A Summary of Your Student’s/Child’s Special Education Rights (From Hope4Families)
What is special education?
Special education includes a broad range of services that school districts provide in various settings to meet the individual needs of each student with a disability, from age 3 up to his/her 22nd birthday. Children with disabilities who are younger than 3 also are served through early intervention services.
Does my child qualify for special education?
According to the Individuals with Disabilities Education Act (IDEA) and the California Education Code, students who have one of 13 eligible disabilities, and whose educational needs cannot be met by a regular education program, qualify for special education and related services (such as counseling, therapeutic support, transportation, etc.):
- Autism. A developmental disability, generally appearing during the first 3 years of life, that impacts social and communication skills.
- Deafness. A severe hearing impairment that affects a child’s ability to understand spoken language with or without hearing aids.
- Deaf-Blindness. A combination of a severe hearing impairment and a severe visual impairment.
- Emotional Disturbance. A condition which includes one of the following symptoms and adversely affects a student’s academic performance:
- An inability to learn that cannot be explained by other factors
- An inability to build or maintain relationships
- Inappropriate feelings or actions under normal circumstances
- General unhappiness or depression
- Physical symptoms or fears related to school or personal problems
- Established Medical Disability. Children 3 to 5-years-old who have a disabling medical condition that is likely to require special education services.
- Hard of Hearing. A hearing impairment that affects a student’s academic performance.
- Intellectual Disability. Significantly below average intellectual mental functioning.
- Multiple Disabilities. Two or more disabilities coexisting, excluding Deaf-Blindness.
- Orthopedic Impairment. A severe physical disability that affects a child’s educational performance.
- Other Health Impairment. Having limited strength, vitality and alertness that impacts student’s academic performance.
- Specific Learning Disability. A disorder which causes a student to perform less than their intellectual functioning to either read, write, speak, listen, think, spell or do mathematical calculations.
- Speech or Language Impairment. A communication disorder that negatively impacts a student’s academic performance.
- Traumatic Brain Injury. An injury to the brain caused by physical force, resulting in total or partial functional disability.
- Visual Impairment, including Blindness. Impairment in vision that impacts educational performance, even with correction.
How do I request Special Education services for my child?
If your child has been diagnosed with any of the conditions discussed above, or if you believe your child may have one of these disabilities, the first step is to request in writing that your child be assessed by the school district. The school district is required to conduct an evaluation of your child through a qualified professional at no cost to you. In fact, school districts have an affirmative obligation to seek out and assess any student living within its boundaries who has or is suspected of having a qualifying disability- even without a request from the parent/guardian.
What are the timelines* that the school district must follow?
- The school district must provide parents/guardians copies of student records within 5 business days of a request.
- Any parent/guardian may request a special education assessment of their child. The school district has 15 calendar days from the date of the request (also called a referral) either to deny the request or to propose an assessment plan.
- The timeline for completing an initial assessment, determining special education eligibility and holding an Individualized Education Program (IEP) team meeting is generally 60 calendar days from when the school district receives parent/guardian consent to the assessment plan.
- If a student is determined to be eligible for special education supports or services, the school district must hold an annual IEP team meeting not more than 12 months from the date of the last annual IEP. Parents/Guardians may also request intermittent IEP team meetings, which the school district must hold within 30 days from the written request.
*There are timeline exceptions for school breaks longer than 5 days.
What happens when there is a disagreement with the school district?
You have the right to disagree with any special education decision by the school district or IEP team concerning your child. After a denial, assessment or IEP meeting, if there is a difference of opinion between the school district and the parent/guardian, there are several steps you can take, including filing a Due Process Complaint/Request for Due Process Hearing.
What is a Due Process Hearing?
The California Office of Administrative Hearings (OAH) handles all Due Process Hearings related to special education services. A hearing involves two parties (parent/guardian and school district) presenting their case before an Administrative Law Judge appointed by OAH. A parent/guardian (or an attorney hired by the parent/guardian) can file a Due Process Complaint/Request for Due Process Hearing under the following circumstances:
- The school district proposes to change the identification, assessment or educational placement of the child.
- The school district refuses to change the identification, assessment or educational placement of a child.
- There is a disagreement between the parent/guardian and the school district regarding the availability of a program, service or support that is appropriate for the child.
- Any other dispute between the parent/guardian and the school district is not a valid reason for a Due Process Hearing.
Is a Due Process Hearing the only option?
No, there are several opportunities for the parent/guardian and the school district to reach an agreement prior to going before an Administrative Law Judge. In the majority of cases, a settlement occurs without the necessity of a Due Process Hearing.
- An Early Resolution Session is held within 15 days after the Due Process Complaint/Request for Due Process Hearing is filed. This is a chance for the school district and the parent/guardian to negotiate a resolution of the issues raised.
- If both parties choose, they may schedule a voluntary Mediation. The parent/guardian and the school district meet with a trained mediator, who listens to both sides and tries to assist the parties in reaching a mutually satisfactory agreement.
- After Mediation, there are still opportunities to settle the case. However, if it is not possible to resolve all outstanding· issues, the case will go to a Due Process Hearing.
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