By: John Whitbeck

According to the National Center for Education Statistics, 7.1 million students between the ages of three and twenty-one received special education services under the Individuals with Disabilities Education Act (IDEA) in 2018/19.

Under federal law, every child is entitled to receive a free and appropriate public education. Parents sometimes need an advocate on behalf of children to obtain the services public school districts are legally required to provide, such as school boundary disputes, student expulsion, suspension and disciplinary proceedings, and disputes with local school districts. Hiring an experienced Virginia family law attorney can be beneficial in navigating the educational system.

Obtaining Special Education Services for Your Child

Special education instruction is specially designed to meet the unique needs of a child with a disability. A child with a disability is one who has been evaluated and determined to have: autism, deafness, deaf-blindness, developmental delay (in some school divisions), emotional disability, hearing impairment, intellectual disability, orthopedic impairment, specific learning disability, speech or language impairment, traumatic brain injury, visual impairment, and/or other health impairment.

To be eligible for special education and related services, the child’s disability must affect his or her educational performance.

Individualized Education Programs

When a child has a qualifying disability, the child’s school is required to develop an individualized education program (IEP) for the child. The IEP details the child’s disability or disabilities and how the school will address the child’s needs. Every child is different, which is why speaking with a Virginia family law attorney can help you consider the best options for your child’s educational needs.

Resolving Disputes

In the context of special education, dispute resolution may take many forms, including due process hearings, mediation, and state complaint processes.

A due process hearing is the most frequently used form of special education adversarial dispute resolution. A parent may demand a due process hearing if they disagree with the child’s identification, evaluation, or educational placement. A parent may also demand a due process hearing if they believe the child has been denied a free and appropriate public education (FAPE). In deciding the dispute, a hearing officer will hear evidence presented by the parent and the school, then issuing a decision.

Mediation is another form of special education dispute resolution. In this process, a neutral mediator assists both parties in negotiating issues arising under the Individuals with Disabilities Education Improvement Act of 2004 (IDEIA). Mediation may be used only if both parties agree to it.

The third way to resolve special education disputes is through the Virginia Department of Education (VDOE). VDOE operates a complaint system that investigates alleged violations of special education law. Any individual or organization may file a complaint with the VDOE. If the VDOE finds that the school did not follow the law, it will order corrective action, such as compensatory services or monetary reimbursement. Hiring a skilled Virginia family law attorney to advocate for you and your child can support you through this process.

Behavioral Intervention Plans

If your child breaks school rules, your child’s educational placement may be changed. However, before the school removes a child with a disability, the relevant members of the individualized education program (IEP) team must meet immediately. In this meeting, the team will consider whether your child’s disability caused the misconduct or whether the misconduct was a direct result of the school’s failure to implement your child’s IEP. If it is determined that the conduct was a manifestation of the child’s disability, the IEP team must conduct a functional behavioral assessment.

A functional behavioral assessment examines the underlying cause or functions of the behavior that interferes with the learning of the child or the learning of his or her peers. The functional behavioral assessment determines whether a Behavioral Intervention Plan (BIP) is needed. A BIP uses positive behavioral interventions and supports to address behaviors that interfere with the learning of the child with the disability, interfere with the learning of others, and/or require disciplinary action. If a parent disagrees with the IEP team’s behavioral assessment, the parent may request an expedited due process hearing.

Section 504 Plans

Some disabled students are not eligible for IEPs under the IDEA; however, the law still requires that schools meet the educational needs of all disabled students “as adequately as the needs of non-handicapped persons.” Section 504 plans are alternative protections that accommodate a disabled student’s differences within the regular education environment. A Section 504 plan may require that a school provides regular aids or services (as opposed to special education services) to adequately meet the child’s individual education needs.

Examples of Section 504 accommodations include preferential seating in the front of the classroom, a longer period of time to complete assignments, modified assignments, and behavioral management plans.

It is important to consider whether your child may be eligible for a 504 Plan if your child shows a pattern of not benefitting from the instruction provided, the school is considering retention, or a disability of any kind is suspected.

To learn how our team can help you with your child’s educational needs, contact WhitbeckBennett by calling 800-516-3964 or by emailing clientservices@wblaws.com.

Related: Special Education Law


John Whitbeck

John Whitbeck


John C. Whitbeck, Jr. is the founder of WhitbeckBennett. His practice focuses on family law, special education law, and mental health law. He regularly practices in several jurisdictions in the Northern Virginia area. He has also been certified as an expert witness in litigation.