Joseph L. Romano, Esquire

The Education For All Handicapped Children Act, Public Law 94-142, (EHA), which was later renamed the Individuals With Disabilities Act (IDEA), mandates that all states make available to handicapped children a "free appropriate public education" and extensive "due process" procedures. This federal act and the regulations of the United States Department of Education establish procedures by which handicapped children are evaluated, their classifications are determined and an appropriate program of special education and "related services" is developed and implemented. The program developed for each individual handicapped child is known as Individualized Education Program (IEP) and must be developed jointly by school officials and parents. Every state is required to follow the EHA and its regulations; therefore, the process for obtaining special education services is substantially similar in all states.

Children are not entitled to special education benefits until they are "of school age."

Children from birth to three years of age are generally eligible for early intervention services if they have a developmental delay or they have a physical or mental disability that is likely to result in developmental delay and interference with their ability to be educated. "Developmental Delay" includes delays in physical development, language and speech; cognitive, emotional and social development, or in self-help skills. Early intervention services can include occupational, physical, speech and language therapies, specialized learning instruction and psychological services. Assistance in most states is provided on a case-by-case basis. Early intervention services can be provided in a specialized facility, at a day care center, or in the child's home. Families of children with special needs should not "wait to see if a child gets better" to seek special educational services. A family should seek special education/early intervention services as soon as they, or the child's doctor, determine that the child may be in need of specialized services.

Parents' income can be evaluated in determining special education benefits.

Special education benefits and placement in an approved school, if necessary, must be provided without evaluating parental income. The educational services provided by the school district must be free to all individuals who are qualified for special education benefits.

You can't use medical assistance or private insurance funding and special education benefits as a combined resource to pay for special education.

Private insurance is not primary when there is a special education benefit. Special education benefits are primary under both state and federal law. A coordination approach to the paying of prorata shares of benefits can sometimes be accomplished. It takes special crafting by an experienced "team"— attorney, advocate, school district personnel and mental health/mental retardation agency — to put together a package of funding where each funding source pays a percentage of the APS. This is called "blending coverage."

A parent has no recourse if a school district does not comply with all the provisions of the individualized Educational Program (IEP).

An IEP is legally enforceable contract between the school district and the parents. As such, families can force the school district to comply with all provisions of the IEP.

A family is only entitled to change an IEP once a year or at the beginning or the end of each school year.

A family can request a new or modified IEP at any time, so long as they have medical documentation to support alteration or changes in the IEP.

School districts do not have to pay for computers and other assistive technology devices and services.

School districts must pay for "related services." "Related services" are defined as those special education services that are required to assist a handicapped child to benefit from special education. A list of related services that must be provided by the school district at no cost to the parents is limited only by the creativity of the family, the child's treating doctor and his or her advocate. In addition to the more unusual related services such as transportation, specialized equipment, speech pathology, audiology, psychological services, physical therapy, recreation, medical and counseling services, I have been successful in advocating for computers and other assistive technology devices and services. Recent decisions by the courts have strengthened an advocate's ability to obtain specialized treatment and services for children with special education needs.

Special education benefits do not continue during this summer.

Special education benefits must be individualized, i.e. there must be a specific individual plan set up to meet the needs of the handicapped child. The idea that a special education plan must be individualized has been interpreted to require a school district to provide an extended school year beyond the 180-day school year normally provided for the non-handicapped child. To be eligible, parents must be able to demonstrate with medical documentation that significant regression will occur if there is a break in the child's educational program and that the child has a limited ability to regain these lost skills after the normal school year begins. The right to an extended school year can require that a school district provide special education benefits during weekends, summer months, or both.

It is difficult for a parent to obligate a school district to pay for an Approved Private School (APS).

If your special education request is thoroughly documented and properly presented to the school district, it is my experience that it is easier to obtain APS benefits than is commonly known. School districts are used to negotiating with families for more common special education benefits, such as learning disabilities, rather than APS benefits. Most school districts have limited experience in evaluating APS benefits for a child who has a severe traumatic brain injury, cerebral palsy or who is other wise catastrophically ill or injured. When school districts and families are represented by attorneys, it makes it easier to cut through the "bureaucratic red tape" to promptly obtain adequate monies to fund the APS.

It is not necessary for a parent to determine the cause of a child's injury or illness, since the school district will pay for all the lifetime special education and medical needs of the child.

Special education benefits can continue until your child is 21 years of age. Special education benefits can continue if your child graduated, for example, at age 18. You should not permit your child to graduate if your child still needs special education benefits, Recently, I represented a child who was 11 at the time of his injury on a jungle gym at school. The family mistakenly believed that the school district would have to pay for both the child's special education benefits and for on-going medical bills for the rest of the child's life. In fact, this particular school district was obligated to pay for the child's special education benefits until the child reached age 21, but nothing else. I investigated this particular claim and determined that the manufacturer of the jungle gym improperly welded the joints on the jungle gym, causing the child to fall. A product liability suit was instituted by the family to against the jungle gym manufacturer to recover lifetime costs for medical care, rehabilitation care and home care. Families should always explore the underlying causes of an injury or illness to determine if a third-party claim should be filed at the same time that they are requesting special education benefits from the school district.

It is expensive for a parent to file a successful claim for special education benefits.

Most attorneys who file special education claims will keep time records and seek to be paid by the school district at the conclusion of the case. Some attorneys may ask for a small retainer. Special education statutes provide that a parent who brings an action for special education benefits against a school district and prevails may be awarded attorney fees and expert witness costs. Attorneys who are evaluating third party claims should provide special education services at no additional cost to parents.

Even though the courts are expanding special education benefits, a recent study showed that the number of children receiving "appropriate" special education benefits is very small. Many parents and health care professionals are not even aware of the types of special education benefits that exist (APS). It would be ideal if school districts promptly determined whether your child is entitled to special education benefits. Unfortunately, any parent or health care provider who has attempted to obtain special education benefits knows the process can be very slow. Relying upon school districts and state and federal agencies to "do the right thing" often results in frustration and delay. Adequate "planning for the future" for your child requires a clear understanding of the special education benefits to which the child is entitled.

Be vigilant! Be aggressive! Be an advocate!
You can make a difference!