Vol. 5, No. 6, Pg. 10. Working with the Special Education System to Benefit Children.

• Author: By Nancy McCormick

South Carolina Lawyer

1994.

Vol. 5, No. 6, Pg. 10.

Working with the Special Education System to Benefit Children

10Working with the Special Education System to Benefit ChildrenBy Nancy McCormick"Lawyers involved in domestic litigation, Department of Social Services cases, juvenile proceedings and general tort litigation should be aware of the potential help available from public schools."

The special education system can be a resource for lawyers representing children who need help during times of stress. Children who are anxious and uncertain about their situations often experience emotional difficulties that affect their performance in school. Lawyers involved in domestic litigation, Department of Social Services cases, juvenile proceedings and general tort litigation should be aware of the potential help available from public schools.

Services Available

Children with disabilities are entitled to receive special education and related services under several state and federal laws:

* The Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1401 et seq. and 34 C.F.R. § 300, implemented in South Carolina through S.C. Code § 59-33-10 et seq. and South Carolina Department of Education Rule R 43-243. The IDEA applies to children from birth through age 21. The South Carolina Department of Education, through local school districts, provides services to children from three through 21. The Department of Health and Environmental Control, through the BabyNet program, serves children from birth through the age of two.

All students in public schools are entitled to services through the IDEA. Separate rules apply to the school district's responsibility to children in private schools. 34 C.F.R §§ 300.350-.486.The IDEA applies to children with emotional and learning disabilities, in addition to such obvious physical disabilities as visual, speech and hearing impairments, 20 U.S.C. § 1401(a)(1)(A)(i). The IDEA does not explicitly apply to children with Attention Deficit Disorder (with or without hyperactivity) (ADD/ADHD). 20 U.S.C. § 1401 (a)(1)(A)(i); Canulenton R-III School Dist, 20 IDELR 197 (only ADA and § 504 violated by not evaluating a student for ADD).

* The Rehabilitation Act of 1973, 29 U.S.C. § 504 (§ 504) and 34 C.F.R. § 100, which applies to entities receiving federal funds. All public schools and preschools, as well as any church-related schools that accept federal funds, are covered by § 504. Attention Deficit Disorder with or without hyperactivity is covered by § 504. 29 U.S.C. § 706(8)(B), 34 C.F.R § 104.3(j)(2)(i)(B), Anaheim Union High School Dist., 20 IDELR [Individuals with Disabilities Education Act Law Reporter] 185 (OCR 4/7/ 93); Letter to Parker, 18 IDELR 963, (OSEP 10/3/91).

* The Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 etseq. The ADA applies to all public schools (Title II) and all non-religious private schools (Title III). The ADA strongly supports the full inclusion of persons with disabilities in all activities of society. 42 U.S.C. § 12101 (preamble).

Both § 504 and the ADA protect anyone who has a disability, has a history of a disability (such as a cured cancer patient) or is perceived by others as having a disability, whether the person in fact has the disability and whether the condition affects his or her ability to function (e.g., a person who is HIV positive with no symptoms).

Identifying Special Needs Children

The IDEA and § 504 require school districts to conduct "child find" activities to identify children with disabilities who may need special education and related services. 20 U.S.C. §§ 1412(2)(c), 1414(a)(1)(A); 34 C.F.R. §§ 300.128, .220, 104.32. School personnel should be aware that children frequently develop problems at school as a result of stress at home and should consider whether those children might need to be evaluated for special education. Parents or other persons taking care of children who observe such changes in a child can ask the school to conduct an

11evaluation under 34 C.F.R. § 300.534(b). Parents who disagree with the evaluation results may request an...