Special Education and IEP Rights for CP Children in New York City

The Right to a Free Appropriate Public Education (FAPE)

Under the Individuals with Disabilities Education Act (IDEA), a federal law, children with disabilities have the right to a Free Appropriate Public Education (FAPE) in the Least Restrictive Environment (LRE). This means:

- Free: The education and related services are provided at no cost to the family. - Appropriate: The education is tailored to the child individual needs (through the IEP). - Public: The education is provided by the public school system. - Least Restrictive Environment: To the maximum extent appropriate, children with disabilities are educated with children who are not disabled.

In New York, the IDEA is implemented through state law (New York Education Law) and regulations (NYCRR). The NYC DOE is responsible for providing special education services to children with disabilities in NYC.

To qualify for special education services, the child must have a disability that falls under one of the 13 eligibility categories under IDEA. Cerebral palsy typically qualifies under orthopedic impairment (sometimes called physical disability), other health impairment, or multiple disabilities (if the child has CP and another condition, such as intellectual disability).

The Individualized Education Program (IEP)

The Individualized Education Program (IEP) is a legally binding document that outlines the special education and related services your child will receive. The IEP is developed by a team that includes: - The parents - At least one regular education teacher (if the child participates in regular education) - At least one special education teacher - A representative of the school district (who is qualified to supervise special education and knows the curriculum and available resources) - An individual who can interpret evaluation results (such as a school psychologist) - Other individuals with knowledge or expertise (at the discretion of the parent or school) - The child (when appropriate)

The IEP must include: - Present levels of performance: A statement of the child current academic and functional performance. - Measurable annual goals: Goals that the child is expected to achieve in one year. - Special education and related services: A statement of the services the child will receive. - Accommodations and modifications: Changes to the way the child is taught or assessed. - Assistive technology: Devices and services the child needs. - Placement: The setting in which the child will receive services (in the LRE). - Transition planning: For children age 15 and older, a plan for the transition from school to post-school activities.

The IEP Process in NYC

The IEP process in New York City typically follows these steps:

• Referral: A parent, teacher, or other professional can refer the child for a special education evaluation. In NYC, the referral is made to the school Committee on Special Education (CSE) or, for preschool children, the Committee on Preschool Special Education (CPSE).
• Evaluation: The school evaluates the child to determine eligibility for special education. The evaluation includes assessments of the child cognitive, academic, social, emotional, and physical functioning. For children with CP, the evaluation should include an assessment of the child physical and motor functioning.
• Eligibility determination: The CSE/CPSE reviews the evaluation and determines whether the child is eligible for special education. Parents are part of this decision.
• IEP development: If the child is eligible, the IEP team develops the IEP. Parents are equal members of the IEP team.
• IEP implementation: The school implements the IEP. Services must be provided as specified in the IEP.
• Annual review: The IEP is reviewed and updated at least once a year. Parents are part of this review.
• Re-evaluation: The child is re-evaluated at least every three years to determine continued eligibility.

Related Services for Children with CP

Children with cerebral palsy often need related services -- support services that are necessary for the child to benefit from special education. Related services that may be included in the IEP for a child with CP include:

• Physical therapy (PT): To improve the child mobility, strength, and gross motor skills. PT may include stretching, strengthening, gait training, and training with assistive devices (walkers, wheelchairs).
• Occupational therapy (OT): To improve the child fine motor skills, self-care skills, and ability to participate in school activities. OT may include training with adaptive equipment and modifications to the classroom environment.
• Speech-language therapy: To improve the child speech, language, and communication skills. Speech therapy may include training with augmentative and alternative communication (AAC) devices for children who have difficulty speaking.
• Assistive technology services: Including devices (such as communication devices, adapted computers, and switches) and services (such as training and technical support).
• Nursing services: For children who need medical care during the school day (such as medication administration, tube feeding, or seizure management).
• Orientation and mobility services: For children with visual impairments (which can occur with CP).
• Psychological services: Including counseling, psychological testing, and behavioral interventions.
• Social work services: Including counseling, social skills training, and support for the family.
• Transportation: Including special transportation (such as accessible buses) to and from school.
• Adaptive physical education (APE): Physical education adapted to the child needs.
• One-to-one paraprofessional (aide): For children who need additional support in the classroom (such as assistance with mobility, self-care, or behavior).

Assistive Technology

Assistive technology (AT) can be a critical part of a child with CP education. AT includes both devices and services:

- Devices: Any item, piece of equipment, or product system that is used to increase, maintain, or improve the functional capabilities of a child with a disability. For children with CP, AT devices may include: - Augmentative and alternative communication (AAC) devices: Communication devices (such as speech-generating devices or communication boards) for children who have difficulty speaking. - Adaptive computer equipment: Including adapted keyboards, switches, and software. - Mobility devices: Including walkers, wheelchairs, and standing frames. - Adaptive seating and positioning equipment. - Environmental controls.

- Services: Services that assist in the selection, acquisition, or use of an AT device, including evaluation, training, and technical support.

If your child needs AT, it should be specified in the IEP. The NYC DOE is responsible for providing AT devices and services at no cost to the family.

Placement Options

Under the Least Restrictive Environment (LRE) requirement, children with disabilities must be educated with children who are not disabled to the maximum extent appropriate. Placement options (from least to most restrictive) include:

- General education class with supports: The child attends general education classes with accommodations, modifications, and related services. - Integrated Co-Teaching (ICT): The child attends a class with both a general education teacher and a special education teacher, along with non-disabled peers. - Special class (self-contained): The child attends a smaller class with a special education teacher and other children with disabilities. Special classes may be in a community school or a specialized school. - Specialized school: The child attends a school specifically designed for children with disabilities, such as a District 75 school in NYC. - Home or hospital instruction: For children who cannot attend school due to medical reasons. - Residential program: For children whose needs cannot be met in a day program.

The IEP team determines the appropriate placement based on the child individual needs. The NYC DOE is required to provide a continuum of placement options.

Transition Planning

For children age 15 and older, the IEP must include transition planning -- a plan for the child transition from school to post-school activities, including: - Post-secondary education - Vocational training - Integrated employment (including supported employment) - Adult education - Adult services - Independent living - Community participation

Transition planning should be based on the child strengths, preferences, and interests. The IEP team (including the child) should develop measurable post-secondary goals and the services needed to achieve those goals.

In New York, the Adult Career and Continuing Education Services-Vocational Rehabilitation (ACCES-VR) program provides vocational rehabilitation services to individuals with disabilities, including help with finding and maintaining employment.

Resolving Disputes

If you disagree with the NYC DOE about your child IEP, evaluation, or placement, you have several options:

• Mediation: A voluntary process in which a neutral mediator helps the parents and the school resolve their disagreements.
• Due process complaint: A formal complaint filed with the NYC DOE, requesting a due process hearing before an impartial hearing officer.
• Impartial hearing: A formal hearing before an impartial hearing officer, who makes a binding decision about the dispute. Parents have the right to be represented by an attorney at the hearing.
• State complaint: A complaint filed with the New York State Education Department (NYSED), alleging that the school violated special education law.
• Pendency (stay-put): While a dispute is being resolved, the child has the right to remain in their current placement (unless the parents and school agree otherwise).
• Tuition reimbursement: If the school cannot provide an appropriate placement and the parents place the child in a private school, the parents may seek tuition reimbursement through an impartial hearing.

How MDLaw Firm Can Help

At MDLaw Firm, we help families of children with cerebral palsy navigate both the legal and educational systems:

• Malpractice claims: We pursue medical malpractice claims for birth injuries that caused cerebral palsy, working to obtain compensation for medical expenses, special education costs, and lifetime care. [Link to: /cerebral-palsy-lawyer/new-york]
• Life care planning: We engage life care planners to project the child future care needs, including special education costs. [Link to: /cerebral-palsy-lawyer/life-care-plan]
• Special needs trusts: We work with families to establish special needs trusts that can pay for supplemental educational services not covered by the IEP. [Link to: /cerebral-palsy-lawyer/financial-assistance]
• Resource navigation: While we are a law firm (not an education advocacy organization), we can connect you with education advocates, parent training and information centers, and special education attorneys who can help with IEP disputes.

Frequently Asked Questions

The value of a medical malpractice case in New York depends on several factors, including the severity of the injury, the strength of liability evidence, and the economic and non-economic damages involved. New York is one of the few states with no caps on medical malpractice damages, meaning there is no artificial limit on what you can recover. Below are typical settlement ranges based on injury severity.