Common Questions

Frequently Asked Questions About Special Education Law

Special Education Representation

Who is eligible?

Results of any evaluations conducted, whether by the school system or obtained privately by the parents, must be used by a special education team to determine whether the child is eligible for special education and related services under the IDEA. That team must include the child’s parents and others identified by the parents as equal members.

The law requires that school systems “use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information, including information provided by the parents to assist with determining eligibility for special education and related services.”

What’s the IEP team’s process?

Once it determines a child to be eligible as an educationally disabled student, the school system must assemble an Individualized Education Program (“IEP”) team and hold a meeting to develop an appropriate IEP and placement for the student. The IEP team must include the parents of the student with a disability and qualified professionals as identified by the school system and/or the parents.

The school system is responsible for scheduling and conducting the IEP meeting. At the meeting, the team discusses the student’s needs and drafts the IEP document. In developing the IEP, the team must consider several factors, including the student’s present levels of performance and achievement in school, his or her potential, annual goals that the student can reasonably accomplish in a year, how progress towards the goals will be measured, special education and related services to be provided to the student, and the extent to which the student will be educated with his or her non-disabled peers.

How are things implemented and monitored?

What determines placement and the least restrictive environment?

What are the procedural protections for parents?

The IDEA provides parents with a wide range of procedural safeguards, including the right to examine records, receive written notice of proposed actions (or the refusal to take requested actions), and to participate in meetings relating to the identification, evaluation, educational placement, and provision of a FAPE to their child.

Parents can initiate a due process complaint regarding any of these issues. Due process hearings are convened before hearing officers or administrative law judges, independent of the school system that render written decisions. These administrative decisions can be appealed through the federal or state courts.

What’s the role of parents in the special education process?

What’s the role of the attorney in the special education process?

Attorneys can provide assistance at any stage of the special education process, from before eligibility is determined to due process hearings through the appeals process in the courts. Our particular expertise and connections in the greater Washington, D.C. community help us to work on behalf of our clients to secure special education services and to help ensure that the rights of parents and students under the IDEA are protected.

Special Needs Planning Information

When should I begin planning for my son or daughter with special needs?

It’s never too early to plan! Develop your estate plan now to protect against unexpected tragedies or challenges, to prepare for changes in your family, and to ensure that your son or daughter has the financial, legal, and other resources to lead a personally fulfilling life. Starting special needs planning early enables the family to build the special needs trust fund and make plans that will serve the individual with disabilities well for years to come.

What changes after my son or daughter turns 18?

The law provides for all people who reach age 18 to be considered adults, which means parents or guardians no longer have legal authority on behalf of their child. Also, the criteria for determining some government benefits differ for minors and adults. Therefore, understanding your legal options regarding guardianship and eligibility for government programs is especially important during this time.

What are some important considerations in drafting a will?

Naming beneficiaries, personal representative, and guardian;
Determining which assets will be covered in the will, and which need to be included in the estate plan (for example, joint bank accounts, life insurance, retirement plans, annuities, and property are treated differently than assets in the name of the testator alone);
Ensuring that the family’s wishes direct how assets are distributed, rather than following the Intestacy Stature dictated by the State;
Preparing the will in conjunction with other important documents, such as a letter of intent and estate plan;
Setting up a special needs trust to manage funds and avoid loss of government benefits.

What is a letter of intent and how does it differ from a will?

The letter of intent can be instrumental in guiding and directing the care routine and other aspects of the daily life of the individual with special needs. It does not have to meet the special requirements of a will and is not legally binding. The letter should describe the child now and future preferences for areas such as living arrangements, employment, important relationships, abilities and needs, education, health care needs, supports and services needed, and other important things to know.

Why should I establish a special needs trust rather than directly leaving assets to my child?

If a child with a disability receives SSI and Medicaid (or could qualify for these benefits when he or she becomes an adult) and directly inherits money or assets, that child will lose those benefits and have to use the inheritance for daily living costs and health care.

A special needs or supplemental needs trust fulfills two primary functions: to manage funds for someone who may not be able to do so himself due to disability; and to preserve the beneficiary’s eligibility for public benefits, such as SSI, Medicaid, public housing, or other programs.