special education student rights

Special Education Guide

Legal Rights to Services

What are your rights as a student or a parent? What recourse do you have if those rights are violated or ignored? The paragraphs to follow give a broad description of the rights guaranteed to you under the Individuals with Disabilities Education Act (IDEA) and other laws.

Laws Regarding Services

The most important elements to remember when advocating for yourself or a child are that students with disabilities must have individualized education plans (IEPs) that include offers of free and appropriate public education (FAPE), and that these students are entitled to receive their education within the least restrictive environment (LRE). These rights are guaranteed under the Individuals with Disabilities Education Act (IDEA). These offers of FAPE come in the form of goals, based upon the present levels of academic performance and functional performance; description of services needed with time and location; accommodations and modifications; and some legally required check points.

The IEP Contract

If a child has a disability, the school district must write an IEP for him or her, which includes its offer of FAPE. This offer of FAPE is a binding contract for services between the school district and the parent. This means that if a school does not provide services agreed upon within the IEP, it’s in violation of the law. (More information about the IEP can be found in The IEP Process Explained .) Violation of this law does not mean that school district officials will go to jail, or be faced with extreme financial penalties.  What it usually means is that the district is found to be out of compliance, perhaps pay for the student’s legal services, and be required to provide compensatory services to make up for the loss of service.

Free and Appropriate Public Education

The words “free” and “appropriate” mean that every student is entitled to an education that is based upon the child’s unique needs. It also means that under no circumstances should a parent be asked to pay for any or all of it. As a parent, you can certainly choose to supplement your child’s education with private tutors or service providers, but the school district cannot ask you to pay for the services it outlines within its offer of FAPE.

Least Restrictive Environment

The law also requires that students with disabilities be educated in the least restrictive environment (LRE). This means that the district must show that it has attempted to provide services to the student in a classroom setting that is as close to the general education setting as possible. Unless your student has severe medical or physical impairments that require specialized staff, districts should try to include him or her in the general education classroom as much as possible. If the district would like to offer services in a more exclusive environment, such as a special education classroom, it must prove that the student cannot be successful in a less restrictive environment.

Laws Regarding Evaluation and Assessment

The laws governing evaluation for eligibility for special education services are designed to ensure that students continue to receive the services they need, that students are evaluated in a fair and equal manner (without any discriminatory bias) and that parents remain informed throughout the evaluation process.

Before a student can begin receiving special education services , he or she must be evaluated and the answer must be yes to the following three questions:

• Does your child have a disability?
• Does the disability cause an educational impact to his or her education?
• Is the child in need of special education (defined as “specially designed instruction”)?

As a parent, you can request an assessment, and the district must comply by assessing your child or writing a notice of action (a legal form) denying the request. In some states you must be presented with an assessment plan  within 15 days of your request, however the evaluation must be completed within 60 days (excluding holidays) in all states. If your child has a diagnosed medical need that falls under one of the special education categories specified by IDEA , you will need to provide medical records or a doctor’s note to the school district before your child can begin receiving special education services. It is important to know that the medical personnel do not identify the child for IDEA services, that is still done by the group of qualified professionals on what is called the evaluation team.

Once your child has begun receiving services, the district must reassess his or her eligibility every three years. This is called a triennial review. Generally, this involves cognitive tests administered by the school psychologist and academic performance tests administered by the classroom teacher, the results of which will be shared with you during the triennial review meeting. It is also possible that the district has enough existing data to either continue or terminate service, and in that case there is no requirement to conduct additional testing. However, the decision to continue or terminate has to be data-based—not based simply on “a hunch.”

Informed Consent

Before a district assesses a child for a disability or for the continuation or cessation of services, it must present an evaluation plan to the parent and receive signed consent. Until consent is obtained, a district cannot evaluate a student; to do so is a violation of the law. Once the child has been assessed and the district uses the information gained to continue, alter or discontinue the services it provides, it must once again receive consent from the parents.

Native Language

The decision in the landmark case Diana versus State Board of Education (1970) made it illegal to identify students as disabled unless they have been tested in their native language. This means that the district is required to evaluate a student in his or her native language before they can identify that student as having a disability and provide special education services. In addition, parents must be offered evaluation plans and IEPs in their native language before giving informed consent. The only exception is in the case where the home uses an alternative language, but the student is evaluated to be proficient in English.

Laws Regarding Disputes and Behavioral Challenges

Laws are in place to protect students and parents during challenging times . They provide opportunities for parents to have their concerns heard  before an impartial mediator or judge, and prevent a district from removing a child from school without informed consent.

Special Education law allows parents or districts to ask for any of three dispute resolution processes. They are not sequential and can be completed in any order. The least complex of the three is typically tried first. In that case, the district or parent calls the state’s Department of Education, Exceptional Services Division, and files a formal complaint with a trained dispute resolution specialist. That case will be investigated and within 60 days a decision rendered. If that were not to work, or deemed not to work, a parent or district can ask for mediation. In this process, trained state employees or contractors work with both parties to mediate the situation to find a compromise. Both the district and the parent must agree to the mediation process before it can proceed. The final process is a due process hearing, which is very much like a trial. In this case, the parents and the district present their cases with witnesses, depositions, review of records, etc. and a single adjudicated law judge determines the outcome of the case. An adjudicated law judge is an attorney, trained in special education law who is not normally a judge. They are typically referred to as an ALJ.

With the reauthorization of IDEA 2004, all states are now required to have these three dispute-resolution processes at a minimum. However, parents should first attempt to resolve those conflicts within the school district processes. Typically that process starts with a special IEP team meeting where parent concerns are voiced and resolutions are explored. Sometimes it takes more than one meeting and more than one change to the child’s IEP. If it the dispute isn’t resolved by that process, then  the parent may consider taking his or her case to the district special education director. If the dispute still isn’t resolved, then the parent may call for dispute resolution at the state Department of Education.

While an IEP or offer of FAPE is in dispute, the parent can request that the student remain in his or her current educational placement. In such cases, if there is a previous IEP, its offer of FAPE and its goals, accommodations and modifications will remain in place. This is often referred to as the “Stay Put” law. The student will “stay put” until an agreement is reached and the parent provides informed consent for the new IEP, or a judge issues a ruling on a due process case.

It’s worth adding that one member of the IEP team, including the parent, cannot alone hold up the implementation of an IEP if there is a strong majority of voting IEP team members who agree to it. IEP implementation is based on what the law calls “consensus,” which is a strong majority of the voting members. The only time the parent signature is required to implement an IEP is for the initial placement. Subsequent signatures on IEPs merely document that a parent or other team member(s) approve or disapprove.

Behavioral Challenges

As a parent, you can invoke the “Stay Put” law if a district would like to expel your child or change his or her placement because of behavioral problems . If, however, your child has been suspended for 10 or more days, the district must convene the IEP team to conduct a manifestation determination. The team determines if the behavior for which the child is being disciplined is a manifestation of (i.e., caused by) his or her disability. If the team determines that the behavior is a manifestation of the disability then the child returns to school. However, if the team determines that the behavior is not a manifestation of the disability, the child’s suspension can continue, but the district must continue to provide his or her special education services.

The reason for the manifestation meeting after a 10 day time period is that any exclusion from school for behavior that reaches 10 days is considered a change of placement; only the IEP team can authorize a change of placement. The manifestation meeting then determines if a change of placement is required. If a child’s behavior involved the use of drugs (not including alcohol); a weapon, such as a gun or knife with an inch and a half blade; or caused bodily harm, the district can put the child in a 45-day alternative placement, following the manifestation determination meeting.

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What Parents Need to Know about Special Education Rights

This post was authored by Marion M. Walsh, Esq., a partner with Littman Krooks LLP, which has offices in White Plains and New York City. She has worked in education law for  over 20 years and leads the special education department at Littman Krooks. She is certified by the New York State Education Department  as an impartial hearing officer for children with disabilities.

Many parents, at some point, may wonder if their child has a learning or emotional disability or special needs. Some parents know about the child’s challenges at birth or in early childhood. Others may not suspect a disability until a child is an adolescent or even a young adult, as some complex and invisible challenges, such as emotional disabilities, become pronounced in adolescence. Special education law covers a broad continuum of students. The Individuals with Disabilities Education Act (IDEA) requires that every public school district in the U.S. identify and evaluate students suspected of having a disability and provide a free, appropriate public education (FAPE) to every eligible student until graduation or the year after the individual turns 21.

Steps to Take if You Suspect Your Child Has a Disability

If you suspect that your child has a disability affecting their education, you can refer them to your school district for special education services.  Even if a parent does not refer a child, a school district has the affirmative obligation to conduct evaluations of students suspected of needing special education or related services. This “child find” obligation extends to children who may be advancing from grade to grade.

It is important for parents to know that school districts and parents often view children’s progress through a very different lens. Districts, in general, may tend to underestimate student needs, as districts face counter-pressure to not overclassify students.

A strong psycho-educational evaluation for a student is critical.  Instead of  relying on school district evaluations, parents may obtain private evaluations and present them to the school district. If you disagree with a school district evaluation and provide appropriate notice and a request, a public school district must, subject to certain limitations, provide an independent educational evaluation at public expense.

What Disabilities Are Covered?

Under the IDEA, disability categories include: autism, deaf-blindness, deafness, an emotional disturbance, a hearing impairment, an intellectual disability (formerly known as “MR”), multiple disabilities, other health impairment (which can include ADHD), an orthopedic impairment, speech/language impairment, a specific leaning disability, traumatic brain injury, or a visual impairment. Remember, a diagnosis alone is not enough. The school district must find that the disability has an education impact and that the student needs special education and related services.

What Is an IEP?

Once a child is evaluated, a team of special education professionals must meet to decide if the child meets the criteria to receive special education services. This team then must develop an Individualized Education Program (IEP). An IEP represents the “centerpiece of the IDEA” and is a written statement outlining a plan for providing the free appropriate public education to which the child is entitled.

The IEP must include the student’s present levels of academic achievement and functional performance, and detail academic, physical, management and social emotional needs. It must contain an annual goal for every special education need identified. Of course, the IEP must include the special education program and services, as well as any accommodations, including those for testing.  The continuum of services can range from general education (with related services) up to a restrictive residential placement.

What Constitutes a Free Appropriate Public Education?

To provide a FAPE, a district must provide the special education and related services outlined in the IEP.  The district must adhere to all substantive and procedural requirements of the IDEA.

How do you measure a FAPE? The U.S. Supreme Court held in 2017, in a case known as “ Endrew F.,” that the IDEA “requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”   The Court rejected the position that anything more than “ de minimis, ” or minimal, progress is acceptable. Rather, a child’s “educational program must be appropriately ambitious in light of his circumstances.” Advancement from grade to grade is appropriately ambitious for most children in the regular classroom.  The Court emphasized that the goals may differ, but every child should have the chance to meet challenging objectives.  Many parent advocates are using this important precedent to advocate for higher standards in special education.

What Are Transition Services?

An IEP must also contain transition services and goals, which are absolutely essential for helping children with disabilities attain independent living.  The IDEA requires that IEPs begin addressing transition no later than age 16. Some states and IEP teams begin earlier. The IEP must include contain transitional goals and services which will facilitate movement from school to post-secondary activities.

What Are Some Parental Remedies?

The law gives parents specific rights under the IDEA concerning participation in the special education process and on notification and consent.. Parents have the right to seek and review all of their child’s educational records, and school districts have the obligation to keep such records confidential.

If parents disagree with a school district IEP decision, they have the right to file for due process. This means that a school district must conduct a hearing before an impartial hearing officer, appointed through the state. While the hearing may take a single day, some last for many months. Either side can appeal to state or federal court.

Parents have the right to seek various remedies in an impartial hearing, including compensatory or made-up services. They cannot seek money damages but may be able to recover reimbursement for certain evaluations or services that a school district should have covered. Under the IDEA, parents have the right to unilaterally place child in a private school and seek tuition reimbursement. Parents have the burden to show the private school is appropriate under the IDEA and must show that they cooperated with the District.

What Happens When A Child Graduates or Turns 21?

After your child graduates with a regular education diploma or turns 21 or 22, depending on the state, the protections of the IDEA end. Section 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Education Act, do still protect the young adult from discrimination. These laws apply to colleges that receive federal funds, most employers and places of public accommodation. Your state will administer additional programs for young people with developmental disabilities. However, the laws do not require a FAPE or services to the extent of the IDEA. This is why special education advocacy up to age 21 is so important.

If you have questions about whether your child is being appropriately served or needs an IEP, it is a good idea to consult with a special education attorney in your state. The Council for Parent Advocates and Attorneys (COPAA) can provide a list of experienced professionals.

About this Article:  We hope you find this article informative, but it is not legal advice. You should consult your own attorney, who can review your specific situation and account for variations in state law and local practices. Laws and regulations are constantly changing, so the longer it has been since an article was written, the greater the likelihood that the article might be out of date. SNA members focus on this complex, evolving area of law. To locate a member in your state, visit  Find an Attorney .

 Requirements for Reproducing this Article:  The above article may be reprinted only if it appears unmodified, including both the author description above the title and the “About this Article” paragraph immediately following the article, accompanied by the following statement: “Reprinted with permission of the Special Needs Alliance –  www.specialneedsalliance.org .” The article may not be reproduced online. Instead, references to it should link to it on the SNA website.

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Transferring Special Education Rights from Parents to Students

In special education law, parents hold a student’s educational decision-making rights until they transfer to the student.  Students with disabilities have many rights connected to special education and related services.  This publication explains how special education decision-making rights transfer from parents to students, the definition of a “parent” in special education law, rights of students once transfer occurs, and rights the student has when preparing for transition out of high school.  This publication is based on Washington State and federal law and assumes the reader has basic familiarity with the special education Individualized Education Program (IEP) process.

What is the process for a student to take over their educational decision-making?

At least one year before a student turns 18, the student’s IEP must contain a statement that says the student has been informed of what rights will transfer to the student upon reaching age 18.  Unless certain circumstances apply (explained below), when a student turns 18, a student’s educational rights are transferred from the parents to the student. Students who hold their own education rights can authorize any adult to make educational decisions for the student by using a power of attorney.  A power of attorney is a document granting a competent adult the authority to make certain decisions on the behalf of another competent adult.

Who is a “parent” for purposes of special education law?

A “parent” is defined as:

• a student’s biological or adoptive parent;
• a foster parent;
• a guardian authorized to act as the student’s parent or make educational decisions for the student;
• a person acting in place of a biological or adoptive parent, such as a stepparent, grandparent, or other relative with whom a student lives, or someone who is legally responsible for the student’s welfare; or
• a surrogate parent appointed by the school district.

After the age of 18, if a student holds their own educational rights, the student is considered a “parent” for the purposes of special education law.

Prior to transfer of rights, parents have the opportunity to observe the student in a school setting to better understand the strengths and needs of the student. All school districts must have a policy in place that outlines school procedures for allowing these observations.

What can prevent a student from having their special education rights transferred to them?

In some situations, students who are 18 or older do not hold their education rights, but this only happens if the student has a court-appointed guardian or if a certification process is followed.  If a court has appointed a legal guardian for the student, the guardian will represent the student’s educational rights.  Also, students who do not have appointed guardians may be certified for one year as unable to make educational decisions if two separate professionals state in writing that they have conducted a personal examination or interview with the student, the student is incapable of providing informed consent to make educational decisions, and the student has been informed of this decision.  If this certification happens, the school district will assign an educational representative to the student.  Certification of a student’s inability to make educational decisions can be challenged at any time by the student or an adult with a real interest in and knowledge of the student.

What rights do students get when they take over their educational rights from their parents?

A student who holds their own educational rights has all the rights their parents had, including the right to:

• Know what disability the student has, how it may affect their ability to learn and live independently, and consent to proposed services for that disability.
• Ask for an IEP meeting or a student reevaluation.
• Attend a meeting to develop the student’s IEP, which must be held within 30 calendar days of a determination of the student’s eligibility for special education and related services.
• Receive notification in advance of a mutually agreed on date, time, and location of the student’s IEP meeting so the student has an opportunity to attend.
• Be informed if a member of the IEP team cannot be present at the meeting or does not need to be present.  The school and student must agree to excuse the team member.
• Take part in the student’s IEP meetings and be a part of the IEP team.  If educational rights have not been transferred yet, the student should be part of the IEP team whenever this is appropriate.
• Invite people who know or have special expertise about the student, like a mentor or friend, to the IEP meeting to be part of the IEP team.
• Receive necessary accommodations at IEP meetings (related to accessibility, interpreters, etc.).
• Know and understand how the school district will measure the student’s progress toward meeting measureable annual goals.
• Receive periodic progress reports showing the progress the student is making toward their annual goals.
• Review their educational records and get a copy of the student’s most current IEP at no cost.
• Receive necessary related services. This may include, but is not limited to, transportation, physical therapy, occupational therapy, medical services, psychological services, speech-language pathology services, and counseling services.
• Request and receive a completed reevaluation within 35 school days after the date the student gave the school district written permission to reevaluate the student.
• Disagree with an evaluation, request an independent educational evaluation, and receive information from the district about independent evaluators.
• File a citizen complaint, request a due process hearing, or request mediation if a student has a special education dispute with the school.

What rights does a student receiving special education services have when preparing for life after high school?

Schools must help students receiving special education and related services prepare for life after high school by providing transition services.  Transition services are designed to prepare students for activities after high school like postsecondary education, vocational education, employment, continuing and adult education, adult services, independent living, and community participation.

By age 16, a student’s IEP must include measurable postsecondary goals based on age-appropriate transition assessments and must describe transition services needed to help the student reach those goals.  This transition planning may occur before age 16 if the IEP team determines this is appropriate.  Students must be invited to IEP meetings whenever the purpose of the meeting is to discuss postsecondary goals and transition services.  For more information on transition services, visit the Center for Change in Transition Services website .

The Administration for Community Living (ACL) provided federal funding for the cost of producing this publication (Award #1701WAPADD). The contents are the sole responsibility of Disability Rights Washington and do not necessarily represent the official views of ACL.

This information is current as of: May 2017

This information is a service of Disability Rights Washington (DRW). It provides general information as a public service only, and is not legal advice. If you need legal advice, you should contact an attorney. You do not have an attorney-client relationship with DRW. If you would like more information about this topic or would like to receive this information in an alternative format call DRW at (800) 562-2702, or email [email protected] .

Always advocate in a timely manner. Please be aware that there are certain time limits or deadlines to file a complaint, a lawsuit, or take legal action.

DRW cannot guarantee that any individual or organization included in this material will represent or assist you. DRW also cannot guarantee the quality of this individual’s or organization’s representation.

Permission to reprint this publication is granted by the author, DRW, provided that the publication is distributed free of charge and with attribution. If you do disseminate any DRW document, please send us an email to [email protected] letting us know the nature of the audience and number of people with whom it was shared.

Disability Rights Washington 315 5th Ave S, Ste 850 Seattle, WA 98104 Voice: (206) 324-1521 or (800) 562-2702 Fax: (206) 957-0729 Email: [email protected] Website: www.disabilityrightswa.org

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Special Education Parent & Student Rights

Dana teaches social sciences at the college level and English and psychology at the high school level. She has master's degrees in applied, clinical and community psychology.

Table of Contents

What is special education, parent and student rights, lesson summary.

Special education modifies traditional teaching methods and materials to meet the needs of students with special needs. Perhaps you've known someone with a disability that required special education. Well, Janie is a seventh grade student with a hearing impairment. A hearing impairment is a disability. A disability is a physical or mental issue that impairs normal functioning. For Janie, following along and participating in her classroom might be challenging as a result of her hearing impairment. She might need extra assistance to do so and by law, she is entitled to it.

The Individuals with Disabilities Education Act of 1990 (IDEA) is a revised version of the original Education for All Handicapped Children Act (EHA) of 1975, which mandated that special needs students are entitled to receive a free and appropriate education. In other words, accommodations and modifications must be provided to special needs students in schools depending on the unique needs of the student.

Accommodations are devices or methods used to support the unique needs of disabled individuals. A hearing aid is an example of an accommodation that might be useful to Janie in the classroom. Modifications are changes in the level of instruction that a child receives to account for his or her specific disability. For example, an appropriate modification for Janie might include simplifying the vocabulary, concepts or principles taught.

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We mentioned that Janie is entitled to special education as a result of her disability. This is her right. IDEA was designed and put into place to protect the rights of those with disabilities and to protect the rights of people who care for them.

IDEA includes the following specific tenets that guarantee the right to special education and protect students and their caregivers:

1. To identify students in need of special education

Janie's disability may not have been identified until she entered school. Hearing assessments at school would likely call attention to her special needs.

2. To involve parents or guardians in the decision-making for the education of the student

For students like Janie, it is important to have parental involvement in making decisions for her educational needs. This stipulation protects the rights of the parents of special needs students.

3. To assess student needs without discrimination

If Janie were punished for her disability or if she did not receive the same opportunities that other students receive, she would be the victim of discrimination. IDEA protects special needs students and their parents against discrimination.

4. To formulate an Individualized Education Plan (IEP) for every special needs student

IEPs are plans for the education of the student based on his or her unique needs. Janie's IEP will lay out a set plan for her education and will include specifics on necessary accommodations or modifications.

5. To educate the child according to research-based practices

Let's say Janie has a teacher that comes up with a new method of teaching hearing impaired students. The teacher would not be permitted to use that method unless it was backed by research demonstrating its effectiveness. Again, this protects special needs students.

6. To provide educational services and support is a way that does not restrict the freedom, growth or development of the student

Special needs students may have unique needs and require extra attention in the classroom, but this does not allow for restriction in terms of the classroom environment. In other words, they should not be held back in any way as a result of their disabilities.

7. To maintain adequate records on the education of the student

Most schools keep records on students in regards to things like attendance, test scores and grades. The records of special needs students are especially important because they include things such as the IEP, accommodations and modifications. This mandates adequate record-keeping for special needs students.

8. To provide established methods for parents to resolve issues or conflicts

What if Janie's parents don't agree with the way she is being educated? The IDEA would protect their right to dispute the education of their daughter. Depending on the school district, there are specific procedures for dealing with and resolving conflicts in the education of special needs students.

As a result of The Individuals with Disabilities Education Act of 1990 (IDEA) , a revised version of the original Education of the Handicapped Act of 1975 (EHA) free and adequate special education is the right of disabled students. A disability is a mental or physical impairment that prevents normal functioning. Accommodations and modifications may be required to meet the needs of special needs students. The Individualized Education Plan (IEP) , for each special needs student, specifies the plan for educating the student according to the rules set forth by IDEA which are designed to protect the rights of special needs students and their parents.

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Special Education Student Rights: What You Need to Know

The average school day for a special education student is evolving every year. The stigma for putting an in-need student into a special education class is practically gone. Children with learning disabilities, physical issues, psychiatric disorders, and behavioral problems are getting a better education than ever before. Educators are discovering the best ways to cater lessons to individuals that need extra help.

 As a parent with a special education student, it can be scary to trust somebody else to ensure that your child is getting what they need in class. If you begin the process by educating yourself on the rights of you and your student, you will feel better equipped to protect your family.

Individuals with Disabilities Education Act (IDEA)

 In 1975, the Education for All Handicapped Children Act was put into effect. As ideas and attitudes toward disabled children changed, so did the act. It was eventually transformed into IDEA as a way to provide public education for special needs students.

Children who fall under IDEA’s public education services must be under 21 with learning disabilities, autism, serious emotional disturbance, traumatic brain injury, visual and hearing impairment, or physical disabilities. If you child falls into one of those categories, the state is required to provide free appropriate public education.

 Section 504

 It’s your child’s civil right to a public education. Section 504 of the Rehabilitation Act of 1973 ensures that. Public schools can’t discriminate against any child with special needs under this statute.

It also covers your child’s rights to extra curricular activities. That means that the school can’t exclude a special needs child from playgrounds, band, assemblies, field trips, off site programs, clubs, after school programs, summer programs, or graduation. An educator or adult supervisor can’t exclude your child from an activity simply because he or she doesn’t want to deal with a child with disabilities.

 The Americans with Disabilities Act (ADA)

 ADA, which was first put into action in 1990, is a broad protection for people with special needs. It protects their employment, transportation, public accommodations, and more. Part of this act specifically pertains to school children with disabilities. By law, public schools may not deny your child the proper educational services. This also includes extra curricular activities and programs that other students are entitled to participate in.

What Your Child Needs

 It’s important to know exactly what sort of education your child needs. For special needs students, it’s not enough to just have one classroom. There is so much individual attention that your child needs to focus on their specific disability. You should feel comfortable keeping in contact with your child’s teacher and express your questions and concerns.

 You should also ensure that your child is evaluated by the school to see if they need occupational, physical, or speech therapy. It’s also possible that your child may need a classroom aide. If your child isn’t tested, some part of his or her development will get delayed.

 What You Need to Do

 Keep records of everything. Record every communication with your child’s teachers and the school. Also ask the school for copies of their school district’s Section 504 in case the school ends up deny your child any educational and extracurricular services.

 It’s essential that you be an advocate for your child’s rights in order to make sure they get the best education possible. But the intricacies of special needs education laws can make it hard to know and understand every right available to your child. If you need help or think that your special needs child’s rights have been violated, consider reaching out to a special needs lawyer .

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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.
• 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.

Hope4Families https://www.hope4familiesca.org/ 4859 W. Slauson Ave., No. 515, Los Angeles, CA 90056 (323) 275-1161 extension 804

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It is important to realize that changes may occur in this area of law. This information is not intended to be legal advice regarding your particular problem, and it is not intended to replace the work of an attorney.

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