plan. The school district may still provide interventions to assist your child, but it would not be through the IEP or 504 process, and you would not receive the protections these statutes provide.
Your rights
Federal and state protections for students with disabilities are broad but complicated. It’s important to go into any school meeting with an understanding of your rights and the district’s duties.
For more information on these topics, please review the Florida Department of Education’s website on Exceptional Student Education.
Learn more from Community Legal Services of Mid-Florida.
* “Parent” includes natural, adoptive, or foster parent, legal guardians, the primary caregiver of a child, or a surrogate parent.