Guardianship and power of attorney are two ways to help someone who needs support in making important life decisions.  Both allow one person to make choices for another, but to different degrees and with different conditions that put them into effect.

If you’re thinking about establishing a legal guardianship or creating a power of attorney, you can go through both processes on your own.  But working with an attorney can help the process go more smoothly and avoid any complications.  Here are some additional details you would want to consider.

Guardianship: An Overview

Guardianship is a legal arrangement where a court appoints a guardian for someone in need, often referred to as the ward. In Pennsylvania, guardianship is often used as a form of familial support for adults with disabilities.  It can also be used to support elders who, because of cognitive decline or other health issues, need assistance in managing their affairs later in life. 

Guardianship involves selecting someone to make decisions—sometimes just concerning money, sometimes concerning all of their personal matters—for an adult who lacks the capacity to make those decisions for himself.  Guardianship requires court approval. 

Guardianship can be uncontested, where the person subject to guardianship and their guardian ad litem (their attorney for the guardianship) agrees to the guardianship, or contested, where there is a hearing about whether guardianship should be awarded and to what extent.

Once guardianship is established, the guardian will have periodic reporting requirements to the supervising court to ensure that the guardian is acting responsibly and that the guardianship is still appropriate.

Powers of Attorney: An Overview

While there are a range of types of powers of attorney, this discussion focuses on powers of attorney that transfer exclusive decision-making power in much the same way as guardianship.  In those situations, a power of attorney is a legal document created by an adult who has legal capacity to make decisions for themselves and chooses another person to handle specific financial, medical, or other personal decisions under circumstances where the person is rendered incapacitated, typically without needing court approval. 

For instance, if a young adult with schizophrenia that is well-managed on medication experiences difficulty remaining on their medication and begins to experience worsening symptoms as a result and can no longer manage their affairs, but created a valid power of attorney, the person to whom they gave that power of attorney can step in to help stabilize their care and personal affairs until the young adult with schizophrenia regains capacity.

Establishing Legal Authority

Getting guardianship and powers of attorney set up require different steps. As noted above, for guardianship, you’ll need to go through a court process to show that the person who will be the ward needs help, and that the guardian is the right person to provide it. Each state handles that process differently, and within Pennsylvania, each county court system has its own approach to guardianship hearings.  A power of attorney is easier to set up—most of it is done by paperwork alone, although, as we describe below, a lack of court approval can cause some issues with having the power of attorney honored—but you need to make sure it complies with your jurisdiction’s requirements so that it will be effective.

Decision-Making with Guardianship vs. Power of Attorney

Generally speaking, the scope of a guardianship is broader than a power of attorney.  It is also longer in duration.  The guardianship lasts for the time period set by the court, unless dissolved earlier by the court. 

The guardianship also allows the guardian to make the kinds of decisions within the scope set by the court: financial, medical, or what Pennsylvania calls “guardianship of the person,” which is effectively the power to make all major life decisions, as a parent would for a child.  A guardian of the person will manage finances, pick healthcare providers, and take care of daily living arrangements for so long as they are authorized to do so by the court.

With a power of attorney, the principal can specify what the agent is allowed to do, and it typically applies only when the principal is incapacitated.  This can include managing finances, making medical decisions, and managing personal affairs.  The authority conferred by a power of attorney also ends when the principal regains capacity.  This setup gives the principal the freedom to decide how much authority they want to give their agent.

Pros and Cons of Guardianship vs. Power of Attorney

Guardianship can offer a greater degree of protection for your adult child with disabilities, but reduces their independence and can be perceived as an invasion of their agency and dignity. 

Courts can be reluctant to grant guardianships where a young adult’s disabilities are severe, but cyclical in nature (e.g., Bipolar I Disorder), or where a person is intelligent but, due to deficits with processing social cues and nonverbal communication, manipulable and therefore subject to exploitation.

Powers of attorney are easier to set up, but are typically narrower in scope and apply only where your adult child lacks the capacity to act for themselves. 

Sometimes banks and health care providers will not honor powers of attorney unless they are endorsed or adopted by a court.  Sometimes, the person who granted a power of attorney will claim that they have capacity when they don’t—for example, when a person experiencing psychosis needs but does not want inpatient treatment.  That can lead to providers refusing to honor a power of attorney. 

And while a power of attorney gives your adult child more autonomy and agency in their own life, if it offers insufficient support, the realization that the power of attorney was insufficient support can be a rude awakening.

Seek Legal Advice

While you can approach a guardianship or a power of attorney for your adult child with disabilities on your own, we recommend consulting with a qualified legal professional to ensure that your chosen arrangement serves your interests and the interests of your adult child with disabilities, and so that the process you choose goes as smoothly as possible. 

The team at Raffaele & Associates is dedicated to supporting families in Pennsylvania, offering thoughtful legal guidance tailored to your needs. If you have questions or need assistance, please don’t hesitate to reach out. We look forward to hearing from you!

Proving Intent in Higher Education Discrimination Cases

One factor that distinguishes the statutes that protect students in primary and secondary education and the statutes that protect students in higher education is that to establish liability for institutions of higher education, one must show a requisite degree of intent to discriminate on the basis of disability.  Intent, in broad terms, refers to the state of mind behind an action or decision. In some discrimination cases, particularly those under Section 504 of the Rehabilitation Act involving private colleges and universities, demonstrating that the actions or omissions in question were discriminatory, or at least recklessness with regard to an outcome that resulted in disparate treatment based on disability, is a prerequisite to establishing financial liability for a college or university.  This can be challenging in higher education settings where institutions will not only claim that their decisions were made for legitimate reasons unrelated to discrimination, but that the decisions were made for pedagogical reasons in which only the higher education institution has expertise.

To prove intent, lawyers rely on a combination of direct evidence (such as explicit statements expressing bigotry or documented discriminatory practices like deliberate segregation), and circumstantial evidence, such as disparate outcomes for members of protected classes as compared to non-protected persons (e.g., white students consistently getting better grades and/or more and/or better opportunities than Black students).  Even with compelling evidence, however, establishing intent in the eyes of a jury can be difficult—especially when dealing with subtle forms of discrimination and institutionalized biases.

Proving intent in discrimination cases in higher education is often like creating a mosaic.  One must piece it together from the individual bits and pieces.  We have found that it is now exceedingly rare to find a “smoking gun” in higher education discrimination cases.  Those who discriminate against students with disabilities know not to use discriminatory language in written communications.  We must therefore build evidence of discriminatory intent in higher education cases by finding nuances, indirect evidence, and inconsistencies between stated values and behaviors.  It’s rarely a straightforward task.  But that work is crucial to building a strong case against discriminatory practices on college campuses.

Despite these challenges, strategies such as thorough documentation, use of expert testimony, and the development of thorough comparator evidence can strengthen the case for proving intent in discrimination cases.  The meticulous compilation and presentation of evidence helps to hold institutions accountable for discriminatory practices and helps attorneys and their clients with disabilities advocate for inclusive environments on college campuses.

What Are Common Forms of Discrimination in Higher Education?

Despite the widespread belief that colleges and universities are bastions of liberalism and acceptance, discrimination happens every day on campuses.  That discrimination takes various forms but is frequently both subtle and exacerbated by the inequalities that characterize the relationships between professors and students, graduate students and advisors, and Ph.D. candidates and their dissertation committees or primary researchers.  Understanding these forms of discrimination is essential for identifying and addressing disparities within undergraduate and graduate educational institutions.

Likely the most common form of discrimination in higher education is racial discrimination, which can manifest through disparities in admissions (especially since the Supreme Court’s decisions in SFFA v. Harvard and SFFA v. UNC, which effectively eliminated affirmative action practices in higher education that were meant to remedy more than a century of racial injustice in America), discipline, and access to resources, mentorship, and clinical and/or practical opportunities.  Students of color face barriers to entry and encounter hostile environments that hinder their academic success relative to their white peers.

Gender discrimination is also prevalent in higher education.  Women often experience disparities relative to men in recognition, access to opportunities, and academic freedom. Women in academia—both students and professors—can also face criticism for exhibiting the same characteristics that are encouraged in men: Assertiveness, overt confidence, and contentiousness.  Stereotypes and biases can contribute to a hostile climate for women in academic settings, perpetuating inequalities in representation and advancement.  Trans and gender-diverse persons face mistreatment based on their identitiy(ies) as well.  They can be pigeonholed into what others believe their range of gender expression should be, penalized in both formal and informal ways for not behaving for the comfort of others, and permitted to advance only as far as tokenism will allow.

Discrimination based on disability, sexual/affectional orientation, religion, and other protected characteristics also occurs on a daily basis in higher education.  Each impacts students’ experiences and access to educational opportunities.  With discrimination on the basis of disability in particular, colleges and universities often fail to implement reasonable accommodations for students, even where the institution’s office of disability services has agreed that those accommodations are necessary for a student with disabilities to have the same access to their education as do their non-disabled peers. 

We believe it is also important to recognize that all of these forms of discrimination can intersect, which compounds the challenges faced by marginalized groups within academic institutions.  For example, Black students with disabilities can face particular forms of discrimination that Black students and students with disabilities do not experience.  Similarly, women of color often face particular forms of discrimination that include the erasure of at least one aspect of their identities (e.g., you can be regarded as Black or as a woman, but not as a Black woman).

Recognizing and addressing these common forms of discrimination does not merely benefit individual students.  It helps colleges and universities to create more inclusive environments that promote diversity, equity, and academic excellence, to the benefit of all.

What Legal Protections Exist for Students Facing Discrimination in Higher Education?

When students encounter discrimination in higher education, they may wonder what legal protections are available to them. Understanding these protections is essential both for advocating for a client’s rights and for seeking recourse in cases of discrimination.

Title VI of the Civil Rights Act of 1964 prohibits discrimination on the basis of race, color, and national origin in programs and activities receiving federal financial assistance, including many colleges and universities. This law provides students with a mechanism for filing complaints with the U.S. Department of Education’s Office for Civil Rights (OCR), and for pursuing civil litigation against institutions found to be in violation.

Similarly, Title IX of the Education Amendments of 1972 prohibits sex discrimination, including sexual harassment and assault, in educational programs and activities. Students who experience gender-based discrimination or violence can file complaints with the OCR or pursue legal action against their institutions under Title IX.

Additionally, the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act of 1973 prohibit discrimination on the basis of disability in higher education, requiring colleges and universities to provide reasonable accommodations and ensure equal access to educational opportunities for students with disabilities.

State laws can provide similar and supplemental protections.  Here in Pennsylvania, for example, the Pennsylvania Human Relations Act (“PHRA”) provides protections under Pennsylvania Law that are co-extensive with Title VI, Title IX, the ADA, and Section 504.  And, crucially, state laws remain largely unaffected by changes to federal law and decisions by the United States Supreme Court.  So while emotional harms damages have been eliminated under Title IX and Section 504, for example, they remain available under the PHRA.

While these laws offer important protections for students facing discrimination in higher education, navigating the legal process can be difficult, particularly where these rights structures overlap with one another.  Legal representation and advocacy organizations specializing in civil rights and education law can provide vital support and guidance to students seeking justice in cases of discrimination on college campuses.

What Role Do Institutional Policies and Procedures Play in Addressing Discrimination in Higher Education?

Policies and procedures provide the framework for institutional responses to discrimination in higher education, outlining the steps for reporting, investigating, and remedying instances of discrimination. They also can serve, unfortunately, to slow down institutional responses to the needs of students and to shield colleges and universities from their obligations under the law.  Understanding the role of these policies and how an individual institution applies them is crucial for students, faculty, and administrators alike in fostering inclusive campus environments and upholding civil rights.

In many colleges and universities, anti-discrimination policies are included in student codes of conduct, faculty handbooks, and institutional equity statements. These policies typically define prohibited behaviors, outline reporting mechanisms, and delineate the responsibilities of various stakeholders in addressing discrimination.

The mere existence of policies is not, however, sufficient to combat discrimination effectively. Many institutional anti-discrimination policies are merely aspirational: They state a purported value but offer no protections beyond what the law already provides for students.  Moreover, policies and procedures matter not in how they are written, but how they are applied.  Comprehensive, accessible, and consistent enforcement are the prerequisites to providing meaningful protections for members of the campus community. And that, in turn, requires colleges and universities to implement ongoing training for staff, professors, and administrators; transparent communication about rights and responsibilities; and not only mechanisms for accountability and oversight, but clear paths for students to access those mechanisms.

Moreover, the intersectionality of discrimination requires a holistic approach to policy development and implementation. Institutions must recognize and address the ways in which discrimination based on race, gender, disability, sexual and affectional orientation, and other protected class memberships intersect and compound to create unique challenges for marginalized individuals.

Combating discrimination in higher education is a multifaceted process.  Each such individual fight will vary depending on the specific circumstances and applicable laws. Here, however, is a broadly-framed, step-by-step guide:

Documentation and Evaluation: Collect and document evidence of discriminatory behavior or practices. This may include written communications, emails, witness statements, and any other relevant documentation. Evaluate the evidence to determine if it indicates potential discrimination based on protected characteristics such as race, gender, disability, or others.

Know Your Rights: Familiarize yourself with federal and state laws that prohibit discrimination in higher education, such as Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, the Americans with Disabilities Act (ADA), Section 504 of the Rehabilitation Act, and others. Pay attention also to state anti-discrimination laws, which often offer protections in addition to those supplied by Federal law (e.g., the Pennsylvania Human Relations Act).  Understand what constitutes discrimination under these laws and the remedies available to you based on your protected class memberships.

Explore Internal Complaint Procedures: Many colleges and universities have internal procedures for addressing discrimination complaints. Review your institution’s policies and procedures for reporting discrimination and follow the prescribed steps for filing a complaint. This may involve submitting a formal written complaint to the appropriate office or official within the institution.

Decide Whether to File with External Agencies: If you are unsatisfied with the outcome of the internal complaint process or if your institution fails to address the discrimination adequately, you may consider filing a complaint with external agencies. For example, you can file a complaint with the U.S. Department of Education’s Office for Civil Rights (OCR) or the Equal Employment Opportunity Commission (EEOC), depending on the nature of the discrimination and the nature of your position within a college or university.  The same is true of state administrative agencies that enforce antidiscrimination laws, like the Pennsylvania Human Relations Commission.  Bear in mind, however, that the timelines to file these administrative complaints can be short (90 or 180 days, in many cases), and those timelines may not be paused while you are going through a college or university’s internal complaint procedures.

Engage in Advocacy and Awareness: Engage in advocacy efforts to raise awareness about discrimination and promote institutional change. This may include collaborating with student organizations, faculty groups, or community activists to advocate for policy reforms, diversity initiatives, and cultural competency training programs within the institution.

Take Legal Action: In some cases, you may need to pursue legal action against the institution or individuals responsible for the discrimination. This is where a firm like Raffaele & Associates enters the picture. We routinely handle student civil rights, and our experience can be indispensable when seeking legal recourse and determining the best course of action. This may involve negotiating directly with the attorneys for colleges and universities, filing administrative complaints, and filing lawsuits in federal or state court seeking damages and/or injunctive relief.

Follow-Up and Monitor Routinely: Stay informed about the progress of your complaint or legal case and follow up with relevant authorities or legal counsel as needed. Monitor the institution’s response to your complaint and hold them accountable for addressing the underlying issues of discrimination.

Understanding the specific challenges combatting discrimination in higher education is an important first step in seeking redress for abuses that you or your college-age child has suffered in an educational setting. You can be proactive by familiarizing yourself with the anti-discrimination policies and procedures at the involved institution, as well as the applicable federal and state laws.

If you notice any gaps or inconsistencies, you can move forward through potential legal action. By actively engaging with your institution’s policies and holding them accountable to uphold the rights of you and/or your child, you can achieve not only redress for any institutional failures, but also contribute to creating a more inclusive and equitable campus environment going forward.

We Are Here to Help

The law firm of Raffaele & Associates is dedicated to serving the legal needs of students, children, and families. Our trusted team of attorneys, education consultants, and staff provide skilled, thoughtful representation for your case. By combining the experience and sophistication of a large firm with the personal attention and service of a small law office, we offer you the best of both worlds.

Our team of professionals includes attorneys, an advocate, and support personnel, all working together to serve our clients and fulfill our mission through education, advocacy, and representation.

If you would like to know more, please contact us here. We look forward to speaking with you.

The information within this article is not, nor is it intended to be, legal advice. Please consult an attorney for individual advice regarding your personal situation.

1. Request progress reports if you have a child participating in Extended School Year (ESY)

If your child is enrolled in Extended School Year (ESY) services through their Individualized Education Plan (IEP), you have the right to request updates on how they are doing. If your child has IEP goals that are being worked on by the school team (for example, a speech and language goal, or a reading goal), then you can specifically request progress reports for those goals. Those progress reports should give you an idea of whether your child has improved, worsened, or stayed the same. The reports are usually provided to parents at the end of ESY, since ESY usually ranges from 6 – 8 weeks.  If your child has regressed or stayed the same, this would be a helpful document to show to the IEP team in the fall if you want to request more of or a different kind of special education service or support.

Expert Tip: Ask the ESY staff at the beginning of the summer whether they will be tracking your child’s progress through progress monitoring reports. If they say yes, then you can circle back with them at the end of ESY. If they say no, then you can reach out to the director of special education or another supervisor to find out why your child’s data and progress are not being monitored and reported during ESY. 

2. Incorporate “experiential learning” into day-to-day activities

One of the fears you may encounter with summer approaching is, how will my child do once school starts if they are not in a structured class setting? There are many ways you can incorporate structure and experiential learning into your child’s summer days (depending on their age, of course) which include:

Create a routine: Although it is summer, many special needs kids thrive on having a consistent routine every day, particularly students with neurotypical conditions like Autism spectrum disorder or students with behavioral or mental health conditions such as ADHD, depression, anxiety, mood disorder, ODD, etc.  This doesn’t mean that you have to wake your child up at 7 am and enforce a strict bedtime hour, but you can create a schedule of what their “days” will look like, carving out specific times for free play, attending camp, relaxing and playing sports or participating in extracurricular activities.

Provide opportunities for improving activities of daily living: There are many practical skills or also referred to as activities of daily living (ADLs) which kids may need to improve but don’t have the same time during the school year. These can and will vary by age but can include, cooking, cleaning, gardening, grocery shopping with parents, tying their shoes, handwriting and typing skills, drawing, tracing, or counting/managing money.  All of these skills are critical skills that students learn at specific developmental milestones and can be honed during the summer break. If your child has an IEP Occupational Therapy goal addressing handwriting and holding scissors but has not regressed to the point where they need ESY, you can set aside a few “times” a week where you provide opportunities to work on these goals.

Offer ways to engage in sensory activities: All activities where your child is actively playing (rather than watching the iPad or playing a video game) can be beneficial to their sensory development and growth. Examples of sensory-related activities can include swimming in a pool or a lake, visiting museums like LegoLand or the Franklin Institute, and exploring parks and gardens such as Morris Arboretum, Chanticleer Garden, or Longwood Gardens.

Foster social skills: If you have a child with anxiety or social skills deficits, consider making weekly playdates with another child, taking your child to the playground, and enrolling them in camp or a structured day program. Of course, cater these activities and social opportunities to your child.

Identify learning goals: If your child struggles in reading, writing, or math, take some time (when you have time!) to help them read a book, practice their writing, or perform some math problems. Reading books, working on puzzles, and playing educational games are all ways to reinforce the academic learning skills your child has been working on in school.

3. Start preparing for the Fall

Summer comes and goes quickly! In early August (or possibly before), set aside some time to review your child’s progress (or regression from the summer).  Has your child been doing well in camp or in other activities, or have they been struggling? Is there a new medical, emotional, or behavioral issue that has arisen with your child? How did your child do in ESY after you reviewed the progress reports? Did your child have a private educational evaluation or have a change to their medications? Take the time to gather this information and write it down. If there are documents, then share them with the school.  If there have been changes that may impact your child’s school programming (whether it’s a 504 plan or an IEP), email the school district to request an IEP meeting before school starts. Although it is summer and not all of the staff will be available to meet, there are many school district staff who can meet with you to discuss your child’s IEP, especially if changes to the programming or schedule need to be made. If the IEP team won’t meet with you before school, then set a date for the first or second week of school. 

If you have an older child in middle or high school, make sure they are comfortable with their class schedule and the school building. If they are not, or seem nervous, ask that your child be able to tour the school and walk through their classrooms before class starts so they can get a lay of the land. For a younger child who may experience anxiety, ask if your child can meet with the teacher(s) the week before school starts. Usually, all school staff are in training and preparing their classrooms that week, so they should be available.

4. Don’t forget to have fun!

Above all, always remember to focus on the present, enjoy your child, and bask in the long summer days.

We Are Here to Help

The law firm of Raffaele & Associates is dedicated to serving the legal needs of students, children, and families. Our trusted team of attorneys, education consultants, and staff provide skilled, thoughtful representation for your case. By combining the experience and sophistication of a large firm with the personal attention and service of a small law office, we offer you the best of both worlds.

Our team of professionals includes attorneys, an advocate, and support personnel, all working together to serve our clients and fulfill our mission through education, advocacy, and representation.

If you would like to know more, please contact us here. We look forward to speaking with you.

The information within this article is not, nor is it intended to be, legal advice. Please consult an attorney for individual advice regarding your personal situation.

May is Mental Health Awareness Month (MHAM).  MHAM was established in 1949 to increase awareness of the importance of mental health and wellness in our lives and to celebrate recovery from mental illness.  Although mental health disease has always been a part of our society, since the COVID pandemic, adults and children have reported a higher prevalence of anxiety and depression symptoms. 

In February of 2023, the CDC released a report that surveyed 17,232 American students in 2021. It found that nearly three (3) in five (5) teenage girls felt persistent sadness in 2021, double the rate of boys, and one (1) in three (3) girls seriously considered attempting suicide. The findings also showed high levels of violence, depression, and suicidal thoughts among lesbian, gay, and bisexual youth. More than one (1) in five (5) of these students reported attempting suicide in the year before the survey.  Mental health awareness is critical to reducing the misconceptions and stigma associated with mental health disease(s) and encourages youth who are suffering to seek help and find a support network within their family, community, and school. 

How can mental health impact my child’s education?

According to the CDC, without early diagnosis and treatment, children with mental disorders can have struggles at home, in school, and in forming friendships. Mental health disorders can preclude your child from attending school (school avoidance), which can lead to school attendance issues.  Mental health disorders can sometimes lead to incorrect disciplinary decisions, such as truancy referrals, or removals from school.  For example, your child begins to skip class because of anxiety or panic disorder, but the school perceives the behavior as insubordinate and issues an in-school suspension. Or, your child refuses to go to school because of high levels of anxiety or depression and the school issues a truancy petition against your family. Mental health disorders can prevent your child from accessing their education, even if they are able to physically make it into their school building. Anxiety, Depression, Oppositional defiant disorder, Conduct disorder, Obsessive Compulsive Disorder, and other mental health disorders can hinder your child from focusing in school, absorbing the materials being taught, or performing at their highest level of achievement. From a social/emotional perspective, mental health disorders can impact your child’s ability to develop friendships, interact positively with peers and participate in extracurricular activities or sports because of the isolation they may feel.

What supports and services can schools provide to support my child’s mental health?

Generally speaking, all Pennsylvania public schools should provide the following or similar services to all students:

• Guidance and school counseling programs and services;
• psychological services in the form of educational testing and evaluations, and counseling; health services (nurses);
• behavior support specialists and services;
• and the Student Assistance Program (SAP), which assists school personnel in identifying issues, including alcohol, drugs, mental health, and other behaviors and factors that pose a barrier to a student’s learning and school success.

Your school district’s intermediate unit also provides a plethora of mental health and related services, day programs, or even partial hospitalization programs for students suffering from mental health-related conditions.  Every intermediate unit offers differing services and support, so make sure you reach out to your child’s school district and intermediate unit to find out what is available for your family. For more information on this, visit the Education Law Center’s guide on partial hospitalization and day program options in Pennsylvania, https://www.elc-pa.org/wp-content/uploads/2023/09/Student-Rights-in-Partial-Hospitalization-Day-Treatment-2023.pdf.

Section 504 Plan Eligibility

If your child’s mental health needs “substantially limit” a “major life activity” and they need help to participate in or benefit from education or extracurricular programs, your child may qualify for accommodations in school. Depression, anxiety disorders, and other mental/behavioral health conditions all can fall under mental health needs which substantially limit a major life activity, such as learning, listening, seeing, hearing, etc. When this happens, your child may qualify for a Section 504 Plan. A Section 504 Plan, sometimes referred to as a 504 service agreement, is a written agreement between a parent and the school, describing what accommodations will be provided to your child in school so that your child can participate in and benefit from school activities. The Section 504 Plan will list the services and accommodations that your child needs. Common examples of accommodations for your child’s mental health needs could include: “cool down” or break pass to leave the classroom; allow breaks as necessary, adult to seek help from when feeling anxious or depressed; or preferential seating.

 IEP Eligibility

If your child’s mental health needs require specially designed instruction and related services, then your child may qualify for special education through an Individualized Education Plan (IEP). The most common way for children with mental health conditions to become eligible for an IEP is either under the category of Other Health Impairment (OHI) or Emotional Disturbance (ED).  To become eligible, the school district would have to conduct an Evaluation Report (ER) to determine whether your child qualifies for special education services. Some examples of services within an IEP for these children can include therapy with an emotional support counselor, guidance counselor, or school psychologist, social/emotional support in the form of direct instruction in coping skills, and a flexible schedule including at-home instruction or virtual instruction if deemed necessary.

What resources are available to me in the community?

Multiple organizations across the country not only acknowledge MHAM, but they provide tools and resources to individuals struggling with their mental health. Some of these organizations include:

• The National Alliance of Mental Illness (NAMI),
• Mental Health America, and
• Substance Abuse & Mental Health Services Administration.

On a local level, the PA Department of Education has resources listed online HERE, and NAMI lists local organizations in PA HERE. Of note, you can also explore applying for Medical Assistance or Medicaid (MA) for your child. Children who qualify for MA will receive an ACCESS card. There are a variety of mental health and behavioral services covered by MA, including but not limited to behavioral health rehabilitation services, psychiatric hospital stays, outpatient therapy, and partial hospitalization programs.

How can we help?

If your child’s mental health is impacting their education, obtaining an appropriate evaluation to assess these needs and programming for them in school can be critical. The law firm of Raffaele & Associates is dedicated to serving the legal needs of students, children, and families. Our trusted team of attorneys, education consultants, and staff provide skilled, thoughtful representation for your case.

We have experience helping families like yours through the review of a child’s educational records, examining their mental health records (if they exist), speaking to their doctors or providers, helping to request appropriate evaluation(s) in school, and advocating for educational services which address their mental health needs.

If you would like to get in touch with us, please contact us here. We look forward to speaking with you.

The information within this article is not, nor is it intended to be, legal advice. Please consult an attorney for individual advice regarding your personal situation.

• Does your child have a Section 504 plan for Attention-deficit/hyperactivity disorder (ADHD) but requires more executive functioning or organizational support in school?
• Does your child have an Individualized Education Plan (IEP) for speech and language services, but still struggles in school socially or behaviorally?
• Or, does your child have neither a Section 504 Plan nor an IEP and you want to know how they can obtain more support and services in school?

A special education evaluation (also referred to as a psycho-educational evaluation) will address all of these possible scenarios.

A special education evaluation is the first step in evaluating what your child’s learning, emotional and behavioral needs are as they relate to their performance in school. These evaluations are conducted by psychologists who perform a battery of tests and assessments. Evaluations can help determine the diagnosis of a particular physical, mental or emotional condition of your child, such as a reading disability, a speech and language impairment, an emotional disability, or an intellectual disability. Once the special education evaluation is complete, the evaluation can serve as the building block to providing your child with an IEP if your child is considered eligible for services under the IDEA.[1]

In Pennsylvania, there are very specific timelines and rules that accompany special education evaluations that take place in our school districts and intermediate units, which will be addressed further below.

 Why are special education evaluations important?

A special education evaluation will likely provide you with valuable information about your child.

• First, they help identify your child’s present levels of performance, including their strengths, deficits, and needs in their learning environment.
• Second, they can help provide an educational diagnosis which can inform educational planning and the research-based interventions that may be required to respond to your child’s academic needs. For example, if your child is struggling to grasp information in math class, and is acting out, an evaluation can help tease out whether it’s a behavioral issue or an underlying math disability, like dyscalculia.
• Third, a special education evaluation can lead to the development of an IEP for your child, which provides various legal protections to your child.

*Tip – the special education evaluation does not provide a medical diagnosis for your child, only educational diagnoses. For more information on the kinds of educational diagnoses and eligibility criteria that go into the creation of an IEP, visit https://www.education.pa.gov/K-12/Homebound%20Instruction/Pages/IEPs-and-504-Service-Agreements.aspx.

What kinds of special education evaluations exist?

School District Evaluations

The most common type of special education evaluation is an evaluation which is completed by psychologists who work at your child’s school district and/or intermediate unit. This is called an Evaluation Report (ER), and it is free of charge. The ER varies from student to student but typically will include cognitive assessments (IQ testing), academic achievement assessments (testing reading, writing, math), speech and language testing, motor testing, behavioral or emotional testing, reviewing outside sources (such as a report from the child’s private therapist), parent input and teacher input. If your child is struggling behaviorally or emotionally, you can also request a Functional Behavior Assessment (FBA). Although this assessment is not a part of the ER, it is vital if your child is repeatedly engaging in behaviors that impact their ability to access their education.  Ideally, a Board Certified Behavior Analyst (BCBA) would conduct the FBA, but it also depends on the circumstances. The Pennsylvania Training and Technical Assistance Network (PaTTAN) website provides many helpful resources on the ER process including here, https://www.pattan.net/Forms/Evaluation-Reportv.

If your child becomes eligible for an IEP after an ER is completed, Pennsylvania schools are required to evaluate your child every three (3) years after the initial ER. This is called a Re-evaluation Report (RR). The only exception is if your child has an intellectual disability; then the school district must complete an RR every two (2) years.

*Tip – You can request an RR for your child before the two or three years are up. If your child is struggling in school, this may necessitate a re-evaluation before the required legal timeframe.

Psychiatric Evaluations

There are times when a student’s mental health needs are not comprehensively identified by the ER, RR, or FBA. In these cases, school districts can also complete a psychiatric evaluation referral for your child. The Psychiatric Evaluation is completed by a psychiatrist, not a psychologist, who is employed by the school district or intermediate unit. Its purpose is to assess and then respond to a student’s individual social/emotional deficits which can help inform program choices or placement decisions.

Independent Educational Evaluation (IEE)

If you are unhappy or disagree with the Evaluation Report completed by your child’s school district, you have the option to request an Independent Educational Evaluation (IEE) at the school district’s expense. The IEE is conducted by a qualified psychologist or neuropsychologist who is not an employee of the school district or intermediate unit. A request for an IEE must be made in writing to the school district, usually the special education director, within one year of the date on the school district’s ER or RR.

Private Evaluations/Parent Paid

If you disagree with the ER or RR, and you request an IEE, but the request is denied, you also have the option to privately pay for an evaluation by a non-school district or intermediate unit employee. If you choose to take this route, you can share this report with the school district after the report is completed and ask that the IEP or school team consider the findings when programming for your child’s education.

What steps do I take to obtain a special education evaluation?

School District Initiated Evaluation

Your child’s school district is responsible for identifying all children with suspected disabilities and evaluating them in a timely manner. This is called their “child find” responsibility. If your school district initiates this process for your child, then the process is outlined in the Pennsylvania Statutes and your school district should provide you with a Permission to Evaluate (PTE). This form, once signed by the parent(s) is what will start the process for your child’s evaluation, or ER. Once you sign the form, the school district has 60 school days to complete the evaluation. For more information on this process, see https://www.pattan.net/Publications/The-Special-Education-Evaluation-IEP-Process.

Parent Initiated Evaluation

If your child’s school district has not initiated an evaluation, you have the right to request one at any time during the school year. Even though you can ask for the evaluation verbally, it is recommended that you ask for it in writing, either via email or a hand-delivered letter. The school district has 10 days to respond to your request for an evaluation. For a detailed step-by-step explanation of how to request an evaluation for your child, you can review the Education Law Center’s Fact Sheet on Special Education Evaluations, https://www.elc-pa.org/wp-content/uploads/2023/09/Special-Education-Evaluations-2023.pdf.

How Can I use the Evaluation Report to help my child?

The Evaluation Report provides a snapshot in time of how your child is performing in school. If the ER finds that your child requires special education services, then it is the building block for the IEP.  The IQ scores, academic achievement assessments, and other testing should be documented in the IEP in the “present level of performance” section, to give the IEP team (and your family) a baseline that measures how your child is performing now. In this way, you can use the ER to show a need for more or increased services.  If your child is performing below grade level in math, for example, then you can use their present levels in math to show that your child requires direct instruction in problem-solving or word problems.

One of the most important aspects of ERs is the recommendations section at the end. The recommendations should be specific enough to help the IEP team create IEP goals, with objective progress measures to guarantee that the goals are being achieved. The recommendations should also go into detail about the type of academic, emotional, social, behavioral, and/or related services that should be included in your child’s IEP. For example, a recommendation that says “John requires additional reading instruction during the school day” would not be sufficient. In contrast, a recommendation that says “John requires daily direct reading instruction in phonics, decoding, and encoding, using a research-based reading program such as Wilson or Orton Gillingham” would be more appropriate.

How can we help?

Obtaining an appropriate evaluation for your child can be challenging, especially if you are uncertain whether your child requires a school-based evaluation or an independent educational evaluation. The law firm of Raffaele & Associates is dedicated to serving the legal needs of students, children, and families. Our trusted team of attorneys, education consultants, and staff provide skilled, thoughtful representation for your case.

We have experience helping families like yours through the evaluation process and can help you by reviewing your child’s school-based Evaluation Report (ER), Re-evaluation Report (RR), related service provider reports (Speech and Language Report, Occupational Therapy Report), and/or requesting an Independent Educational Evaluation (IEE).

If you would like to get in touch with us, please contact us here. We look forward to speaking with you.

[1] This article does not address Section 504 evaluations. For more information, feel free to visit the PATTAN website, https://www.pattan.net/getmedia/fb622ac4-7091-4114-87c9-e625d441b776/TDR5_2_Chpt15_504_415.

The information within this article is not, nor is it intended to be, legal advice. Please consult an attorney for individual advice regarding your personal situation.

Has your school district removed or decreased your child’s speech and language service(s) or occupational therapy service(s) from your child’s IEP? Or proposed that your child be removed from his or her local elementary school and placed in a different elementary school in an emotional support classroom?  If you disagree with your school district’s special education decision(s) regarding your child’s services or placement, one option for resolving that dispute is to request mediation.  

In Pennsylvania, the Office for Dispute Resolution (ODR) oversees the formal mediation process in special education matters.  Mediation is a voluntary process.  Both the school district and the parent(s) must agree to participate in it.  If you request mediation, but the school district does not agree to participate, then mediation will not take place. Generally, school districts are amenable to participating because it is a less adversarial process than going to a due process hearing. 

Mediation can address any special education disagreement, including whether your child’s school district is complying with the IEP, whether your child’s school district is discriminating against your child, or whether your school district is recommending a change of placement that you do not believe is your child’s least restrictive environment (LRE).

What are the steps to file for mediation?

Online Form: The easiest way to file for mediation is to submit a request for mediation directly to The Office of Dispute Resolution (ODR) using their online form. You fill in the applicable information, press submit, and will receive an email confirmation shortly after.  If you are working with an attorney, the attorney can complete the mediation complaint on your behalf.  

*Of note, in addition to filling out the form online, you will also need to complete the Notice of Recommended Education Placement (NOREP) given to you by your child’s school district and check off the Mediation box on the NOREP. If you were not given a NOREP, send a copy of the mediation complaint form to the special education director of your child’s school.

PDF Form: The other option is to print out the PDF form from the ODR website to make the request. If you use the PDF form, you should attach this to the NOREP you return back to the school district.

What is the Mediation process like in Pennsylvania?

Timeframe

Once you file the mediation complaint, ODR assigns a trained person called a mediator to lead your upcoming mediation session, usually within seven to ten days after your request is made. ODR mediators are contractors who are trained in mediation and who have knowledge and experience in special education. To learn more about PA’s ODR Mediators, see https://odr-pa.org/mediation/mediator-bios/.

Pendency is established

In June 2008, Pennsylvania modified its state regulations to incorporate pendent placement (stay-put status) for a child during mediation proceedings. This basically means that if a parent files for mediation within 10 days of receiving the school district’s Notice of Recommended Educational Placement (NOREP), then the service(s) or placement that was in effect prior to filing for mediation will stay in effect until the mediation takes place. For more information on how mediation impacts pendency, see https://odr-pa.org/mediation/pendency/. 

Costs

The cost of mediation provided by the Commonwealth of Pennsylvania is covered by your tax dollars.  There is no additional charge.

What can I expect to happen during mediation?

After you file for mediation, ODR will send you an online form to complete.  That form asks you whether you prefer an in-person or a Zoom setting for mediation. After you complete the form and provide time(s) of your availability, you will meet with the school district on a mutually agreed date and time.

You have the option to invite other people to attend mediation with you. You can bring a friend, a medical or mental health provider who works with your child, an advocate, or an attorney. If you bring an attorney, then the school district may also bring an attorney.  If you do not bring an attorney to mediation, then the school district cannot bring an attorney either. 

ODR offers two types of mediation: facilitative and evaluative.

• In facilitative, the mediator plays a more hands-off role and will facilitate discussion between the parent and the school district about differing viewpoints.
• In evaluative, the mediator will play a more involved role, by facilitating questions and brainstorming solutions.

To read more about the differences, see this link, https://odr-pa.org/types-of-mediation/. 

If you are attending virtually, all parties will meet in one room at the beginning to talk and express viewpoints. Then, the parties will break out into different virtual rooms and the mediator will go between the rooms to facilitate discussion and compromise. The same scenario will take place in person if the parties choose to meet in person.

*Of note, everything said during mediation is considered confidential. Anything you or the District say during mediation cannot be used in future special education hearings or court cases.  If, however, you reach an agreement in mediation, that agreement is not considered confidential. That agreement is instead written down and signed by both the school district and the parent. If the school doesn’t follow through on the agreement, additional action can be taken to enforce the agreement in court or through other special education dispute resolution processes. 

For more information on the mediation process, see ODR’s Guide to Special Education Mediation, available in multiple languages, at https://odr-pa.org/mediation/.

How can we help?

Obtaining appropriate services and support for your child can be daunting, especially if you are pursuing mediation or another form of alternative dispute resolution. The law firm of Raffaele & Associates is dedicated to serving the legal needs of students, children, and families in Pennsylvania. Our trusted team, which includes attorneys, an education consultant, and staff, provides skilled, thoughtful representation for your case.

We have experience helping families like yours through mediation.  We can help you by filing for mediation, preparing for mediation, and attending mediation with you. Alternatively, we can walk you through the steps of mediation behind the scenes without attending if you feel you could benefit from additional support.

If you would like to get in touch with us, please contact us here. We look forward to speaking with you.

The information within this article is not, nor is it intended to be, legal advice. Please consult an attorney for individual advice regarding your personal situation.

ESY are special education and related services provided to students with disabilities beyond the 180-day school year for school-age students. Not all students with disabilities are eligible for ESY. While students with Individualized Education Plans (IEPs) are eligible for ESY, students with Section 504 Plans are not eligible.  For those students with IEPs, ESY must be provided to students if it is necessary to provide them with a free appropriate public education (FAPE). 

For students living in Pennsylvania, ESY can take place during:

• Early Intervention (EI) (birth – school age). ESY will take place during breaks during the school year.
• School Age (5/6-21). ESY will take place during the summer.
• Graduation (age 21). ESY will be discussed before the student graduates to determine if they require ESY the summer after they turn 21.

If a student is eligible, ESY must be provided not only by your local school district but also by your child’s charter school and/or cyber school. A school district cannot limit the type, duration, or amount of ESY, nor can it limit ESY to certain kinds of disabilities. It is also important to note that ESY is not a recreational camp, summer camp, daycare, respite services, or an alternative educational program. 

What kind of services can ESY provide?

As with all IEP team decisions, the ESY components of the IEP must be individualized to meet your child’s specific needs. They include special education (specially designed instruction) and related services, such as speech and language therapy, occupational therapy, social skills instruction, or counseling.

When will my child’s school discuss ESY with me?

Although parents have the right to discuss ESY services at any IEP meeting, there are certain timelines that Pennsylvania requires school districts to abide by.

If your child has a severe disability (Autism/pervasive developmental disorder; Serious emotional disturbance; Severe intellectual disability; Degenerative impairments with mental involvement; Severe multiple disabilities), then the IEP team must meet no later than February 28 to discuss your child’s ESY eligibility. After the meeting, a Notice of Recommended Educational Placement (NOREP) must be sent to you no later than March 31 with the team’s ESY eligibility determination.  If your child does not have a severe disability, there are no strict timelines for determining ESY eligibility. However, ESY determinations must still be made in a “timely manner” in accordance with the requirements in the Pennsylvania Code.

TIP: If you do not agree with the school district’s ESY decision, you can request an informal meeting to discuss, request IEP facilitation, file for mediation, or file for Due Process with Pennsylvania’s Office of Dispute Resolution. If you do end up filing a due process complaint, due process hearings in Pennsylvania are expedited so the issue can be resolved before the expected start of ESY services.

 How can my child qualify for ESY?

Your child’s IEP team is required to make an ESY determination on an individual basis, taking into consideration 7 different factors; however, no single factor should be considered determinative. 

The 7 factors include:

1. Regression: Whether your child reverts to a lower level of functioning as evidenced by a measurable decrease in skills or behaviors that occurs as a result of an interruption in educational programming.
2. Recoupment: Whether your child has the capacity to recover the skills or behavior patterns in which regression occurred to a level demonstrated prior to the interruption of educational programming.
3. Regression/Recoupment: Whether your child’s difficulties with regression and recoupment make it unlikely that the student will maintain the skills and behaviors relevant to IEP goals and objectives.
4. Mastery: The extent to which your child has mastered and consolidated an important skill or behavior at the point when educational programming would be interrupted.
5. Self-sufficiency and independence: The extent to which a skill or behavior is particularly crucial for the student to meet the IEP goals of self-sufficiency and independence from caretakers.
6. Successive interruptions: The extent to which successive interruptions in educational programming result in your child’s withdrawal from the learning process.
7. Severity of disability: Whether your child’s disability is severe (such as autism/pervasive developmental disorder, emotional disturbance, severe Intellectual Disability, degenerative impairments with mental involvement and severe multiple disabilities).

When evaluating these seven factors, your IEP team is required to take into consideration reliable sources of information regarding your child’s educational needs, including progress toward annual IEP goals, reports from educators, therapists, and related service providers who have contact with your child, parental input, medical or other agency reports from your child’s service providers, observations of all team members who have knowledge of your child, and results of tests such as criterion-referenced test, curriculum-based assessments, and life skills tests.

TIP: Make sure the IEP team discusses the 7 factors with you. Ask for progress monitoring reports the school district has collected before and after your child has had a break (winter, spring, summer, sick days, etc.) and data that has been taken to track your child’s progress on their IEP goals. This data will help the IEP team determine whether your child has regressed in their skills or behaviors over the breaks, which will help you determine whether ESY is needed during the summer break.

What are the steps I should be taking?

1. Gather information about your child’s progress (or lack of progress)
2. Go through the 7 factors at the IEP meeting to determine eligibility for ESY services
3. Make sure the IEP team documents the ESY determination on the IEP
4. Wait for the school to issue you a NOREP or request one if they have not

How Can We Help?

Obtaining the above services and support for your child can be daunting. The law firm of Raffaele & Associates is dedicated to serving the legal needs of students, children, and families. Our trusted team of attorneys, education consultants, and staff provide skilled, thoughtful representation for your case.

We have experience helping families like yours through various interventions, such as:

• Assessing which services would be most appropriate for your child
• Working with you and your school to draft the best plan for your child
• Ensuring that your school is fulfilling all of its obligations based on current plans in place

If you would like to get in touch with us, please contact us here. We look forward to speaking with you.

The information within this article is not, nor is it intended to be, legal advice. Please consult an attorney for individual advice regarding your personal situation.

Has your child missed school multiple times throughout the year because of chronic health conditions? 

Has your school district not offered you support or services to ensure that your child is still able to access their education?

There is an increasing number of chronic health conditions impacting our youth. Chronic disease in children has become one of the fastest-growing public health concerns.  While your school district may recognize some of the more common conditions like asthma, diabetes, and epilepsy, and have may have practices in place to accommodate these conditions (seizure action plan, diabetes emergency care plan, etc.), school districts are less likely to understand and meaningfully program for rare or less well-known conditions, such as Mast Cell Activation Syndrome (MCAS), Postural Orthostatic Tachycardia (POTs), or Pediatric Autoimmune Neuropsychiatric Disorder (PANDAS).  Unfortunately, children with both kinds of diseases—common and less common— face multiple obstacles in school due to a lack of knowledge and awareness among school staff regarding the complexity of the disease(s) and the resulting policies that hinder rather than promote student participation and attendance.

What are chronic health conditions, and does your child have one?

The Centers for Disease Control and Prevention (CDC) has a webpage devoted to pediatric chronic health conditions that identifies “seizure disorders/epilepsy, asthma, diabetes, poor oral health conditions, and food allergies” as examples of chronic health conditions commonly observed among school-aged youth, that possibly affect academic achievement, or that use significant resources when addressed at school.  Other websites, such as Healthychildren.org or the Coalition Against Pediatric Pain, provide a longer list of conditions, including but not limited to:

Healthchildren.org defines a chronic illness as a health condition that lasts anywhere from three months to a lifetime. If your child has had a condition that has impacted them for more than three months, then it is very likely considered a chronic health condition.

How does my child’s chronic health condition impact their academic performance?

Has your child been missing days or weeks of school in a row because of a pounding migraine?

Has your child been unable to attend school for full days due to immense fatigue, dizziness and brain fog from POTs? 

Has your child begun to experience anxiety because of an increase in physical symptoms, with associated fears of attending school and having an increase in symptoms?

Chronic health conditions have both direct (physical) and indirect (psychological and social) impacts on children’s education.  Children with chronic health conditions are at an increased risk of missing school due to recurrent hospitalizations for treatment of the condition. They are at a higher risk of falling behind, scoring lower on standardized tests, and dropping out.  Absenteeism attributable to the health condition can be compounded by the presence of mental or behavioral health conditions.  Mental health issues may arise directly as a result of the disorder, or indirectly as in a syndrome or as a result of medication for the condition.  The time it takes to obtain a diagnosis, especially when accompanied by symptoms, hospitalization(s), procedures, or medications that are painful or unpleasant, also increases anxiety, depression, and/or trauma for the child.  Social stigma and isolation from peers may result when the student is absent from school and activities. These students may be bullied by peers because of their differences. All these factors lead to a child having difficulty staying afloat in school.

What services or supports in school can help my child with a chronic health condition?

Does your child have any formal services or supports provided by the school district to address chronic health conditions?

If not, there are several ways that school districts are required to provide services and support to your child. These supports can come through a Section 504 plan, an Individualized Education Plan (IEP), an Individualized Health Plan (IHP), or medical plans catered to specific disabilities.

Section 504 Plan

Section 504 of the Rehabilitation Act of 1973 requires that school districts “provide a free appropriate public education to each qualified handicapped person in the recipient’s jurisdiction, regardless of the nature or severity of the person’s handicap.” A Section 504 plan, also known as a 504 Service Agreement, is a plan developed to ensure that a child who has a disability identified under the law receives accommodations that will ensure equal access to the learning environment. A student with a chronic health condition can become eligible for a Section 504 plan where the student’s impairment substantially limits a major life activity when considered without regard to the ameliorative effects of mitigating measures, such as medication. Generally, a student who has been diagnosed with a short term virus, such as COVID-19, would not be eligible for a Section 504 plan because the infection is not recognized as a chronic contagious disease. In making an eligibility determination, the school district should consider, on a case-by-case basis: 1) the duration (or expected duration) of the impairment; and 2) the extent to which it actually limits a major life activity of the affected individual.  Of note, Lyme’s disease is a virus, but can cause significant long term side effects, including but not limited to PANS, which would be considered chronic and therefore fall under a chronic health condition.  Long COVID or multisystem inflammatory syndrome in children, known as MIS-C, may also constitute eligibility.  Students can benefit from a 504 Plan to specifically accommodate their medical-related symptoms.

Individual Education Plan (IEP)

To qualify for an Individualized Education Plan (IEP) as a “student with a disability” under the IDEA, the student must:

• • Meet the definition of one or more of the categories of disabilities, which include: intellectual disability, a hearing impairment (including deafness), a speech or language impairment, a visual impairment (including blindness), a serious emotional disturbance, an orthopedic impairment, autism, traumatic brain injury, other health impairment, a specific learning disability, deaf-blindness, or multiple disabilities; and
  • Need special education and related services as a result of his disability or disabilities.

A student with a chronic health condition will usually become eligible for an IEP under the category of Other Health Impairment (OHI).  This results when the condition causes the student to have “limited strength, vitality or alertness” that “is due to chronic or acute health problems such as asthma, attention deficit disorder or attention deficit hyperactivity disorder, diabetes, epilepsy, a heart condition, hemophilia, lead poisoning, leukemia, nephritis, rheumatic fever, sickle cell anemia, and Tourette syndrome” and “adversely affects a child’s educational performance.”  The list of conditions included in the definition of “other health impairment” is not exhaustive so know that your child’s condition can be recognized even if it is not listed.   A student with a chronic health condition can also be eligible for an IEP under other categories of disability noted above, but OHI is generally the most appropriate for students with purely physical conditions.  Of note, many students with these conditions also have comorbid mental health conditions such as anxiety or depression, which can accompany their physical illness, and these conditions generally fall under OHI as well. Unlike a 504 plan, an IEP provides specially designed instruction and related services in addition to accommodations for medical-related symptoms.

Medical Plans

Federal law and professional nursing standards require the development of individualized plans of care for students with special health care needs.  Children with chronic health conditions can be eligible for these types of medical plans on their own, and/or in addition to having a Section 504 Plan or IEP.  One kind of medical plan is called an Individualized Health Plan (IHP)

An IHP is a plan of care written by a registered nurse for students with or at risk for physical or mental health needs. The school nurse is responsible for annually evaluating the IHP and updating the plan if deemed appropriate to reflect changes in the student’s healthcare needs and address nursing interventions and/or student healthcare outcomes.

Depending on the student’s condition, IHPs may prompt the development of student Emergency Evacuation Plans (EEP) and/or Emergency Care Plans (ECP), both of which are initiated and developed by the school nurse. These plans stem from the intervention component of the IHP and provide instruction on addressing healthcare needs or appropriate responses to a student’s emergent healthcare issue. 

How can we help?

Obtaining the above services and support for your child can be daunting. The law firm of Raffaele & Associates is dedicated to serving the legal needs of students, children, and families. Our trusted team of attorneys, education consultants, and staff provide skilled, thoughtful representation for your case.

We have experience helping families like yours through various interventions, such as:

• Assessing which services would be most appropriate for your child
• Working with you and your school to draft the best plan for your child
• Ensuring that your school is fulfilling all of its obligations based on current plans in place

To learn more about this topic, see our attorney’s presentation on this topic at the annual COPAA conference in March 2024, https://www.copaa.org/page/2024-conference-breakout-IV.

If you would like to get in touch with us, please contact us here. We look forward to speaking with you.

Children’s rights under U.S. legal code are based on a set of core principles, including the right to education, protection from abuse and neglect, access to healthcare, and the right to have their best interests considered in legal proceedings. These principles are intended to ensure that children are nurtured, supported, and provided with opportunities to thrive.

Understanding the complexities and nuances of these principles empowers us to make informed decisions and advocate effectively for children’s rights, enabling us to fully represent their best interests in the courts.

How Does the U.S. Legal System Ensure Children’s Access to Education?

In the pursuit of safeguarding children’s rights, education plays a pivotal role. The U.S. legal system has established mechanisms to ensure that children have access to quality education, regardless of their background or circumstances. Let’s delve into how these mechanisms work and the rights they protect.

The right to education for children in the United States is grounded in the Fourteenth Amendment to the U.S. Constitution, which guarantees equal protection under the law. Additionally, federal laws like the Individuals with Disabilities Education Act (IDEA) and the Elementary and Secondary Education Act (ESEA) further reinforce this right. These laws require public schools to provide free and appropriate education to all children, including those with disabilities, and ensure equal access to educational opportunities.

To enforce these rights, various legal avenues are available to parents and guardians. If a child is denied access to education or receives inadequate education, they can seek remedies through administrative processes or file a lawsuit in court. The U.S. legal system is designed to protect the interests of children, ensuring they receive the education they need to reach their full potential and contribute meaningfully to society.

How Does the U.S. Legal System Address Child Abuse and Neglect?

Protecting children from abuse and neglect is a fundamental duty of the U.S. legal system. Every child has the right to grow up in a safe and nurturing environment.

Mandatory reporting laws are a crucial aspect of the U.S. legal system’s approach to child protection. These laws require certain professionals, such as teachers, healthcare providers, and social workers, to report suspected cases of child abuse or neglect to the appropriate authorities. Once a report is made, child protective services and law enforcement agencies conduct investigations to assess the child’s safety and intervene if necessary.

In cases where a child’s safety is at immediate risk, the legal system allows for emergency removal and placement into protective custody. Family courts play a pivotal role in determining the best course of action to ensure the child’s safety and well-being, including providing services to the family to address the underlying issues.

How Does the U.S. Legal System Consider Children’s Best Interests in Legal Proceedings?

In legal matters involving children, their best interests are of paramount importance. The U.S. legal system prioritizes decisions that promote the well-being and welfare of the child. Let’s explore how the concept of “best interests” is applied and the principles guiding these determinations.

The “best interests of the child” is a standard used by courts to make decisions that serve the child’s long-term welfare. This principle takes into account various factors, such as the child’s physical and emotional health, stability in living arrangements, educational opportunities, and the presence of a supportive and loving environment. Courts consider the child’s wishes, especially as they grow older, but ultimately seek to ensure their safety and happiness.

Understanding how the U.S. legal system interprets and applies the best interests of the child standard is crucial for anyone involved in legal proceedings concerning children. By prioritizing the child’s welfare, the legal system seeks to create positive outcomes and opportunities for children to thrive in their lives.

Specific Children’s Rights Within a Court of Law

A child, like any individual, possesses specific legal rights within a court of law. These rights are designed to protect their interests and ensure fair treatment throughout legal proceedings. Some of the key legal rights of a child within a court of law include:

• Right to Legal Representation: A child has the right to be represented by an attorney in court. This attorney, often called a “guardian ad litem” or “child advocate,” acts as the child’s voice and ensures their best interests are taken into consideration during the legal process.
• Right to Due Process: Just like adults, children are entitled to due process. This means they have the right to a fair and impartial hearing, the right to present evidence and witnesses on their behalf, and the right to confront witnesses against them.
• Right to Privacy: Children’s identities and personal information are often protected in legal proceedings to maintain their privacy and safety.
• Right to Participation: Children may have the right to participate in certain legal decisions that directly affect them, such as child custody arrangements, especially as they grow older and demonstrate the capacity to express their preferences.
• Right to Protection: Courts are responsible for ensuring the safety and well-being of children. This includes taking measures to protect them from harm or exposure to traumatic experiences during the legal process.
• Right to Education: The legal system recognizes a child’s right to education, and court decisions should aim to ensure that educational opportunities are not disrupted unnecessarily.
• Right to Timely Proceedings: Children have the right to have their legal matters handled in a timely manner, so as not to unduly prolong legal uncertainties or disruptions in their lives.
• Right to Voice Concerns: Children have the right to voice their concerns and express their feelings about the legal process, especially when it directly impacts their lives.

It is essential to understand that the specific legal rights of a child may vary depending on the jurisdiction and the type of legal case involved. Additionally, as children grow older and mature, their rights and level of participation in legal proceedings may evolve accordingly. Overall, the primary goal is to protect the child’s welfare and ensure their rights are respected and upheld throughout the legal process.

Armed with a better understanding of the primary principles of children’s rights under U.S. legal code, we are better able to legally represent and advocate for children in our community. It’s also important that we continuously expand our knowledge on this issue, supporting legal initiatives and staying informed about legislative changes that may impact children. By taking an active role in supporting children’s rights, we can contribute to a safer, more nurturing environment for the young ones in our society and help pave the way for a brighter future for them all. As their legal representatives, our actions can make a significant difference in the lives of young clients, offering not only our legal expertise but ongoing guidance as we stand with them, championing their rights and well-being.

The law firm of Raffaele & Associates is dedicated to serving the legal needs of students, children, and families. Our trusted team of attorneys, education consultants, and staff provide skilled, thoughtful representation for your case. By combining the experience and sophistication of a large firm with the personal attention and service of a small law office, we offer you the best of both worlds.

Our team of professionals includes attorneys, an advocate, and support personnel, all working together to serve our clients and fulfill our mission through education, advocacy, and representation.

If you would like to get in contact with us, please contact us here. We look forward to speaking with you.

Why is that a problem?

Numerous school districts in our region and across the United States of America have enacted or are considering similar anti-trans policies as part of a broader effort by authoritarians, hate groups, and other anti-trans bigots to demonize trans persons as inherently dangerous and to cast being trans as inherently wrong.  Such efforts to falsely portray trans children as a threat to their peers are frequently cloaked with the Orwellian justification of “parental rights.”  Authoritarians, hate groups, and other bigots then use the language of “parental rights” to justify deploying trumped-up fears of sexual violence against children (usually cis girls and, notably, never trans children, who, as a population, experience sexual violence in their lives at shockingly high rates).  They do so to trigger our legitimate desires to protect our children and corrupt that legitimate desire into something far more sinister: The dehumanization of gender diverse persons.

These persistent and widespread efforts at dehumanizing trans children for simply being who they are have deadly consequences: Data show that 82% of trans persons have considered suicide and 40% have attempted suicide.  Interpersonal microagressions are a statistically significant contributor to suicidality in trans persons.  So, too, are school belonging and internalized self-stigma.  See Suicidality Among Transgender Youth: Elucidating the Role of Interpersonal Risk Factors, Austin, et al., Journal of Interpersonal Violence Vol. 36 Issue 5-6 (2020). 

Put differently, when our society treats trans youth as less than the full humans that they are, when our society tells trans children that trans people don’t belong in gendered spaces in a way that conforms with their gender identity, it drives trans and other gender diverse children to ideate and attempt suicide.  Anti-trans bigotry kills our gender diverse children.

What can we do about it?

It may feel to parents of trans children like we face overwhelming odds in standing up for the rights, dignity, and inclusion of our children.  Given the surge of anti-trans advocacy and policies by both authoritarians in government and hate groups like Moms for Liberty since the 2016 election, that feeling is certainly understandable.  But it is important to know that our laws prohibit these kinds of discrimination against trans children, including in our schools.  There are multiple anti-discrimination laws that protect trans children in Pennsylvania and can be used to fight back on behalf of our trans, non-binary, and other gender diverse children.

The first and best-known of these protections is Title IX, which prohibits discrimination on the basis of sex in, among other things, primary and secondary schools that accept federal funding in the United States.  In the case of Bostock v. Clayton County, 140 S.Ct. 1731 (2020), the Supreme Court ruled that discrimination based on sexual orientation and gender identity is inherently discrimination on the basis of sex, and therefore prohibited by Title VII in an employment context.  The United States Department of Education has since issued guidance that because of the textual similarities between Title VII and Title IX, “Addressing discrimination based on sexual orientation and gender identity thus fits squarely within [the Office of Civil Rights]’s responsibility to enforce Title IX’s prohibition on sex discrimination” and that “OCR will fully enforce Title IX to prohibit discrimination based on sexual orientation and gender identity in education programs and activities that receive Federal financial assistance from the Department.”  That includes every public school and charter school in Pennsylvania.

The next set of protections are the Pennsylvania Human Relations Act (PHRA) and Pennsylvania Fair Educational Opportunities Act (PFEOA).  The PHRA applies to primary and secondary schools in Pennsylvania, as well as colleges and universities; the PFEOA applies to vocational and technical schools at the secondary level and to colleges and Universities.  They, too, were recently revised to make clear that they prohibit discrimination against children based on sexual orientation and gender identity.

If your child is facing discrimination on the basis of gender identity in primary school, secondary school, or vo/tech, you can invoke the protections of Title IX and the PHRA on your child’s behalf to challenge discriminatory policies like bathroom access bans, bans on participation in athletics in a way that conforms with your child’s gender identity, and discrimination against your child by school personnel through misgendering and other expressions of bigotry against your child.

Another set of statutes that may apply for gender diverse children with disabilities is the Individuals with Disabilities Education Act and Section 504 of the Rehabilitation Act of 1973 and 1974.  Under both statutes, children with disabilities are entitled to a free, appropriate public education.  Being in a safe school environment is a prerequisite to being in an appropriate learning environment, and a school environment that exposes gender diverse children to discrimination and exclusion is not safe.  So if your gender diverse child with disabilities is facing discrimination on the basis of either gender identity or disability—or both, as discrimination is frequently intersectional—you may be able to assert rights under the IDEA and Section 504 to make changes to your child’s educational environment and challenge discriminatory practices and procedures.

How do I fight for my child?

The Department of Education Office of Civil Rights, which enforces Title IX in relation to educational institutions, has a self-explanatory complaint form online that you can fill out and submit.  The PHRC also has an Education Intake Questionnaire that you can fill out (in addition to calling in and visiting a regional office) to initiate a complaint under the PHRA and/or PFEOA.  Similarly, the Pennsylvania Office of Dispute Resolution has an online complaint notice form that you can fill out and submit to request a due process hearing on behalf of your gender diverse child with disabilities if you believe that your school district is denying your child a free, appropriate public education.

In addition, under Title IX, your local school district should have a Title IX coordinator listed on its website, to whom you can submit District-specific grievances concerning discrimination against your gender diverse child.  Please be aware that you do not need to pursue this District-specific process before complaining to OCR or going to court.  So if you don’t trust your school district to do the right thing because it put LGBTQIA+ children at risk by restricting bathroom access, or requiring the removal of pride flags, or banning age-appropriate books because they regard LGBTQIA+ persons as normal and complete human beings, you are not stuck with your district’s Title IX enforcement process.

Finally, with Title IX, you can also go directly to filing a federal civil rights claim against your school district on behalf of your child.  For the PHRA, PFEOA, IDEA, and Section 504, though, you likely need to file an administrative complaint first to accomplish what courts call “exhaustion of administrative remedies.”

Do I need to hire a lawyer to fight for my gender diverse child?

No.  You can file a grievance with your school district, a complaint with OCR, the PHRC, and/or the Office of Dispute Resolution, and a civil case in Federal court or Pennsylvania Court without the help of a lawyer.  This is called proceeding “pro se,” or on one’s own behalf.  But you should know that your school district will certainly be consulting with its lawyers and that it will be represented by counsel in any claim or case that you bring against it on behalf of your child.  If you proceed pro se, you will need to be prepared to be up against an opponent that is knowledgeable about the applicable law and experienced at making arguments to protect the school district.  A lawyer can help you even that playing field.

In addition, a lawyer can help you determine whether you have enforceable claims of discrimination and, if you do, help you refine those claims to make them more forceful and likely to succeed.

All of these things take time.  It could be years before my complaint makes any meaningful changes.  How can I help my child in the meantime?

Accept your children.  Affirm their gender identities.  Let them know that you have their backs in the face of bigotry—especially the bigotry of people in power.  Help them navigate the challenges they necessarily face in a society that is still largely cisheteronormative.  Data show that family acceptance of trans and gender-diverse children helps those children be healthier, more stable, and safer.  And the most important forms of support, according to the data, appear to be coping ability, appreciation and affection, and positive communication.

In other words, love your children for who they are and tell them that you do.  Every day.

The law firm of Raffaele & Associates is dedicated to serving the legal needs of students, children, and families. Our trusted team of attorneys, education consultants, and staff provide skilled, thoughtful representation for your case. By combining the experience and sophistication of a large firm with the personal attention and service of a small law office, we offer you the best of both worlds.

Our team of professionals includes attorneys, an advocate, and support personnel, all working together to serve our clients and fulfill our mission through education, advocacy, and representation.

If you would like to get in contact with us, please contact us here. We look forward to speaking with you.

The information provided on this website does not, and is not intended to, constitute legal advice.    All information, content, and materials available here are for general informational purposes only.  For information and guidance on your particular legal issues, please consult with an attorney licensed in your jurisdiction of residence.