SPECIAL EDUCATION LAW

LAW OFFICES OF
M. LYNN HANSEN

SPECIAL EDUCATION LAW

 

California Special education law is complex and overwhelming for parents. Children diagnosed with Autism, Asperger’s Syndrome, ADD/ADHD, Specific Learning Disability, Emotional Disturbance, Speech or Language Impairment, or other disabilities are unique. Each carries with them special challenges.

School districts may feel that they are most adept at offering services that they believe are appropriate.  However, parents know their children better than anyone and they must become their child’s best advocate.

Parents are often unaware of their and their child’s legal rights and may believe that school districts “know” what is best for their child.  School districts may take advantage of stressed and overwhelmed families who do not know their child’s legal special education due process rights.

This problem is further compounded as some parents believe that hiring a special education attorney to represent their child’s legal rights is cost prohibitive.  Consequently, parents and their special needs child both suffer from lack of appropriate special education representation and educational program support.

The reality is that hiring a special education attorney is usually very cost effective, not cost prohibitive, and is usually money very well spent.  A special education attorney helps parents navigate the maze of special education law and enables a disabled child to receive appropriate special education programs and services under the IDEA. For those parents with a disabled child, it is insurance that your child will receive a Free Appropriate Public Education (FAPE).  Further, if a parent is the prevailing party, that parent may ask that the district pay their outstanding attorney’s fees.

School districts may go to hearing many more times than parents.  As a result, school districts retain law firms that specialize in special education law.  Parents are usually not knowledgeable in the field of special education law and come up against opposing counsel who are experts in the field. Parents who are not represented by legal counsel in special education due process matters are at a severe disadvantage.


California Special Education Law >> Special Education Eligibility


To qualify for special education and related series under the Individuals with Disabilities in Education Act (IDEA), a student must be between the ages of 3 and 21 and must meet the definition of one or more to the categories of disabilities specified under the IDEA. 

Disabilities specified under the IDEA include*:


  • Autism
  • Deaf-blindness
  • Deafness
  • Emotional disturbance
  • Hearing impairments
  • Developmentally disabled
  • Multiple disabilities
  • Orthopedic impairments
  • Other health impairment
  • Specific learning disability
  • Speech or language impairment
  • Traumatic brain injury
  • Visual impairment


The student must also be shown to be in need of special education and related services as a result of his/her disability or disabilities.

* The list of specific impairments included within the definition of each of the categories of disabilities is not meant to be exhaustive.


​​California Special Education Law >> Evaluations


A special education evaluation is the initial step in the provision of special education services to a student with a disability.  The special education evaluation is critical to detecting the existence of a student’s disability or disabilities.  The evaluation sets the parameters for the course of special education services and related support that will follow if the student is determined to be eligible.  Evaluations must conform to specific procedural requirements set out in the Individuals with Disabilities in Education Act (IDEA).  The IDEA distinguishes between initial evaluations and reevaluations of students who are currently receiving special education and related services under the IDEA.


Referrral for Initial Evaluation


Either a parent of a student or a public agency, including teachers, may initiate a request for an initial evaluation to determine if a student has a disability.  A district must affirmatively ensure that all children with disabilities residing in the state, regardless of the severity of their disabilities, and who are in need of special education and related services, are “identified, located and evaluated” (Child Find).

A school district must give parents an assessment plan within 15 days of a written referral for special education services.

Assessments and other evaluation materials must be administered by trained and knowledgeable personnel and must be administered in accordance with any instructions provide by the producer.


Initial Evaluations


Districts must conduct an initial evaluation when it suspects that the student has a disability and needs special education and related services as a result of that disability.  The initial evaluation must take place with 60 days of receiving parental consent for the evaluation.  IDEA mandates that a “full and individual initial evaluation” be conducted prior to initial placement of any student in a special education program. In conducting an initial evaluation, a school district must determine if the student is a child with a disability or disabilities in order to determine the student’s educational placement and related services based upon that disability or disabilities. Further, it must conduct an Individual Education Plan (IEP) team meeting within the same 60 day period.


Reevaluations


It is understood that reevaluations are to be a comprehensive evaluations, analogous to an initial evaluations, conducted for students who have already undergone evaluations and have been found eligible for special education services. A reevaluation may be conducted once per year, but is required to be conducted at least every three years. Except, where the parents and the district agree to forego the triennial or third-year evaluation.


Independent Educational Evaluations


An Independent Educational Evaluation (IEE) is an educational evaluation conducted by a qualified examiner who is not employed by the school district or other public agency responsible for the student’s education.

Parents have a conditional right to an IEE at public expense if the parents disagree with the district’s evaluation.  Parents must notify the district that they disagree with the evaluation and request that the district fund an IEE.  The district must either pay for an IEE or request a due process hearing.


Evaluation Procedures and Instruments


Initial Evaluation Assessments and other evaluation materials must:

  • Be non-discriminatory.
  • Be administered in the student’s native language.
  • Be used for the purposes for which they are valid and reliable.
  • Include those tailored to address specific areas of educational need.
  • Ensure that the results accurately reflect the student’s aptitude or achievement level.
  • Assess the student in all areas of suspected disabilities.
  • Ensure that students who are eligible for special education services and who transfer from one public agency to another public agency in the same school year are assured that their prior schools and special education programs will be coordinated as expeditiously as possible.
  • Be sufficiently comprehensive to identify all of the student’s special education and related services needs whether or not commonly linked to the student’s disability category.
  • Provide relevant information that directly assists persons in determining the educational needs of the student.
  • Be technically sound to assess the relative contribution of cognitive and behavioral factors in addition to physical or developmental factors.



Reevaluation Assessments


A Reevaluation Assessment is a comprehensive assessment that should address the following issues:

  • Whether the student continues to have a disability.
  • The student’s educational needs.
  • Ascertainment of the student’s present levels of achievement and related developmental needs.
  • Whether any additions or modifications to the student’s IEP are needed to enable him or her to meet the measurable annual goals set out therein and to participate, as appropriately, in the general education curriculum.


A reevaluation may not occur more frequently than once per year unless the parents and district agree otherwise.  Regulations mandate a reevaluation every three years, but a reevaluation may not have to take place if the parents and district agree it is unnecessary.


California Special Education Law >> FAPE


A Free Appropriate Public Education (FAPE) is defined under the Individuals with Disabilities in Education Act (IDEA) as special education and related services that are provided at public expense, under public supervision and direction, and without charge

The special education program and related services must:

  • Meet the standards of the State education agency.
  • Include appropriate pre-school, elementary school or secondary school education in the State involved.
  • Be provided in conformity with an IEP that meets the requirements of the IDEA.



Placement in the Least Restrictive Environment (LRE)


Least Restrictive Environment (LRE) is the legal mandate of the IDEA which requires that students with disabilities receive their education in the regular classroom environment to the maximum extent appropriate or, to the extent such placement is not appropriate, in an environment with the least possible amount of segregation from the student’s nondisabled peers and community.  Both inclusion and mainstreaming refer to placement of students with disabilities in the regular classroom environment.  “Full inclusion” means the placement of a disabled student in his home school in a regular education classroom with age and grade appropriate peers.

 “Inclusion” is commonly understood to mean that a student with disabilities receives at least a portion of his or her education in the regular education classroom.  An inclusive program may include the student receiving his or her own program of special education which may include a modified and/or adapted version of the general classroom activity that is taking place concurrently.  The child with a disability receives appropriate special education services to support his or her placement in the regular education class, while working towards the achievement of his or her annual goals.  Inclusion in the regular classroom describes the setting where a student with a disability is educated.


Mainstreaming in Special Education


Inclusion should not be confused with mainstreaming.  Mainstreaming is the placement of a child with a disability in a regular education classroom with the expectation that he or she will meet the curriculum requirements for that class with supplementary aides and services.  Participation in the general curriculum describes what a student learns.


Obtaining Support Services


A special education attorney is well versed with and understands the differences between a student’s educational and related services needs in a full inclusion program, an inclusion program, or a mainstreaming program.  This understanding and knowledge of the differences between these placement options enables a special education attorney to determine which are the most appropriate placement and services for a child with special needs and which will meet the requirements of IDEA.


California Special Education Law >> IEP


An individualized education program (IEP) is the written document defines the essential components of the Individuals with Disabilities in Education Act (IDEA)-eligible student’s appropriate educational program. Further, it memorializes the collaborative process between the parents and the school by which the contours of the program are designed.  An IEP is a written statement for a child with a disability that is developed and implemented in accordance with the provisions of the IDEA.


Initiating an IEP


A student must first be evaluated in order to obtain an IEP.  A parent requesting an evaluation should write a letter to the district special education director or coordinator with a copy to the school’s principal and possibly to the student’s teacher.  Parents should indicate their concerns regarding their child’s educational progress and specifically state that they are making a referral for a special education assessment.  Parents should also indicate that they await an assessment plan from the district within 15 days of the district’s receipt of their referral.

If the school district personnel make a referral for a special education evaluation it is still critical that parents follow up with their own written request in order to ensure that the IEP timelines are followed. 

Beginning from the date that the district receives parental written consent to assessment, the assessment(s) must be completed, and the IEP developed at an IEP team meeting within 60 calendar days.

Where an initial referral of a student for an assessment has been made 30 days or less before the end of the regular school year, an IEP must be developed within 30 days after the beginning of the next school year.


Participants in the IEP


The IDEA identifies both mandatory and permitted members of a student’s IEP team.  The list of designated IEP team members are the persons deemed essential to any determination regarding a student’s special education program.  An IEP team is defined as a group of individuals composed of parents, regular education teacher, special education teacher, district representative, evaluation interpreter, other individuals with special knowledgeable or expertise, and whenever appropriate, the student.

Special Education Resources


Online resources are critical for parents who have a child with a disability.  It connects parents to a network of people who share some of the same issues and concerns.  It helps parents navigate the very complex world of special education placement and services and helps parents understand their child’s legal rights under the IDEA.  Online resources further provide parents with information regarding any due process motions that  they may contemplate and it helps them better understand that process.

Lynn Hansen does not recommend or favor any of the special education resources mentioned here.  All are resources for different issues and have been helpful to my clients in the past.


Special Education Resources >> Support Organizations for Children


Lynn Hansen does not recommend or favor any of the special education resources mentioned here.  All are resources for different issues and have been helpful to my clients in the past.

CASE:  Community Alliance for Special Education is located in San Francisco with satellite locations throughout the Bay Area.  It protects the lawful educational rights of children with disabilities by fostering the fair and just implementation of the IDEA.

DREDF:  Disability Rights in Education and Defense Fund is a leading national civil rights law and policy center directed by individuals with disabilities and parents who have children with disabilities.

USDE:  United States Department of Education provides a list of resources pertaining to the needs of children with disabilities.

COPAA:  Council of Parents and Advocates, Inc. is an independent, non-profit organization of attorneys, advocates, parents and related professionals who work to protect the civil rights and to secure excellence in education on behalf of disabled students.

Disability Information Center:  Disability Information Center provides information about disabilities, special education, and related services for children in school, including Individual Education Plans (IEP’s), laws and early intervention services for infants and toddlers.


Special Education Resources >> Support Organizations for Families


Lynn Hansen does not recommend or favor any of the special education resources mentioned here.  All are resources for different issues and have been helpful to my clients in the past.

OAH:  Office of Administrative Hearings-Special Education Division contracts with the California Department of Education to handle special education due process hearings and mediation programs while providing low cost attorney and advocate lists for parents and guardians.

COPAA:  The Council of Parent Attorneys and Advocates helps parents acquire the knowledge necessary to become fully versed on all aspects of IDEA law and advocacy to ensure that their child receives appropriate special education placement and services.

TLG:  Through the Looking Glass is a nationally recognized center whose mission is to create, demonstrate and encourage empowering resources and early intervention services for families with disability issues either in a parent or a child.

PHP:  Parents Helping Parents strives to improve the quality of life for any child with any special needs of any age, through educating, supporting and training their primary caregivers. 

Easter Seals:  Easter Seal provides exceptional services, education, outreach and advocacy so that people living with autism and other disabilities can live, learn, and integrate into our communities.

Disability Resources, Inc.:  Disability Resources, Inc., is a non-profit organization that promotes and improves awareness, availability and accessibility of information that can help individuals with disabilities work, learn, love, and live independently.


Special Education Resources >> Legal Advocacy Information and Resources


Lynn Hansen does not recommend or favor any of the special education resources mentioned here.  All are resources for different issues and have been helpful to my clients in the past.


Family & Advocates Partnership in Education:  Family & Advocates Partnership in Education strives to improve educational outcomes for children with disabilities, provides information on the IDEA and disability organizations.

National Disability Rights Network:  The National Disability Rights Network protects and advocates for the rights of individuals with disabilities and assists individuals in finding and keeping their jobs, works with students, parents and schools to combat bullying and ensures educational opportunities for students with disabilities.