Special Education Services and Laws

"Special" refers to individualized instruction. Your child must demonstrate a need for individually designed instruction and services that will improve his ability to learn. Within special education, there are "Related Services" that can help your child learn and function in school. These related services include:

Laws that Affect Your Child's Education

There is a federal law on education called the Individuals with Disabilities Education Act (IDEA). Original legislation was enacted in 1975, and it has been amended many times since then. In 1997, the IDEA created the educational identification of Traumatic Brain Injury as a specific category of students with special educational needs. Before this, students who had sustained a traumatic brain injury were incorrectly classified as learning disabled, mentally retarded, or emotionally disturbed. Making a category for "traumatic brain injury" was intended to improve the early identification of these children so that educational programs could address their specific and unique needs.

However, in trying to define traumatic brain injury, many students with non-traumatic brain injuries were excluded. The present federal and New Hampshire definition of traumatic brain injury only covers injuries to the brain caused by an external force and reads as follows:

"Traumatic brain injury means an acquired injury to the brain caused by an external physical force, resulting in total or partial functional disability or psychosocial impairment or both, that adversely affects a child's educational performance. The term applies to open or closed head injuries resulting in impairments in one or more areas, such as cognition; language; memory; attention; reasoning; abstract thinking; problem-solving; sensory, perceptual or motor abilities; psychosocial behavior; physical functions; information processing; and speech. The term does not apply to brain injuries that are congenital or degenerative, or brain injuries induced by birth trauma."

This definition often leaves family members confused if their child has had an anoxic injury, such as near drowning. In many districts, an anoxic injury still qualifies for an educational identification of traumatic brain injury.

The most recent amendment to the IDEA occurred in 2004, changing the name to the Individuals with Disabilities Education Improvement Act of 2004 (IDEIA). Although the name formally changed, many school professionals continue to refer to the new law as the IDEA. For this guide, the new law will be referred to as the IDEIA. The law lays out the process for schools and parents to follow in planning and providing special education and related services to infants, toddlers, and children with disabilities and other conditions that affect learning. Every state also has a law for education which matches the federal guidelines under IDEIA. New Hampshire state law closely follows the federal law.

Highlighted changes to Special Education Services due to the IDEIA:

The IDEIA law has a special category for traumatic brain injury. It is very important to use the identification or category "traumatic brain injury" for your child and to avoid general identifications such as "other health impaired". This will help the educators know that they need to provide specialized services for your child.

The category of traumatic brain injury helps schools:

  1. Identify students with special needs as the result of brain injuries.
  2. Recognize that students with brain injuries have unique needs.

To learn about the IDEIA law:

Your child may be eligible for services and accommodations under another federal law called the Rehabilitation Act. Section 504 of the Rehabilitation Act prohibits discrimination against persons with disabilities by school districts and ensures access to a free, appropriate public education. If your child has a handicapping condition that limits a major life activity, special accommodations to his educational program are required.

A child with a disability is considered handicapped and is protected under Section 504. However, a child considered handicapped under Section 504 might not be considered disabled under IDEIA. In other words, a child does not need to be enrolled in special education to be eligible for services under Section 504.

504 Students & Regular Education-Only Students (IDEIA)

504 vs. IDEIA Services

Some examples of potential 504 handicapping conditions not generally covered under the IDEIA are:

The Rehabilitation Law states:

"No qualified handicapped person shall, on the basis of handicap, be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any program or activity which receives or benefits from federal financial assistance."

Section 504 defines a handicapped person as:

"...having a mental or physical impairment that limits major life activities, which include: caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working."

Referral for Special Education

A request for the school to evaluate your child should be made as early as possible and in writing. Parents, teachers, or doctors can ask the school to begin the evaluation process to determine if your child is eligible for special educational services. It can take time because there are specific federal and state requirements and timelines for the application, review, and approval or denial process.

If your child is still in the hospital or rehabilitation program, a decision about your child's eligibility may not be reached by the time your child is ready to go home. This means that you are responsible for following through on this application with the school.

Most school districts have standard referral procedures that are overseen by a special team. This team may include the director of special education, principal, special education teachers, school nurse, psychologist, social worker, and others.

The school team will evaluate your child's educational needs by gathering information on your child's academic, physical, cognitive, social, and behavioral abilities. You are an important member of this team. The rehabilitation staff can help by providing reports and expert advice on your child's brain injury.

Why is My Child's Age Important?

Your child's age will affect what services are available and what organization you should contact.

Birth through 2 Years

If your child is under three years old, there are Early Intervention Services for infants and toddlers who are developmentally delayed or at risk for becoming developmentally delayed. These programs provide specialists who can evaluate and treat your child at home or in a special program.

TIP: For more information about Early Intervention Programs in your area, contact your local Area Agency. Call (603) 271-5000 or visit the Brain Injury Association of New Hampshire website at http://www.bianh.org/resource/agencies.htm to contact a program specialist for your region.

3 to 5 Years

If your child is between ages 3 to 5 years, there are special services through the Early Education Program for Children with Disabilities. Early special education services can help determine how the brain injury has affected your child's learning and help prepare your child for entering elementary school.

TIP: Different agencies run these pre-school programs in different states. Call your school department or health department to contact the program in your area.

Often, Early Childhood Programs are provided by the local school district. Contact your local school for an application and information.

School Years 6-18

As students move through elementary school, middle school, and high school, there are many changes in how they are taught, what subjects they study, and how complex the work is. These changes present new challenges for learning. For the student who has had a brain injury, the school years may need to be extended, and the special education law contains several important provisions.

Summer services/Extended year programs

Students receiving special educational services are not restricted to the school year. They may also receive services, such as tutoring or special programs, during the summer. The goal of extended year programs is to prevent regression or loss of skills rather than to promote the acquisition of new skills.

Transition planning

At 14 years of age, students who are receiving special education must have identified transition service needs which are tied into their courses of study. At 16 years of age, a plan must be developed to prepare the student for adulthood and for life after leaving school.

Graduation

The federal education law has an upper age limit of 21 for eligibility. In many states the age limit is 22. In New Hampshire, the age limit is 21. However, once a student accepts a high school diploma, eligibility for special education and related services ends. Many students falsely assume that vocational programs will be available after graduation, but these services have different eligibility requirements and may be more difficult to obtain. Pre-vocational planning and training must be built into the special education plan as part of the transition program to help prepare the student for adulthood.

My son was hurt in the summer just before his senior year of high school. So I felt a lot pressure when he started school to get services for him as quickly as possible. He still wanted to go to college and admission would depend a lot on his SAT scores. Looking back, I wish I had pushed the school even more because it just took too long to get things in place for him.

Neuropsychological Evaluation

A neuropsychologist is a psychologist who has specialized in the relationships between the brain and behavior. Neuropsychologists have special training to evaluate how an injury to the brain affects your child's ability to learn, communicate, plan, organize, and relate to others. Evaluations usually involve several tests, including games, puzzles, and responses to words and images. These give the examiner information about how the different parts of the brain function when challenged to reason, analyze, store, and recall information. The selection of tests will depend on your child's age, the difficulties reported by the rehabilitation team, questions from the school staff, and your concerns. A neuropsychologist experienced in evaluating children and adolescents will be familiar with which tests are valid and useful for students with brain injuries.

Suggestions

TIP: Choose a neuropsychologist carefully to work with the school.

The neuropsychologist in the rehabilitation hospital may or may not be able to follow your child after discharge. If you look for a neuropsychologist closer to your child's school and community, be sure the person has experience with children your child's age, has worked with schools, will provide interpretation of test results, can give practical suggestions for teachers, and can provide follow-up to school staff.

Once your child returns to school, the special education team may want to use a psychologist employed or contracted by the school, rather than a neuropsychologist, to evaluate your child's progress. However, standard tests used by school psychologists to evaluate the learning difficulties of other students with disabilities may not be helpful or appropriate in evaluating the effects of a brain injury. Many intelligence and achievement tests measure primarily what the child has learned in the past. Students who have had brain injuries often do not lose the knowledge they had prior to injury. Thus, test scores on previously learned material such as vocabulary, general information, and social comprehension often show scores in the average or above average range. This can give a misleading picture of the student's ability to learn new information.

After your child returns to school, you and the teachers may have questions about how the brain injury has affected your child's learning and behavior. A neuropsychological evaluation within the first year after your child was injured can help track progress and difficulties in special areas. This may be done by the same neuropsychologist who evaluated your child in the rehabilitation program. If it is a different person, then it is important to have the earlier reports available to compare test results and track your child's progress over time.

Explore a referral for a neuropsychological evaluation when your child:

TIP: Periodic neuropsychological evaluations should be done, especially when your child moves from elementary to middle to high school, as these moves often bring new challenges and more complex learning.

Caution: If your child was previously in special education, talk with rehabilitation specialists and school staff about the importance of adding traumatic brain injury to your child's educational plan. Discuss how this injury may affect previous special needs that your child had in school.