Frequently Asked Questions

What is special education?
What is IDEA, or the Individuals with Disabilities Education Act?
Who is responsible for providing special education services to my child?
Who is eligible for services under IDEA?
What about children younger than 5 years old?
What are “related services” and who provides them?
How do I begin the process of becoming an advocate for my child?
My child’s IEP has been scheduled. How can I participate in my child’s IEP?
What are the timelines for the assessment and the IEP meeting?
Can I tape-record my child’s IEP meeting?

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. [See FAQ 6, below, for more about “Related Services”]. 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(29); 34 C.F.R. Sec. 300.39; Cal. Ed. Code Sec. 56031.] [Source: “Special Education Rights and Responsibilities,” Question 1-6, PAI CA].

In California, special education programs 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; Title 34, Code of Federal Regulations (C.F.R.) Section (Sec.) 300.17.] [See FAQ 15, below, for more about “FAPE”]. Special education must be provided in the least restrictive environment (LRE). 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. Sect. 300.114(a)(2)(i)and(ii).] [See FAQ 16, below, for more about “LRE”]. [Source: “Special Education Rights and Responsibilities, Chapter 1, PAI CA].

Case law has defined “special education” and “appropriate” as follows:

Special education…means specially designed instruction, at no cost to parents or guardians to meet the unique needs of a handicapped child…(At 189) [an appropriate education] provides personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction…and if the child is being educated in the regular classrooms of the public education system, (it) should be reasonably calculated to enable the child to achieve passing marks and advance from grade to grade. Board of Educ. V. Rowley, 458 U.S. 176, 204, 205 (1982)

See also “A Brief Primer” – Progress and Accountability for Students Receiving Special Education Services.

2. What is IDEA 2004, or the Individuals with Disabilities Education Improvement Act of 2004?

On November 19, 1975, Public Law 94-142 was enacted into law. Public Law 94-142 was called the Education for All Handicapped Children Act of 1975. When the law was reauthorized in 1990, it was renamed the Individuals with Disabilities Education Act (IDEA).

By passing Public Law 94-142, Congress intended that all handicapped children would “have a right to education, and to establish a process by which State and local educational agencies may be held accountable for providing educational services for all handicapped children.” U.S.C.C.A.N. 1975, pg. 1427.

The Individuals with Disabilities Education Improvement Act of 2004 is in the United States Code, Volume 20 U.S.C. §1400 et seq. The regulations are found in the Code of Federal Regulations (C.F.R.), Volume 34, Part 300.

The term “handicapped” was used in Public Law 94-142. The term “handicapped” was replaced by the term “child with a disability” in the statute and regulations. [Source: “Wrightslaw: Special Education Law” by Peter and Pamela Wright, p. 10]

3. 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. 1412(a)(11); 34 C.F.R. Sec. 300.149; Cal. Ed. Code Secs. 56300 and following.] [Source: “Special Education Rights and Responsibilities,” Question 1-8, PAI CA].

Federal law requires that the state education agency be ultimately responsible for ensuring that the required procedures are followed and that students receive needed education services in accord with their IEPs. [34 C.F.R. Sec. 300.600.] California law delegates to local education agencies the direct responsibility for providing the services in students' IEPs and for ensuring that a continuum of program options exists to meet the needs of students for special education and related services. [Cal. Ed. Code Secs. 56360.] However, if the local education agency refuses or wrongfully neglects to provide a student with disabilities with a free appropriate public education, then the state education agency is responsible for directly providing the needed services. [20 U.S.C. Secs. 1412(a)(11) and 1413(h); 34 C.F.R. Sec. 300.360.] [Source: “Special Education Rights and Responsibilities,” Question 4-51, PAI CA]

4. Who is eligible for services under IDEA?

Children who have a disability that causes them to need specialized educational services to benefit from their education are entitled to receive special education and related services as a "child with a disability." Eligible disabilities include but are not limited to sensory (such as hearing, visual, or speech/language) or orthopedically impaired, mentally retarded, emotionally disturbed, other health impairment or children with specific learning disabilities (e.g., dyslexia, if it is a significant impediment to learning). In addition, children with autism and traumatic brain injury are eligible for special education under federal law. [20 U.S.C. Sec. 1401(3); 34 C.F.R. Sec. 300.8.] California calls these children "individuals with exceptional needs." [Cal. Ed. Code Sec. 56026.]

Children meeting these criteria between the ages of five years and 18 years, inclusive, are eligible for special education. [Cal. Ed. Code Sec. 56026(c)(3).] Individuals between 19 and 21, inclusive, who are enrolled in or are eligible for a special education program prior to their 19th birthday, and who have not completed their prescribed course of study (or who have not met prescribed proficiency standards), are eligible for special education. [Source: “Special Education Rights and Responsibilities,” Question 1-2, PAI CA].

5. What about children younger than five years old?

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. [Source: "Special Education Rights and Responsibilities," Question 1-4, PAI CA]

Eligibility criteria for preschool children, children who are three to five years old, 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.

An "established medical disability" is defined in Cal. Ed. Code Section 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).] [Source: “Special Education Rights and Responsibilities,” Question 1-3, PAI CA].

Related services are support services a student requires in order to benefit from his special education program. California calls related services “Designated Instruction and Services” (DIS). [34 C.F.R. Sec. 300.34, Cal. Ed. Code Sec. 56363; 5 C.C.R. Sec. 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 (26); 34 C.F.R. Sec. 300.34.] In California, Designated Instruction and Service (DIS) includes, but is not limited to, the following:

(1) Language and speech development and remediation;
(2) Audiological services;
(3) Orientation and mobility instruction;
(4) Instruction in the home or hospital;
(5) Adapted physical education;
(6) Physical and occupational therapy;
(7) Vision services;
(8) Specialized driver training instruction;
(9) Counseling and guidance;
(10) Psychological services other than assessment and development of the individualized education program;
(11) Parent counseling and training;
(12) Health and nursing services;
(13) Social worker services;
(14) Specially designed vocational education and career development;
(15) Recreation services; and
(16) Specialized services for low-incidence disabilities, such as readers, transcribers, and vision and hearing services. [Cal. Ed. Code Secs. 56000.5, 56026.6, 56026.5 and 56363.]

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. [20 U.S.C. 1412(a)(1,1412 (a)(12)(B)(i); 34 C.F.R. Sec. 300.105 and 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 provided by other state agencies. [Cal. Gov. Code Secs. 7570-7588.] However, if the other agency does not provide the services, and you can successfully demonstrate to the IEP team or a due process hearing officer that the services are necessary for the student to benefit from his education, the school district is responsible for providing them. Disputes regarding related services are resolved through the fair hearing procedures in the same fashion as disputes about any other part of your child's special education program. See Chapter 5 Special Education Rights and Responsibilities, Information on Related Services http://www.pai-ca.org/pubs/504501.pdf, , and Chapter 9 Information on Inter-Agency Responsibility for Related Services http://www.pai-ca.org/pubs/504901.pdf (AB 3632/882). [Source: “Special Education Rights and Responsibilities,” Question 1-9, PAI CA].

7. How do I begin the process of becoming an advocate for my child?

The first thing to do is learn about the law as it relates to special education. Do not assume that the school district will provide you with accurate or complete information about your child’s rights under the law. The best way to gain this knowledge is to learn about the law and your child’s rights under it by becoming familiar with the information on the following web sites:

Paper Trails: Letter Writing and Documentation http://www.wrightslaw.com/info/ltrs.index.htm
The Special Ed Advocate - Special Education Law http://www.wrightslaw.comWrightslaw: From Emotions To Advocacy - The Special Education Survival Guide http://www.fetaweb.com
Middle School.Net
California Department of Education, Special Education Division http://www.cde.ca.gov/sp/se/

In addition, you may want to take a step-by-step tutorial about special education, IEP’s and the law, including Section 504 of the 1973 Rehabilitation Act, found at: Education Advocacy: Self-Help Tutorial for Parents
http://www.tourettesyndrome.net

Another excellent resource which includes valuable information regarding California law is a publication from Protection and Advocacy Inc., entitled “Special Education Rights and Responsibilities.” You can order this manual by calling (213) 427-8747 or (800) 776-5746. A $20.00 donation is requested upon mailing. This volume is in a “reader-friendly” “Q and A” format and can also be accessed online http://www.pai-ca.org/pubs/401601.htm

Laws and regulations related to special education can be found at the following sites:

Federal – Laws

20 United States Code Section 1400 et seq

http://www4.law.cornell.edu/uscode/html/uscode20/usc_sup_01_20_10_33.html

http://nichcy.org/reauth/PL108-446.pdf

Federal - Regulations

34 Code of Federal Regulations, Part 300

http://nichcy.org/reauth/IDEA2004regulations.pdf

http://www.access.gpo.gov/nara/C.F.R./waisidx_01/34C.F.R.v2_01.html

California – Laws

CA Education Code Section 56000 et seq (Scroll down to Section 56000)

California – Regulations CA Code of Regulations Section 3000 et seq

8. My child's IEP has been scheduled.

A good starting point to prepare for your child’s IEP is to review ASK’s Documents including “A Brief Primer” and “ASK Tips to a More Efficient IEP.” In addition, you can review PAI’s on-line manual “Special Education Rights and Responsibilities” Chapter 1 “Information on Basic Rights and Responsibilities” and in particular Chapter 4, “Information on IEP Process.” http://www.pai-ca.org/pubs/504401.pdf In addition, you may want to take the step-by-step tutorial about special education, IEP’s and the law, including Section 504 of the 1973 Rehabilitation Act, which can be found at:

Education Advocacy: Self-Help Tutorial for Parents
http://www.tourettesyndrome.net/

There is also helpful information about IEP forms at LD Online, including an article entitled “Writing Individualized Education Programs (IEPs) For Success,” http://www.ldonline.org/ld_indepth/iep/success_ieps.html by Barbara D. Bateman.

A tool that can be helpful to track what has been covered and what has not been covered (which is useful should you need to disagree with or “dissent” from the IEP contents) is the “Parent IEP Attachment” http://www.wrightslaw.com/advoc/tips/Judy_IEP_Attachment.html which is described at Wrightslaw.

Also check out the “Special Education How-To’s and Self-Advocacy” Links on ASK’s Links for other IEP-related resources.

9. 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 at least 15 days to determine whether they will consent to the proposed assessments. [Cal. Ed. Code Sec. 56321(c).]

Starting from the date the local education agency receives the written consent to assessment, the assessment(s) must be completed and the IEP developed at an IEP meeting within 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.]

If you are requesting an IEP meeting without the need for new assessments for a child already in special education, the IEP meeting must be held within 30 days (not counting days between school sessions or terms) from the date of receipt of your written request. [Cal. Ed. Code Sec. 56343.5.] [Source: “Special Education Rights and Responsibilities,” Question 1-11, PAI CA].

NOTE: It is critical that your requests to the school district be in writing and that you keep good records of all your communications with your school district, or any party related to the provision of educational services for your child. Such records will not only allow you to document any claim you may have, they will allow you to pinpoint exactly when the timelines commence and terminate.

10. Can I tape-record my child's IEP meeting?

Yes. Parents may tape record an IEP meeting, even without the school district's permission, as long as you give the school district 24 hours notice of your intent to do so. [TIP: It is best to provide notice to the district in writing. This can be in the form of a letter or fax. It is also helpful to bring a copy of your written notice to the IEP in case school site staff hasn’t been told of your written notice.] School districts may tape record an IEP meeting as long as it provides the parent with 24 hours notice of its intent to do so. However, a school district must have a parent's permission to tape record the meeting. [Cal. Ed. Code Sec. 56341(g).]

Under federal law, audio tape recordings made by the school district are governed by the Family Educational Rights and Privacy Act of 1974. [20 U.S.C. Sec. 1232(g).] In addition, you have the right:

(1) To inspect and review district-made tape recordings;

(2) To request that the tape recordings be amended if you believe that they contain information that is inaccurate, misleading, or in violation of the rights of privacy or other rights of the individual with exceptional needs; and

(3) To challenge, in a hearing, information that you believe is inaccurate, misleading, or in violation of the individual's rights of privacy or other rights. [34 C.F.R. Sec. 99.10-99.22; Cal. Ed. Code Sec. 56341(g)(2)(A)(B).] [Source: “Special Education Rights and Responsibilities,” Question 4-48, PAI CA].

Note: We often hear from school district officials that parents who choose to tape-record an IEP meeting are being “adversarial.” This doesn’t make sense. Tape-recording an IEP is a right set forth in the California Education Code. Exercising one’s rights, especially when it assists a parent to better advocate for their child, is hardly adversarial, and to characterize it as such demonstrates an ignorance for the law or a parent’s rights under the law.

Parents attending IEP’s often hear difficult truths about and are required to process many complex realities regarding their child’s abilities. Sometimes they are hearing for the first time that their child has a disability. Throughout this process, they are called upon to make hard decisions about their child’s long-term educational future, far too often with little or no real time to prepare. IEP meetings can be lengthy and parents and school staff alike are exhausted and worn down at the end. It is helpful for parents to have a taped record of what transpired at the IEP, so that they can be sure their requests were documented and their input was heard. A taped record also provides a critical check to make sure all the services verbally agreed to are actually written into the IEP. For if a service is not in the IEP, a school district can claim that it is not obligated to provide it, even if the IEP team discussed it and verbally agreed it was appropriate.