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?
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
1. What is 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. [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].
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].
law has defined “special education” and “appropriate” as
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)
also “A Brief Primer” – Progress
and Accountability for Students Receiving Special Education Services.
What is IDEA 2004, or the Individuals with Disabilities Education
Improvement Act of 2004?
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).
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.
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.
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
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]
Who is eligible for services under IDEA?
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
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
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:
(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].
6. What are "Related Services and who
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
(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,
Chapter 9 Information on Inter-Agency Responsibility for Related Services http://www.pai-ca.org/pubs/504901.pdf
3632/882). [Source: “Special Education Rights and
Responsibilities,” Question 1-9, PAI CA].
How do I begin the process of becoming an advocate for my
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:
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
of Education, Special Education Division http://www.cde.ca.gov/sp/se/
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
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
and regulations related to special education can be found at the
United States Code Section 1400 et seq
Code of Federal Regulations, Part 300
Education Code Section 56000 et seq (Scroll down to Section
CA Code of Regulations Section 3000 et seq
My child's IEP has been scheduled.
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:
Advocacy: Self-Help Tutorial for Parents
There is also helpful information about IEP forms at LD Online, including an article
Individualized Education Programs (IEPs) For Success,” http://www.ldonline.org/ld_indepth/iep/success_ieps.html
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
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,
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
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.