The Mineola-based Nassau County Bar Association held a seminar March 28 on the rights of special education students and the planning of their financial future. The seminar addressed how a child with special needs enters the system, the basics of the law and process that govern these children, understanding classification of disabilities, how to advocate for your child and what to do when discipline becomes an issue.

"Advocating for your child is not always an easy road," said Diane E. Inbody, Esq. of The Long Island Advocacy Center. "It is a very worthwhile one. And [when] you stop to think about it, who in the world deserves us being on their side more than your child with special needs?"

According to Lynn M. Brown, Esq., a commercial litigation and special education law attorney with the law firm of Meyer, Suozzi, English & Klein, P.C., children with special needs are governed under the Individuals With Disabilities Education Act (IDEA), which was reauthorized in 2004 and became effective in 2005.

Special education services are available to all children from birth to high school graduate. From birth to 3 years of age the service called the Early Intervention Program (EIP) provides family services to meet the developmental needs of the eligible child. The New York State Department of Health (DOH) is responsible for implementing the program and furthermore designates a local agency in Nassau County to administer the EIP. The local agency is also responsible for insuring that an Individual Family Service Plan (IFSP), a written document defining the early intervention services provided to the child and family, is issued and followed through.

Healthcare, social services and childcare providers are required to refer children at risk of having a disability to the EIP unless the parent objects. An initial coordinator assists the family in getting an evaluation then an ongoing service coordinator implements the IFSP, coordinates the services and helps the family obtain services, all free of charge.

Before the child receives the next set of services, the preschool program for ages 3 to 5, Brown said they must go through a transition process by a Committee on Preschool Education (CPSE), which is implemented by the New York State Education Department. This process requires a child to be evaluated once again by the school district. If the child's evaluation deems them eligible for the program, an Individual Education Program (IEP or written statement outlining the special education programs and services suggested for that child) is developed. Parents may request a Special Education Itinerate Teacher (SEIT) to be the point person and coordinator of services, said Brown. This service is also free of charge.

Children 5 and older receive services from their respective school district's Committee on Special Education (CSE). Each district must provide the child with a fee appropriate public education (FAPE) in the least restricted environment. "The primary function of the CSE is to identify, evaluate, review the status of and make recommendations concerning the appropriate educational placement of the school age child with a disability," said Brown.

When meeting with the CSE, a parent member may be present and has the right to waive that parent member 24 hours prior to a meeting. Parents who enter the meeting blindly, without knowing what parent member will be present, may ask for an adjournment. "There is a confidentiality," said Laura Green, Esq., an attorney with the Long Island Advocacy Center. "You may not want your neighbor who might be sitting as a parent member to know all of your personal information regarding your child."

Additionally, the CSE is responsible for classifying a child and developing the IEP, which acts as a contract between the child and school district. Do not sign the IEP if you do not agree with it, advises Green.

There are 13 classifications of disabilities ranging from autism and learning and hearing disabilities to speech impairments, but two important classifications are Other Health Impairment (OHI) versus autism. If a child displays characteristics of autism but is classified OHI rather than autism, they have the chance of being pulled out of the classroom more often and not receiving appropriate services.

According to Green, it is important for parents to come to an agreement regarding the CSE's classification so an appropriate IEP can be developed. A revision in education law now allows the IEP to be changed after the child's annual meeting without having to convene a new meeting as long as the district and the parents agree in writing. Parents can take the district to a Due Process Impartial Hearing if there is no agreement or if they don't agree with the district's evaluations, classification and placement of their child.

Green advises parents to make sure they request their objection be included in the minutes of the hearing, request it be tape recorded and obtain a copy of the IEP. Prior to the impartial hearing, a complaint form that includes personal information such as name and address, the nature of the problem and proposed solution must be filed, in writing.

"This is the first notice that the hearing officer and the district is going to have of your complaint," said Diane E. Inbody, Esq., an attorney with The Long Island Advocacy Center. "Talk about what happened to your child once they entered the special education system, the classifications, the placements that weren't right. Outline your problems. You have to raise every pertinent issue that you are disputing or you waive them. Make it very clear from the get go what your complaint is. And the final solution is to be very specific and very comprehensive. Let them know exactly what it is that you are looking for."

There are two ways - resolution and mediation - to attempt to bring both parties in agreement prior to the hearing. During the resolution session, which is not confidential, the school district brings ideas to the table in order to rectify the problem. In mediation, an impartial party is brought in and acts as a mediator in an attempt to bring both parties to an agreement. If one is still not found, then both parties move to the Due Process Impartial Hearing.

If a complaint is filed, parents must provide proof through independent evaluations that dispute the existing IEP. There is one last attempt to resolve the conflict at the pre-hearing conference. During the impartial hearing the student will have pendency, which means the child is placed back to the services stated in the last IEP, unless both parties agree to an alternate placement.

The outcome of the hearing is based on a substantive basis, which will determine if the school provided FAPE, and a procedural basis, which determines if the parent was locked out of any process at the CSE. It will also determine if the evaluations the parents provided were considered and if all persons the parents suggested be present were in fact there.

"When you're sitting in the meetings, you have to keep telling yourself there is not one single person in the room that knows your child better than you do," said Inbody. "And all those gut instincts you have, you go with them because they are much more valid than anyone else could bring to the table."

When the hearing is completed, a decision must be made within 45 days. If a parent agrees with the decision, the school district must pay the family's attorney's fees only if it stated it in the original complaint. If a parent does not agree, they must appeal within 30 days of the decision.

If a child's disability causes an outburst or calls for suspension, parents should know the rights special needs students have to ensure the punishment their child receives is appropriate.

According to Sharon N. Berlin, Esq. a partner in Lamb & Barnosky, LLP, students subject to suspension are governed under New York State Education Law 32.14, which allows a principal to suspend a student up to five days. Anything after that, the parent receives a notice of charges and the case is brought before a superintendent hearing. The child has the right to testify on his or her behalf and have their own witnesses.

If the child's misconduct included a weapon, the sale or possession of illegal drugs or brought upon bodily harm, they may be automatically placed in an alternate setting during the hearing. The hearing is done in two parts. The first part, Manifestation Determination, determines if the child's misconduct is related to the disability. If it is, the hearing stops there. If it doesn't, the student goes back for the second part of the hearing to seek punishment. If the child's punishment results in suspension for more than 10 consecutive days, the child's placement is reconsidered. The CSE reviews the IEP and creates a Behavior Intervention Plan (BIP) that addresses the behaviors. Again, if the parent disagrees they have the right to an impartial hearing.

Planning For a Financial Future

Once the child is out of the special education system, their financial future must be planned in the event something happens to the parents. If the child is not capable of living independently, the parent should seek guardianship in order to make sound decisions for them.

Article 17A Guardianship, is for people with mental retardation developmental disabilities and not for disabilities that develop later in life while Article 18 Guardianship applies to disabled children and is flexible to meet the needs of the specific person, Terry E. Scheiner, Esq., a solo practitioner in Port Washington, said, adding that parents should understand what finances apply to their children and chose a plan that will support their child's financial future.

If a child is not capable of making his or her own living, they are eligible for Supplemental Security Income (SSI), a means tested program for low-income people. In addition, if the parents of the disabled child should retire or pass away, the child may be eligible for Social Security benefits up until high school graduation or age 19, whichever comes first.

According to Scheiner, many parents begin putting money in bank accounts for their children at a young age. This is known as a Uniform Transfer to Minors account and not recommended for disabled children. "It's not a good idea for a disabled child unless that child is really going to be self sufficient," said Scheiner. "When they turn 18, depending on how you set it up, it's their money and by law you can't get it."

Instead, Scheiner suggests setting up a Supplemental or Special Needs Trust that allows parents to put money aside that will benefit the child and not be used to pay back government benefits. The special needs trust is broken down into a Self Settled Supplemental Needs Trust and a Third Party Supplemental Special Needs Trust. The self settled trust has a pay back provision, which means if the child doesn't use all the money in their lifetime, the remainder pays off government benefits. A third party trust is funded by monetary gifts from the family and, upon the child's death, goes anywhere the guardian chooses. Both trusts can be set up in a will if the parent chooses to support them now and not place the monetary burden of support on someone else later.

"Don't wait until your child turns 18," Scheiner said. "Think about how you want to plan for decision making and financial security for your child."

According to the Long Island Advocacy Center, additional information to assist parents and guardians of children with special education needs is available at the following websites:

¥ Advocates for individuals with high functioning autism, Asperger's and other developmental disorders: www.aha-as-pdd.org

¥ Articles, cases and free resources concerning special education: www.wrightslaw.com

¥ Council of Parent Attorneys & Advocates: www.copaa.com

¥ Council of Exceptional Children: www.cec.sped.org

¥ Disabilities Studies and Service Center: www.dssc.org

¥ Educational resources for parents, attorneys, advocates and school personnel: www.reedmartin.com

¥ National Association of School Psychologists: www.naponline.org

¥ NYS Education Department: www.nysed.gov

Know Your Rights