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Resources for Injured Kids: Schools

Education is a basic constitutional right in Washington State. Students have certain rights and responsibilities, and school districts have certain legally defined duties. Students cannot be denied educational opportunities because of race, origin, disability, pregnancy, or juvenile court involvement. With respect to disabled students, school districts have an obligation to provide special education and services to those students who qualify. A district may also be required to “reasonably accommodate” a student’s disabilities even though the student does not need specialized instruction. A child with a learning disability is typically defined as a child with a mental physical or emotional impairment that affects the child’s ability to learn. A child who experiences impairment from an orthopedic injury or from a traumatic brain injury will usually meet the criteria of a learning disability.

All children under the age of 22 who have a learning disability or impairment are eligible for additional services and support to help them achieve a meaningful education. An important federal law that achieves this purpose is the Individuals with Disabilities Education Act (IDEA). Washington specifically adopted the provisions of the IDEA as of July 2007. Another important law is Section 504 of the Rehabilitation Act, which prohibits discrimination against disabled students in programs receiving federal funds, such as public schools. Both of these laws require public schools in Washington to meet the educational needs of children with disabilities.

In Washington State, school districts have an affirmative duty to identify all students who might need special education services. But from speaking to childcare experts, I have learned that most districts do a very poor job of this. There are many children who “fly under the radar” and are not properly identified as candidates. Washington law requires a special education evaluation of the child in writing to the school principal and to keep a copy of his or her records. The request should be made for both a special education evaluation under the IDEA And Section 504 (in case the child may not meet the eligibility requirements under the IDA). The letter should also describe all problems the parent believes the child having, since this may affect the degree or comprehensiveness of the testing. Once the written request is received, the school must meet certain conditions in specific time periods. In making its evaluation, the district must review the child’s medical and education records in the school files or those provided to it by the child’s parent. The child’s parent can also have an impact by checking in periodically with the school until the evaluation is completed. The evaluation must cover all areas in which a disability is suspected. These are may include the child’s physical and mental health, vision, hearing, social and emotional health, general intelligence, academic performance, communication (speech and language), and motor abilities.

The district’s evaluation will be done by a professional, such as a school psychologist. If the evaluation must be accomplished by outside experts, the district must pay for this expense. If the parent disagrees with the child's evaluation, he or she can discuss it with school personnel, request mediation, file a complaint, or request a due process hearing in accordance with the IDEA or Section 504. Upon request, the district must also provide a parent with information regarding where to go for an independent evaluation by someone not associated with the district. After an evaluation, the district will create an Individualized Education Program (IEP). The IEP is a detailed description of the instruction and services the disabled child will need to obtain a meaningful education. The child’s parents must agree to the IEP plan before it can be implemented.

The IEP will have measurable goals and ways of monitoring the student’s progress. More than one person or professional may be involved with creating the IEP, also called the IEP Team. Parents can be a part of the IEP Team. A parent who is a member of the IEP Team can also invite other people to join who may be effective advocates for the child (e.g., child’s therapist, doctor). The IEP is good for one year, and can be modified in subsequent years. The IEP must be provided to and implemented on behalf of the student at no cost to the student or parents.

In Washington State, students in grades K through 9 with learning difficulties who are not eligible for special education assistance may be eligible for special assistance through the state’s Learning Assistance Program (LAP). The LAP is designed for students who do not meet the state’s learning standard for that grade level. Again, parents should ask the school principal about the child’s eligibility for the district’s LAP and what services may be offered. Usually a parent will need to take assertive action with the child’s school to make sure the child has access to all available resources the school must provide under the law. If there is one common theme that I see in child injury cases, it is that many schools do a poor job of spotting children who may have a disability and then completing an appropriate evaluation so that the child’s needs are taken care of. An informed parent, who follows up to make sure the school is fulfilling its legal obligation, can have an enormous impact.