Individuals with Disabilities Education Act
The requirements and procedures for providing special education are driven by federal and state law, including the Individuals with Disabilities Education Act.
In all public schools, including charter schools, special education services are designed to offer individualized supports and services for students with exceptional needs. Special education services can include academic, social, emotional and behavioral training, as well as mental health, counseling and support for the students and their families.
The requirements and procedures for providing special education are driven by federal and state law, including the Individuals with Disabilities Education Act ("IDEA"), Section 504 of the Rehabilitation Act ("Section 504"), as well as certain sections of California Education Code.
Under IDEA and the California Education Code, a student is eligible for special education services if he or she has one of thirteen disabilities and that disability creates the need for the student to have specialized instruction and services that cannot be provided in the general school program.
Eligible disabilities include:
- Intellectual Disability (formerly Mental Retardation),
- Hearing Impairments,
- Speech or Language Impairments,
- Visual Impairments (including blindness),
- Emotional Disturbance
- Orthopedic Impairments,
- Traumatic Brain Injury,
- Other Health Impairments (including Attention Deficit Hyperactivity Disorder),
- Specific Learning Disabilities, or
- Multiple Disabilities
Both state and federal law require public school districts, or local educational agencies ("LEAs"), to actively identify, locate and evaluate all children who are suspected of having a disability and needing special education services - this mandate is commonly referred to as "Child Find."
As a part of the Child Find process, a school professional may ask that a student be assessed to see if he or she has a disability and is need of special education or related services. A student's parent may also contact the student's teacher or other school professional to request that their child be assessed.
After a student is referred for a special education assessment, the LEA must provide the student's parent or guardian with a proposed assessment plan within 15 days of the referral. The LEA must obtain informed consent from the student's parent before conducting the assessment, and the assessment must be completed within 60 days of receiving parental consent. The assessment must address all areas of suspected disability and must be conducted by someone with knowledge of the suspected disability.
Once the assessment is complete, the school or LEA must hold a meeting to review the results of the assessment and determine whether the student qualifies for special education by meeting the criteria for one of 13 disabling conditions. This meeting is the initial Individualized Education Program ("IEP") meeting, and the student's parent must be given an opportunity to participate.
The Individualized Education Program
All children receiving special education services must have an Individualized Educational Program. The IEP is a written document that describes the student's skills and needs and the services that will best meet those needs.
All the decisions concerning the special education programs and services to be provided to a student with a disability, including decisions to develop, review or revise a student's IEP, are to be made by the IEP team.
The IEP team includes:
- The student's parents or legal guardian;
- At least one special education teacher;
- At least one general education teacher of the student if the student is or may be participating in the general education environment;
- If the student was recently assessed, the individual who conducted the assessment or an individual who is qualified to interpret the assessment results;
- A representative of the LEA other than the student's teacher, who is qualified to provide or supervise special education services, is knowledgeable about the general education curriculum, and is knowledgeable about the availability of resources of the LEA; and
- The student, if appropriate
Parents and other involved parties must be given enough notice to participate in the meeting, and the meeting must be scheduled at a mutually agreed-upon time and place.
Before the student may be provided with special education services for the first time, or before a revised IEP may be implemented, the parents must give written consent on the IEP documents.
The student's IEP must contain the following:
- A statement of the student's present levels of academic achievement and functional performance
- Measurable annual goals
- A description of how the student's progress toward meeting the annual goals will be measured and when reports will be provided
- A statement of the special education and related services to be provided to the student
- An explanation of the extent, if any, to which the student will not participate in general education
- Any accommodations necessary to measure the academic achievement and functional performance of the student on state and district assessments.
- The projected date for the beginning of the IEP services, and the anticipated frequency, location, and duration of those services.
- For students 16 years and older, goals and services related to post-secondary training, education, employment and independent living skills
The student's IEP must also be reviewed by the IEP team at least once a year to discuss the student's present levels of performance, determine whether the student is achieving his or goals, and discuss whether the student's placement and services remain appropriate. Parents must be invited to attend and participate in these annual IEP meetings.
In addition, the student must be reevaluated at least every three years. This evaluation is often called a "triennial assessment," and its purpose is to determine if the student continues to be eligible for special education services.
Free Appropriate Public Education (FAPE)
Special education and related services must be designed to provide the student with a "free appropriate public education" ("FAPE"). Under the law, FAPE means that the student's special education services and placement are designed to meet the student's unique needs, are reasonably calculated to provide the student with some educational benefit in the least restrictive environment, and are available at no cost to the parent. While a school is not required to provide instruction or services that maximize a student's abilities or place a student in a program preferred by a parent, the services and placement must allow the student to make progress on his or her IEP goals and/or advance from grade to grade, where appropriate.
Least Restrictive Environment (LRE)
Under both federal and state law, FAPE must be provided in the least restrictive environment ("LRE"). This means that a special education student must be educated with non-disabled peers "to the maximum extent appropriate," and may be removed from the regular education environment only when the nature or severity of the student's disabilities is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.
To determine whether a placement is in the least restrictive environment, four factors are considered:
- The academic benefits available to the disabled student in a general education classroom, supplemented with appropriate aids and services, as compared with the academic benefits of a special education classroom
- The non-academic benefits of interaction with children who are not disabled
- The effect of the disabled student's presence on the teacher and other children in the classroom
- The cost of mainstreaming the disabled student in a general education classroom.
In the event that the school or LEA and the student's parent or guardian cannot reach an agreement regarding the student's educational program, placement or eligibility for special education, the law guarantees certain rights to parents and set forth specific procedures for resolving disagreements.
The most formal process of dispute resolution is a Due Process hearing. A Due Process hearing is administered by a hearing officer appointed by the State and is procedurally conducted as a trial. Parties are given the opportunity to be represented by counsel, to present evidence and question witnesses, and to make legal arguments. The Due Process hearing results in a final administrative decision resolving the matter.
A student's parents or the LEA may initiate a due process hearing under any of the following circumstances:
- There is a proposal or a refusal to initiate or change the identification, assessment, or educational placement of the student or the provision of a free, appropriate public education to the student.
- The parent or guardian refuses to consent to an assessment of the student.
- There is a disagreement between a parent or guardian and a district, special education local plan area, or county office regarding the availability of a program appropriate for the student, including the question of financial responsibility.
A less formal process of resolution is mediation. Mediation is an informal process conducted in a non-adversarial atmosphere in which a mediator, assigned by the State, assists in resolving issues to the satisfaction of both parties. Either the parent or the school may request mediation, and such a request can accompany a request for Due Process hearing or stand alone as an informal "mediation-only" request. A request for informal mediation or mediation-only is designed to be as informal and non-adversarial as possible; as such attorneys may not attend these proceedings.
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