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Frequently Asked Questions

What type of education must the School District provide my Special Needs Child?
What is considered the Least Restrictive Environment (LRE)?
What are parents of Special Education Students entitled to?
What if parents disagree with the IEP?
Why do I need to hire a Special Education Attorney?
Why should you hire Brad H. Rosken, Esq.?
What will Brad H. Rosken, Esq., Counselor-at-Law, do for you?
What is the Special Education Process?

What type of education must the School District provide my Special Needs Child?
The law governing special education is covered under Individuals with Disabilities Education Act of 2004 (IDEA) which has just been re-authorized by Congress in August of 2006. Students with disabilities are entitled to Free and Appropriate Public Education (FAPE) in the Least Restrictive Environment (LRE). The law governing this area dates back many years. The Supreme Court of United States has stated that a special education student is not entitled to a “Cadillac Education” but is entitled to a “Chevy Education”. This analogy comes from a late 1970’s case. The car analogy might be a bit outdated but the point is that a school district need only supply an education that has a meaningful benefit to the student and not one that maximizes their potential. Another law that governs this area is the "No Child Left Behind Act" (NCLB). The NCLB’s purpose is "to ensure that all children have a fair, equal and significant opportunity to obtain a high quality education and reach, at a minimum, proficiency on challenging academic achievement standards". However, it fails to make any distinction between the academic standards of all children and those children with disabilities.

What is considered the Least Restrictive Environment (LRE)?
The standards applied by a New York Court to determine if a student is placed in a LRE are:

  • Steps the school district has taken to accommodate the child in the regular classroom. This includes attempts to provide supplemental services in conjunction with regular services, for example, resource room, speech and language therapy, special education, teacher training, and behavior modification.
  • The child’s ability to receive an educational benefit in a general education classroom. The typical children and teacher serve as language and behavior role models for special needs children; moreover, when typical children see special needs children close up, the stereotypes that typical children have are broken down.
  • Effect of special needs child on typical peers. Is there a significant disruption? Does the disruption outweigh the educational benefit to the child? Is the teacher forced to place a disproportionate amount of attention to one child?

What are parents of Special Education Students entitled to?
According to IDEA and NCLB, parents are entitled to an Individual Educational Plan (IEP) for their child. An IEP is the master plan for a special needs child and it contains measurable annual academic and functional goals. A School District must also provide timely evaluations of the child’s ongoing performance which include functional, developmental and academic information. In addition, parents have the right to an IEP meeting, at which all necessary members of the child’s IEP team must be present, the purpose of which is to discuss the child’s status and allow the parents an opportunity to advocate for their child’s services.

What if parents disagree with the IEP?
Parents have the right to have the IEP reviewed. The first level of review is a hearing is conducted by an Impartial Hearing Officer (IHO) who is not employed by the School District. The School District will present witnesses to support its position that it is able to provide an appropriate education for the child. The parents are then required to present evidence which supports their position that the School District’s recommended program is inappropriate for their child. This often includes the presentation of testimony from expert witnesses and written reports. Parents themselves may also testify. The IHO will then issue a decision. If the School District or parents disagree with the decision, either may appeal to an Administrative Review Board or State Review Officer (SRO). If the parents or the school district are not satisfied with the results of the SRO, the parents or the school district may take their case to either Federal or State Court. Cases are usually brought in Federal Court.

Why do I need to hire a Special Education Attorney?
The key to being the best possible advocate for your child is knowing when and how far to push your school district. As you see, a special education student is only entitled to a “Chevy Education”. As your counselor-at-law, I know what a school district will be and won’t be ordered by a court to provide. In addition to the laws mentioned above, there are several other laws that govern this area (i.e. American with Disabilities Act, Section 504 of the Rehabilitation Act of 1973, etc.), and more importantly there are thousands of Court decisions from individual lawsuits. These judicial opinions interpret the written laws and formulate the basis of our individual rights. These opinions are continually evolving in response to the diagnosis of more and more special needs children as well as the advent of new and improved technologies.

Experience has shown that the younger a child receives the proper services, the more likely they are to succeed. This means investing in your child early on and obtaining the right diagnosis and services are crucial. This is why it is so important for parents, as their child’s primary advocate, to get the right legal counseling and advocacy services right from the start.

The best example I could give is a personal one. My son, who has CP, receives physical therapy from his school district three (3) times per week. Our Orthopedic Surgeon would prefer him to receive physical therapy five (5) times per week, as that is what good and accepted orthopedic practice would dictate. However, my son is lucky to receive his physical therapy three (3) times a week and if I challenged that amount in court, our odds of success are slim. Since, I know the law; I am appreciative of the physical therapy sessions he does receive. Knowing this fact, I can choose my battles and fight for Sam to receive other services that I know the law demands they provide for him. Knowing when and how far to push the district is one of the many skills that I can provide for you.

In addition, parents who disagree with an IEP may place their child in a private school that offers the appropriate educational needs of the child. The law provides that parents may be reimbursed for such private school tuition. However, there are many important procedures that must be followed to receive this reimbursement. Unilateral placement of a child in private school must be done cautiously, if parents hope to receive tuition reimbursement.

These above facts are even more critical in light of a very recent United States Supreme Court decision shifting the burden of proof in an impartial hearing of a child’s educational needs. Previously, the School District had to prove that they were fairly and properly providing for the child’s educational needs. Now, however, it is the parents’ job to prove that the School District is failing the child and that the IEP is inappropriate. This major change is simply another reason why it is crucial to prepare for your child’s educational future from day one and to do so with very careful planning and comprehensive execution.

Why should you hire Brad H. Rosken, Esq.?
I strongly believe that we must set the highest expectations possible for our children and give them the tools necessary to achieve these goals. Of course, not every objective can be achieved by every child, but goals and expectations can be changed from year to year. If we do not offer challenges to children, we will never know what they are capable of achieving. This philosophy applies to every child, no matter what their unique circumstances may be. Unfortunately, School Districts fail each day, over and over again, when they set unnecessarily low expectations for special needs children. To me, this is reprehensible.

It has been proven, with the right program in place, children with special needs can make significant progress, often far beyond expectations. This "right program" is different for each child as each child is unique. To achieve the right program we need to ask a few basic questions. We must ensure that our child’s providers are competent, so we must ask the question, are the teachers, therapists and other practitioners thoroughly trained in the methodologies which the child is best able to learn? Next if appropriate, we want as much consistency as possible in our child’s program, so we must ask the question, are the teaching methods and behavioral strategies utilized proper for our child? Lastly, is the program comprehensive enough, specifically, is the program broad enough to allow the child to meet the highest possible expectations? These are the questions that you and I will answer in our time spent together.

Remember it is my job as your attorney to SOLVE PROBLEMS. We can only solve problems, if we ask the right questions.

School Districts, although providing a public function, are still driven largely by budgetary constraints. These financial limitations are often prioritized over the needs of our children. This approach is just plain wrong and against the law. Our children have legal rights and are entitled to the best services without consideration of a School District’s budget.

What will Brad H. Rosken, Esq., Counselor-at-Law, do for you?
I will develop the best strategy to advocate for your child so to ensure that they receive the very best. Depending on the unique and specific facts surrounding your child, I will help you:

  • prepare your case for meetings with your county representative or school district including fully advising you what your child is entitled to under the current laws;
  • prepare letters, requests and other correspondence;
  • get the right evaluations;
  • find the right placement and/or service providers for your child;
  • accompany you to these meetings (if warranted);
  • represent you and your child at Impartial Hearings (also referred to as Due Process Hearings);
  • if the public school is not the proper environment for your child, I will help you obtain private school tuition from your local school district;
  • represent your child at suspension and school disciplinary hearings.

My job is to find out who your child is and what your goals are for him or her. I understand your frustrations because I have been where you are. I will advocate for the full amount of services required for your child to reach his/her fullest educational potential. My practice is focused on providing personal service to your family. I offer my clients individualized attention, as well as flexibility. My intention is to allow you to focus on what is important; providing your family with the love and support they need.

Other Areas Where I Can Assist:
Wills, Trusts, Special Needs Trusts, other Estate planning services as well as in the areas of criminal law, personal injury law (i.e. car accidents, construction site accidents, negligent supervision at a school, etc.) and real estate transactions.

What is the Special Education Process?
The special education process begins with a request by a parent, teacher, guidance counselor or administrator for an evaluation of the child. This request goes to different agencies depending upon the child’s age:

  • Birth to three years old: Department of Health’s Early Intervention Program (EI);
  • Three to five years old: Committee on Preschool Education (CPSE);
  • Five years and older: School District’s Committee on Special Education (CSE).

Next, typically there will be a meeting with the School District to explain the process and obtain written consent from the child’s parents to perform the necessary evaluations. Prior to this meeting, parents should prepare to discuss a comprehensive history of their child’s development, particularly problems related to the school and /or classroom setting.

The School District must then conduct all the evaluations needed to provide a full picture of the child’s special needs. These may include; psychological, neurological, speech and language, educational and occupational therapy evaluations. At a minimum, they must include at least one teacher and one specialist who are knowledgeable in the area of the child’s special needs.
Simultaneously, parents can also provide any privately-obtained evaluations or reports which they feel will be supportive of their desire for additional services. Although they can be expensive, these evaluations can be very helpful in providing more objective opinions by specifically-trained experts in their field. These evaluations will ultimately help to support the parent’s request to the school district for more expansive services.

Once all of the evaluations are completed, they are reviewed by the appropriate committee and a determination is made whether the child is eligible for special education services. If they find the child eligible for special education, they must then classify the child with a particular diagnosis.

Once a child is classified and found entitled to receive special education services, the appropriate committee must then develop an Individual Education Program (IEP) for the child. The IEP must contain:

  • A description of the child’s present levels of educational performance and how the disability impacts the child’s academic and non-academic performance;
  • A list of annual goals that the child will be expected to accomplish in the upcoming twelve month special education period;
  • A statement of the specific special education and related services which will be provided to the child;
    Any accommodations which will be provided to the child such as testing modifications or assistive technology devices;
  • The projected start dates for all services; and
  • If the child is age 16 or older, a list of transition goals and services.

Parents must be informed in writing exactly where and how the services for their child will be provided. Often, it will be within the school district; however, if the appropriate services are not available within the district, an out-of-district placement may be pursued. In this case, advocacy becomes essential. If the parents determine that the School District does not have any appropriate placements for their child, they may seek private school placement and request expense reimbursement from the School District.

When parents disagree with the program recommendation of the School District, they may reject it. A meeting will then be held between the CSE and the parents in an attempt to resolve the issues. If no agreement is reached, an Impartial Hearing or Due Process Hearing will take place where the parents can formally challenge the School District’s IEP in whole or in part. Parents must be well-prepared to present their case at this Hearing. Therefore, if they have not already done so, it is strongly advisable that parents hire a special education attorney at this stage.

The Hearing is conducted by an Impartial Hearing Officer (IHO) who is not employed by the School District. The School District will present witnesses to support its position that it is able to provide an appropriate education for the child. The parents are then required to present evidence which supports their position that the School District’s recommended program is inappropriate for their child. This often includes the presentation of testimony from expert witnesses and written reports. Parents themselves may also testify. The IHO will then issue a decision. If the School District or parents disagree with the decision, either may appeal to an Administrative Review Board or State Review Officer, after which time additional appeals to Federal or State Court may be pursued.



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