SPECIAL EDUCATION RIGHTS AND RESPONSIBILITIES

Chapter 1

Information on Basic Rights and Responsibilities

From a 12-Chapter Manual - Available by Chapter and in Manual Form

Seventh Edition

Written by: Community Alliance for Special Education (CASE) and Protection and Advocacy, Inc. (PAI)

Copyright © 1992 by CASE and PAI - Revised January 1998

Written permission of the Community Alliance for Special Education (CASE) and Protection and Advocacy, Inc. (PAI) must be obtained for duplication of the materials contained in Special Education Rights and Responsibilities.

These materials are based on special education laws and court decisions in effect at the time of publication. Federal and state special education law can change at any time. If there is any question about the continued validity of any information in the handbook, contact CASE, PAI or a legal authority in your community.

Click here to go directly to the Table of Contents.


 Community Alliance for Special Education (CASE), provides legal support, representation, technical assistance consultations, and training to parents throughout the greater San Francisco Bay Area whose children need appropriate special education services. Trained advocates and attorneys assist parents at IEP meetings, Mediation Conferences and Due Process Hearings. CASE also provides free consultations about special education rights and services to parents and professionals by telephone or face-to-face. CASE is a nonprofit organization serving all children with disabilities who need or may need special education services. For more information, contact:

CASE

  • 1031 Franklin St., Suite B5, San Francisco, CA 94109, Tel. - (415) 928-2273, FAX - (415) 928-2289
  • 680 W. Tennyson Road, Room 1, Hayward, CA 94544, Tel. - (510) 783-5333, FAX - (510) 783-8822
  • CASE-South Bay Legal Aid Society of Santa Clara County, 480 North First Street, San Jose, CA 95103

Protection and Advocacy, Inc. (PAI), is a private, nonprofit organization that protects the legal, civil and service rights of Californians who have developmental or mental disabilities. PAI provides a variety of advocacy services, including information and referral, technical assistance, and direct representation. For information or assistance with an immediate problem, call:

PAI

Toll Free/TTY: (800) 776-5746 8:30 A.M. to 5:00 P.M. - Monday through Friday

  • Central Office - 100 Howe Ave., Suite 185-N, Sacramento, CA 95828, Legal Unit - (916) 488-9950 / Administrative - (916) 488-9955
  • Southern California Area Office, 3580 Wilshire Blvd., Suite 902, Los Angeles CA 90010, Tel. - (213) 427-8747
  • San Francisco Bay Area Office, 449 - 15th Street, Suite 401, Oakland, CA 94612, Tel. - (510) 839-0811

PAI receives funding under the Developmentally Disabled Assistance and Bill of Rights Act and the Protection and Advocacy for Mentally Ill Individuals Act. Any opinions, findings, recommendations or conclusions expressed in this publication are those of the authors and do not necessarily reflect the views of the organizations which fund PAI.


On June 4, 1997, the Individuals with Disabilities Education Act (IDEA) was amended by Congress and signed into law by President Clinton. Most of the new provisions in IDEA became effective on that date. Community Alliance for Special Education (CASE) and Protection & Advocacy, Inc. (PAI) have incorporated these amended IDEA provisions into the Seventh Edition of the Special Education Rights and Responsibilities (SERR) manual.

Because special education services in California are funded in part with federal money, these IDEA amendments take precedence over any prior inconsistent federal law or current state law, except where state law provides more protections or at least the same level of protections. In this edition of SERR, citations of federal law refer to the section numbers where these amendments appear in federal law at Title 20 of the United States Code. Citations of federal regulations refer to current, unrevised federal regulations at Title 34 of the Code of Federal Regulations. State citations refer to current California law and regulations.

New federal regulations must now be developed to implement the new federal statutes. The new federal regulations are supposed to be issued by July 1, 1998. However, this process may take longer. In addition, California special education law and implementing regulations will also be amended once federal regulations are issued. CASE and PAI will monitor the development of these final federal regulations, and state law and regulations, so that final federal and state laws and regulations can be incorporated into later supplements and editions of SERR.

It is important for you to know that the Individual Education Program (IEP) provisions of the IDEA amendments do not become effective until July 1, 1998.Since IEPs written for the 1998099 school year must meet the new IDEA IEP requirements, CASE and PAI have chosen to include these new IEP provisions in this edition of the SERR manual (Chapter 4). We hope that this information will help as you develop IEPs for the 1998-99 school year and beyond.

For further information on the development of federal and state law and regulation, or clarification about IDEA implementation, please contact CASE or PAI.


 SPECIAL EDUCATION

RIGHTS AND RESPONSIBILITIES

TABLE OF CONTENTS

Chapter 1 Information on Basic Rights and Responsibilities

Chapter 2 Information on Evaluations/Assessments

Chapter 3 Information on Eligibility Criteria

Chapter 4 Information on IEP Process

Chapter 5 Information on Related Services

Chapter 6 Information on Due Process Hearings/Compliance Complaints

Chapter 7 Information on Least Restrictive Environment

Chapter 8 Information on Discipline of Students with Disabilities

Chapter 9 Information on Inter-Agency Responsibility for Related Services (AB 3632/882)

Chapter 10 Information on Vocational Education

Chapter 11 Information on Preschool Education Services

Chapter 12 Information on Early Intervention Services

NOTE: The text in each chapter refers to specific questions in other chapters by using the titles shown above.


 SPECIAL EDUCATION

RIGHTS AND RESPONSIBILITIES

Chapter 1

Information on Basic Rights and Responsibilities

TABLE OF CONTENTS

Introduction

1. I hear a lot about federal law and state law, and federal and state regulations. What's the difference?

2. Who is eligible for services under the Individuals with Disabilities Education Act (IDEA)?

3. What are the eligibility criteria for preschool children?

4. Are there educational programs for children under three years of age?

5. What is the maximum age eligibility for special education?

6. Who is eligible for educational program modifications under Section 504 of the Rehabilitation Act of 1973?

7. What is the definition of special education?

8. Who is responsible for providing special education services to my child?

9. What are related services and who provides them?

10. What is an "appropriate" special education program?

11. What does Least Restrictive Environment (LRE) mean?

12. What responsibilities do I have in providing special education to my child who has a disability?

13. How do I make a referral for special education services?

14. How do I request an Individualized Education Program (IEP) and assessment for my child when she is already receiving services?

15. What are the time lines for the assessment and IEP meeting?

16. What rights do I have in the assessment and evaluation process?

17. What is an IEP and how is it developed?

18. What rights do I have in the IEP process?

19. What happens if I don't agree with all or part of the IEP? What are my options?

20. I agreed with the IEP when it was written, but I no longer think it is appropriate. What can I do?

21. I've been to the IEP meeting, but the school and I cannot agree on the special education, related services or placement my child needs. How can I resolve this difference of opinion?

22. What happens to my child if I file for a due process hearing?

23. What rights do I have in the hearing process?

24. I think the local education agency is violating special education law. What can I do?

25. Does my child have the right to participate in non-academic and extracurricular activities offered at his school?

26. How do I find out if my child is entitled to an extended school year or summer school program?

27. Can I see the records that the school keeps on my child?

28. How do I correct or remove information contained in my child's records?

29. Under what circumstances may my child attend school in a school district other than my district of residence?

30. What happens to my child's special education program if we move from one school district to another?

31. What happens to my child's special education program if he is placed in a group or foster home located in another school district?

32. Which district is responsible for my child's education program if she is placed in a public hospital, psychiatric hospital or other residential medical facility?

33. What happens to my child's special education program if he is being discharged from a State Developmental Center (SDC) a state mental hospital or a medical hospital?

34. Under what circumstances could my child be suspended or expelled from school?

35. Under what circumstances can my child graduate with his nondisabled peers?

36. What can I do if a teacher or other school staff person hurts my child?

37. What rights do I have if English is not my first language or I do not speak any English?

38. What rights do I have if English is not my child's first language or if she does not speak any English?

39. Are my child's rights to a free, appropriate education affected if he is undocumented?

40. Why is it important to know about bilingual education programs if my child is in special education programs?

41. My child's behavior problems are a major obstacle to her education. Is there anything the school district must do to address my child's behavioral needs?

42. What is assistive technology under IDEA?

43. My child attends a religious school. Can she receive related services from the public school system if she needs such services to benefit from education and the services are not available at the religious school?

* Sample Letter - Referral for Special Education

* Sample Letter - Request for Records

* Time Lines for Assessment and IEP


SPECIAL EDUCATION

RIGHTS AND RESPONSIBILITIES

Chapter 1

Information on Basic Rights and Responsibilities

Introduction

Special education programs in California are governed by a combination of state and federal laws. Under these laws, school districts must provide each student with a disability with a free appropriate public education (FAPE). FAPE means special education and related services which are provided at public expense and without charge, meet appropriate standards, include preschool through secondary education, and conform with an Individual Education Program (IEP). [Title 20 United States Code (U.S.C.) Sec. 1401(8); Title 34, Code of Federal Regulations (C.F.R.) Sec. 300.4.] Special education must be provided in the least restrictive environment, which means that to the maximum extent appropriate all students with disabilities will be educated with students who are not disabled. [34 C.F.R. Sec. 300.550(b)(1)(2).]

1. I hear a lot about federal law and state law, and federal and state regulations. What's the difference?

The U.S. Congress enacted Public Law 94-142, now called the Individuals with Disabilities Education Act (IDEA) [20 U.S.C. Secs. 1400 and following] in 1975. California has also enacted its own statutes which generally parallel the IDEA and provide the basis for providing services in this state. [California Education Code (Cal. Ed. Code) Secs. 56000 and following.]

The federal law and state law contain most of the provisions governing delivery of special education and related services. However, sometimes the law is unclear or leaves something out. Where this has happened, both the Federal and State Departments of Education have created regulations under the authority of the IDEA or state law. The federal regulations are at Title 34, Code of Federal Regulations (C.F.R.) Part 300, and the state regulations are at Title 5, California Code of Regulations (Cal. Code Regs.), Secs. 3000 and following.

Federal law and regulations create the broad framework within which California must function as a recipient of federal funds under the IDEA. Since California has enacted its own statutes and regulations, these generally will be followed in providing special education in the state. However, because of the Supremacy Clause of the U.S. Constitution, federal law and regulations must be followed whenever there is a conflict between state and federal law, except when the state law grants more rights to the individual.

2. Who is eligible for services under the Individuals with Disabilities Education Act (IDEA)?

Eligibility for special education services under IDEA:

Children who have a disability that causes them to need specialized educational services to benefit from their education are entitled to receive special education and related services. Eligible disabilities include but are not limited to sensory (i.e., hearing, visual, or speech/language) or orthopedically impaired, mentally retarded, seriously emotionally disturbed, other health impaired or children with specific learning disabilities (e.g., dyslexia, if it is a significant impediment to learning). In addition, children with autism and traumatic brain injury are eligible for special education under federal law. [20 U.S.C. Sec. 1401(3); 34 C.F.R. Sec. 300.7.] California calls these children "individuals with exceptional needs." [Cal. Ed. Code Sec. 56026.]

Children meeting these criteria between the ages of five years and 18 years, inclusive, are eligible for special education. [Cal. Ed. Code Sec. 56026(c)(3).] Individuals between 19 and 21, inclusive, who are enrolled in or are eligible for a special education program prior to their 19th birthday, and who have not completed their prescribed course of study (or who have not met prescribed proficiency standards), are eligible for special education.

3. What are the eligibility criteria for preschool children?

Preschool children between the ages of three to five years, inclusive, are eligible for special education under Cal. Ed. Code Sec. 56441.11 if the child:

(1) Has one of the following disabling conditions:

(A) Autism

(B) Deaf-blindness

(C) Deafness

(D) Hearing impairment

(E) Mental retardation

(F) Multiple disabilities

(G) Orthopedic impairment

(H) Other health impairment

(I) Serious emotional disturbance

(J) Specific learning disability

(K) Speech or language impairment in one or more of voice, fluency, language, and articulation

(L) Traumatic brain injury

(M) Visual impairment

(N) Established medical disability

Conditions A through M are defined in Section 300.7 of the Code of Federal Regulations, and further criteria regarding each condition is contained in Title 5, California Code of Regulations Section 3030.

Condition N, "established medical disability," is defined as a disabling medical condition or congenital syndrome that the individualized education program team determines has a high predictability of requiring special education and services.

(2) Needs specially designed instruction or services as defined in Sections 56441.2 and 56441.3.

(3) Has needs that cannot be met with modification of a regular environment in the home or school, or both, without ongoing monitoring or support as determined by an individualized education program team pursuant to Section 56431.

(4) When standardized tests are considered invalid for children between the ages of three and five years, alternative means, for example, scales, instruments, observations, and interviews shall be used as specified in the assessment plan.

(5) A child is not eligible for special education and services if the child does not otherwise meet the eligibility criteria and his or her educational needs are due primarily to:

(A) Unfamiliarity with the English language

(B) Temporary physical disabilities

(C) Social maladjustment

(D) Environmental, cultural, or economic factors.

See Chapter 11, Information on Preschool Education Services.

4. Are there educational programs for children under three years of age?

Early educational opportunities are available to infants and toddlers less than three years of age who have low incidence disabilities (blind, deaf, or orthopedic impairments who are not eligible for regional center services) or who are developmentally delayed or at risk of such delay. [Public Law 105-17/Part C and Cal. Gov. Code 95000, et seq.]

Regional centers are the responsible lead agencies for infants and toddlers who are developmentally delayed or at risk of delay while local education agencies have responsibility for those who have solely low incidence disabilities.

Each eligible child must have an Individual Family Service Plan (IFSP) which focuses both on the needs and concerns of the family and the needs of the child. See Chapter 11, Information on Early Intervention Services.

5. What is the maximum age eligibility for special education?

Special education students may continue to be eligible for special education services until they turn 22 (and for a number of months beyond) depending on a number of factors, such as whether they have passed the district's regular proficiency standards, or individualized differential proficiency standards which may have been included in their IEP. See Chapter 3, Information on Eligibility Criteria. But how long a student continues to be eligible for special education after his 22nd birthday depends on the month in which he was born. Students born in January through June may finish out the fiscal school year and any extended school year program. Students born in September may not start a new fiscal year, but, if they are on a year-round school program and are completing their IEPs in a term that extends into the new fiscal year, they may complete that term. The law does not mention students born in July or August, but the California Department of Education (CDE) has indicated, and advocates would argue, that the rules applying to students born in September should also apply to those born in July or August. A student born in October through December is eligible for special education only through December 31 of the year in which he turns 22, unless he would otherwise complete his IEP at the end of that current fiscal year or unless he has not had an individual transition plan incorporated into his IEP and implemented from the age of 20 years forward, in which case the student will be able to complete that fiscal year. [Cal. Ed. Code Sec. 56026.]

6. Who is eligible for educational program modifications under Section 504 of the Rehabilitation Act of 1973?

A child who may have problems in learning may not be found eligible for special education services because she does not fit into one of the special education eligibility categories and/or because her learning problems are not severe enough to qualify the student for special education. (This is often the case for children identified as being hyperactive or having dyslexia or Attention Deficit Disorder, none of which automatically qualifies a student for special education under state or federal law.) Such a child, however, may be eligible for special services and program modifications under a federal anti-discrimination law designed to reasonably accommodate the student's condition so that her needs are met as adequately as the needs of students without disabilities. The law is commonly known as Section 504 of the Rehabilitation Act of 1973 [29 United States Code Sec. 794] and its implementing regulations at 34 Code of Federal Regulations Sections 104.1 and following.

Section 504 eligibility is not based on a categorical analysis of disabilities (except that some conditions, such as Attention Deficit Disorder, are frequently recognized as Section 504 qualifying conditions). Rather, Section 504 protections are available to students who can be regarded in a functional sense as "handicapped," i.e., students who have a physical or mental impairment which substantially limits a major life activity (such as learning), has a record of such an impairment, or is regarded as having such an impairment. See 34 C.F.R. Sec. 104.3(j) for further definition.

Whenever you make a referral for special education assessment, you should also request that your child be assessed for eligibility for accommodations under Section 504. This way, if the child is not found eligible for special education, she may still be able to obtain necessary services or modifications under Section 504. You should also request that the district's Section 504 Coordinator be present at the initial IEP meeting to discuss the results of the Section 504 assessment. If your child is not found to be "handicapped" for purposes of Section 504 accommodations, that determination can be appealed. The local education agency is responsible for arranging the Section 504 hearing process. The hearing officer selected by the local education agency must be independent of the local agency but can be, for example, a special education administrator from another school district, county office of education or special education local plan area as long as there is no conflict of interest.

The Office of Civil Rights administers and enforces Section 504 protections in education. If you believe your child has not been afforded her rights under Section 504, you may file a complaint with the Office of Civil Rights at:

U.S. Department of Education
Office of Civil Rights, Region IX
Old Federal Building
50 United Nations Plaza, Room 239
San Francisco, CA 94102
Phone: (415) 437-7700
FAX: (415) 437-7783

See Chapter 6, Information on Due Process Hearings/Compliance Complaints.

7. What is the definition of special education?

Special education means specially designed instruction, at no cost to the parent, to meet the unique needs of a child with disabilities. This instruction can include classroom instruction, home instruction, instruction in hospitals and institutions, and instruction in physical education. Special education also includes vocational education. California law adds to the basic definition of special education that the student with disabilities' educational needs cannot be met with modification of the regular instructional program. [20 U.S.C. Sec. 1401(25); 34 C.F.R. Sec. 300.14; Cal. Ed. Code Sec. 56031.]

8. Who is responsible for providing special education services to my child?

Your local school district is responsible for ensuring that appropriate special education services are delivered. Services may actually be provided by a school district, special education local plan area (SELPA), county office of education, state school or certified non-public school. If the school district fails to ensure services, the CDE is ultimately responsible for providing your child with educational services. [20 U.S.C. Sec. 1413(a)(1); 34 C.F.R. Sec. 300.220; Cal. Ed. Code Secs. 56300 and following.

9. What are related services and who provides them?

Related services are supportive services the student requires in order to benefit from his special education program. California calls related services Designated Instruction and Services (DIS). [Cal. Ed. Code Sec. 56363; 5 Cal. Code Regs. Secs. 3051 and following.] It is important to remember that education for children with disabilities includes independent living skills, not just academics; therefore a broad range of related services may be required.

The term "related services" means transportation, and such developmental, corrective, and other supportive services (including speech-language pathology and audiology, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, orientation and mobility services, counseling services, including rehabilitation counseling, and medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education, and includes the early identification and assessment of disabling conditions in children. [20 U.S.C. Sec. 1401 (22); 34 C.F.R. Sec. 300.13.] Assistive technology devices and the services necessary to assist a child in the selection, acquisition 1401(2); 34 C.F.R. Sec. 300.308.]

DIS mandated or use of an assistive technology device are made available to a child if required as part of the child's special education or related services. [20 U.S.C. Sec. by California special education law may include, but are not limited to, the following:

(1) Language and speech development and remediation;

(2) Audiological services;

(3) Orientation and mobility instruction;

(4) Instruction in the home or hospital;

(5) Adapted physical education;

(6) Physical and occupational therapy;

(7) Vision services;

(8) Specialized driver training instruction;

(9) Counseling and guidance;

(10) Psychological services other than assessment and development of the individualized education program;

(11) Parent counseling and training;

(12) Health and nursing services;

(13) Social worker services;

(14) Specially designed vocational education and career development;

(15) Recreation services; and

(16) Specialized services for low-incidence disabilities, such as readers, transcribers, and vision and hearing services. [Cal. Ed. Code Secs. 56000.5, 56026.6, 56026.5 and 56363.]

All related services must also be provided without any charge to the parent. In most cases, your local school district is responsible for providing the related services directly or by contracting with appropriate persons. Under California law, some related services, including occupational and physical therapy and mental health services, are provided by other state agencies. [Cal. Gov. Code Secs. 7570-7588.] However, if the other agency does not provide the services, and you can successfully demonstrate to the IEP team or a due process hearing officer that the services are necessary for the student to benefit from his education, the school district is responsible for providing them. Disputes regarding related services are resolved through the fair hearing procedures in the same fashion as disputes about any other part of your child's special education program. See Chapter 5, Information on Related Services, and Chapter 9, Information on Inter-Agency Responsibility for Related Services (AB 3632/882).

10. What is an "appropriate" special education program?

The U.S. Supreme Court issued a decision in the Rowley case which declares that under federal law an "appropriate" educational program and placement is one which provides services to the disabled student sufficient for her to obtain "educational benefit." It does not entitle the student to the "best" possible educational program or a "potential maximizing" education. Specifically, in Rowley the Court was considering a student with disabilities who was mainstreamed in regular classes. For these students, the Rowley court said that educational benefit usually means that the child is making passing grades and is being promoted from grade to grade. For students with disabilities who do not attend classes in regular classrooms or in graded programs, the determination of what is "educational benefit" is still being explored by the courts. Certainly, the plan of instruction and placement should be likely to result in educational progress" not regression or trivial educational advancement.

11. What does Least Restrictive Environment (LRE) mean?

Least Restrictive Environment (LRE) means that:

To the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with non-disabled children, and that special classes, separate schooling or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. [20 U.S.C. Sec. 1412 (a)(5)(A); 34 C.F.R. Sec. 300.550(b)(1) & (2).]

State law provides that special education students be provided with "maximum interaction with the general school population" as appropriate. [Cal. Ed. Code Sec. 56001(g).] Further, state policy provides that special education students "should receive their education in chronologically age appropriate environments with non-handicapped peers." [CDE, Office of Special Education, Policy Statement on Least Restrictive Environment (October 10, 1986).] This means, for example, that a 10-year-old student with disabilities should attend public school at a local elementary campus with other non-disabled students of the same age. Depending on the student's individual needs, he could be fully included in a regular classroom with support services, mainstreamed, fully included in a regular classroom with support services, attend a special class or be placed in a combination of both as appropriate.

This does not mean that all students must attend school at regular education campuses. Depending on the student's individual needs, as documented by the IEP team, he may need to receive educational programming at a special school, non-public school or residential facility.

Innovative and systematic efforts on the part of special and regular educators must be made to promote positive interactions between students with disabilities (severely disabled and learning disabled) and their non-disabled peers. See Chapter 7, Information on Least Restrictive Environment.

12. What responsibilities do I have in providing special education to my child who has a disability?

Both federal and state law were designed to give parents a voice in the fundamental decisions regarding provision of special education and related services to their children with disabilities. This includes a responsibility to be knowledgeable and concerned about the child's educational needs and to participate in the procedures set forth in the laws. [20 U.S.C Sec. 1415 (b)(1); 34 C.F.R. Sec. 300.345.] When a child has no parent who can be identified or located, or where the child is a ward of the state, the local education agency must assign a surrogate parent to fulfill this role. [20 U.S.C Sec. 1415 (b)(2); 34 C.F.R. Sec. 300.514.]

13. How do I make a referral for special education services?

To refer your child for special education services, write a letter to your child's teacher, principal or special education administrative office. Tell the school district that you are concerned about your child's educational progress. Say that you are making a referral for assessment for special education services. You may also want to let the district know that you are looking forward to receiving an assessment plan within 15 days of the district's receipt of your letter. Keep a copy of this request and any other correspondence with the school district. If you call to make a referral, school district personnel must by law assist you to put your request in writing. If the school district refers your child for special education, it is still critical that you follow up with your own written request. Your written referral will ensure that assessment and IEP time lines will begin. [Cal. Ed. Code Sec. 56029, 56302; 5 Cal. Code Regs. Sec. 3021.] See Sample Letterat the end of this chapter.

14. How do I request an Individualized Education Program (IEP) and assessment for my child when she is already receiving services?

If your child is already receiving special education services, you can request an IEP meeting whenever you think one is needed in order to review or change the IEP. A written request can be made to your child's teacher, principal or special education administrative office. [Cal. Ed. Code Secs. 56343(c) and 56343.5.] You may request additional assessments for your child in the same letter.

15. What are the time lines for the assessment and IEP meeting?

After an initial written referral to special education or a parent's written request for a new or additional assessment of a child already receiving special education, the local education agency has 15 days (not counting days between regular school sessions or terms or days of school vacation in excess of five school days from the date of receipt of the referral) to provide parents with a written proposed assessment plan containing a copy of the notice of parent rights. An assessment plan must be developed within 10 days after commencement of a subsequent regular school year or term for any student who was referred for special education assessment 10 days or less prior to the end of the prior regular school year or term. [Cal. Ed. Code Sec. 56321(a).] Parents have at least 15 days to determine whether they will consent to the proposed assessments. [Cal. Ed. Code Sec. 56321(c).]

Starting from the date the local education agency receives the written consent to assessment, the assessment(s) must be completed and the IEP developed at an IEP meeting within 50 days (not counting days between regular school sessions or terms or days of school vacation in excess of five school days from the date of receipt of the referral). [Cal. Ed. Code Sec. 56321(a).] If the initial referral to special education is made 20 days or less prior to the end of the regular school year, an IEP must be developed within 30 days after the commencement of the next school year. [Cal. Ed. Code Sec. 56344.] See Assessment and IEP Time Lines Summary at the end of this chapter.

If you are requesting an IEP meeting without the need for new assessments for a child already in special education, the IEP meeting must be held within 30 days (not counting days between school sessions or terms) from the date of receipt of your written request.[Cal. Ed. Code Sec. 56343.5.]

16. What rights do I have in the assessment and evaluation process?

Among the numerous rules applying to initial evaluations/assessments, and to assessments for revision of an IEP, are:

(1) Parental consent must be obtained prior to assessment. [20 U.S.C. Sec. 1414 (a)(1)(C), (c)(3); Cal. Ed. Code Sec. 56321(c).]

(2) Evaluation is by a multidisciplinary team, and assessment is in all areas related to the child's suspected disability including, where appropriate, vision, hearing, motor abilities, academic abilities, self-help, mobility skills, career and vocational abilities and interest, and social and emotional status. [34 C.F.R. Secs. 300.532(e),(f); Cal. Ed. Code Secs. 56320(e),(f).]

(3) Tests must be validated for the specific purpose used and be given by trained personnel. Tests must accurately measure a child's aptitude or achievement and assess specific areas of educational need rather than providing a single IQ and/or reflecting the child's impaired sensory, manual or speaking skills. No single procedure or test is to be used for determining an appropriate educational program for a child. [20 U.S.C. Sec. 1414 (b)(3)(B)(i); 34 C.F.R. Sec. 300.532(a)(2), (a)(3), (b), (d); Cal. Ed. Code Secs. 56320(b), (c), (d), (e).]

(4) The assessments must be given in the student's native language and/or other mode of communication. If this is not feasible an interpreter must be used. [20 U.S.C. Sec. 1414 (b)(3)(A)(ii) 34 C.F.R. Secs. 300.532(a)(1); Cal. Ed. Code Secs. 56320(b)(1); 5 Cal. Code Regs. Secs. 3023.]

(5) Testing and evaluation materials must be selected and administered so as not to be racially, culturally or sexually discriminatory. [20 U.S.C. Sec. 1414 (b)(3)(A)(i); 34 C.F.R. Sec. 300.530; Cal. Ed. Code Sec. 56320(a).]

(6) The school must provide the parents a copy of the assessment findings if the parents request one. It is best to request that a copy of the written assessment be sent to you before the IEP meeting so that you can consider the results in planning for the meeting. [Cal. Ed. Code Sec. 56329.]

(7) If you disagree with the assessment, you can either challenge it through the fair hearing procedure or obtain an independent assessment. An independent assessment must be considered by the district when it makes any decisions about the student. The district, upon request, must pay for the cost of the private assessment unless it can show, through a hearing which it requests, that the district's assessment was accurate, complete and met the legal requirements described above. [20 U.S.C. Sec. 1415 (b)(1) 34 C.F.R. Sec. 300.503; Cal. Ed. Code Sec. 56329.]

(8) A complete reevaluation must be completed at least every three years and more frequently if requested by either a parent or the student's teacher. Reevaluations in one particular area or evaluation in a new area must also be done at a parent or teacher's request. [20 U.S.C. Sec. 1414 (a)(2); 34 C.F.R. Sec. 300.534.] See Chapter 2, Information on Evaluations/Assessments.

(9) A copy of a notice of parent rights must be attached to the assessment plan. The notice must explain all of the procedural rights of a special education student under federal and state special education law and include information on the procedures for requesting an informal meeting, pre-hearing mediation conference, mediation conference, or due process hearing, the time lines for completing each process, whether the process is optional, and the type of representative who may be invited to participate. [Cal. Ed. Code Sec. 56321(a).] See Chapter 6, Information on Due Process Hearings/Compliance Complaints.

17. What is an IEP and how is it developed?

An IEP is an Individualized Education Program, which sets forth in writing the educational program for the student. The IEP is developed at an IEP meeting by a team of people which must include the parent/s, a special education teacher, a regular education teacher if appropriate, a district representative or school administrator and the student if appropriate. If the IEP meeting is being held following an assessment, a member of the assessment team must participate. Other people who may participate are a therapist, a nurse and anyone else selected by either the parent or the district. [20 U.S.C. Sec. 1414 (d)(1)(B); 34 C.F.R. Sec. 300.344; Cal. Ed. Code Sec. 56341.]

Under federal and/or state law, the Individualized Education Program (IEP) for each student with disabilities must include:

(1) The student's present levels of educational performance, including how the child's disability affects the child's involvement and progress in the general curriculum. For preschoolers, present levels must include how the disability affects the child's participation in appropriate activities.

(2) A statement of measurable annual goals, including benchmarks or short-term objectives, related to:

(a) meeting the child's needs that results from the child's disability to enable the child to be involved in and progress in the general curriculum, and

(b) meeting each of the child's other educational needs that result from the child's disability.

(3) A statement of: specific special education services (including, for example, physical education, vocational education, extended school year, instruction in academic or perceptual areas, teacher qualifications, class size, etc.; specific related services including the amount of time, frequency, and location for each service (for example, occupational therapy two times a week/45 minute sessions at the school site); supplementary aids and services ( for example, instructional aides, note takers, use of the resource room, etc.); and program modifications or supports for school personnel (for example, modifications to the regular class curriculum, use of computer-assisted devices, special education training for the regular teacher, etc.) to be provided to the child, on behalf of the child, or for the child to advance appropriately toward attaining the annual goals; to be involved and progress in the general curriculum and to participate in extracurricular and other nonacademic activities; and, to be educated and participate with other children with disabilities and nondisabled children.

(4) An explanation of the extent, if any, to which the child will not participate with nondisabled children in the regular class and documentation that indicates why the student's disability prevents his or her needs from being met in a less restrictive environment even with the use of supplementary aids and services.

(5) The projected date for initiation and the anticipated duration, frequency, and location of the services and modifications included in the IEP.

(6) A statement of any individual modifications in the administration of State or district-wide assessments of student achievement that are needed in order for the child to participate in the assessment.

(7)Appropriate objective criteria, evaluation procedures and schedules for determining, at least annually, whether the measurable goals contained in the IEP are being achieved and the extent to which that progress is sufficient to enable the child to achieve the goals by the end of the year. Progress reports/report cards must be provided at least as often as parents are informed of their nondisabled children's progress.

(8) A description of the type of placement needed to implement the IEP in the least restrictive environment. The school district must ensure that a continuum of alternative placements is available, including instruction in regular classes (with an aide or other adaptations if necessary), special classes, non-public nonsectarian schools, state special schools, residential placement, home instruction, and instruction in hospitals and institutions.

(9) For students 16 years of age or older, the IEP must state the transition services needed, including, if appropriate, a statement of the interagency responsibilities or any needed linkages. Transition services are "a coordinated set of activities for a student ... which promotes movement from school to post-school activities... The activities shall include instruction, community experiences, the development of employment and other post-school living objectives, and, when appropriate, acquisition of daily living skills and functional vocational evaluation."

(10) For each student, beginning at age 14 and younger, if appropriate, the IEP must include a statement of the transition service needs of the student. Statement/s should relate to those sections of the IEP that focus on the student's courses of study (such as participation in advanced-placement courses or a vocational education program).

(11) Extended school year services, when needed.

(12) One year before the student turns 18, include a statement that the student has been informed of his or her special education rights that will transfer to the student at age 18.

[20 U.S.C. Sec. 1414 (d), Cal. Ed. Code Sec. 56345, 5 CCR 3042 (b).] See Chapter 4, Information on IEP Process.

18. What rights do I have in the IEP process?

You should be aware of these basic rights in the IEP process, including the rights to:

(1) Receive written notice in your native language of the time, location and participants in the meeting and have the meeting scheduled at a mutually agreed upon time and place. [34 C.F.R. Sec. 300.345(a)(1), (2).] It should be noted that if you refuse to attend a properly scheduled IEP meeting, the local agency may conduct the meeting without you. However, the district must take steps to insure parent participation -- such as conference calls or holding the meetings at after-hours times when you can attend. [34 C.F.R. Sec. 300.345(d).]

(2) Attend the meeting and be accompanied by other persons (including a representative, who may be an attorney). [20 U.S.C. Sec. 1414 (d)(1)(B)(vi); 34 C.F.R. Sec. 300.344(a)(3).] Whenever appropriate, the student may also attend and participate. [20 U.S.C. Sec. 1414 (d)(1)(B)(vii); 34 C.F.R. Sec. 300.34(a)(4).]

(3) Present information to the IEP team and participate equally in the development of the IEP. [20 U.S.C. Sec. 1414 (d)(3)(A)(i); 34 C.F.R. Part 300 Appendix C, No. 26.

(4) Have language or sign interpreter present if needed for the parent to participate in the meeting. [34 C.F.R. Sec. 300.345.]

(5) Obtain a copy of the IEP, on request. [34 C.F.R. Sec. 300.345(f).]

(6) Have the IEP reviewed annually, with all the above rights applying. [20 U.S.C. Sec. 1414 (d)(4)(A)(i); 34 C.F.R. Sec. 300.343(d).]

(7) Have the IEP implemented as soon as possible, which is interpreted to mean immediately except where legitimate circumstances require a short delay. [34 C.F.R. Secs. 300.342, 300.346(d), and 300 App. 4 C No. 4; 5 Cal. Code Regs. Sec. 3040.] See Chapter 4, Information on IEP Process.

19. What happens if I don't agree with all or part of the IEP? What are my options?

Under California law, a student with disabilities is not allowed to participate in any part of a special education program without written parental consent to the IEP. If you do not agree with an IEP, you can refuse to sign it altogether, or you can consent only to the parts with which you agree and specifically state your disagreement with other parts. In the latter case, only those components of the IEP to which you have consented will be implemented. Any parts of the IEP to which you have not consented may become the basis for a Due Process Fair Hearing. [Cal. Ed. Code Sec. 56346.] In addition to a due process fair hearing, several other dispute resolution mechanisms exist but are at your option. See Chapter 6, Information on Due Process Hearings/Compliance Complaints.

Federal law makes it clear that the local agency may initiate a Due Process Hearing to attempt to override your consent to initial placement. State law provides the local agency the same option with respect to portions of the IEP to which you have not consented. [34 C.F.R. Sec. 300.506(a); Cal. Ed. Code Sec. 56501(a).]

20. I agreed with the IEP when it was written, but I no longer think it is appropriate. What can I do?

If you are convinced your child's IEP is no longer appropriate, you can request a new IEP meeting. In particularly serious cases, you have the option under federal law of revoking your consent to the IEP. [34 C.F.R. Sec. 300.500.] It is unclear, however, if revocation of consent after implementation of the new IEP will result in implementation of the previous IEP. See Chapter 4, Information on IEP Process, Question 24.

21. I've been to the IEP meeting, but the school and I cannot agree on the special education, related services or placement my child needs. How can I resolve this difference of opinion?

If you have reached the point where further negotiation is fruitless and you believe the local agency is not providing your child a free appropriate public education, you may file for a Due Process Fair Hearing. [Cal. Ed. Code Secs. 56501 and 56502.] Common examples of this situation are the school district's refusal to include an important service in the IEP or a placement for your child where he can be integrated with non-disabled students. To request a hearing write to the address below and send a copy to your child's school district.

Special Education Hearing Office (SEHO)
Institute for Administrative Justice
McGeorge School of Law
3200 Fifth Avenue
Sacramento, CA 95817
Telephone: (916) 739-7053

In addition to a due process fair hearing, several other dispute resolution mechanisms exist but are at your option. See Chapter 6, Information on Due Process Hearings/Compliance Complaints.

22. What happens to my child if I file for a due process hearing?

Under federal law, your child will remain in her current educational placement and have her current IEP fully implemented (including all related services) from the time you request a hearing until the Due Process Hearing proceedings (and judicial proceedings, if any) are completed. This "status quo" can be altered only if you and the local education agency agree to a change in placement or services. [20 U.S.C. Sec. 1415 (j); 34 C.F.R. Sec. 300.315; Cal. Ed. Code Sec. 56505(d).] This may not be true, however, if you elect to utilize one of the optional dispute resolution mechanisms described more fully in Chapter 6, Information on Due Process Hearings/Compliance Complaints.

If you are very dissatisfied with the school district program or services, you may choose unilaterally to place your child in a non-public school or to purchase additional services. Should the hearing officer (or a court) later determine that such placement or services are appropriate, the district will be responsible for reimbursing you for the cost of the placement or services.

23. What rights do I have in the hearing process?

It is important to note that parents have many rights in the hearing process, including the right to:

(1) Be informed of available free or low-cost legal services. [Cal Ed. Code Sec. 56502(a).]

(2) After filing for a due process hearing, and as long as both parties agree, attend a Mediation Conference, which is an informal meeting held between the parent, district and a state mediator in an attempt to negotiate a resolution to the dispute. During the time of this mediation process, the student is entitled to remain in his current school placement and an attorney may represent any of the parties to the mediation. [20 U.S.C. Sec. 1415 (e); Cal. Ed. Code Sec. 56501(b)(2) and 56503.] The parents and district may also participate in a mediation session before filing for a due process hearing. [See Cal. Ed. Code Sec. 56500.3]. At this mediation, however, no attorneys or other independent contractor legal advocates may participate on behalf of any party. And, because this mediation process takes place before filing for a due process hearing, the district may not believe it is obligated to maintain the student in his current educational placement.

(3) Have the hearing held at a time and place reasonably convenient to the parent and child. [Cal. Ed. Code Sec. 56505(b).] Continuances can be obtained upon a showing of good cause. [Cal. Ed. Code Sec. 56505(g).] The parent also has the rights to have the child attend the hearing and to have the hearing open or closed to the public, if desired. [34 C.F.R. Sec. 300.508; Cal. Ed. Code Sec. 56501(b).]

(4) Have the hearing conducted by an impartial Hearing Officer. [20 U.S.C. Sec. 1415 (f)(3); 34 C.F.R. Sec. 300.507; Cal. Ed. Code Sec. 56505(c).]

(5) Be represented by an attorney or advocate. [20 U.S.C. Sec. 1415 (h)(1); 34 C.F.R. Sec. 300.508(a)(1).] If either party uses an attorney, that party must notify the other party in writing 10 days before the hearing. [Cal. Ed. Code Sec. 56507.]

(6) Present evidence and written and oral arguments; confront, cross-examine and compel the attendance of witnesses; and, obtain a written or electronic verbatim record of the hearing. [20 U.S.C. Sec. 1415 (h)(2); Cal. Ed. Code Sec. 56505(e); 34 C.F.R. Sec. 300.508(a)(2).]

(7) Prohibit the introduction at the hearing of any evidence which has not been disclosed at least 5 days before the hearing. [20 U.S.C. Sec. 1415 (f)(2)(B); Cal. Ed. Code Sec. 56505(e)(6).]

(8) Obtain a written, reasoned decision containing findings of fact. The completed decision must be mailed to all parties within 45 days after the request for the hearing is received. [20 U.S.C. Sec. 1415 (h)(4); Cal. Ed. Code Sec. 56505(g); 34 C.F.R. Sec. 300.508(a)(5).]

If you are successful at the due process hearing or in court (the prevailing party), and you were represented by an attorney, the attorney's fees and the costs of pursuing the case may have to be paid by the public education agency. [20 U.S.C. Sec. 1415 (i)(3)(B).]

The Due Process Hearing Decision is the final administrative determination, and is binding on both sides. [Cal. Ed. Code Sec. 56505(h).] A party who disagrees with the hearing decision can bring an action in state or federal court seeking review of the decision. The action in state or federal court seeking review of the decision must be filed within 90 days of the date of receipt of the decision.[20 U.S.C. Sec. 1415 (i); 34 C.F.R. Sec. 300.511; Cal. Ed. Code Sec. 56505(i).] See Chapter 6, Information on Due Process Hearings/ Compliance Complaints.

24. I think the local education agency is violating special education law. What can I do?

If you believe the local agency has not followed the terms of an IEP or has violated special education laws, or has discriminated and the student is at risk of suffering some immediate loss of benefit as a result of the discrimination, you may file a complaint with the Compliance Management and Mediation Unit . [5 Cal. Code Regs. Sec. 4600 and following.] Some complaints may be filed first with the local education agency and some will be referred back to the local education agency by the Compliance Unit, but most issues arising under special education and IEP implementation may be filed directly with the State. [20 U.S.C. Sec. 1415 (b)(6); 5 Cal. Code of Regs. Sec. 4650.] The complaint procedure is covered in greater depth in Chapter 6, Information on Due Process Hearings/Compliance Complaints. To file a complaint, write to the following address and send a copy to your school district.

Compliance Management and Mediation Unit
Special Education Division
California Department of Education
515 L Street, Suite 270
Sacramento, CA 95814

25. Does my child have the right to participate in non-academic and extracurricular activities offered at his school?

Yes. School districts must take steps to provide nonacademic and extracurricular services and activities in such manner as is necessary to afford children with disabilities an equal opportunity for participation. [34 C.F.R. Sec. 300.306(a).] Such activities include athletics, recreational activities, special interest groups or clubs and employment of students, including employment by the school and assistance in making outside employment available. [34 C.F.R. Sec. 300.306(b).] In addition, in arranging for the provision of such services, lunch and recess, the school district shall ensure that children with disabilities participate with non-disabled children to the maximum extent appropriate. [34 C.F.R. Sec. 300.553.]

26. How do I find out if my child is entitled to an extended school year or summer school program?

Special education and related services shall be provided on an extended year basis for students with disabilities whose unique needs require services in excess of the regular academic year. The IEP team makes the determination of whether a child needs such a program and should consider as factors whether the child's disabilities are likely to continue indefinitely or for a prolonged period, or if interruption of her educational programming may cause regression and, coupled with limited recoupment capacity, render it impossible or unlikely that she will attain the level of self-sufficiency and independence that would otherwise be expected in view of her disabling condition. The lack of clear evidence of such factors may not be used to deny extended year services if the IEP team determines the need for an extended year program and includes the services in an IEP. The special education and related services offered during the extended year must be comparable in standards, scope and quality to the program offered during the regular academic year. If the IEP team recommends extended year services, the recommendation should be written into the IEP. [5 Cal. Code Regs. Sec. 3043.]

27. Can I see the records that the school keeps on my child?

Yes. You or your child's representative have the right to inspect, review and get copies of all education records relating to your child which are collected, maintained or used by the local agency [20 U.S.C. Sec. 1415 (b)(1); Cal. Ed. Code Sec. 49069.]. For most special education students, school districts keep both a special education file and a cumulative file (general regular education information). You have the right to have access to both these files. You may need to remind your district to provide all educational records concerning your child to you no matter where they are located. See Sample Letter at the end of this chapter.

In addition, the local agency must: explain and interpret records on request; and provide you the opportunity to request correction or removal of information in the record you believe to be inaccurate, misleading, an unsubstantiated personal conclusion or inference, a conclusion or inference outside the observer's scope area of competence, not based on the personal observation of a named person with the time and place of the observation noted, or in violation of the privacy or other rights of your child. [Cal Ed. Code Sec. 49070(a).]

Under state law, the local agency must provide you with access to records, and copies as requested, within 5 days after written or oral request. [Cal. Ed. Code Sec. 49069.] The local agency can charge you at most the actual cost of copying the records, but must provide the copies for free if the cost "effectively prevents the parent from exercising the right to receive such copies." [34 C.F.R. Secs. 300.560 and following; Cal. Ed. Code Secs. 49065, 56504.]

28. How do I correct or remove information contained in my child's records?

To correct or remove information contained in your child's records, you can file a written request with the superintendent of the school district. Within 30 days of the request, the superintendent will meet with you and the school staff who recorded the disputed information, and either grant or deny your request. If your request is denied, you have 30 days in which to appeal the denial in writing to the governing board of the school district. When your request or appeal is denied you have the right to submit a written statement of your objections to the information. The statement will become part of your child's record until the information is corrected or removed. [Cal. Ed. Code Sec. 49070(b)-(d).] An alternative way to correct or remove information from your child's records is to file for a due process hearing. [34 C.F.R. 300.567.]

29. Under what circumstances may my child attend school in a school district other than my district of residence?

There are three circumstances where an inter-district transfer may occur:

(1) If your district does not have an appropriate placement for implementation of the IEP, it may contract with a neighboring district to enroll your child in a special education program. The receiving district is not obligated to accept your child. Both districts must agree on funding allocations, transportation, etc. [Cal. Ed. Code Sec. 56170.] These inter-district agreements usually allow the receiving district to terminate the enrollment at the district's own discretion.

(2) The parent of an elementary school child may elect to have the child enrolled in the district where either parent's employment is located. [Cal. Ed. Code Sec. 48204.] However, the district of employment may refuse to enroll the child if the additional cost of educating the child exceeds the amount of additional state aid received as a result of the transfer. This provision could form the basis for refusal of a special education child.

(3) Any district may elect to accept non-resident students. This "receiving" district, however, will not be required to create new programs for these students. Admission of non-resident students must be a random, unbiased process that gives no consideration to academic or athletic skills. There is no limit to the number of non-resident students the district can elect to accept, but under no circumstances may resident students be displaced. Generally, the district of residence has no right to prohibit the transfer. [Cal. Ed. Code Secs. 48209 and 48980.]

If an inter-district transfer is made under (2) or (3) above, transportation will be a parental responsibility. Under any of the three options described above, the student's placement and right to any upgrade of service is not as secure as in the district of residence.

30. What happens to my child's special education program if we move from one school district to another?

Whenever a child transfers out of one school district into another that does not operate under the same local plan, the new school district must immediately provide an interim placement, to last not more than 30 days. Unless you agree otherwise, the interim placement must conform to an IEP -- either the existing IEP implemented to the extent possible in the new district or a new IEP. Within 30 days after the interim placement was made, the IEP team must review the interim placement and make a final recommendation. The IEP team may use the records and reports from the previous school district in making its recommendation. [Cal. Ed. Code Sec. 56325.]

31. What happens to my child's special education program if he is placed in a group or foster home located in another school district?

In order to encourage communication and planning, before placing a child with a disability in a group home or other residential facility, the placing agency (such as a regional center for the developmentally disabled, the Department of Social Services or a court) must notify the administrator of the special education local plan area in which the group home is located. The administrator must provide the placing agency with information about the availability of an appropriate special education program in the area. [Cal. Gov. Code Sec. 7579.] Thereafter, the receiving school district is responsible for providing your child's special education program. See Question 30.

32. Which district is responsible for my child's education program if she is placed in a public hospital, psychiatric hospital or other residential medical facility?

Individuals with exceptional needs who are placed in a public hospital, state licensed children's hospital, psychiatric hospital, proprietary hospital or a health facility for medical purposes are the educational responsibility of the district, special education local plan area (SELPA), or county office of education in which the hospital or facility is located. [Cal. Ed. Code Sec. 56167.]

33. What happens to my child's special education program if he is being discharged from a State Developmental Center (SDC) a state mental hospital or a medical hospital?

At least ten days prior to the discharge of a child who has had an active IEP from an SDC, mental hospital or medical hospital, the operator of the facility must give notice of the discharge, in writing, to the receiving special education local plan area. In addition, the operator must provide the special education local plan area with information useful in implementing your child's IEP, including a copy of the IEP and the name of the child's representative for educational and placement issues. It is the responsibility of the receiving school district to ensure that your child receives an appropriate educational placement that starts without delay upon her discharge. [Cal. Gov. Code Sec. 7579.1.]

34. Under what circumstances could my child be suspended or expelled from school?

Students with disabilities are subject to the same suspension rules as non-disabled students, except with regard to the length of suspension. Students may be suspended for up to five school days if they violate certain provisions of the California Education Code. The district must give you written notice of the suspension. The district must also give you and/or your child the right to contest the evidence of the misconduct and the appropriateness of the suspension at a meeting with school officials. Under certain circumstances, a non-disabled student can be suspended for a period in excess of 30 days cumulatively per school year. Students with disabilities may be suspended for up to ten days by the governing board of the school district if their presence at school would be dangerous. Under federal law, a special education student may not be suspended for more than ten consecutive days without parental consent. [20 U.S.C. Sec. 1415 (k), Cal. Ed. Code Sec. 48911 (h); Doe v. Maher, EHLR 557:353, 361.]

Students with disabilities cannot be expelled from school for misconduct that is related to their disability or if it is determined by the IEP team that the student was not appropriately placed at the time of the misconduct. [20 U.S.C. Sec. 1415 (k)(4)(C)(ii); Cal. Ed. Code Sec. 48915.5; Doe v. Maher, Education for the Handicapped Law Reporter (EHLR) 557:353, 359-60.] Because expulsion is a significant change in placement, prior to expelling a student with disabilities from school, the district must follow certain procedures including notice, assessment of the student and convening an IEP team meeting to determine if the misconduct is related to the student's disability. In analyzing whether the misconduct is related to the student's disability, the analysis cannot be limited to the student's "identified" disability as Cal. Ed. Code Sec. 48915.5(a)(2) indicates. A federal appellate case in California calls into question the validity of that portion of the state statute when compared with federal law. [See Hacienda La Puente Unified School District of Los Angeles v. Honig, 976 F.2d 487 (9th Cir., 1992).] In that case, the school district had failed to identify all of the child's conditions and was attempting to expel the child because her misbehavior was not related to the condition the district had identified the child as having. In addition, a student who has not been found eligible for special education and who has engaged in behavior that violated any school district rule or code of conduct, may assert any of the special education protections and rights if the school district had knowledge that the student was a student with a disability before the behavior that caused the disciplinary action occurred. [20 U.S.C. Sec. 1415 (k)(8)(A).]

If you or your child disagree with the IEP team decision, regarding relationship of the misconduct to the child's disability or the appropriateness of the placement at the time of the misconduct, you have a right to appeal the decision. Generally, a student has the right to remain in his current placement during the pendency of the IEP meeting and any appeals, aside from the initial suspension for the offense which may be up to ten days. However, there are exceptions to this rule if the student is charged with certain categories of offenses involving weapons or drugs, in which event the student may be placed in an alternative placement while expulsion proceedings are pending. [20 U.S.C. Sec. 1415 (k) (1).] In addition, a Hearing Officer, upon application of a district, may subject a student to alternative placement, pending expulsion proceedings, if he finds that maintaining the current placement is substantially likely to result in injury to the child or others. [20 U.S.C. Sec. 1415 (k) (2).]

If it is properly determined that the misconduct is not related to all the student's actual disabilities, and that the student was appropriately placed at the time of the misconduct, the student is treated the same as a student without any disability -- regular expulsion proceedings may be initiated. [Doe v. Maher, EHLR 557:353, 360.] However, both state and federal law severely restrict the expulsion of special education students. Even if a special education student meets the legal criteria for expulsion, federal law requires that the student continue to receive a free appropriate public education while expelled or suspended for a period in excess of ten days. Thus, unlike a regular education student, a special education student does not suffer a cessation of educational services during an expulsion, but may suffer a change of placement to an alternative setting which provides all services required by the students's IEP. [20 U.S.C. Secs. 1412 (a (1)(A), 1415 (k).] See Chapter 8, Information on Discipline of Students with Disabilities.

35. Under what circumstances can my child graduate with his nondisabled peers?

School districts are required to adopt differential proficiency standards for students enrolled in special education and unable to meet the regular graduation requirements. The IEP team must develop or modify these standards and include them in the IEP document. [Cal. Ed. Code Sec. 51215.] Special education students who meet the differential standards provided for by state law should be permitted to participate in graduation ceremonies and receive diplomas. A district's refusal to allow a student to participate in graduation or receive a diploma would be a violation of state law and Section 504 of the Rehabilitation Act of 1973. Even if a special education student did not or could not meet differential proficiency standards, he could participate in graduation ceremonies as part of the mainstreaming requirement if specified in the IEP. The student would not, however, be allowed to receive a diploma or certificate under state law. [Cal. Ed. Code Sec. 51412.]

36. What can I do if a teacher or other school staff person hurts my child?

If a child or group of children has been hurt, mistreated verbally and/or emotionally, or is in immediate physical danger, or the health, safety or welfare of a child or group of children is threatened, you may file a complaint with the CDE under the Uniform Complaint Procedure [5 Cal. Code Regs. Secs. 4600 and following]. The CDE must investigate your complaint. [5 Cal. Code Regs. Secs. 4611(a) and 4650(a)(viii)(C).] See questions and answers regarding Compliance Complaints in Chapter 6, Information on Due Process Hearings/Compliance Complaints.

37. What rights do I have if English is not my first language or I do not speak any English?

Families who do not speak or write English as their primary language have the right to participate fully in special education proceedings. These rights include:

(1) Receive written notice in your native language of the time, location, and participants in the IEP meeting and have an interpreter present to enable you to participate fully in the IEP meeting. [34 C.F.R. Sec. 300.345.]

(2) Obtain copies of assessment plans, notices of parents' rights explaining the procedural rights of special education students, and copies of the IEP, upon request, translated into your native language. [20 U.S.C. Secs. 1415 (b)(4), (d)(2); 34 C.F.R. Sec. 300.345(f); Cal. Ed. Code Sec. 56321(a).]

(3) The right to obtain an independent evaluation at public expense when the assessment conducted by the school district is incomplete or inappropriate (such as an assessment completed without an interpreter). [20 U.S.C. Sec. 1415 (b)(1); 34 C.F.R. Sec. 300.503, Cal. Ed. Code Sec. 56329(b).]

(4) The right to have an interpreter present at mediation and a fair hearing. [5 Cal. Code Regs. Sec. 3082(d).]

(5) Upon request, receive written information in your native language regarding the procedures for filing a complaint with local child protective agencies against a school employee or other person that commits an act of child abuse against your child at his school site. If oral information is to be given, an interpreter must be provided. [20 U.S.C. Sec. 1415 (d)(2); Cal. Ed. Code Sec. 48987.]

38. What rights do I have if English is not my child's first language or if she does not speak any English?

Your rights include:

(1) Assessments of your child's abilities and needs must be in her native language. If this is not possible, an interpreter must be provided. The need for an interpreter does not mean completion of the assessments can be delayed. [20 U.S.C. Sec. 1414 (3)(A)(ii); 34 C.F.R. Sec. 300.532(a)(1); Cal. Ed. Code Sec. 56320(b)(1); 5 Cal. Code Regs. Sec.3023.]

(2) Testing and evaluation materials must be selected and administered so as not to be racially, culturally or sexually discriminatory. [20 U.S.C. Sec. 1414 (3)(A)(i); 34 C.F.R. Sec. 300.530; Cal. Ed. Code Sec. 56320(a).]

(3) For students whose primary language is other than English, the IEP must include linguistically appropriate goals, objectives, programs and services. The school district must provide special help through a trained teacher to assist your child to learn English to the extent appropriate given her disability and must provide special assistance to help your child meet her IEP goals even if she does not speak sufficient English to understand everything her classmates do. This help must continue until your child no longer has a barrier due to her English language skills. [20 U.S.C. Sec. 1414 (d)(3)(B)(ii); 5 Cal. Code Regs. Sec. 2001(p); Cal. Ed. Code Sec. 56345(b)(4); 20 U.S.C. Sec. 703(f).]

(4) For students whose primary language is other than English, linguistically appropriate services includes bilingual instruction. Bilingual instructional services can be provided by both special education and bilingual education staff, as appropriate. The coordination of bilingual instructional services should be described specifically and included in the students IEP. See Question 40 below.

39. Are my child's rights to a free, appropriate education affected if he is undocumented?

No. All children in the United States have the right to a free public school education in the school district in which they live. If your child has a disability as discussed in these materials, then he is entitled to special education services.

Immigrant children do not need a green card, visa, passport, social security number or any other proof of citizenship or immigration status in order to register for school. You do not have to and should not check with INS before sending your child to school. It is illegal for a school to require you to do so.

It is also important that only those children who are in need of special education receive it. Categorizing children whose English in incomplete or who have a different culture as "retarded" or "mentally disabled" has been a common problem in the United States. As discussed above, there are laws that require testing for a disability to take language and culture into consideration.

40. Why is it important to know about bilingual education programs if my child is in special education programs?

Bilingual programs should be coordinated with special education services. Bilingual services should not stop after the student qualifies for special education. Many students need both bilingual and special education services. Here are some points to remember:

(1) Children must be tested in English upon enrollment. Then, the student is identified as either Limited English Proficient (LEP) or Fluent in English Proficiency (FEP).

(2) LEP children are entitled to bilingual instruction which teaches in the native language and also teaches English as a second language.

(3) Instructional services can be provided by both special education staff and bilingual education staff as appropriate. These services should be described specifically and included in the student's IEP.

(4) No bilingual student should be placed in special education solely because the student does not speak English. However, LEP students should receive appropriate special education services if needed.

For more information, contact the CDE, Language, Policy, and Leadership Office at (916) 657-2566.

41. My child's behavior problems are a major obstacle to her education. Is there anything the school district must do to address my child's behavioral needs?

Yes. In May of 1993, the CDE issued new regulations which require school districts to assess special education students who demonstrate serious behavior problems and to then develop and implement a positive behavior intervention plan for each such student. The plan becomes part of the student's IEP, has its own set of goals and objectives for replacement of targeted maladaptive behaviors with socially acceptable alternative behaviors, and is reviewed regularly for its effectiveness.

A serious behavior problem is one which is assaultive, self-injurious, or causes serious property damage, or which is otherwise severe, pervasive, and maladaptive and has not been effectively addressed with instructional/behavioral approaches specified in the IEP. The assessment, behavior intervention plan development, implementation, and monitoring must be done by personnel trained in behavior analysis with an emphasis on positive behavior intervention.

The behavior interventions used by the district must be those which respect the student's dignity and privacy, assure his/her physical freedom, social interaction, and individual choice, help the student learn to interact effectively socially, assure the student's access to education in the least restrictive environment, and result in lasting positive behavioral change. The behavior interventions used by the district may never be used simply to eliminate maladaptive behaviors; behavior interventions may only be used to replace maladaptive behaviors with alternative acceptable behaviors.

In addition, the behavior interventions used by the district cannot involve the infliction of pain or trauma and cannot include verbal abuse, ridicule, humiliation, or the infliction of emotional trauma. Moreover, these behavior interventions cannot include denial of adequate sleep, food, water, shelter, bedding, comfort, or access to bathroom facilities. Nor can they include impediments to adequate supervision of the student. Also specifically prohibited are interventions which involve locked seclusion, toxic or unpleasant sprays or mists released in or near the student's face, deprivation of one or more of the student's senses, and any device, material or object which simultaneously immobilizes all four extremities (except that in unanticipated emergency situations, prone containment may be used by trained staff for only that period of time necessary to abate the emergency).

[See generally 5 Cal. Code Regs. Secs. 3001(c)-(f),(y) and 3052.]

For more information on positive behavior intervention regulations, see Chapter 5, Information on Related Services, and Chapter 8, Information on Discipline of Students with Disabilities.

42. What is assistive technology under IDEA?

An assistive technology device is any item, piece of equipment, or product system -- whether acquired commercially off the shelf, modified or customized -- that is used to increase, maintain or improve the functional capabilities of children with disabilities. [20 U.S.C. Sec. 1401(1); 34 C.F.R. Sec. 300.5.]

OSEP policy letters and hearing decisions provide further clarification of the types of assistive services and devices that fall within the scope of IDEA's mandate. Assistive devices that OSEP found to be within IDEA's mandate include: Apple IIc computer; auditory training equipment; computer assistance; computerized communication system; device for loading/unloading students from a bus; and a $7,000 liberator communication device.

A 1978 Bureau of Education for the Handicapped policy letter concluded that individually prescribed devices (such as glasses and hearing aids) are generally considered personal items and not the responsibility of educational agencies to provide. It is not clear how or whether this "related services exception" will be applied to assistive technology.

Federal law also specifically defines assistive technology services as any service that directly assists a child with a disability in the selection, acquisition, or use of an assistive technology device. [20 U.S.C. 1401(2).] Assistive technology services include:

(1) Evaluation of the needs of such child, including a functional evaluation of the child in the child's customary environment;

(2) Purchasing, leasing, or otherwise providing for the acquisition of assistive technology devices by such child;

(3) Selecting, designing, fitting, customizing, adapting, applying, maintaining, repairing, or replacing of assistive technology devices;

(4) Coordinating and using other therapies, interventions, or services with assistive technology devices, such as those associated with existing education and rehabilitation plans and programs;

(5) Training or technical assistance for such child, or, where appropriate, the family of such child; and

(6) Training or technical assistance for professionals (including individuals providing education and rehabilitation services), employers, or other individuals who provide services to, employ, or are otherwise substantially involved in the major life functions of such child. [20 U.S.C. Sec. 1401(2)(A-F); 34 C.F.R. 300.6.]

In addition, an IEP must consider whether a student with a disability requires assistive technology devices and services. [20 U.S.C. Sec. 1414(d)(3)(B)(v).]

43. My child attends a religious school. Can she receive related services from the public school system if she needs such services to benefit from education and the services are not available at the religious school?

Federal law gives limited rights to children placed in private schools unilaterally by their parents. The school district must provide for the participation of these students in the district's special education programs. However, the amount of money spent on these students may be limited to only a proportionate share (based on the number of these students there are in the district) of the federal dollars received by the district. Currently, only about 8% of the dollars required to provide special education are federal dollars. In a district with 1,000 children, 10 of whom are children with disabilities enrolled in private schools unilaterally by their parents, a district would only have to spend 1% of the 8% of its special education revenue on making provision for the participation of these 10 students in its special education programs. Services may be provided on the premises of private schools, even parochial schools "to the extent consistent with law." [20 U.S.C. 1412(a)(10)(A)(i).]


 Sample Letter - Referral for Special Education

Ms. Bev Blue
Address
City, State, Zip Code
Telephone Number

Date

Mr. Gary Green
Director of Special Education
Local Unified School District
Address
City, State, Zip Code

Dear Mr. Green:

I am the parent of John Blue, who is currently enrolled at the Regular Elementary School in the fifth grade. My child has not been doing well in school and I am concerned about his educational progress.

I am writing to make a referral for assessment for special education services for John. He may be eligible for special education assistance. I am requesting that John be given a comprehensive assessment by the school district and that an IEP meeting be scheduled for him. [Optional: As part of the assessment process, I also request that my child be assessed under Section 504 of the Rehabilitation Act of 1973 to determine whether he should be identified as "handicapped" pursuant to that law and to determine what, if any, accommodations might be required in his educational program in the event that he does not qualify for special education services or in addition to special education services. This is also to request that the Unified School District's Section 504 Coordinator be present at the IEP meeting to discuss the results and recommendations of the Section 504 assessment.]

I look forward to receiving an assessment plan within 15 days. If you have any questions, please feel free to contact me. Thank you for your cooperation and assistance.

Sincerely,

Bev Blue


 Sample Letter - Request for Records

Ms. Bev Blue
Address
City, State, Zip Code
Telephone Number

Date

Mr. Gary Green
Director of Special Education
Local Unified School District
Address
City, State, Zip Code

Dear Mr. Green:

I am the parent of John Blue, who is currently enrolled at the Regular Elementary School in the fifth grade. An IEP meeting has been scheduled for John on June 8.

I would like to arrange a time to review my son's educational records (both his special education file and cumulative file) at his school within the next five days. I would like to make copies of some of his records at that time.

OR

I am writing to request that you provide copies of John's educational records for my review within the next five days. I would like copies of both his cumulative file and his special education file.

I cannot afford to pay for the copies of his records. I will call you soon to make arrangements for my school visit. (OR - Please send the records to my home address.) Thank you for your cooperation.

Sincerely,

Bev Blue


 Time Lines for Assessment and IEP

Child Referred for Assessment"Referral for assessment" means any written request for assessment to identify an individual with exceptional needs made by a parent, teacher, or other service provider.

Within 15 Calendar Days(1) District must Give Parent Proposed Assessment Plan

The proposed assessment plan given to parents shall meet all the following requirements:

1. Be in language easily understood by the general public.

2. Be provided in the primary language of the parent or other mode of communication used by the parent, unless to do so is clearly not feasible.

3. Explain each type of assessment instrument to be administered, the purpose of the instrument, and the professional personnel responsible for the administration and interpretation of the instrument.

4. Fully explain the facts which make an assessment necessary or desirable.

5. State that no educational placement will result from the assessment without the consent of the parent.

6. Include a copy of the notice of parent rights which includes an explanation of all of the procedural safeguards of state and federal special education law and of any optional dispute resolution procedures under state law.

Parent must Give Written Consent to Conduct Assessments:

Parent Has 15 Calendar Days to Arrive at a DecisionWritten parental consent shall be obtained before any assessment of the student is conducted unless the public education agency prevails in a due process hearing relating to such assessment. The parent shall have at least 15 days from the receipt of the proposed assessment plan to arrive at a decision. Assessment may begin immediately upon receipt of such consent.

Assessment Completed and IEP Developed(2) Within 50 Calendar Days of Receipt of Parent's Written Consent for Assessment It Is Expected That a Student's IEP Will Be Implemented

Immediately Following the IEP Meeting

Exceptions to the 50-day time limit would be (1) when the meetings occur during the summer or a vacation period, or (2) where there are circumstances which require a short delay (for example, working out transportation arrangements). However, there can be no undue delay in providing special education and related services to the child.

If a parent does not consent to all the components of the IEP, then those components of the program to which the parent has consented shall be implemented so not to delay providing special education and related services to the child. [Cal. Ed. Code Sec. 56346(a).]

If the public education agency determines that the part of the proposed IEP to which the parent does not consent is necessary to provide a free and appropriate education to the child, they shall initiate a mediation conference or a due process hearing. While the mediation conference or due process hearing is pending, the child shall remain in his or her then-current placement, unless the parent and public education agency agree otherwise. [Cal Ed. Code Sec. 56346(b).]


 Endnotes

1. The 15 calendar days do not include days between the pupil's regular school sessions or terms or days of school vacation in excess of five school days from the date of receipt of the referral. If a referral is made 10 days or less before the end of the regular school year or term, the school district must develop an assessment plan within 10 days after the next school year or term begins. [Cal. Ed. Code Sec. 56321.]

2. An individualized education program shall be developed within a total time not to exceed 50 days, not counting days between school sessions or terms or days of school vacation in excess of five schooldays, from the date of receipt of the parent's written consent for assessment, unless the parent agrees, in writing, to an extension. However, an individualized education program shall be developed within 30 days after the commencement of the subsequent regular school year for each student for whom a referral has been made 20 days or less prior to the end of the previous regular school year. In the situation of an initial referral to special education made 20 days or less prior to the end of the regular school year, the law does not begin counting the 50 days for assessment and development of the IEP from the date of receipt of the parent's signed assessment plan but rather from the earlier date of the initial referral of the pupil to special education. [Cal. Ed. Code Sec. 56344.]


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