SPECIAL EDUCATION RIGHTS AND RESPONSIBILITIES

Chapter 1

Information on Basic Rights and Responsibilities

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 that 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(9)~~ 1401(9); Title 34, Code of Federal Regulations (C.F.R.) Section (Sec.) ~~300.4~~300.17.][1] Special education must be provided in the least restrictive environment. This means that to the maximum extent appropriate, all students with disabilities should be educated with students who are not disabled. [34 C.F.R. Sec. ~~300.550(b)(1)(2)~~ 300.114.] In addition, FAPE requires that special education students are involved and make progress in the general education curriculum and toward achievement of their IEP goals. [20 U.S.C. Sec. 1414(d)(1)(A); 34 C.F.R. Sec. 300.320(a)(1).]

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

In 1975, the 94^th Congress of the United States passed The Education for All Handicapped Children Act (Public Law 94-142), now called the Individuals with Disabilities Education Act (IDEA). [20 U.S.C. Secs. 1400 and following.] California has also passed its own laws, which generally parallel IDEA and form the basis for providing services in this state. [California Education Code (Cal. Ed. Code) Secs. 56000 and following.]

The federal and state laws 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 Department of Education and the California State Department of Education (CDE) have created regulations under the authority of 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 (C.C.R.), Secs. 300 and following.

Federal law and regulations create the broad framework within which California must function as a recipient of federal funds under 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. [Students of the California School for the Blind v. Honig (9th Cir. 1984) 736 F.2d 538.]

2. Who is eligible for services under IDEA?

Children who have an eligible 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: children with mental retardation; hearing impairments (including deafness); speech or language impairments; visual impairments (including blindness); children who are emotionally disturbed; children with orthopedic impairments; children with autism; children with traumatic brain injury; children with other health impairments; and children with specific learning disabilities. [20 U.S.C. Sec. 1401(3); 34 C.F.R. Sec. ~~300.7~~ 300.8; Cal. Ed. Code Sec. 56026(a); Title 5 California Code of Regulations (C.C.R.). Sec. 3030.] In addition, under federal law, a child must also, as a result of one of these conditions, need special education and related services. [20 U.S.C. Sec. 1401(3)(A)(ii); 34 C.F.R. Sec. 300.8(b)(2).] Under state law, a child's impairment must require instruction, services, or both, which cannot be provided with modification of the regular school program. [Cal. Ed. Code Sec. 56026(b).] Federal law refers to an eligible child as a “child with a disability.” California law refers to an eligible child as an “individual with exceptional needs.”

Federal law provides that a child is not eligible for special education if the determining factor in the child's exceptional needs is a lack of appropriate instruction in reading, a lack of instruction in math, or limited English proficiency. [20 U.S.C. Sec. 1414(b)(5); 34 C.F.R. Sec. 300.306(b).] California law appears to further narrow special education eligibility by stating that, unless the child has a disability within the meaning of the federal special education eligibility definitions and the state regulatory special education definitions, pupils are not eligible if their educational needs are due primarily to limited English proficiency, a lack of instruction in reading or math, or due to environmental, cultural, or economic factors. [Cal. Educ. Code Sec. 56026(e).] However, because federal law does not contain these limitations for environmental, cultural, or economic factors, and because California law defers to the federal law by including the phrase "unless disabled within the meaning of [the federal law]," children should not be excluded from eligibility in California on the grounds that their educational needs are due to one of these three factors. [Board of Education v. Rowley, 458 U.S. 176 (1982).]

Children meeting these criteria between the ages of 5 and 18, inclusive (which means throughout a student’s entire eighteenth year of life), are eligible for special education, without qualification, unless, of course, they graduate with a regular diploma at any time during that period. [Cal. Ed. Code Sec. 56026(c)(3).] Individuals who are 19, 20, or 21, who have not graduated from high school with a regular diploma, and who were enrolled in or were eligible for special education prior to their 19^th birthdays, continue to be eligible during those years if they have not completed their prescribed course of study, or if they have not met proficiency standards in basic skills (which, beginning in 2004, will involve passing the High School Exit Exam). [Cal. Ed. Code Sec. 56026(c)(4), 56026.1(b), and 60851.] This is consistent with federal special education law which provides continuing eligibility for special education students, so long as consistent with state law, for individuals through age 21 as long as they have not graduated from high school with a regular diploma. [34 C.F.R. Sec. ~~300.122~~300.102(a)(3)(i)&(ii).]

2(A). How does the school district determine whether my child has a learning disability?

If a student has a severe discrepancy between his ability (as measured by intelligence testing) and his achievement (as measured by standardized tests of academic achievement), it can be assumed that something is getting in the way of the learning that would otherwise be expected for that student and that he has a learning disability. School districts no longer have to use this model, which is referred to as the "discrepancy model" in determining whether a child has a learning disability. School districts may use, if they choose, "a process that determines if the child responds to scientific, research-based intervention as part of the evaluation procedures" instead of the discrepancy model. [20 U.S.C. Sec. 1414(b)(6).] This is the so-called RTI (response to interventions) model. The rules regarding what this process may involve, its effect on time lines, and how it will be implemented are being developed and will likely continue to evolve for a period of time. The authors of this manual will continue to monitor these developments and update readers when these processes are established.

2(B). Some categories of disability that qualify a student for special education require that the condition “adversely affect educational performance.” What does that mean?

Many schools evaluate whether a child’s condition has an adverse affect on his educational performance strictly on the basis of grades or the child’s scores on standardized tests. Although grades and, perhaps, standardized test scores may be one measure of educational performance, the law and the courts take a broader view. Especially when determining whether a child’s educational performance was adversely affected by the child’s emotional condition, the federal appellate court governing California requires that consideration also be given to a student’s need for behavioral and emotional growth. [County of San Diego v. California Special Education Hearing Office, et al., 93 F.3d 1458, 1467 (9^th Cir. 1996).] Although some students test well when taking standardized tests, the law does not require poor standardized test scores in order to find an adverse affect on educational performance. The courts have established that a child’s educational needs include academic, social, health, emotional, communicative, physical, and vocational needs. [Seattle School Dist. No. 1 v. B.S., 82 F.3d 1493, 1500 (9^th Cir. 1996).]

Federal special education law also distinguishes between “educational” performance and “academic” performance and establishes that “educational” performance is a broad concept. For example, children must be assessed by schools in all areas of suspected disability. [20 U.S.C. Sec. 1414(b)(3)(B).] Those areas are defined by federal regulations to include: health, vision, hearing, social and emotional status, general intelligence, academic performance, communicative status, and motor abilities. [34C.F.R. Sec. 300.304(c))4).] Academic performance is only one of the areas in which children must be assessed. Congress and the California Legislature could have used the narrower term “academic performance” when writing the definitions of conditions which would qualify a child under eligibility categories such as Emotionally Disturbed, Other Health Impaired, Orthopedic Impairment, Mental Retardation, Speech or Language Impairment, Visually Impaired, Hearing Impaired, Deaf. However, they did not. Congress and the California Legislature sued the broader term “educational performance” in these eligibility definitions. In addition to grades and standardized tests scores, schools must consider how a child’s emotional, health or other conditions adversely affect his non-academic performance in social, behavioral and other domains as well.

3. What are the eligibility criteria for children with disabilities who are three to five years old?

Eligibility criteria for preschool children are linked to the criteria for school-age children. To be eligible for special education, a child must have one of the following disabling conditions:

(1) Autism;

(2) Deaf-blindness;

(3) Deafness;

(4) Emotional disturbance;

(5) Hearing impairment;

(6) Mental retardation;

(7) Multiple disabilities;

(8) Orthopedic impairment;

(9) Other health impairment (includes attention deficit disorder or attention deficit hyperactivity disorder);

(10) Specific learning disability;

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

(12) Traumatic brain injury;

(13) Visual impairment; or

(14) Established medical disability.

All of these conditions, except (14), are defined in C.F.R. Sec. ~~300.7~~ 300.8 and discussed in 5 C.C.R. Sec. 3030.

An “established medical disability” is defined in Cal. Ed. Code Section 56441.11(d) ~~46441.11(d)~~ as a disabling medical condition or congenital syndrome that the IEP team determines has a high predictability of requiring special education and services.

In addition to meeting one or more of the qualifying conditions, to qualify for special education, a child must need specially designed instruction or services and must also have 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 IEP team. [Cal. Ed. Code Sec. 56441.11(b)(2)&(3).]

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

(1) Unfamiliarity with the English language;

(2) Temporary physical disabilities;

(3) Social maladjustment; or

(4) Environmental, cultural, or economic factors.

[Cal. Ed. Code Sec. 56441.11(c).]

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 Sec. 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 12, 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 have been included in their IEP unless the student has graduated from high school with a regular diploma. [Cal. Educ. Code Sec. 56026(c)(4) and 56026.1(a); 34 C.F.R. Sec. 300.102(a)(3).] 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.] See Chapter 3, Information on Eligibility Criteria.

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 for the student to qualify for special education. 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 U.S.C. Sec. 794] and its implementing regulations at 34 C.F.R. Sec. 104.1 and following.

Section 504 eligibility is not based on a categorical analysis of disabilities. 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. [34 C.F.R. Sec. 104.3(j).]

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
50 Beale Street, Suite 7200
San Francisco, CA 94105
Phone: (415) 486-5555
FAX: (415) 486-5570

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

7. I have heard about a new federal law called the No Child Left Behind Act. What are the important parts of that law for children with disabilities?

The No Child Left Behind (NCLB) Act provides federal money to the states and requires schools to show adequate yearly progress (AYP) towards the goal of 100% proficiency in reading and math for all students in grades 3 through 8 by the year 2014. States may set the achievement levels that must be reached by schools in the intervening years. However, states are not free to set minimal goals in the early years with the expectation of great gains in the latter years. If schools fail to make AYP for their students toward the 100% proficiency goal, they will be required to provide supplemental instructional services, public school choice (if allowed by state law), corrective actions (such as replacing staff), or operation of the school by outside parties, such as private contract managers. It is likely that these goals and these consequences will create an even greater focus than did IDEA 1997 on linking special education IEP goals with the content standards of the general education curriculum.

NCLB may result in more emphasis on participation of children with disabilities in state-wide testing procedures in reading and math in grades 3 through 8. NCLB may require as high as 95% participation of all students in state-wide testing in these grades in order to be in compliance with the law. If students with disabilities do not participate, or their scores are not counted because they take the state-wide tests with accommodations or modifications that invalidate their scores, the students will not have participated. If the participation rate is not as high as 95% (or whatever percentage is finally adopted by the U.S. Department of Education), the state will be out of compliance and subject to sanctions. States will need to ensure that their test procedures and materials are sufficiently inclusive to allow and account for individualized accommodations determined necessary by each child’s IEP team without diminishing the standards of the test.

NCLB requires that each classroom teacher have a full state license or credential by 2005. No credential waivers, emergency, temporary, or provisional credentials or licenses will count. All new first year teachers must have full state credentials or licenses by the 2002-2003 school year. These requirements are likely to be the same for all special education teachers and related services personnel.

Federal law requires that all children, including children with disabilities, are included in state and district-wide assessment programs with appropriate accommodations and alternate assessments, when necessary, as described by their IEPs. [20 U.S.C. Sec. 1412(a)(16)(A); 34 C.F.R. Sec. 300160(a).] Therefore, if you believe your child will have significant difficulty participating in, for example, the SAT-9 (Stanford Achievement Test) testing program, without certain accommodations or if you believe that your child must take an alternate test such as the CAPA (California Alternate Performance Assessment), then you must make sure the SAT-9 accommodations or the CAPA is specified in the IEP. The state or school district must develop guidelines for providing appropriate accommodations. [20 U.S.C. Sec. 1412(a)(16)(B); 34 C.F.R. Sec. 300.160(b).] If the state uses an alternate test for children with disabilities who cannot take the standard test, even with accommodations, the state must align the alternate test with the state's challenging academic content and student achievement standards or adopted alternate academic achievement standards. [20 U.S.C. Sec. 1412(a)(16)(C); 34 C.F.R. Sec. 300.160(c).] Federal law requires that the state conduct any alternate assessments. [20 U.S.C. Sec. 1412(a)(16)(C)(iii); 34 C.F.R. Sec. 300.160(c)(3).]

8. 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, instruction in other settings, and instruction in physical education. Special education also includes speech-language pathology or any other related service if the service is considered special education under state standard, travel training, and vocational education. California law adds to the federal definition of special education by requiring that special education be provided to those students with disabilities whose educational needs cannot be met with modification of the regular instructional program. [20 U.S.C. Sec. ~~1401(25)~~1401(29); 34 C.F.R. Sec. ~~300.26~~300.38; Cal. Ed. Code Sec. 56031.]

Federal regulations specifically define several key terms included in this definition:

(1) At no cost means “that all specially-designed instruction is provided without charge, but does not preclude incidental fees that are normally charged to nondisabled students or their parents as a part of the regular education program.” [34 C.F.R. Sec. ~~300.26~~ 300.38(b)(1).]

(2) Physical education means “the development of physical and motor fitness; fundamental motor skills and pattern; and skills in aquatics, dance, and individual and group games and sports (including intramural and lifetime sports). The term also includes special physical education, adapted physical education, movement education, and motor development”. [34 C.F.R. Sec. ~~300.26~~300.38(b)(2).]

(3) Specially-designed instruction means “adapting, as appropriate to the needs of an eligible child...the content, methodology, or delivery of instruction to address the unique needs of the child that result from the child’s disability and to ensure access of the child to the general curriculum, so that he or she can meet the educational standards within the jurisdiction of the public agency that apply to all children.” [34 C.F.R. Sec. ~~300.26~~300.38(b)(3).]

(4) Travel training means “providing instruction, as appropriate, to children with significant cognitive disabilities, and any other children with disabilities who require this instruction, to enable them to develop an awareness of the environment in which they live and learn the skills necessary to move effectively and safely from place to place within that environment (e.g. in school, in the home, at work, and in the community).” [34 C.F.R. Sec. ~~300.26~~300.38(b)(4).]

(5) Vocational training means “organized educational programs that are directly related to the preparation of individuals for paid or unpaid employment, or for additional preparation for a career requiring other than a baccalaureate or advanced degree.” [34 C.F.R. Sec. ~~300.26~~300.38(b)(5).]

9. 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, certified nonpublic school, or other public agency. 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); 20 U.S.C. Sec. 1412(a)(11); 34 C.F.R. Sec. ~~300.220~~ 300.149; Cal. Ed. Code Secs. 56300 and 56120 and following.]

10. What are related services and who provides them?

Related services are support services a student requires in order to benefit from his special education program. California used to call "related services" Designated Instruction and Services (DIS), but has recently changed the term to be consistent with the federal term. [34 C.F.R. Sec. ~~300.24~~ 300.34, Cal. Ed. Code Sec. 56363; 5 C.C.R. 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, 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)~~1401(26); 34 C.F.R. Sec. ~~300.24~~ 300.34.] In California, related services include 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 and 56026.5.]

(17) Interpreting services.

[Cal. Ed. Code Sec. 56363.]

Under both federal and California law, related services do not include a medical device that is surgically implanted or the replacement of that device. [20 U.S.C. Sec. 1401(26)(B); 34 C.F.R. Sec. 300.34(b); Cal. Ed. Code Sec. 56363(c).]

Although not specifically identified as a related service, federal law requires that districts ensure that assistive technology devices and/or services are available to special education students who need them as part of their special education or related services or as part of the supplemental aids and services used to assist them in being placed in the least restrictive environment and to receive a FAPE. [34 C.F.R. Sec. ~~300.308~~ 300.105 and ~~300.346~~ 300.324(a)(2)(v).]

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 currently provided by other state agencies. [Cal. Gov. Code Secs. 7570-7588.] If the other agency, such as county mental health, 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).

11. What is an “appropriate” special education program?

In 1982, the U.S. Supreme Court issued a decision in Board of Education v. Rowley, 458 U.S. 176; 102 S.Ct. 3034; EHLR 553:656, declaring that under federal law an “appropriate” educational program and placement is designed to meet a student’s unique needs, it provides services to the disabled student sufficient for her to obtain “educational benefit,” and it is provided in conformity with the student’s IEP. In addition, the program must be provided to the maximum extent appropriate in the least restrictive environment. It does not entitle the student to the “best” possible educational program or a “potential maximizing” education. The Rowley case must be followed throughout the United States and was specifically adopted by the federal courts governing California in Gregory K. v. Longview School District, 811 F.2d 1307 (9^th Cir. 1987); EHLR 558:284. Specifically, in Rowley, the court was considering a student with disabilities who was mainstreamed in general education classes. For these students, the court said that educational benefit usually means that the child is making passing grades and is being promoted from grade to grade.

The courts are constantly exploring the determination of what is “educational benefit.” Certainly, the plan of instruction and placement should be likely to result in meaningful educational progress and not regression or trivial educational advancement. [Polk v. Central Susquehanna Intermediate Unit 16, 853 F.2d 171 (3d Cir. 1988).] In California, educational benefit is measured by whether the child is making progress toward achieving the central goals of the IEP. [County of San Diego v. Cal. Special Ed. Hearing Office, 93 F.3d 1458 (9^th Cir. 1996), 24 IDELR 756.]

In addition to making progress toward one's IEP goals, an appropriate education is also one in which a special education student is involved in and making progress in the general curriculum of the school district. [20 U.S.C. Sec. 1414(d)(1)(A); 34 C.F.R. Sec. 300.320; Cal. Ed. Code Sec. 56345.]

12. 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 nondisabled children. 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)~~ 300.114.]

State law provides that special education students be provided with “maximum interaction with the general school population” in a manner that is appropriate to the needs of both. [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 nondisabled 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, attend a special class, or be placed in a combination of both as appropriate.

This does not mean that all students will attend regular education classes or attend school at regular education campuses. Depending on the student’s individual needs, as documented by the IEP team, he may receive educational programming in a self-contained classroom or at a special school, nonpublic school or residential facility.

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

13. 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~~ 300.322, ~~34 C.F.R. Part 300, Appendix (App.) A, Q. 5~~.] 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. ~~300.515~~ 300.519; Cal. Ed. Code Sec. 56050; Cal. Gov. Code Sec. 7579.5.]

14. 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. [See Education Code Sec. 56321(a).] Keep a copy of this request and any other correspondence to and from 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 school staff forget or are unaware of this requirement, be sure to follow up any telephone referral with a written referral. If the school district refers your child for special education, it is still important to follow up with your own written request. Your written and dated referral helps to establish when you officially requested that your child be assessed and helps to establish when the 15-day period the school has to prepare an assessment plan should begin to run. See Sample Letter at the end of this chapter.

School districts sometimes take the position that they must believe a child is likely to ultimately qualify for special education before a district has any duty to assess a child for special education eligibility. To avoid doing special education assessments, schools sometimes point to Cal. Ed. Code Sec. 56303, which states that: "A pupil shall be referred for special educational instruction and services only after the resources of the regular education program have been considered and, where appropriate, utilized." This law is contained in an article of the Education Code having to do with schools' responsibilities to identify all special education eligible students and to assess them. It does not control what schools must do following a parent's request for special education assessment for her child. In addition, section 56303 only speaks to referrals for services, not referrals for assessment. It does not at all prohibit schools from assessing children for special education eligibility. All section 56303 does is prohibit schools from referring pupils for special education services without first considering and, perhaps, using general education services to meet pupils' needs.

When a parent initiates a referral of a child for special education assessment, the law does not leave the decision of whether to assess up to the school district’s discretion. Title 5 Cal. Code of Regulations Sec. 3021(a) states that all referrals for special education shall initiate the assessment process. California Education Code Sec. 56029 defines “referral for assessment” as any written request, by a parent, guardian, teacher, or foster parent, for assessment to identify an individual with exceptional needs. (See the last paragraph of this answer for further information on who is a "parent.") Having made a written referral of her child for special education assessment, a parent should receive a proposed assessment plan within 15 days. [Cal. Ed. Code Sec. 56321(a).] If a school district refuses to conduct assessment following a written referral, the authors of this manual recommend that parents file for a due process hearing, rather than a compliance complaint (see Chapter 6, Information on Due Process Hearings/Complaints), because there is a disagreement regarding the need for assessment. Parents should only file for a due process hearing, however, if they are prepared for the hearing with witnesses and documentary ~~independent~~ evidence who and which will establish~~ing~~ that the student is eligible for special education under one or more of the categories of eligibility. See Chapter 3, Information on Eligibility Criteria. See also Chapter 2, Information on Evaluations/Assessments, Q&A 5, on schools' uses of Student Study Teams in lieu of assessments.

~~Effective in 2002,~~ Foster parents are authorized to initiate a referral for special education of their foster child as long as the educational rights of the natural parents have been limited by court order. [Cal. Ed. Code Sec. 56028(a)(4), 56029(c); 34 C.F.R. Sec. 300.30(a)(1)(2).] In addition, such a foster parent may, for the duration of the foster parent – foster child relationship, have all the rights a natural parent would have in the special education process. [Cal. Ed. Code Sec. 56055.] "Parent" for purposes of special education law, also includes, of course, natural or adoptive parents, guardians, a person having legal custody of a child, a person acting in the place of a natural or adoptive parent, such as a grandparent, stepparent, or other relative with whom the child lives, an individual who is legally responsible for the child, an adult student who has no conservator, and a surrogate parent. [20 U.S.C. Sec. 1401(23); Cal. Educ. Code Sec. 56028; 34 C.F.R. Sec. 300.30(a).] If a natural or adoptive parent is attempting to act as parent and there is someone else who also qualifies under one of the other categories of parent listed above, the natural or adoptive parent must be presumed to be the parent, unless his/her parental rights to make educational decisions have been terminated. In addition, if a court has identified a specific person to act as the parent for purposes of making educational decisions, then that person must be found to be the parent. [34 C.F.R. Sec. 300.30(b).]

15. My child is already receiving special education services. May I request additional assessments? When can I expect the assessments to be completed and a new IEP meeting held to discuss the results?

Yes, you can request additional assessments. If the school district agrees to conduct the additional assessments for the potential revision of the IEP, you should receive an assessment plan within 15 days of making a written request, not counting days in between school sessions or terms or days of school vacation in excess of five. [Cal. Ed. Code Sec. 56321(a).] Once you sign the assessment plan, state law provides that an IEP, required as a result of assessment, must be developed within 5060 days, not counting days in between school sessions or terms or days of school vacation in excess of five. [Cal. Ed. Code Sec. 56344.]

If the school district does not agree to conduct the additional assessments, the issue of whether the child requires these assessments will likely have to be resolved through the special education due process mediation and hearing system. See Chapter 6, Information on Due Process Hearings/Complaints.

16. What are the timelines for the assessment and the IEP meeting?

After an initial written referral to special education or your 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 you 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 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 "a total time not to exceed 50 60 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.56344.] 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.~~ The meeting to develop an initial IEP must be held within 30 days of the school determining that the student is eligible for special education. [Cal. Educ. Code Sec. 56344(a).] Therefore, if a school needs 30 more days, after it has determined that a child is eligible, in order to be ready to develop the initial IEP, the school would need to do enough assessment to determine eligibility in the first 30 days of the total 60-day period it is allowed to develop the initial IEP.

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 in between regular school sessions or terms or days of school vacation in excess of five school days) from the date of receipt of your written request. [Cal. Ed. Code Sec. 56343.5.]

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

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

(1) Parental consent must be obtained prior to assessment. [20 U.S.C. Sec. 1414 (a)(1)(D), (c)(3); 34 C.F.R. Sec. ~~300.505~~300.300(a)(1)(i); Cal. Ed. Code Sec. 56321(c).] If a child is a ward of the state and not residing with his/her parents, the school must make reasonable efforts to obtain parental consent. However, the school is not required to obtain parental consent if, after reasonable efforts, the parents cannot be located, or parental rights have been terminated, or parental rights to make educational decisions have been taken away by a judge and given to someone else. [20 U.S.C. Sec. 1414 (a)(1)(D); 34 C.F.R. Sec. 300.300(a)(2); Cal. Ed. Code Sec. 56321.1.]

(2) Evaluation is by a multidisciplinary team, and assessment is in all areas of suspected disability including, where appropriate: health and development, vision, hearing, motor abilities, language function, academic performance, general intelligence, self-help, orientation and mobility skills, career and vocational abilities and interests, social and emotional status, and communication status. No single measure is used as the sole criterion for determining whether a student is an individual with exceptional needs or in determining an appropriate educational program for the student. [20 U.S.C. Sec. 1414(b)(2)&(3); 34 C.F.R. Sec. ~~300.532~~ 300.304; 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~~ 300.304; Cal. Ed. Code Sec. 56320.]

(4) The assessments must be given in the student’s native language or other mode of communication and in the form most likely to yield accurate information on what the child knows and can do academically, developmentally, and functionally, unless it is clearly not feasible to do so, in which case an interpreter must be used. [20 U.S.C. Sec. 1414(b)(3)(A)(ii) 34 C.F.R. Sec. ~~300.532~~ 300.304; Cal. Ed. Code Secs. 56320(a); 5 C.C.R. Secs. 3023.]

(5) Testing and evaluation materials must be selected and administered so as not to be racially or culturally ~~or sexually~~ discriminatory. [20 U.S.C. Sec. 1414 (b)(3)(A)(i); 34 C.F.R. Sec. 300.304(c)(1)(i) ~~300.532(a); 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(a).]

(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. 300.502; 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. 300.303 ~~300.5364~~.] 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.

Federal regulations state that the evaluation must be “sufficiently comprehensive to identify all of the child’s special education and related services needs, whether or not commonly linked” to the disability category of the child. The school district must use technically sound testing instruments that demonstrate the effect that cognitive, behavioral, physical, and developmental factors have on the functioning of the child. In general, the school district must use “assessment tools and strategies that provide relevant information that directly assists persons in determining the educational needs of the child.” [34 C.F.R. Sec. 300.304(c)(4)(6)&(7) ~~300.532(h), (i), and (j)~~.]

In addition, the school district must use a variety of assessment tools and strategies to gather both relevant functional and developmental information about the child, including information provided by the parent. The evaluation must also gather information related to enabling the child to be involved in and progress in the general curriculum or for a preschool child to participate in appropriate activities. For a child with limited English proficiency, materials and procedures must be selected and administered to measure the extent of a child’s disability rather than measuring the child’s English language skills. [34 C.F.R. Sec. ~~300.532~~ ~~(a) and~~ 300.304(b).]

18. 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 if they have knowledge or special expertise regarding the child [20 U.S.C. Sec. 1414(d)(1)(B); 34 C.F.R. Sec. 300.~~340~~320 and ~~344~~321; 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, and, for students who take "alternate assessments which are aligned to alternative achievement standards" (in other words, students who take the CAPA [California Alternate Performance Assessment] rather than the SAT-9 [Stanford Achievement Test, Ninth Edition], for example), the IEP must also include ~~including~~ benchmarks or short-term objectives, under each annual goal, which are 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 description of how the child's progress toward meeting the annual goals will be measured and when periodic reports on that progress (such as through quarterly or other periodic reports, concurrent with the issuance of report cards) will be provided. Students whose IEPs do not contain short-term objectives under their annual goals will have to depend on these periodic reports to monitor whether they are making sufficient progress during the year. However, the law does not limit the duty of the school to provide these periodic reports to providing them only for those students who do not have short-term objectives. Therefore, parents of children whose IEPs include both annual goals and short-term objectives should also make sure that their children's IEPs also contain a schedule for receipt of periodic progress reports.

(4) 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.

(5) An explanation of the extent, if any, to which the child will not participate with nondisabled child in regular education classes as well as extracurricular and other nonacademic activities.

(6) The Projected date for initiation and the anticipated duration, frequenty, and location of the services and modifications included in the IEP.

(7) 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~~ to measure the academic achievement and functional performance of the child on state and district-wide assessments. If an IEP determines that a child must take alternate achievement tests, the IEP document must explain why the child cannot take the regular achievement test and also why the alternate assessment selected for the child is appropriate.

~~(8)~~ 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.

(9) A statement of how the student’s parents will be regularly informed of student progress (through such means as periodic report cards or progress reports) at least as often as parents are informed of their nondisabled student’s progress.

(10) 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, nonpublic nonsectarian schools, state special schools, residential placement, home instruction, and instruction in hospitals and institutions.

(11) 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.” contain appropriate, measurable postsecondary goals based on age-appropriate transition assessments related to training, education, employment, and, where appropriate, independent living skills, and the transition services (including courses of study) needed to assist the child in reaching those goals.

~~(12)~~ 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. The 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).

(13) Extended school year services, when needed. See Chapter 5, Information on Related Services.

(14) 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); 34 C.F.R. Secs. 300.320 and 300.106~~309, 347~~; Cal. Ed. Code Sec. 56345; 5 C.C.R. Sec. 3042(b) and 3043.]

19. Are there any other services or special factors that must be considered and included in an IEP if appropriate for a student?

Under federal and/or state law, the IEP team must, when appropriate:

(1) For a student whose behavior impedes his or her learning or that of others, consider strategies, including positive behavioral interventions, and supports to address that behavior.

(2) For a student who is blind or visually impaired, provide for instruction in Braille and the use of Braille unless the IEP team determines, after an evaluation of the student’s reading and writing skills, needs, and appropriate reading and writing media, that instruction in Braille or use of Braille is not appropriate.

(3) Consider the communication needs of the student, and for a student who is deaf or hard of hearing, consider the student’s language and communication needs, opportunities for direct communications with peers and professional personnel in the student’s language and communication mode, academic level, and full range of needs, including opportunities for direct instruction in the student’s language and communication mode.

(4) Consider whether the student requires assistive technology and services.

(5) For students in kindergarten and grades 1 to 6, the IEP must also contain prevocational career education.

(6) For students in grades 7 to 12, the IEP must also include any differential standards which will be used to enable them to graduate, and vocational education, career education, or work experience education, in preparation for remunerative employment, including independent living skill training.

(7) For students whose primary language is other than English, the IEP must include linguistically appropriate goals, objectives, programs and services.

(8) Provide for the transition into the regular class program if the student is to be transferred from a special class or center, or nonpublic, nonsectarian school into a regular class in a public school for any part of the school day, including:

(A) A description of activities provided to integrate the student into the regular education program. The description shall indicate the nature of the activity, and the time spent on the activity each day or week.

(B) A description of the activities provided to support the transition of students from special education program into the regular education program.

(9) For students with low-incidence disabilities, provide specialized services, materials, and equipment.

(10) For students in grades 7 to 12, inclusive, provide any alternative means and modes necessary for the student to complete the district’s prescribed course of study and to meet or exceed proficiency standards for graduation.

[20 U.S.C. Sec. 1414(d)(3)(B), 34 C.F.R. Sec. 300.324 ~~300.346~~, Cal. Ed. Code Secs. 56345, 56345.1.]

Generally speaking, in developing each child's IEP, the team must consider: 1) the strengths of the child, 2) the concerns of the parents for enhancing the education of the child, 3) the results of the initial and most recent evaluations of the child, and 4) the academic, developmental, and functional needs of the child. [20 U.S.C. Sec. 1414(d)(3); 34 C.F.R. Sec. 300.324(a).]

19(A). Must the school include any information specific to graduation and progress toward graduation to a special education student's IEP?

Yes, because of confusion regarding graduation requirements for special education students, the California Department of Education has issued a Special Alert to all school district Superintendents which lists all the information that must be included in each special education student's IEP regarding graduation and progress toward graduation and the provision of law supporting that requirement. The letter states:

Dear District Superintendents:

SPECIAL ALERT REGARDING REQUIREMENTS FOR PUPILS WITH DISABILITIES, GRADUATION, AND ADDITIONAL FUNDING

Schools and school districts must fully inform all children and their parents/guardians of 2006 high school graduation requirements including those found in the reauthorized Individuals with Disabilities Education Act (IDEA) and associated with the California High School Exit Examination (CAHSEE). The following graduation-related information is required to be included in each pupil's individual educational program (IEP):

¥Course of study for that pupil (20 USC 1414(d)(1)(A)(i)(VIII)(bb)).

¥Supports necessary for the pupil to make educational progress (20 USC 1414(d)(1)(A)(i)(IV).

¥Local requirements for the receipt of a high school 2006 diploma (California Education Code [EC] sections 56345(b)(1), 56500.5).

¥State requirements for receipt of a 2006 high school diploma (i.e., successful completion of algebra I, passage of the CAHSEE) (EC sections 51224.5, 60851(a)).

¥Accommodations or modifications, if any, required for the pupil to access instruction and assessments (20 USC 1414(d)(1)(A)(i)(VI)(aa)).

¥Provision of remedial or supplemental instruction focused on the CAHSEE (EC Section 60851(f)).

¥Entitlement of the pupil to receive a free appropriate public education until the end of the school year in which the pupil turns 21 years of age, or until the pupil receives a high school diploma, whichever event occurs first (20 USC 1412(a)(1)).

¥Statement that the pupil was informed of the rights under Part B of the IDEA, if any, that will transfer to the student on reaching the age of majority (20 USC 1414(d)(1)(A)(i)(VIII)(cc)).

¥Summary of the pupil's academic achievement and functional performance, including recommendations on how to assist the pupil to meet postsecondary goals (20 USC 1414(c)(5)(B)(ii)).

¥Appropriate measurable postsecondary goals based upon age-appropriate transition assessments related to training, education, employment, and, where appropriate, independent living skills, and the transition services the child needs to reach those goals (20 USC 1414(d)(1)(A)(i)(VIII)(aa)-(bb)).

The approved 2005-06 state budget includes one-time funds to assist pupils with disabilities. After fully funding special education for the 2005-06 fiscal year, the first priority is to assist pupils with disabilities who failed one or more portions of the CAHSEE. In anticipation of these monies, superintendents and special education directors should be providing necessary supplementary instruction to ensure special education student passage of the CAHSEE as required by federal and state law.

Parents and students should insist that this information be included in the IEP and should use this information to understand and prepare for the transition and graduation process.

20. Must my child’s IEP address his involvement in the general curriculum regardless of the nature and severity of his disability and the setting in which he is educated?

~~Appendix A to Part 300 – Notice of Interpretation specifically addresses this issue:~~

Yes. The IEP for each child with a disability (including children who are educated in separate classrooms or schools) must address how the child will be involved and progress in the general curriculum. However, the Part B regulations recognize that some children have other educational needs resulting from their disability that also must be met, even though those needs are not directly linked to participation in the general curriculum...Thus, the IEP team for each child with a disability must make an individualized determination regarding (1) how the child will be involved and progress in the general curriculum and what needs that result from the child’s disability must be met to facilitate that participation; (2) whether the child as any other educational needs resulting from his or her disability that also must be met; and (3) what special education and other services and supports must be described in the child’s IEP to address both sets of needs. [34 C.F.R. Part 300, App. A, Q. 2.]

All IEPs must contain a statement of the student's present levels of educational performance, a statement of his annual goals, and a statement of the special education, related, and supplementary aids and services which the student needs in order to be involved in and make progress in the general curriculum. [20 U.S.C. Sec. 1414(d)(1)(A); 34 C.F.R. Sec. 300.324; Cal. Educ. Code Sec. 56345.] There are no exceptions to this requirement based on the severity of the child's disability or the setting in which his is educated.

21. 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 of the time, location, and purpose of the meeting, and of who will be attending~~participants~~ in the meeting early enough to ensure that you will have an opportunity to attend. The school must also ~~and~~ have the meeting scheduled at a mutually agreed upon time and place. [34 C.F.R. Sec. 300.322 ~~300.345~~(a), (b).] It should be noted that if the school is unable to convince you ~~refuse~~ to attend a properly scheduled IEP meeting, the local agency may conduct the meeting without you if it has kept a record of its attempts to arrange a mutually agreed on time and place. However, the district must also take steps to insure parent participation — such as through conference calls ~~or holding the meetings at after-hours times when you can attend~~. [34 C.F.R. Sec. 300.322 ~~300.345~~(d).]

(2) Attend the meeting and be accompanied by other persons (including a representative, who may be an attorney, or advocate). [20 U.S.C. Sec. 1414 (d)(1)(B)(vi); 34 C.F.R. Sec. 300.321 ~~300.344~~(a)(6)&(c).] Whenever appropriate, the student may also attend and participate. [20 U.S.C. Sec. 1414 (d)(1)(B)(vii); 34 C.F.R. Sec. 300.321 ~~300.344~~(a)(7).] For an IEP that will be in effect when the child turns 16, the notice to parents of an IEP meeting must also notify the parents that transition services and goals will be discussed and that the school will be inviting the student to attend the meeting. [34 C.F.R. Sec. 300.322(b)(2).]

(3) Present your concerns regarding enhancing the education of the child ~~information to the IEP team and participate equally in the development of the IEP~~. [20 U.S.C. Sec. 1414 (d)(3)(A); 34 C.F.R. Sec. 300.324 ~~300.533(a)(1); 34 C.F.R. Part 300, App. A C, Q. 5~~.]

(4) Have language or sign interpreter present if needed for the parent to participate in the meeting. ~~[34 C.F.R. Sec. 300.345(e).]~~ The U.S. Department of Education has removed the requirement that school's provide interpreters for parents at IEP meetings from the proposed federal regulations on the grounds that schools' duties to provide interpreters to parents at IEP meetings is covered by other civil rights laws. In its Federal Register comments regarding this change, the U.S. Department of Education stated as follows:

Current Section 300.345(e), regarding the use of interpreters or other action, as appropriate, would be removed from these proposed regulations because public agencies are required by other Federal statutes to take appropriate actions to ensure that parents who themselves have disabilities and limited English proficient parents understand proceedings at the IEP meeting. The other Federal statutory provisions that apply in this regard are Section 504 of the Rehabilitation Act of 1973 and its implementing regulations in 34 CFR Part 104 (prohibiting discrimination on the basis of disability by recipients of Federal financial assistance) and title II of the Americans with Disabilities Act and its implementing regulations in 20 CFR Part 34 (prohibiting discrimination on the basis of disability by public entities, regardless of receipt of Federal funds, and title VI of the Civil Rights Act of 1964 and its implementing regulations in 34 CFR Part 100 (prohibiting discrimination on the basis of race, color, or national origin by recipients of Federal financial assistance).

(5) Obtain a copy of the IEP. [34 C.F.R. Sec. 300.322(e), 5 C.C.R. Sec. 3040(b) ~~300.345(f)~~.]

(6) Have the IEP reviewed annually, with all the above rights applying. [20 U.S.C. Sec. 1414 (d)(4)(A); 34 C.F.R. Sec. 300.324(b) ~~300.343(c)(1)~~.]

(7) Have the IEP implemented as soon as possible following the development of the IEP, and to have a complete IEP in place at the beginning of each school year ~~which is interpreted to mean immediately except where legitimate circumstances require a short delay~~. [34 C.F.R. Sec. 300.323(a) and (c)(2) ~~300.342(b), 300.346(d), and 300 App. 4 C No. 4;~~ 5 C.C.R. Sec. 3040(a).] See Chapter 4, Information on IEP Process.

21(A). Do all the people from the school who are part of the IEP team or who have information to contribute have to come to the meeting?

No. If a parent and school district agree, in writing, that the attendance of a particular IEP team member is not necessary, that team member does not have to attend. Even IEP team members with information on matters that will be discussed at the IEP meeting may be excused from attending the meeting if the parents and district agree in writing. However, in this situation, in order to be excused from the meeting, the IEP team member would have to submit to the parent, prior to the meeting, his/her written input into the development of the IEP. [20 U.S.C. Sec. 1414(d)(1)(C); 34 C.F.R. Sec. 300.321(e); Cal. Educ. Code Sec. 56380.1(a).]

22. 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. 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. 300.507(a); ~~Cal.~~ ~~Ed. Code Sec. 56501(a).]~~

Federal and state law prohibit a school from trying to compel your child to receive initial special education services by taking you into a due process hearing. [20 U.S.C. Sec. 1414(a)(1)(D)(ii)(II); 34 C.F.R. Sec. 300.300(b)(2); Cal. Educ. Code Sec. 56346(b).] The prohibition against schools taking parents into due process hearings to compel students to receive special education over their parents' objections applies only to a school's initial offer of special education and only to the entire offer. If a parent consents to some of the school's initial offer of special education, a school may take a parent into a due process hearing to compel acceptance of the rest of the offer if the school believes that the other services are necessary to provide an appropriate education. [20 U.S.C. Sec. 1414(a)(1)(D)(i)(II)&(ii)(II); 34 C.F.R. Sec. 300.300(b)(1)&(2); Cal. Educ. Code Sec. 56346(a)(b)(d)(e)&(f).] If a parent has consented to special education services in the past but tries to refuse consent to all further special education and effectively withdraw her child from special education and make him a general education student, the school may take the parent to a due process hearing to compel continued provision of special education to the child under the same authority cited above.

22(A). May changes to the IEP be made after the meeting and without another meeting, or in between meetings, such as by telephone or mail?

Yes. The parent and district may agree to change the IEP without another meeting. The parent and district may agree to develop a written amendment or modification to the child's IEP. The law does not require that the parent automatically be sent a copy of the amended or modified IEP, so parents should be sure to request a copy. [20 U.S.C. Sec. 1414(d)(3)(D)(F); 34 C.F.R. Sec. 300.324(a)(6); Cal. Educ. Code Sec. 56380.1(b).]

22(B). Other than an annual review, are there any circumstances under which the school district must request an IEP meeting?

Yes. For example, if another agency that is participating in the special education of a child by providing his/her transition services stops providing those services, the school district must reconvene the IEP team to develop a strategy for meeting the student's transition objectives despite the fact that the other agency has stopped its services. [20 U.S.C. Sec. 1414(d)(6).] The school must also convene an IEP meeting to conduct a "manifestation determination" regarding a behavior which the school is using as a basis for wanting to expel a special education student or change his placement. [20 U.S.C. Sec. 1415(k)(1)(E); 34 C.F.R. Sec. 300.530(e).]

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

If the IEP has not been implemented yet, you can revoke your consent and the previous IEP would go back into effect, or, if this is the first IEP, no special education would go into effect. If, however, the IEP has been implemented, revoking your consent will not be retroactive and will not undo any action that has occurred after the consent was given and before the consent was revoked. [34 C.F.R. Sec. 300.9(c)(2).]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. In the situation where the IEP has been implemented and you have become dissatisfied with it, rather than trying to revoke consent, you should call for a new IEP meeting to attempt to have the document changed to address your concerns.

24. 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, or you have some other claim that cannot be resolved at the IEP meeting level, such as for past failures of the school to serve your child appropriately, 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 nondisabled students. To request a hearing, write to the address below and send a copy to your child’s school district.

Office of Administrative Hearings
Special Education Unit
2349 Gateway Oaks Drive, Suite 200
Sacramento, CA 95833-4231
Ph: (916) 263-0880
Fax: (916) 376-6319

Until October 9, 2006, if you file a request for a due process hearing, your case can include issues or problems going back as far as three years prior to the date you request the due process hearing. However, in order to include issues going back more than two years (but less than three), you will be required to participate in the mediation process in an effort to resolve the issues. After October 9, 2006, you will only be able to include issues or problems which are two years old or less in your due process hearing request. [Cal. Educ. Code Sec. 56505.]

In addition to a due process fair hearing, several other dispute resolution mechanisms are at your option. See Chapter 6, Information on Due Process Hearings/Compliance Complaints. A copy of the state form for requesting due process is included at the end of this Chapter ~~and at the end of Chapter 6~~.

24(A). Is there anything I should be aware of as I am preparing my request for a due process fair hearing?

Yes. The Office of Administrative Hearings (OAH) strictly reviews requests for hearings to make sure that hearing requests are clear to both the parent and the school district. So, you need to make sure your hearing concerns are issues which the hearing officers are authorized to hear. The issues a parent can try to have resolved through a due process hearing must fall under at least one of the issue categories stated in California Education Code Section 56501, which are listed below:

1. The school is proposing to initiate or change a student's identification, i.e., whether a child is identified as having a special education disability or the label of the special education disability or disabilities the child has;

2. The school is proposing to initiate or change the assessment of the student, i.e., the school is proposing to evaluate a child for special education or re-evaluate an existing special education student and the parent refuses consent (in this case, it would most likely be the school that filed for the due process hearing);

3. The school is proposing to initiate or change an educational placement for a child and the parent disagrees. In the case of a district initiating a student's first special education placement, if the parent disagrees with it, the parent could ask for a due process hearing to try to obtain a different or better initial placement, but a school district could not use the due process system to try to compel the parent to consent to the school's initial placement. [See Cal. Ed. Code Sec. 56346(b).] In the case of a district proposing to change a special education student's placement, either the parent or school could request a due process hearing to resolve a dispute. [See Cal. Ed. Code Sec. 56346(d).];

4. The school is proposing to initiate or change the provision of a free appropriate public education for a child. Again, in the case of a district initiating a student's first free appropriate public education, if the parent disagrees with the IEP the district is offering, the parent could ask for a due process hearing to try to obtain a different or better IEP, but a school district could not use the due process system to try to compel the parent to consent to the school's proposed initial IEP. [See Cal. Ed. Code Sec. 56346(b).] In the case of a district proposing to change a special education student's IEP, either the parent or school could request a due process hearing to resolve a dispute. [See Cal. Ed. Code Sec. 56346(d).];

5. A parent has asked the school to find a child eligible for special education under one or more special education eligibility labels and the school has refused;

6. A parent has asked the school to change her child's special education eligibility label and the school has refused;

7. A parent has asked the school for new assessment of the child or has asked the school to change something in the child's existing assessment information and the school has refused;

8. A parent has asked the school for a certain initial placement or has asked the school to change an existing special education student's placement from one place to another and the school has refused;

9. A parent has asked the school for a certain initial IEP or has asked the school to change the students IEP in some way and the school has refused;

10. The parent and school district, county office of education, and/or Special Education Local Plan Area over the availability of an appropriate program and which agency is financially responsible for providing it to the child.

Most of the disputes that can arise between a parent and school should fall under one or more of these categories.

24(B). At a special education due process hearing, must I persuade the hearing officer that the school has offered my child an inappropriate program or must the school persuade the hearing officer that it has offered my child an appropriate program?

In the case of Schaffer v. Weast, the U.S. Supreme Court decided that the party seeking relief, that is, the party asking the hearing officer to order something against the other side, has the burden of proving that their requested remedy is appropriate and that the other party's proposal is not appropriate. This applies to both parents and school districts, whichever side files for the hearing. If a parent wants a service or placement in the IEP that the school is unwilling to provide and the parent files for a due process hearing, the parent must persuade the hearing officer that the service or placement is necessary for the student's program to be appropriate. The parent will have to produce enough evidence to persuade the hearing officer that her proposal is appropriate and that the school district's proposal is not appropriate.

As a practical matter, however, parents sometimes have to file for due process hearings just to preserve what a school district is trying to take away. This is especially true as students move from grade to grade. For example, an eighth grade special education student may have spent her entire school career in general education classes, but her school district could offer her only a special day class placement for high school. A parent could refuse to sign the district's proposed IEP, which contains the district's special day class placement for ninth grade, or could sign only those portions with which she agrees and state her disagreement with the placement recommendation. However, if this dispute arises at the IEP meeting in late May or early June of the previous school year, for example, and the school tells the parent that it will not admit the student to general education classes at the high school in the fall, the parent may have to file for a due process hearing over the summer to try to resolve the issue before the new school year. In such a case, it is the parent seeking to have a hearing officer order that the school district continue to place her child in general education classes. However, it is the school district's position that something about the child has changed or will change between the eighth and ninth grades and that the child's placement must change from a general education class to a special education class.

In such a case, although the parent was forced to file for a due process hearing just to keep what the child had (because the school district failed to honor the child's general education placement until it filed for due process against the student and proved to a hearing officer that the child's placement must change), the school district should bear the burden, in the parent's due process hearing, of persuading the hearing officer that the child's placement must change. When schools threaten to take something away from a student unilaterally, without filing for a fair hearing and proving that the child no longer needs the service or placement in dispute, the parent may have to file for due process to exercise the stay-put rule. The parent should also file a pre-hearing motion to assign this burden of persuasion to the school district and require that the school district present its case for elimination of a service or change in placement first in the hearing process and allow the parent to present her case for maintaining the child's general education placement after that.

24(C). How specific should I be in my request for a special education due process hearing?

Very specific. The law says that the information a parent must include in his/her due process hearing request letter includes:

1. The name of the child;

2. The residential address of the child, or contact information for a homeless child;

3. A description of the special education problem or problems the child has as they relate to something the school has done or has not done. The description must give enough of the facts to clearly describe the problem and exactly what happened or didn't happen;

4. A description of the proposed resolution to the problem, that is, what needs to happen, to the extent the parent knows what would solve the problem when he/she asks for a fair hearing.

[20 U.S.C. Sec. 1415(b)(7); 34 C.F.R. Sec. 300.508(b); Cal. Educ. Code Sec. 56502(c).]

Even though this is all that the law requires, the law has also given school districts the option of objecting to the sufficiency of a parent's request for a hearing and to have a hearing officer, if he/she agrees with the school that the parent's request is not sufficient, dismiss the case or order that the parent file a more complete request. [20 U.S.C. Sec. 1415(c)(2)(A); 34 C.F.R. Sec. 300.508(d); Cal. Educ. Code Sec. 56502(d).]

To have a better chance of not having your case dismissed or of having to refile your requests, a parent should, at least, use the form developed by the OAH to initiate his/her request for a due process hearing. (See blank form attached at the end of this Chapter.)

However, just using the OAH form is not enough. The OAH requires a thorough statement of the specific problem or problems the child is having and the facts surrounding those problems and a very specific statement of the solution the parent is proposing for each of those problems. It is not enough to simply say: "my child is not learning anything" or "my child is not making progress" as your statement of the problem. Similarly, it is not sufficient to say: "I want him to be in a class where he can learn" or "I want him to go to a private school" as your statement of the solution. Your statement of the problem should relate to one of the ten issues listed above, and it must contain enough information to clearly describe the problem and what you want the hearing officer to order the school district to do to solve the problem and why. The OAH gives one example in its Frequently Asked Questions publication (see attached copy) which would come under the "assessment" category of disputes. OAH states: "Please do not phrase problems as "issues," rather, list contentions or allegations as such. For example, if a parent is requesting a due process hearing and the perceived problem is the alleged failure of a school district to assess [a student] in an area of suspected disability, do not phrase the "issue" as: 'Whether the district assessed in all areas of suspected disability.' Rather, include in your contention the area(s) of suspected disability allegedly known by the district and the assessments you contend the district failed to undertake." From this example, it would seem that OAH requires parents to specify what is missing, rather than just saying that something is missing, from a district's assessments, and that OAH does not want to have the parties and the hearing officer to have to wait until the hearing itself to find out what area of suspected disability should have been assessed. It must be clear from the face of the request for due process what the specific problem is and what the proposed solution is. See OAH’s Frequently Asked Questions, page 4, attached.

A parent who is preparing her request for a due process hearing must be sure to include all the problems she will want to have heard and decided at the hearing, because problems not described in the request for due process cannot be considered at the hearing. [20 U.S.C. Sec. 1415(f)(3)(B); 34 C.F.R. Sec. 300.511(d); Cal. Educ. Code Sec. 56502(i).]

Although this manual has listed the FAX number for OAH above, all papers that must be filed with OAH by a certain day must be filed no later than 5:00 p.m. on that day. Faxes which arrive in OAH offices after 5:00 p.m. will be treated as if they arrived the following day.

24(D). Parents have to provide a great deal of specific information to school districts so that the school districts have a clear understanding of the problems and what the parent is asking for. When school districts want to do something or change something or refuse to do something or change something that a parent wants changed, is there any requirement that school districts give parents specific information about what they are proposing or refusing to do and why?

Yes. Because it is one of the least complied with aspects of special education law, most parents do not know that school districts are required to give parents "prior written notice" a reasonable time before a school district proposes or refuses to do something that involves the child's identification as a special education student, his assessments, his placement, or having to do with his free appropriate public education. The need for a due process hearing most often arises out of something the school district proposes to do or refuses to do. These proposals or refusals are usually announced at IEP meetings rather than sent a reasonable time before. The prior written notice is supposed to include the following information.

(1) A description of the action proposed or refused by the school;

(2) An explanation of why the school proposes or refuses to take that action and of each evaluation, procedure, test, report, etc. the school used as a basis for the action or inaction;

(3) A copy of the parent’s rights to challenge the action or inaction;

(4) sources of advocacy assistance for parents;

(5) other options to the action or inaction which the school considered and why those other options were rejected; and

(6) other reasons for the school’s action or inaction.

[20 U.S.C. Sec. 1415(b)(3); 34 C.F.R. Sec. 300.503(b); Cal. Educ. Code Sec. 56500.4.]

The prior written notice is important because, once a parent requests a fair hearing, if the school never sent the prior written notice described above prior to the parent requesting a due process hearing, the school must, within 10 days of getting a copy of the parent’s fair hearing request, send the parent a response which includes all of the following information:

a. an explanation of why the school is doing or not doing whatever it is that created the problem;

b. a description of other options the IEP team considered and why those were rejected;

c. a description of each evaluation, procedure, test, report, etc. the school used as a basis for doing or not doing whatever it is that created the problem; and

d. other reasons for the school’s action or inaction.

[20 U.S.C. Sec. 1415(c)(2)(B)(i)(I); 34 C.F.R. Sec. 300.508(e); Cal. Educ. Code Sec. 56502(d)(2).]

24(E). If a school never gave a parent the required prior written notice before the parent requested a due process hearing, does that mean that the school is prohibited from complaining about the sufficiency of a parent's request for a due process hearing?

No. Even if the school has to send the parent a response as described immediately above, because it never sent the parent a "prior written notice" before the parent requested a due process hearing, the school can still claim that the parent’s request for a fair hearing, is not clear enough. [20 U.S.C. Sec. 1415(c)(2)(B)(II); 34 C.F.R. Sec. 300.508(e)(2).]

24(F). What are the time lines for the school to object to the sufficiency of a parent's request for a due process hearing and for the hearing officer to make a decision on the school's objection to the request?

The school must object to the parent's request for a due process hearing, if at all, within 15 days of receiving the parent’s request for a fair hearing and must notify the parent of its objection. A hearing officer also receives a copy of the school’s objection to the parent’s fair hearing request and must rule on it within five days. [20 U.S.C. Sec. 1415(c)(2)(C)-(D); 34 C.F.R. Sec. 300.508(d); Cal. Educ. Code Sec. 56502(d)(1).]

If the hearing officer agrees with the school, the parent can change and clarify the fair hearing request (but only if the school agrees to let the parent do so and is also given a chance to resolve the more clearly stated request), or if the hearing officer grants the parent permission to file a new request. A hearing officer must grant this permission at least five days before the scheduled hearing. [20 U.S.C. Sec. 1415(c)(2)(E)(i); 34 C.F.R. Sec. 300.508(c)(3); Cal. Educ. Code Sec. 56502(e).] If the parent has to file a more clear request for a fair hearing, all the time that has gone by, while the school was objecting to the parent’s first request for a hearing and while the parent was filing a more complete request, does not count toward the total number of days that the state has to complete the hearing and write a final decision. That time limit is currently 45 days. [20 U.S.C. Sec. 1415(c)(2)(E)(ii); 34 C.F.R. Sec. 300.508(c)(4); Cal. Educ. Code Sec. 56502(e).]

24(G). Does the school district ever have to respond to my complaint before the hearing?

Yes, if the school does not claim that the parent’s request for due process is unclear or incomplete, it must, within 10 days of getting the parent’s fair hearing request, send the parent a response that specifically addresses the issues raised in the parent’s request. [20 U.S.C. Sec. 1415(c)(2)(B)(ii); 34 C.F.R. Sec. 300.508(f); Cal. Educ. Code Sec. 56502(d)(2).]

In addition, if a parent files a request for a fair hearing that either is not objected to or the parent is allowed to change and clarify the request, the law now requires that the parties participate in a pre-hearing dispute resolution session. A party cannot have a hearing without going through this resolution session unless both sides waive the resolution session in writing or both agree to use mediation instead. [20 U.S.C. Sec. 1415(f)(1)(B); 34 C.F.R. Sec. 300.510; Cal. Educ. Code Sec. 56501.5.]

The resolution session must occur within 15 days of the school receiving the parent’s request for a fair hearing and it must be finished within 30 days of the school receiving the parent’s request. The days before the resolution session is finished do not count toward the total number of days the state has to complete the hearing process and issue a decision. [20 U.S.C. Sec. 1415(f)(1)(B)(ii); 34 C.F.R. Sec. 300.510(b)(2); Cal. Educ. Code Sec. 56501.5(c).]

The new resolution session involves the parents and a representative of the school district who has the authority to commit the school district to a resolution. The session may not involve attorneys for the school district unless the parent is represented by an attorney. At the resolution session, the parents must be able to discuss the basis for their complaint and the school is given an opportunity to resolve it. If the resolution session does lead to a solution, the solution must be put into writing and must be signed by both sides. The agreement is legally binding on the parties and can be enforced in either federal or state court. The parties have three days after signing the agreement to back out of it. The law does not require that the agreement say that all discussions which took place during the session must remain confidential and cannot be disclosed in a subsequent hearing or court case, assuming one of the parties chooses to void the agreement within three business days. [20 U.S.C. Sec. 1415(f)(1)(B)(i)(iii); 34 C.F.R. Sec. 300.510; Cal. Educ. Code Sec. 56501.5.]

24(H). Does the new "resolution session" replace the mediation conference that used to occur before a special education hearing?

No. Mediation continues to exist. The resolution session need not occur if both the parent and school district agree to use mediation instead. [20 U.S.C. Sec. 1415(f)(1)(B)(i)(IV); 34 C.F.R. Sec. 300.510(a)(3)(ii); Cal. Educ. Code Sec. 56501.5(b).]

24(I). If the school district is willing to use mediation instead of the "resolution session," should I use mediation or the resolution session?

It is unclear whether the new “resolution session” will be effective in resolving disputes to the satisfaction of parents. Mediation differs from the resolution session in four important ways which may make mediation preferable for parents. First, in mediation there is a neutral third party to help the parents and school come up with an agreement that both sides can live with. The resolution session is more like having just another IEP meeting with the school people. Second, in mediation all discussions which took place in reaching an agreement stay confidential and cannot be disclosed in a subsequent hearing or court case. The laws describing the new resolution session do not prohibit parties from disclosing this information in a later hearing. Third, unlike a resolution session agreement, there is no three-business-days time period in which either side can void a mediation agreement. Fourth, the time line (currently 45 days) for a final decision in the case continues to run during mediation; that time period stops running during the 15 to 30 day resolution session process. [20 U.S.C. 1415(i)(3)(D)(iii); 34 C.F.R. Sec. 300.510; Cal. Educ. Code Sec. 56501.5.] .

On the other hand, if it is more likely that parents will agree to something that they will soon regret, perhaps the three business days to void a resolution session agreement will benefit parents more than schools and will make parents prefer the resolution session. Also, if a parent is not as prepared to go to a fair hearing as the school district is, the stopping of the time period for holding the hearing and issuing a final decision while the resolution session is going on may be of more benefit to parents. Each parent should examine these factors in deciding whether to offer to mediate instead of going through the resolution session.

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

Under federal and state law, once you file for a special education hearing, 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. [20 U.S.C. Sec. 1415(j); 34 C.F.R. Sec. 300.518; Cal. Educ. Code Sec. 56505(d).] This “status quo,” often called the “stay-put placement” 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. 300.514; 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, because these other dispute resolution mechanisms do not involve a filing for a special education hearing.

In addition, there are a number of exceptions to the stay-put rule. Although the law states that the child shall remain in his/her present placement pending state-level administrative proceedings and judicial proceedings, the definition of a child's "current educational placement" changes after the administrative hearing to whatever the administrative hearing officer has ordered and will become the child's new "stay put" placement during judicial proceedings. [Clovis Unified School District v. Office of Administrative Hearings, 903 F.2d 635 (9th Cir. 1990).] In addition, a school can change a student's placement, even during due process proceedings, if the child has committed weapons or drugs offenses or has inflicted serious bodily injury on someone. [20 U.S.C. Sec. 1415(k)(1)(G); 34 C.F.R. Sec. 300.530(g); Cal. Educ. Code 48915.5.] In addition, a school may request that a hearing officer order a change in the student's placement before the completion of the administrative hearing process if it can prove to the hearing officer that maintaining the child's current educational placement during the special education hearing process is substantially likely to result in injury to the student or someone else. [20 U.S.C. Sec. 1415(k)(3)(B); 34 C.F.R. Sec. 300.531(b); Cal. Educ. Code Sec. 48915.5.] Lastly, a school can petition a state or federal judge to change a student's before the completion of the administrative hearing process if the school can prove to the judge that maintaining the child's current educational placement during the special education hearing process is substantially likely to result in injury to the student or someone else. [Honig v. Doe, 484 U.S. 305 (1988).]

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

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

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

(1) Be informed of available free or low-cost legal services. [~~34 C.F.R. Sec. 300.507(a)(b);~~ Cal Ed. Code Sec. 56502(h).]

(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 you, the 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); 34 C.F.R. Sec. 300.506; Cal. Ed. Code Sec. 56501(b)(1)(2) and 56503.] You and the 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 under section 56500.3, 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. [34 C.F.R. Sec. 300.515; Cal. Ed. Code Sec. 56505(b).] Continuances can be obtained upon a showing of good cause. [Cal. Ed. Code Sec. 56505(f).] Beginning in July of 2005, the agency conducting special education hearings has announced that continuances of hearing dates will be more difficult to obtain and that "good cause" will be more narrowly applied. Not being ready for the hearing or not being able to produce an important witness at the time the hearing is scheduled may no longer be sufficient reasons for a postponement. You also have the right 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. 300.512(c); Cal. Ed. Code Sec. 56501(c).]

(4) Have the hearing conducted by an impartial hearing officer. [20 U.S.C. Sec. 1415 (f)(3); 34 C.F.R. Sec. 300.511; 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. 300.512(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); 34 C.F.R. Sec. 300.512; Cal. Ed. Code Sec. 56505(e)]

(7) Prohibit the introduction at the hearing of any evidence which has not been disclosed at least five business days before the hearing. [20 U.S.C. Sec. 1415 (f)(2)(B); 34 C.F.R. Sec. 300.512; Cal. Ed. Code Sec. 56505(e).]

(8) Obtain a written, reasoned decision containing findings of fact. Under federal law, the completed decision must be mailed to all parties within 45 days after the conclusion of the 30-day resolution session period~~request~~ ~~for the hearing is received~~. [~~20 U.S.C. Sec. 1415 (h)(4);~~ 34 C.F.R. Sec. 300.515(a); ~~Cal.~~ ~~Ed. Code Sec. 56505(f)~~.] State law continues to require that the written decision be issued within 45 days of the date the case is filed with the superintendent. [Cal. Educ. Code Sec. 56502(f) and 56505(f)(3).]

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); 34 C.F.R. Sec. 300.517.]

The due process hearing decision is the final administrative determination, and is binding on both sides. [34 C.F.R. Sec. 300.514; Cal. Ed. Code Sec. 56505(h).] A party who disagrees with the hearing decision may appeal that hearing decision in state or federal court. The appeal must be filed within 90 days of the date of receipt of the decision. [20 U.S.C. Sec. 1415(i)(2); 34 C.F.R. Sec. 300.516(b); Cal. Ed. Code Sec. 56505(k).] See Chapter 6, Information on Due Process Hearings/ Compliance Complaints.

26(A). If I have filed for a due process hearing and am having trouble gathering all the evidence I will need and making sure that the witnesses I will call can attend the hearing on its scheduled day, can I ask for a postponement or, better yet, have the hearing taken off the calendar and then put back on the calendar when I am ready to proceed?

No. To postpone a hearing date requires "good cause." Good cause is generally limited to illnesses or other unexpected emergencies. The inability to get ready in time is not good cause. The unavailability of a witness on a particular day is generally not good cause. Hearings taken completely off the calendar will likely be very rare. You should not file for a due process hearing (unless requesting a hearing is absolutely necessary to maintain a critical educational placement or services which would otherwise change if you did not file for a hearing) unless you know that you and your witnesses and your documents will be ready and available approximately 60 days later.

26(B). I have been told that if I lose my special education due process hearing I will have to pay the school district's attorneys' fees. Is that true?

It is unlikely that a parent will have to pay a school district's attorneys' fees when the school district prevails in a special education hearing. The law provides that attorneys' fees may be awarded to the prevailing party who is a school district, in a case started by the parent, if the case is found to be frivolous, unreasonable, or without foundation, or if the case was brought for any improper purpose, such as to harass, to cause unnecessary delay, or to needlessly increase the cost of litigation. [20 U.S.C. Sec. 1415(i)(3)(B)(i)(II)&(III); 34 C.F.R. Sec. 300.517(a); Cal. Educ. Code Sec. 56507(b)(2).]

There is not a great deal of guidance in the law or cases regarding what the terms "frivolous, unreasonable, or without foundation" mean. However, simply because a case is lost does not mean that the case was frivolous, unreasonable, or without foundation. [Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1977).] For a court to consider that a case is frivolous, unreasonable, or without foundation, the case must be found to have no basis in law or fact. [Christiansburg.] The inability of a party to defeat a motion for summary judgment does not make a case frivolous, unreasonable, or without foundation. [Karam v. City of Burbank, 352 F.3d 1188 (9th Cir. 2003).] A person with a disability sued a grocery store regarding an inaccessible adjacent parking under the Americans with Disabilities Act. The person did not know if the grocery store actually owned, leased or otherwise controlled the parking lot. The grocery store did not own, lease or otherwise control the parking lot, but spent $65,000 in attorney's fees defending the case. The court found that the plaintiff's lack of knowledge of whether the grocery store was responsible for the inaccessibility of the parking lot was not enough to find the case frivolous, unreasonable, or without foundation. The court denied the grocery store's request that the plaintiff be ordered to pay its attorney's fees. [Goodell v. Ralphs Grocery Company, 207 F.Supp.2d 1124 (E.D. Cal. 2002).]

For a case to be found to have been brought for an improper purpose, such as to harass the defendant, the Ninth Circuit Court of Appeals appears to require that the case also be found to be frivolous. [Townsend v. Holman Consulting Co., 929 F.2d 1358, 1362.] However, a different Ninth Circuit case found that the analysis of whether a case was frivolous and brought for an improper purpose should be done on a sliding scale. [Marsch v. Marsch, 36 F.3d 825 (9th Cir. 1994).] In other words, less evidence of one will be required if there is substantial evidence of the other and vice versa. Harassment must be more serious than just annoyance and will be objectively, rather than subjectively, determined. A series of complaints against the same defendant based on propositions of law which have already been rejected in cases involving that same defendant may constitute harassment. [Zladivar v. City of Los Angeles, 780 F.2d 823, 831 (9th Cir. 1986).]

Although the instances in which parents are required to pay a school district's attorney's fees following an unsuccessful special education due process hearing will be extremely rare, to ensure that it does not occur, parents should not file cases that have no basis in fact or law and should not take actions during the course of a case that are designed only to delay or drive up the costs of defending the case.

27. 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 mediation agreement, or due process hearing decision, or other settlement agreement you and the district have entered into, 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, or that a student or group of students is in danger or their health or welfare is threatened, you may file a complaint with the Complaint Management and Mediation Unit of the California Department of Education. [5 C.C.R. 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);~~ 34 C.F.R. Sec. 300.151 - 300.153 ~~300.660 – 662~~; 5 C.C.R. 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.

Complaint Management and Mediation Unit
Special Education Division
California Department of Education
1430 N Street, Suite 2401
Sacramento, CA 95814

28. Does my child have the right to participate in nonacademic 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. 300.107 ~~300.306(a)~~.] Such activities include counseling services, athletics, transportation, health services, recreational activities, special interest groups or clubs referrals to agencies that provide assistance to individuals with disabilities, and employment of students, including employment by the school and assistance in making outside employment available. [34 C.F.R. Sec. 300.107~~300.306~~(b).] In addition, in arranging for the provision of services, such as lunch and recess, the school district shall ensure that children with disabilities participate with nondisabled children to the maximum extent appropriate. [34 C.F.R. Sec. 300.117 ~~300.553~~.]

The IEP must contain a statement of the special education and related services and supplementary aids and services that will be provided to the child so that he will be able to participate in extracurricular and other nonacademic activities. [34 C.F.R. Sec. 300.347(a)(4)(ii).] Regulations under Section 504 also ensure that children with disabilities have an equal opportunity for participation in nonacademic and extracurricular services and activities. [34 C.F.R. Sec. 104.37.]

29. 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. [34 C.F. R. Sec. 300.106 ~~300.309~~; 5 C.C.R. Sec. 3043.]

30. 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 educational records relating to your child which are collected, maintained or used by the local agency. [20 U.S.C. Sec. 1415 (b)(1); 34 C.F.R. Sec. 300.501; 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 of 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); 34 C.F.R. Sec. 300.618.]

Under state law, the local agency must provide you with access to records, and copies as requested, within five days after written or oral request. [Cal. Ed. Code Sec. 49069 and 56504.] 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. 300.613 ~~300.560~~ and following; Cal. Ed. Code Secs. 49065, 56504.]

31. 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 may 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. Federal law also entitles you to a hearing on your request if it is initially denied under the Family Education Rights Privacy Act. [34 C.F.R. Sec. 300.618-300.621.] This hearing procedure is not the same procedure as the special education due process hearing procedure. If 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(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. Sec. 300.567.]~~

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

There are three circumstances where an interdistrict transfer may occur:

(1) If your district does not have an appropriate placement for implementation of the IEP, it may enter into an interdistrict attendance agreement with a neighboring district (the nonresident district) to enroll your child in a special education program. [See Ed. Code Sec. 46600 and following.] The nonresident district is not obligated to accept your child. However, the nonresident district cannot refuse to enter into an interdistrict attendance agreement for discriminatory reasons, such as the need for special education, bilingual, or other special services, and the nonresident district’s belief that the additional cost of educating the student is greater than the additional amount of state funds it would receive as a result of the transfer. [Cal. Ed. Code Sec. 48209.3.] However, the nonresident school district can refuse to accept a pupil if the transfer would require the nonresident district to either create a new program or provide a new service to serve the pupil. [Cal. Ed. Code Sec. 48209.3(a).] Both districts must agree on funding allocations, transportation, etc. These interdistrict agreements usually allow the receiving district to terminate the enrollment at the district’s own discretion, subject, of course, to the prohibition against discriminatory reasons for the transfer described above.

(2) The parent of an elementary school child may ~~elect~~ request to have the child enrolled in the district where either parent’s employment is located, however, the law does not entitle a child to be admitted to a district just because a parent works there. [Cal. Ed. Code Sec. 48204.] ~~However, if~~ If a parent requests an interdistrict transfer to a school district in which he or she works,~~this~~ ~~is the basis for the interdistrict attendance~~, 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. [Cal. Ed. Code Sec. 48204(f)(3).] ~~This provision could form the basis for refusal of a special education child.~~

(3) Any district may elect to accept nonresident students who apply to attend school there from outside that district. If a district elects to accept transfers, it must develop policies specifying how many transfers it will accept and which ensure that admission of nonresident students is a random, unbiased process that gives no consideration to academic or athletic skills. [Cal. Ed. Code Sec. 48209.1(a).] However, either the district of residence or the receiving district can refuse a transfer or limit the number of transfers if the governing board of either district determines that the transfer would negatively impact a court-ordered desegregation plan, a voluntary desegregation plan, or the racial or ethnic balance of either district. [Cal. Ed. Code Sec. 48209.1(b).] . Generally, the district of residence has no right to prohibit the transfer. [Cal. Ed. Code Secs. 48209.1(c) and 48980(j).]

If interdistrict attendance is denied by either district, the district denying attendance must advise you of the right to appeal to the county board of education within 30 days of the failure or refusal to permit interdistrict attendance. If the district denying attendance refuses to notify you of the appeal right, then the district of residence must do so. Not filing the appeal within 30 days is good cause for denial. If there are school district level appeal procedures that could be pursued first, the county board of education may refer the matter back to the district level first. If and when the county board considers the appeal, it has 30 days to make a decision. If the county schedules a hearing on the appeal, it must notify all the parties of the day and time. The hearing may be postponed for good cause under county rules. Normally, a decision must be made within three days of the hearing. The hearing is conducted by either a hearing officer or a hearing panel, none of whom can be a member of the county board. [Cal. Ed. Code Sec. 46601(a) and (b).]

If the district of residence and district of would-be attendance are in two different counties, the county board in which the district denying the permit is located has jurisdiction of the appeal. If both districts have denied interdistrict attendance and are in different counties, the county board having jurisdiction over the district of residence must handle the appeal. In that case, if the appeal is successful with the county of residence, the county of residence must try to persuade the other county to allow interdistrict attendance. If the other county does not, the appeal is denied. [Cal. Ed. Code Sec. 46601(d).]

Students who are expelled, or who are under consideration for expulsion, cannot appeal interdistrict attendance agreement denials or rescissions while expulsion proceedings are pending or during a period of expulsion. [Cal. Ed. Code Sec. 46601(e).] Therefore, it is unclear whether a receiving district in which a nonresident child was going to school could simply initiate expulsion proceedings and rescind an interdistrict attendance agreement and never finish the expulsion process.

In considering whether to allow interdistrict attendance, school districts (and, presumably, county boards of education in the case of an appeal) must give consideration to the childcare needs of the pupil. [Cal. Ed. Code Sec. 46601.5(a).] This provision does not require the granting of interdistrict attendance based on childcare needs, it simply requires that childcare needs be considered. However, if a district has allowed interdistrict attendance based on childcare factors, it must allow the child to continue to attend the school district of your choice subject to the right of the district to terminate attendance if it would violate desegregation orders or plans or if the district determines that the additional cost of educating the pupil would exceed the amount of additional state aid received as a result of the transfer. [Cal. Ed. Code Sec. 46601.5(b) and (c).]

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

32(A). Other than through inter-district transfers, is there another way for a child to attend school in a different district than his parent or parents live?

Students whose residence changes, even though their parents' residence does not change, are entitled to attend school and satisfy the requirements for school attendance by attending school in the district of their new residence. Children placed by the state or county in residential care facilities in other school districts, for example, may attend school in their new district of residence. [Cal. Educ. Code Sec. 48204(a).] Pupils who reside in a different district than their parents and whose parents' parental rights have been terminated may attend school in their new district of residence. [Cal. Educ. Code Sec. 48204(c).] Pupils who live in the home of a caregiving adult who has signed an affidavit verifying that the child lives in the caregiver's home, may attend school in the school district of the caregiver, unless that school district can prove that the child really does not live there. [Cal. Educ. Code Sec. 48204(d).]

33. 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.] When a pupil moves during a school year into a new school district that is not part of the same Special Education Local Plan Area (SELPA), the new school district must provide the student with a free appropriate public education, including services which are comparable to those in his previous district's IEP for the first 30 days of attendance in the new district. A SELPA is either a single large school district or a collection of school districts which constitutes a geographic region and which is organized to pool special education resources and to determine special education fund distributions to the various programs or school districts within the SELPA. During those first 30 days, the new district must either adopt the old IEP or develop, adopt, and implement a new IEP that is consistent with federal and state special education law. [Cal. Educ. Code Sec. 56325(a)(1).]

If a pupil moves to a new school district that is within the same SELPA, the new district must continue, without delay, to provide services comparable to that contained in the previous IEP, unless the parents and district develop, adopt and implement a new IEP which conforms to state and federal special education law. [Cal. Educ. Code Sec. 56325(a)(2).]

If a child transfers into California with an IEP from another state, his new school district must provide him with a free appropriate public education, including services comparable to those in his previous IEP, in consultation with his parents, until the new district conducts any new assessments determined to be necessary, and then develops a new IEP. [Cal. Educ. Code Sec. 56325(a)(3).] The child's new school district must take reasonable steps to promptly obtain the child's school records, and the child's previous school district must take reasonable steps to respond to the new school district's request for these records. [Cal. Educ. Code Sec. 56325(b)(1); 20 U.S.C. Sec. 1414(d)(2)(C)(ii).]

34. 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, Cal. Ed. Code Sec. 56156(a).]

If a child is placed by a court, regional center for persons with developmental disabilities, or other public agency, other than an educational agency, the special education local plan area (SELPA) in which the child’s residential facility is located becomes responsible for her special education. Local agreements within that SELPA may specify that a particular school district or the county office of education is responsible for the actual educational services. [Cal. Ed. Code Sec. 56156.4 and 56156.5.]

~~Beginning in 2003, if~~ If a public agency, other than an education agency places a child with, or suspected of having, a disability in a facility out of state without the involvement of the school district, SELPA, or county office of education in which the parent or guardian lives, the public agency making the placement must assume all financial responsibility for the out-of-state placement, including residential, special education, and related services costs, unless the other state or its local agencies assume that responsibility. [Cal. Gov. Code Sec. 7579(d).]

35. 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.]

36. 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 your 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 his discharge. [Cal. Gov. Code Sec. 7579.1.]

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

Students with disabilities are subject to the same suspension rules as nondisabled students, except that suspensions of students with disabilities cannot exceed 10 consecutive days without a manifestation determination [see next Q&A] ~~with regard to the length of the suspension.~~ A teacher may suspend a student for up to two days. [Cal. Educ. Code Sec. 48910.] A principal may suspend a student for up to five days. [Cal. Educ. Code Sec. 48911.] State law defers to federal law for most of the rules governing suspension and expulsion of special education students. [Cal. Educ. Code Sec. 48915.5.] Federal law allows for up to 10 consecutive days of suspension of special education students without any requirement of a manifestation determination, but for suspensions in excess of 10 days, there must be a manifestation-determination meeting. [20 U.S.C. Sec. 1415(k)(1)(B).] Principals, therefore, sometimes extend students' five-day suspensions by an additional five days. Students with disabilities may be suspended for ~~up to five school days if they violate certain provisions of the California Education Code~~ any one of the misbehaviors on the list of misbehaviors that applies to all students, even if the misbehavior is a manifestation of the child's disability. 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 nondisabled 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), 34 C.F.R. Sec. 300.520; Cal. Ed. Code Sec. 48911(h); Doe v. Maher, EHLR 557:353, 361.]

Typically, with suspensions, there is a pre-suspension conference involving the principal and teacher and the student. At that conference, the student is told why he is being suspended and what the evidence is against him, and he is given an opportunity to present his version of the event and any evidence in his favor. The law does not require the school to wait for the parent to arrive to hold this pre-suspension conference. [Cal. Educ. Code Sec. 48911(b).] However, the school is required to make reasonable efforts to contact the parent by phone at the time of the suspension. [Cal. Educ. Code Sec. 48911(d).] A student can be suspended without a pre-suspension conference if the principal determines that an emergency situation exists. An emergency situation is where there is a clear and present danger to the life, safety or health of pupils or school staff. [Cal. Educ. Code Sec. 48911(c).] If there is no pre-suspension conference because it is an emergency situation, a pre-suspension conference must be held within two school days, and both the parent and pupil must be notified of it, and the student must be allowed to return to the campus to attend the conference. [Cal. Educ. Code Sec. 48911(c).]

Parents must also be informed in writing of a suspension. [Cal. Educ. Code Sec. 48911(d).] The written notice should specify the section or sections of the Education Code which the student violated. The parent is required to respond without delay to any request from school officials to attend a conference regarding his/her child's behavior. [Cal. Educ. Code Sec. 48911(f).]

Students with disabilities cannot be suspended for more than 10 consecutive school days or expelled from school for misconduct that is ~~related to~~ a manifestation of their disability ~~or if the IEP team determines that the student was not appropriately placed at the time of the misconduct~~. ~~[20 U.S.C. Sec. 1415(k)(4)(C)(ii); 34 C.F.R. Sec. 300.523; Cal. Ed. Code Sec. 48915.5; Doe v. Maher, Education for the Handicapped Law Reporter (EHLR) 557:353, 359-60.]~~ [20 U.S.C. Sec. 1415(k)(1)(C).] Suspensions for more than 10 consecutive school days and expulsions are considered "changes of placement," and schools cannot change special education students' placements without parental consent, or without a manifestation determination meeting, except for certain behaviors discussed in Q&A 37(B) below. 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 that 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); 34 C.F.R. Sec. 300.527.]

37(A). What is a "manifestation determination" meeting?

The manifestation determination meeting is a meeting of the relevant members of the IEP team to determine whether a child with a disability may be expelled or have his placement changed for more than 10 consecutive school days for misconduct. It is supposed to be held within 10 days of the school's decision to expel the student or change his placement. At the meeting, the IEP team reviews the relevant information from the student's file, including the IEP and any information from teachers and the parents and then decides two things: 1) was the behavior caused by, or did it have a direct and substantial relationship to, the child's disability, and 2) was the behavior the direct result of the school's failure to implement the IEP? If the team answers yes to either question, the child cannot be expelled and a placement change would require the consent of the parent or a hearing officer's order. If the IEP team members representing the school district believe the answer to both questions is "no" and the parent disagrees, the parent can appeal to a special education hearing. [20 U.S.C. Sec. 1415(k)(1)(E); 34 C.F.R. Sec. 300.530 - 300.532.] If the IEP team determines that the behavior is a manifestation of the child's disability, then, unless the behavior is one of the serious offenses discussed below, the child must go back to his original placement, unless the parents and school agree otherwise. The school must also do a behavioral assessment for the student or modify the student's existing behavior plan to address the behavior. [20 U.S.C. Sec. 1415(k)(1)(F); 34 C.F.R. Sec. 300.530(f).]

37(B). Are there any circumstances under which a school can change a child's placement immediately, without meeting with the parent?

Yes. A school can immediately place a child in a different interim placement, and keep him there for up to 45 school days, even if the behavior is found to be a manifestation of the child's disability, if the student does any of the following:

1) carries or possesses a weapon to or at school or on school grounds or at a school function;

2) knowingly possesses or uses illegal drugs, or sells or solicits the sale of such a drug while at school, on school grounds, or at a school function;

3) inflicts serious bodily injury upon another person while at school, on school grounds, or at a school function. "Serious bodily injury" means: substantial risk of death, or extreme physical pain, or protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty. [20 U.S.C. Sec. 1415(k)(1)(G); 18 U.S.C. Sec. 1365(g)(3); 34 C.F.R. Sec. 300.530(g).] The school must still meet with the parent within 10 days to have a manifestation-determination meeting.

If the parent appeals either the placement of the child in an interim setting or the rest of the IEP team's decision regarding whether the behavior was a manifestation of the disability, a special education hearing officer will decide whether to return the child to his original placement or leave the child in, or order the child into, a 45-school-day alternative placement. [20 U.S.C. Sec. 1415(k)(3)(B); 34 C.F.R. Sec. 300.532(b).] During the appeal to challenge either the interim setting of the school's determination that the behavior was not a manifestation of the child's disability, the child will stay in whatever setting the school has placed him. [20 U.S.C. Sec. 1415(k)(4)(A).] The appeal process, is supposed to last only 30 days from the request for the appeal to the receipt of a decision. [20 U.S.C. Sec. 1415(k)(4)(B); 34 C.F.R. Sec. 300.532(c).]

Unlike general education students, students with disabilities must continue to receive educational services during any period of suspension beyond 10 days and during any period of interim placement and during any period of expulsion. [20 U.S.C. Sec. 1412(a)(1) and 1415(k)(1)(D); 34 C.F.R. Sec. 300.530(d)(1).] The services a child receives under these circumstances must enable him to continue to participate in the general curriculum and to continue to progress toward meeting his IEP goals and to receive needed behavioral assessments and services. [20 U.S.C. Sec. 1415(k)(1)(D); 34 C.F.R. Sec. 300.530(d)(1)(i)(ii).]

If you or your child disagree with the IEP team decision, regarding relationship of the misconduct to your 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); 34 C.F.R. Sec. 300.521.]

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. [34 C.F.R. Sec. 300.524(a); 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 in a school year. 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 student’s IEP. [20 U.S.C. Secs. 1412(a)(1)(A), 1415(k); 34 C.F.R. Sec. 300.121.] See Chapter 8, Information on Discipline of Students with Disabilities.

37(C). I believe my child has a disability which caused his misbehavior, but the school district has never evaluated him for special education. Do the rules regarding the discipline of special education students apply to him?

There are three situations in which a student with a suspected disability, who is not officially a special education student, may be protected by the discipline rules which apply to special education students. These include:

1) when a parent had, before the child's misbehavior, expressed concern in writing to a school administrator or the child's teacher that the child needs special education; 2) when a parent had, before the child's misbehavior, requested that the child be evaluated for special education and the school district did not do so; and 3) when, before the child's misbehavior, a teacher or other personnel of the school had expressed specific concerns about a pattern of behavior of the child directly to the district director of special education or other supervisory personnel as part of the district's special education evaluation referral process. [20 U.S.C. Sec. 1415(k)(5); 34 C.F.R. Sec. 300.534.]

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

Pupils in special education may graduate with their peers and receive a high school diploma if they complete district requirements for the award of a diploma, which include completion of the prescribed course of study and passing proficiency standards in basic skills. ~~, where still utilized by school districts, until the 2003-04 school year. [See~~ ~~Cal.~~ ~~Dept. of Ed., Special Ed. Division, Memorandum Re Differential Proficiency Standards,~~ ~~March 14, 2000~~.] The law currently requires that these proficiency standards will be demonstrated by passing a high school exit exam and completing the district’s prescribed course of study (the required number of credits or units in various areas of study such as English, math, social studies, etc.). As of the fall of 2005, litigation is ongoing in an effort to excuse students with disabilities from having to pass the high school exit exam as a condition of receiving a diploma. The authors of this manual will continue to monitor the litigation and amend these materials accordingly. Efforts are also underway to develop an alternate or alternates to the high school exit examination for students with disabilities, and the authors of these materials will continue to monitor those efforts as well.

Pupils in special education may also participate in graduation ceremonies but receive a certificate of achievement or completion. [Cal. Ed. Code Sec. 56390-56391.] In addition, a student could participate in graduation ceremonies with his peers, even if she is not receiving a diploma or a certificate, if participation in the ceremony was specified in her IEP as a component of her participation with nondisabled peers in school activities in the least restrictive environment. For a more thorough discussion of graduation, eligibility, transition, the exit exam, and prescribed course of study, see Chapter 10, Information on Transition Services, Including Vocational Education.

39. 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, 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 C.C.R. Secs. 4600 and following]. The CDE must investigate your complaint. [5 C.C.R. 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.

The California Department of Education has determined that the “health, safety, or welfare of a child,” for purposes of direct state intervention under section 4650(a)(viii)(C), can be threatened both physically and non-physically (i.e., either verbally and/or emotionally). See California Department of Education Legal Advisory, “Mistreatment of Individuals with Disabilities,” LO: 1-94, 1/25/93.

40. 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) The right to a copy of the IEP document in the primary language of the parent at the parent’s request. [5 C.C.R. Sec. 3040(b).]

(2) The right to be fully informed in one’s native language or other mode of communication of all information relevant to an activity of the school district for which a parent’s consent is being requested. [34 C.F.R. Sec. 300.9.]

(3) The right to have assessments administered to a child of limited English proficiency in her native language or other mode of communication and in the form most likely to yield accurate information on what the child knows and can do academically, functionally, and developmentally ~~to be assessed in ways which measure the extent of a child’s disability rather than the degree of her English language skills~~. [34 C.F.R. Sec. 300.304(c)(1).]

~~(4) The right to have an interpreter for any meeting which is convened for the purpose of deciding a child’s educational placement.~~ ~~[34 C.F.R. Sec. 300.501(c)(5).]~~ See comment of U.S. Department of Education below regarding its belief in the applicability of other civil and disability rights laws to this requirement.

(5) The right to have an interpreter at IEP meetings. ~~[34 C.F.R. Sec. 300.345(e).]~~ The U.S. Department of Education has removed the requirement that school's provide interpreters for parents at IEP meetings from the proposed federal regulations on the grounds that schools' duties to provide interpreters to parents at IEP meetings is covered by other civil rights laws. In its Federal Register comments regarding this change, the U.S. Department of Education stated as follows:

Current section 300.345(e), regarding the use of interpreters or other action, as appropriate, would be removed from these proposed regulations because public agencies are required by other Federal statutes to take appropriate actions to ensure that parents who themselves have disabilities and limited English proficient parents understand proceedings at the IEP meeting. The other Federal statutory provisions that apply in this regard are Section 504 of the Rehabilitation Act of 1973 and its implementing regulations in 34 CFR Part 104 (prohibiting discrimination on the basis of disability by recipients of Federal financial assistance) and title II of the Americans with Disabilities Act and its implementing regulations in 20 CFR Part 34 (prohibiting discrimination on the basis of disability by public entities, regardless of receipt of Federal funds, and title VI of the Civil Rights Act of 1964 and its implementing regulations in 34 CFR Part 100 (prohibiting discrimination on the basis of race, color, or national origin by recipients of Federal financial assistance).

(6) The right to written notice, in one’s native language or other mode of communication, a reasonable time before a school district proposes to initiate or change the special education identifying category of a pupil, his evaluation data, his placement, or anything about the way the district is providing a free appropriate public education to him. Similarly, parents have the right to written notice in their native language or other communication mode within a reasonable amount of time before a school district refuses to initiate or change the special education identifying category of a pupil, his evaluation data, his placement, or anything about the way the district is providing a free appropriate public education to him. [34 C.F.R. Sec. 300.503(c)(1).] If a parent has no written native language or communication mode, the school district must take steps to orally translate the notice for the parent into the parent’s native language or other mode of communication. [34 C.F.R. Sec. 300.503(c)(2).]

(7) The right to have assessment plans presented to parents in their native language or other mode of communication. [Cal. Ed. Code Sec. 56321(b)(2).]

(8) The right to have an interpreter at a due process hearing. [5 C.C.R. Sec. 3082(d).] Although not specifically stated, interpreters ~~must~~ should be provided at mediation conferences as well. ~~[5 C.C.R. Sec. 3086(b)(3).]~~

(9) The right to a Procedural Safeguards Notice provided in one’s native language. [~~20 U.S.C. Sec. 1415(d)(2);~~ 34 C.F.R. Sec. 300.504(d).] The Procedural Safeguards Notice explains all of a parent’s and student’s rights in the special education system, including rights to notice, consent, records access, complaints and appeals, stay-put, discipline, etc. [34 C.F.R. Sec. 300.504(c).] It must be given to parents no more than once per year but also must be given to the parent when a child is first referred to special education, the first time a parent files for a due process hearing, and whenever a parent requests a copy~~enters~~ ~~special education,~~ ~~each time an IEP meeting is set, each time a child is reevaluated, and whenever a parent or district starts due process~~. [34 C.F.R. Sec. 300.504(a).] Although there is no specific requirement that IEP meeting notices be in a parent’s native language, if a Procedural Safeguards Notice in the native language must be sent each time an IEP meeting is noticed, it would make little sense if the IEP meeting notice itself was not also in the native language.

(10) The right to receive, upon request, information in one’s native language regarding the procedures for filing a complaint with local child protective agencies against a school employee or other person who commits an act of child abuse against a child at a school site. If the information is communicated orally, an interpreter must be provided. [Cal. Ed. Code Sec. 48987.]

Some of a parent’s rights to documents in the patent’s native language are limited by law. If it is clearly unfeasible to provide a document in a parent’s native language, the district may not have to do it. Parents whose native languages are uncommon or, perhaps, uncommon in certain regions of the state, may have greater difficulty exercising their rights under these provisions.

There is no specific entitlement under federal or state law to translated assessment reports, but some school districts do provide them upon request. Parents should always ask to have assessment reports translated. Requesting the translation of assessment reports should not pose a large obstacle for a school district if the assessment tests were administered in another language pursuant to 34 C.F.R. Sec. 300.304(c)(1) and the person conducting the assessment also spoke that language. In other circumstances, however, requesting translation of assessments may cause the parent not to receive a copy of the report(s) within the time lines that would otherwise apply for the IEP meeting. In that situation, using an English version of the report and an interpreter to translate it for the parent prior to and at the meeting may be the only way to stay within the time lines for holding IEP meetings.

41. What rights does my child have if English is not her first language or if she does not speak any English?

Your child’s rights include:

(1) Assessments and other evaluation materials used to assess a child must be provided and administered in the child's native language or other mode of communication and in the form most likely to yield accurate information on what the child knows and can do academically, developmentally, and functionally, unless clearly not feasible to do so.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 may be delayed.~~ [~~20 U.S.C. Sec. 1414(3)(A)(ii);~~ 34 C.F.R. Sec. 300.304(c)(1)(ii) ~~300.532(a)(1)~~; Cal. Ed. Code Sec. 56320(b)(1); 5 C.C.R. 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(b)(3)(A)(i); 34 C.F.R. Sec. 300.304(c) ~~300.532(a)(1)~~; 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. [Cal. Ed. Code Sec. 56345(b)(2).] Linguistically appropriate goals, objectives, and programs means: those activities which lead to the development of English language proficiency and those systems which meet the language development needs of the limited English language learner. For pupils whose primary language is other than English and whose potential for learning a second language, as determined by the IEP team, is severely limited, the IEP team may determine that instruction may be provided through an alternative program, which can include a program in the child’s primary language. In such a case, the IEP team would have to at least annually reconsider the individual’s ability to receive instruction in the English language. [5 C.C.R. Sec. 3001(s).]

(4) IEP teams must consider special factors that also affect a student when the developing the child’s IEP. One of those special factors is the language needs of a child with limited English proficiency. [34 C.F.R. Sec. 300.324(a)(2)(ii).] If an IEP team determines that sufficient progress toward a child’s IEP goals and objectives would not occur without certain services, such as bilingual instruction, arguably this would be an example of the need to provide an alternative program as described above. Any such program should be specifically described in the IEP document.

42. 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 is 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.

43. 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) Special education staff and bilingual education staff both can provide instructional services, 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) 319-0845 ~~657-2566~~.

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

Yes. ~~In May of 1993, the~~ CDE ~~issued~~ 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 when necessary. The plan becomes part of the student’s IEP, has its own set of behavioral goals and ~~benchmarks/~~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 that is assaultive, self-injurious, 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. [5 C.C.R. Sec. 3001(aa).] Personnel trained in behavior analysis with an emphasis on positive behavior intervention must do the assessment, behavior intervention plan development, implementation, and monitoring. [5 C.C.R. Sec. 3001(e).]

The behavior interventions used by the district must be those which respect the student’s dignity and privacy, assure 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. [5 C.C.R. Sec. 3001(d).]

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 that 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). [5 C.C.R. Sec. 3052(l).]

IDEA requires that every student being suspended for a period in excess of 10 consecutive days is entitled to a behavioral assessment and a behavioral plan. [20 U.S.C. Sec. 1415(k)(1)(D)(ii); 34 C.F.R. Sec. 300.530(d)(2).] For a detailed discussion of this subject see Chapter 8, Information on Discipline of Students with Disabilities.

Even if a child's behaviors do not amount to "serious behavior problems" as defined above, federal special education law requires that if a child's behavior simply impedes his learning or that of others, the district must consider the use of positive behavioral interventions and supports and other strategies to address the behavior. [20 U.S.C. Sec. 1414(d)(3)(B)(i); 34 C.F.R. Sec. 300.324(a)(2)(i).] These services and interventions likely do not have to contain all the steps and details of the behavior intervention services for serious behavior problems under state law, but must, nevertheless, be appropriate to address the behavioral need.

45. 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 (Office of Special Education Programs, U.S. Department of Education) policy letters and state hearing decisions provide further clarification of the types of assistive services and devices that may fall within the scope of the definition of assistive technology under the IDEA’s ~~mandate~~. Assistive devices which have been ~~that OSEP~~ found to be within IDEA’s mandate include: communication devices [31 IDELR 17 (1999); 20 IDELR 662 (1998); 19 IDELR 355 (1992)], hearing aids [20 IDELR 1216 (1993)], eye glasses [22 IDELR 629 (1995], oxygen tanks [25 IDELR 1023 (1997)], calculators and tape recorders [18 IDELR 1039 (1992)], and a device for loading and unloading children on to a bus [18 IDELR 696 (1992)]. ~~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~~.

Federal law 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. Sec. 1401(2); 34 C.F.R. Sec. 300.6.] Assistive technology services include:

(1) Evaluation of your child’s needs, including a functional evaluation of your child in her customary environment;

(2) Purchasing, leasing, or otherwise providing for your child’s acquisition of assistive technology devices;

(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 your child, or, where appropriate, your family; 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 your child. [20 U.S.C. Sec. 1401(2)(A-F); 34 C.F.R. Sec. 300.6.]

Specifically excluded from the definition of assistive technology device is any medical device that is surgically implanted, including the replacement of such a device. [20 U.S.C. Sec. 1401(1)(B); 34 C.F.R. Sec. 300.5.]

In addition, an IEP team must consider whether a student with a disability requires assistive technology devices and services. [20 U.S.C. Sec. 1414(d)(3)(B)(v); 34 C.F.R. Sec. 300.324(a)(2)(v).]

46. 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?

If a child is placed in a private school by a school district in order to receive a free appropriate public education (although it is unlikely a school district would place a child in a private religious school for this purpose), the school district is responsible for all necessary instructional, related, and supplementary services the child will need. [34 C.F.R. Sec. 300.145 - 300.147.] If a child is placed in a private school by his parents for religious or other reasons without the participation and consent of the school district, federal law gives limited rights to these 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. The amount of federal money that must be spent on these students is limited to only a proportionate share (based on the number of these students there are in the district compared to the total number of students with disabilities there are in the district ) of the federal dollars received by the district. Nothing in federal law prohibits a school district from spending additional state funds for this purpose. Currently, only about 10% 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 10% 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. Sec. 1412(a)(10)(A)(i); 34 C.F.R. Sec. 300.130 - 300.144 ~~300.450–300.462~~.]

Beginning in 2005, school districts must do a more inclusive and thoughtful job of determining how to spend the portion of money they must spend on parentally-placed, private-school students with disabilities. As part of the process of designing and developing its services for these children, the school district must engage in timely and meaningful consultation with officials from the private schools in which students residing in the district are enrolled. After the process of consultation with the private school officials is concluded, the district must obtain a written affirmation signed by the private school officials regarding the district's consultation with these officials. Private school officials may file a complaint with the U.S. Secretary of Education if they believe the district did not engage in timely and meaningful consultation or did not give due consideration to the views of that private school official. [20 U.S.C. Sec. 1412(a)(10)(i)-(v); 34 C.F.R. Sec. 300.134 - 300.136.]

47. What are the rules for the qualifications of special education teachers and other personnel?

As of December 3, 2004, special education teachers and other personnel must be “highly qualified.” [20 U.S.C. Sec. 1401(10); 34 C.F.R. Sec. 300.18.]

“Highly qualified” means the teacher has a full state certification as a special education teacher or has passed the state special education teacher licensing examination and has received a license to teach in California as a special education teacher. If the teacher is a charter school teacher, “highly qualified” means the teacher meets the requirements for teachers in the state’s public charter school law. The required certification or license does not include certifications or licenses that are given under waivers or that are emergency, temporary, or provisional. In addition, the teacher must hold a bachelor’s degree.

However, special education teachers who teach core academics to students who are being assessed using alternate achievement standards may meet the “highly qualified” standards by having a bachelor’s degree and passing a rigorous state test of subject knowledge and teaching skills in reading, writing and math.

There are additional rules for special education teachers who teach multiple subjects.

Related services personnel must also be “highly qualified. They must hold the state-approved or state-recognized certificate, license, registration, or other comparable status that applies to the profession which they will be practicing as part of providing special education or related services. These certificates, licenses, or registrations cannot have been granted under a waiver or on an emergency, temporary, or provisional basis. Paraprofessional staff must be appropriately trained and supervised in accordance with state law or written policy. [20 U.S.C. Sec. 1412(a)(14); 34 C.F.R. Sec. 300.156.]

Although Congress has attempted to raise the qualification standards for teachers, related services personnel, and paraprofessionals, it has also stated that a state's or school district's failure to have highly qualified personnel doees not create a right of action on behalf of an individual student or class of students. [20 U.S.C. Sec. 1412(a)(14)(D); 34 C.F.R. Sec. 300.156(e); 20 U.S.C. Sec. 1401(10); 34 C.F.R. Sec. 300.18(e).] The authors of this manual believe the reference to "right of action" is a reference to a legal term associated with a court action. A parent could, therefore, still raise the lack of personnel qualification in a special education due process hearing regarding whether a school district has offered a child a free appropriate public education. It is clear, however, that a parent can file a complaint with the State Department of Education to address the failure of a local school district to provide highly qualified staff. [20 U.S.C. Sec. 1412(a)(14)(D); 34 C.F.R. Sec. 300.156(e)(2).] The authors of this manual will continue to monitor the development and interpretation of this provision and inform readers accordingly.

48. My child attends a charter school. What are his special education rights?

If a special education student attends a charter school that is part of a school district, the school district must meet the special education needs of the child just like it would meet the special education needs of a child with a disability in any of its other public schools, including providing related and supplementary services on site at the charter school to the same extent it provides services on site at its other public schools. The district must also fund a charter school to provide special education the way it funds its other public schools. [20 U.S.C. Sec. 1413(a)(5); 34 C.F.R. Sec. 300.209(b)(1).]

If a special education student attends a charter school that is its own local district and receives federal special education funding, the charter school is responsible for making sure that all of a child's special education needs are met. [34 C.F.R. Sec. 300.209(c).]

If a special education student attends a charter school that is not part of a local school district and is not its own school district receiving federal special education funding, then the California Department of Education is responsible for making sure that the student's special education needs are met. The Department may do this directly or by assigning responsibility to another agency, but the Department remains ultimately responsible. [34 C.F.R. Sec. 300.209(d).]

49. May the school district insist that my child take prescribed medication before he is permitted to attend school or before the school will assess him or before the school will provide any services to him?

No. Federal and state law prohibit schools from requiring that students obtain a prescription for medications which are on the federal list of controlled substances as a condition of receiving services, being assessed or attending school. [20 U.S.C. Sec. 1412(a)(25); 34 C.F.R. Sec. 300.174; Cal. Educ. Code Sec. 56040.5.]

50. What do the federal and state legislatures expect school districts to accomplish in terms of the educational performance of special education students as a result of the special education program?

Each state must establish goals for the performance of special education students. The goals must be the same as the state's definition of Adequate Yearly Progress (AYP) consistent with the No Child Left Behind (NCLB) law. NCLB requires that all children, including children with disabilities, be proficient in reading, math, and science by 2014. [20 U.S.C. Sec. 1412(a)(15)(A)(ii); 34 C.F.R. Sec. 300.157(a)(2).] States determine the amount of AYP which must be made in order for their children to be proficient in these areas. To make sure that each state adopts high enough standards of proficiency in reading, math and science, tests of proficiency will be nationally determined by the National Assessment of Educational Progress. In addition to academic performance, states must also establish other goals to address other problems of students with disabilities, such as graduation and dropout rates. [20 U.S.C. Sec. 1412(a)(15)(A)(iii); 34 C.F.R. Sec. 300.157(a)(3).]

51. Must the schools do anything for special education students to get them ready for the next phase of their lives after they leave the school system?

Beginning not later than the first IEP in effect when the child is 16, and updated thereafter, the IEP must contain appropriate measurable postsecondary goals based on age appropriate transition assessments related to training, education, employment, and, where appropriate, independent living skills. The IEP must also contain the transition services, including courses of study, needed to assist the child in reaching those goals. [20 U.S.C. Sec. 1414(d)(1)(A)(i)(VIII); 34 C.F.R. Sec. 300.320(b); Cal. Educ. Code Sec. 56345(a)(8).] The school district must also reconvene the IEP team to identify alternative strategies of meeting IEP transition goals if an agency, other than an education agency, fails to provide the transition services it had been providing under the IEP. [20 U.S.C. Sec. 1414(d)(6); 34 C.F.R. Sec. 300.324(c); Cal. Educ. Code Sec. 56345.1(b).] The student must be invited to attend the IEP meeting if transition services will be considered, and, if the student does not attend, the school must take other steps to ensure that his preferences and interests are considered. [34 C.F.R. Sec. 300.321(b).]

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, as required by 5 C.C.R. Sec. 3021(a). 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