What Are Your Legal Entitlements Now That Your Child Has Been Diagnosed?

The Individuals with Disabilities Education Act (IDEA) is the federal law that governs the education of children with disabilities, including developmental delays. Your child with autism has the right to a free appropriate public education under the IDEA. Each state must provide all eligible children with a public education that meets their individual needs.

Part C of the IDEA – which governs Early Intervention (E.I.) – authorizes the federal and state governments to act on behalf of infants and toddlers (birth to three). Part B of the IDEA – which governs preschool students – authorizes federal and state governments to act on behalf of young children (three to five) with disabilities.

 

Early Intervention Services

 

The IDEA provides states with federal grants to provide E.I. programs to children younger than three who have an eligible disability. If a child is determined to be eligible, these E.I. services must be provided to the child at no cost to the child’s parents or family.

The services provided should address and meet a child’s unique and individualized needs and thus, cannot be “rationed” or otherwise arbitrarily limited only to what is claimed to be “available.” An Individual Family Service Plan (IFSP) is a written plan identifying your child’s needs and the services that will be provided. Prior to developing an IFSP, comprehensive evaluations should be conducted to establish your child’s current levels of functioning, anticipated goals and objectives and the specific services that will be provided to your child and family.

Some examples of E.I. services may include, but are not limited to, speech and language therapy, occupational therapy, physical therapy, Applied Behavior Analysis (ABA), Special Education Itinerant Teacher (SEIT) support, and counseling. Services for families often are recommended in E.I. and may include parent counseling and training to help reinforce and “carry over” your child’s newly acquired skills, implement behavior plans and modifications at home, and provide additional support to your child.

 

What Are Your Rights in E.I.?

 

To receive an updated guideline of your rights, you should contact your Early Intervention Coordinator. Generally speaking, parents have a number of rights in E.I., including but not limited to:

 

  • Being an active team member and participant throughout the E.I. process

 

  • Consenting to evaluations and receiving all copies of evaluation results

 

  • Refusing consent to evaluations or the ability to withdraw consent at a later date (if appropriate)

 

  • Refusing specific services without risking other services that are being offered

 

  • Receiving written notices of any changes that are going to take place in your child’s program

 

  • Discussing your child’s program and services with an advocate or attorney and challenging the proposed program if needed.

 

The “Turning 3” Phase

 

The IDEA requires a minimum six-month transition period from E.I. to preschool (i.e., the six month period leading up to your child’s third birthday). This period allows for additional evaluations and meetings allows parents to build a positive relationship with the school district personnel.

It may be difficult for families to transition from “Part C” where family involvement at the E.I. phase is compulsory and parents are expected to make decisions about and advocate for their child’s needs, to the “Part B” programs where the school district’s committee on preschool education assumes the primary educational responsibility. It is important to start thinking about the transition planning as early as possible. In preparation for your child’s transition from E.I. to preschool, you should ask your E.I. coordinator and providers what specific changes you can expect.

Special education services pick up where early intervention services leave off at age 3. Your local school district provides these services through their special education department at the preschool level. An Individualized Education Plan (IEP) is the document developed for your child and outlines, among other things, your child’s needs and how these needs will be met. Like the IFSP, the IEP is required to adequately describe your child’s strengths and weaknesses, set appropriate goals and objectives and provide specific information and plans as to how your child’s needs will be met. It is often helpful for parents to bring along another parent, a family member, or a member of your child’s E.I. team.

When determining the appropriate educational program and placement for your child – including preschoolers – the school district must recommend a program and placement in your child’s least restrictive environment (LRE) and must educate your child with children without disabilities to the maximum extent appropriate. Your school district and IEP team should also consider if your child requires an extended school day (after-school services) or an extended school year (summer) services.

When a preschool placement is recommended you need to visit the proposed placement ASAP and meet with the school staff and therapists. You should encourage your IEP team to develop a transition plan to effectively transition your child from the E.I. model to the preschool model. This transition plan could be as simple as introducing your child to the new school building on one day, and the gradually introducing just a few new students or teachers at a time over a few days. As parents, you should try to meet with other parents and share your concerns, if possible, as this often leads to valuable information gathering.

 

Tips for Ongoing Success

 

  1. Forge an alliance. At both the E.I. and school-based level, it is essential for you and your family to endeavor to develop a strong partnership with your child’s E.I. agencies and school district. This will enhance the transition process for children who will attend the school district’s program.

 

  1. Don’t get hung up on the “six-month transition period.” Every child presents with individual needs and this can look very different from one child to another. It may take your child one month to transition from E.I. to preschool, or it may take one year. Think of the entire preschool phase as a transition period.

 

  1. Set realistic expectations and establish roles. Use the transition period as a time to formulate your “game plan.” Does everyone on your child’s team (including parents and family members) have a clear picture as to how this transition period should look?

 

  1. Consider the importance of individualized parent counseling and training and home visits. Under federal law, parents of students with autism are entitled to receive individualized parent counseling and training and a related service on their child’s IEP. During E.I., home visits and parent training and counseling provide parents with extensive support to help “carry over” their child’s program. At the preschool stage, home visits similarly give teachers and parents an opportunity to maintain consistent effective communication, provides the teacher with additional information about the student, and provides the parents with addition support and advice within the home environment.

 

  1. Never stop advocating for your child. If you feel as though a proposed program or placement is not appropriate for your child, there are ways for you to disagree without being disagreeable. First, you can consider requesting or securing an independent evaluation (preferably at school district expense) to determine what your child needs and to support your contention that the proposed program/placement is not appropriate. You may be able to negotiate with your school district, or you may need to file for due process (impartial hearing) to secure appropriate and effective services for your child.

 

Maria C. McGinley, MST, JD (New York Law School, ‘10) is an Associate at Mayerson & Associates, a New York law firm dedicated to representing children and adolescents on the autism spectrum, and assisting families in accessing the education and related services necessary and appropriate for students. Prior to practicing at Mayerson & Associates, Ms. McGinley taught students with autism spectrum disorders when she was a special education teacher for the New York City Department of Education.

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