An Introduction to Special Education Law: Back to School Series – Eligibility and Evaluation

Eligibility and evaluations for special education services are governed by the Individuals with Disabilities Education Act of 2004, Section 1414 (the full text of 20 U.S.C. Section 1414 related to eligibility and evaluations is below the fold).

Under IDEA a parent can request an initial evaluation for special education services at any time. In addition a school can recommend and request consent for an initial evaluation at any time. Once a request has been made and a parent has consented to evaluation a district has 60 calendar days to complete the evaluation. It is important to note that parental consent to an evaluation is not consent for services.

If your child has previously been evaluated, you are entitled to demand a reevaluation once a year.

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Five Tips for Providing for Children With Disabilities

One of the major concerns for parents or grandparents of children with disabilities is how to provide for their financial future. Here are some legal tips:

  • Buy enough life insurance.

A parent is irreplaceable, but someone will have to fill in. In all likelihood, that person or family will have to pay for at least some services the parent or parents had provided when able. If the estate is not large enough for this purpose, it can be made large enough through life insurance proceeds. Premiums for second-to-die insurance (which pays off only when the second of two parents passes away) can be surprisingly low. On the other side of the coin, if a parent or grandparent wishes to reduce her estate, she can establish a special life insurance trust to hold an insurance policy that will benefit a child with special needs. If properly established, this trust will allow the parent or grandparent to make gifts of the insurance premium every year, reducing the size of her overall estate and providing the child with a significant inheritance.

  • Set up a trust.

Any funds left for a disabled child, whether from an estate or the proceeds of a life insurance policy, should be held in trust for his or her benefit. Leaving money for anyone with a disability jeopardizes public benefits. Many people with disabilities cannot manage funds, especially large amounts. Some families disinherit disabled children, relying on their siblings to care for them. This approach is fraught with potential problems. Siblings can be sued, get divorced, disagree on their responsibilities, or run off with the funds. It can also cause tax problems for siblings. The best approach is a trust fund set aside for the disabled child. While parents are usually fairly cognizant of this problem when they create their estate plans, other family members who may leave funds to a child with special needs should also revisit their estate plans to make sure that a trust is created.

  • Will/appointment of guardian.

While a will and the appointment of a guardian is important for anyone with minor children, it is doubly so if the child is disabled. Finding the right guardian can be difficult. In some cases, the care needs of the child may be so demanding that he or she will need a different guardian from his or her siblings. The parents need to make these determinations while they can. The will is the vehicle for the appointment of a guardian. An adult child may also require a guardian when the parent can no longer serve in this role (whether officially appointed or not). It will probably not be legally possible to officially appoint a successor guardian. So, it may make sense to begin making the transition to a new guardian while the parent is able to assist in the process. This can be done in the form of a co-guardianship, or passing the baton to a successor guardian.

  • Care plan.

All parents caring for disabled children should write down what any successor caregiver would need to know about the child and what the parent’s wishes are for his or her care. For example, should the child be in a group home, live with a parent, be on his or her own? Usually, the parent knows best, but needs to pass on the information. The memo or letter can be kept in the attorney’s files with the parent’s estate plan.

  • Coordination with other family members.

Even a carefully developed plan can be sabotaged by a well-meaning relative who leaves money directly to the child with a disability. As discussed above, if a trust is created for the benefit of the child, grandparents and other family members should be told about it so that they can direct any bequest they may like to leave to that child through the trust. Grandparents who are worried about the cost of long-term care should also be made aware that, in certain circumstances, they may be able to contribute to a special needs trust for a grandchild without affecting their own future Medicaid eligibility — a win-win situation.


If you need assistance with Special Needs Planning, Disability Planning, Special Education or other disability law matters call the offices of Fabisch Law, L.L.C. to set up a consultation with Rhode Island Special Needs Lawyer Attorney Matthew Fabisch at 401-324-9344.

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Fabisch Law, L.L.C. is proud to announce that it is a corporate supporter for the 8th Annual Family Voices/Rhode Island Parent Information Network Family/Professionals Partnerships Conference

Fabisch Law, L.L.C. is proud to announce that it is a corporate supporter for the 8th Annual Family Voices/Rhode Island Parent Information Network Family/Professionals Partnerships Conference. The theme of this year’s conference is Accessing Services and Supports for Children, Youth & Individuals with Special Health Care Needs.

The Conference will take place Wednesday, April 25, 2012 12:30 PM – 7:00 PM at The Crowne Plaza, 801 Greenwich Ave., Warwick, RI 02886. We will be on-site with our conference booth and available to answer questions and book appointments.

We look forward to seeing you there!

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Wrights Law Special Education Law “Boot Camp” Seminar

I’m glad to be attending this year’s Wrights Law Special Education Law “Boot Camp” Seminar this weekend in Holyoke, Massachusetts. Stop by and say hi.
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Mediation in Special Education Matters

The Massachusetts Bureau of Special Education Appeals (“BSEA”) has a mediation program that it runs concurrently with its formal hearing process. Mediation is a form of ADR or alternative dispute resolution. A pamphlet issued by BSEA does a great job explaining the basics of how mediation differs from the traditional adversarial process.

What Sets Mediation Apart from Other Special Education Meetings?

· Mediation is conducted by a neutral third party

· Mediation can uncover new approaches that the
parties haven’t previously explored.

· Participants are encouraged to examine the reasons
behind their conclusions and reevaluate their

· Mediation provides a structured, problem solving
approach that ensures that all participants are able to
express their perspectives while being treated fairly
and impartially.

· The mediator’s questions may encourage new
thought, elicit new options and provide a format in
which people can communicate with each other
differently. The parties often reach a different
outcome than they reached in previous special
education meetings.”

According to BSEA Special Education Mediation can be requested whenever “the I.E.P. is rejected in full or in part or when there is a disagreement regarding evaluations, eligibility,
placement or implementation of the I.E.P.” or when “there is a disagreement between the parents and the school district regarding the student’s special education needs” or when “there is a disagreement about a 504 Accommodation Plan.”

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Glossary of Special Needs Acronyms

Sometimes the Special Education community would seem to use more acronyms than the military. While engaged parents pick up on the terms that are relevant to protecting their child’s interests quickly, here is a list of common special education acronyms for the uninitiated:

1:1 – One-to-one

ADA – Americans with Disabilities Act (also seen as ADAAA or Americans with Disabilities Act, As Amended)

ABA – Applied Behavioral Analysis

APE – Adaptive Physical Education

AT – Assistive Technology

BSEA – Bureau of Special Education Appeals

DSM – Diagnostic and Statistical Manual of the American Psychiatric Association

EI – Early Intervention

ESD –  Extended School Day

ESY – Extended School Year

FAPE – Free Appropriate Public Education

FBA – Functional Behavioral Assessment

FERPA – Family Educational Rights and Privacy Act

IAES – Interim Alternative Educational Setting

IDEA – Individuals with Disabilities in Education Act

IEP – Individual Educational Plan

IEE – Independent Educational Evaluation

LEP – Limited English Proficiency

LRE – Least Restrictive Environment

NCLB – No Child Left Behind

OT – Occupational Therapy

PLEP – Present Level of Educational Performance

PT – Physical Therapy

SL – Speech Language

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How is a learning disability defined under the IDEA

The 2004 amendments to the Individuals with Disabilities Education Act (IDEA), [Sec.602(30)] defines Specific Learning Disabilities as:
(A); “IN GENERAL – specific learning disability means a disorder in 1 or more of the basic psychological processes involved in understanding or in using language, spoken or written, which disorder may manifest itself in imperfect ability to listen, think, speak, read, write, spell, or do mathematical calculations.
(B); DISORDERS INCLUDED – Such term includes such conditions as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia and developmental aphasia.
(C); DISORDERS NOT INCLUDED – Such term does not include a learning problem that is primarily the result of visual, hearing, or motor disabilities, or mental retardation, of emotional disturbance, or of environmental, cultural, or economic disadvantage.”

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Happy Back to School Week in Rhode Island and Massachusetts

Please accept my wishes for a happy and successful school year to everyone with a child returning to school this week.

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Useful Glossary of Special Education Terms and Phrases

The Commonwealth of Massachusetts’ Executive Office of Health and Human Services has published a useful introductory glossary of terms and phrases helpful to know for those faced with advocating for their child’s right to a free appropriate public education.

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What is Massachusetts Chapter 766?

Passed in 1972, the first non-categorical law guaranteeing all children the right to a free appropriate public education was codified at M.G.L  c. 766. Chapter 766, as it became known, later served as the model for the first federal special education legislation.

Somewhat confusingly, when the Massachusetts General Laws were re-codified, the contents of the old Chapter 766 were transferred to a new statutory home. The Massachusetts Special Education Law can now be found at M.G.L. c. 71(b). The regulations implementing those sections are found at 603 C.M.R. 28.00. Though the codification changed, the original name stuck and thus the portions of Massachusetts law governing the provision of special education services to children who need them are still referred to as Chapter 766 to this very day.

As Chapter 766 makes clear, in selecting a lawyer to represent you and your child it is important to remember that a state may have expanded the educational rights to which your child is entitled beyond those merely provided for under federal law and to choose a lawyer familiar not only with IDEA 2004, but also with any state law rights to which your child may be entitled.

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