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Rights of Gifted/Handicapped/Special Education Children

Your child's teacher notices that your child is having difficulty reading. Maybe he or she is also a discipline problem or, on the other hand, maybe your child has always learned faster than other children and is bored with school. In either case your child may need, or benefit from, special education help not available in the normal classroom. The United States Government and the State of Pennsylvania provide substantial money each year to your school district so that it may provide special education programs for exceptional children.

In order for a child to obtain a special education program, either the school district or the parent must first request the child be evaluated to determine whether the child requires special education services. An initial evaluation of a child requires notice to and consent by the parents. The evaluation is then reviewed by a multi-disciplinary team which makes a recommendation of whether the child is exceptional and in need of special education services, and identifies the child's areas of strength and weakness. Parents are entitled to participate in this multi-disciplinary evaluation process. If the multi-disciplinary team determines the child is in need of special education services, an individual education plan, or IEP, is developed. An IEP team is made up of teachers, school administrators, other individuals who have special knowledge or expertise regarding the student, and parents. In appropriate cases, the student can participate on the IEP team. The IEP team reviews the evaluation as well as information provided by the child's teacher and parents and then prepares a written plan, including specially designed instruction and related services. The IEP is designed to set forth the plan of special education services that will be provided to the child by the school district. That plan must be reviewed and modified, if required, on a yearly basis. It can also be reviewed at any time a change in circumstances indicates a modification is needed. The child should be reevaluated every three years, except that students identified as mentally retarded shall be reevaluated every two years. Reevaluations require notice to the parents, but do not require additional parental consent.

While the process that has been described may be imposing, the law gives parents substantial rights and procedural safeguards. In cases where disputes arise between parents and school districts, they may be resolved through due process procedures, including informal mediation a formal hearing, called a special education due process hearing. A parent can refuse to have his or her child evaluated if he/she feels it is unnecessary or the type of evaluation proposed is inappropriate. When a parent refuses to consent for an initial evaluation, the school district may utilize due process procedures to pursue the evaluation. The parent can also request an independent evaluation under certain circumstances at the school district's expense. A parent may reject a proposed IEP or portions of that IEP and also propose changes or modifications to the IEP. A school district must obtain parental consent for the initial provision of special education services. If a parent refuses, or subsequently revokes consent for such services, a school district may not utilize due process procedures to require the delivery of these services. Under all of these circumstances and others, if the parent cannot reach an agreement with the school district, the parent may request mediation or a special education due process hearing.

If you need to consult with an attorney, please contact the Erie County Bar Association's Lawyer Referral Service.