About Special Education
What is Special Education?
Services can range greatly, from speech and language services to a residential treatment facility in another state.
History of Special Education
In 1990 Congress reauthorized the EHA, renaming it to the Individuals with Disabilities Education Act (“IDEA”). Like the EHA, the IDEA’s goal is to provide children with disabilities equal access to education. The IDEA provides States federal funding to assist in the education of children with disabilities in exchange for States complying with the IDEA and making available a free appropriate public education (“FAPE”).
A FAPE means special education and related services specially designed to meet the unique needs of a child with a disability. To ensure a FAPE a school must develop and comply with an individualized education program (“IEP”).
The IEP is “the centerpiece” of the IDEA’s delivery system for a student. It is intended to be a comprehensive plan that should include, among other things, a student’s present levels of performance (“PLOP”), goals in all areas of needs, and services and placement to ensure a student makes progress. The IEP is developed by a student’s IEP team which includes both school staff and most importantly, parents.
Although Parents and schools often agree about what should be in the IEP or how it should be implemented, sometimes they don’t. When there is a disagreement, the IDEA provides for a dispute resolution process. Here, typically parties can resolve their difference through a resolution process or a more formal mediation with a judge. If that does not work, the IDEA provides for a due process hearing before a state agency, in California that agency is OAH. Either party that loses may seek an appeal in federal court.
What is the Special Education Process?
Once a child is “suspected” of having a disability, the school must assess. A school is on notice of a suspected disability when the student has displayed symptoms of that disability. Informed suspicions of a parent who may have consulted an expert is enough to trigger this requirement, even if the school disagrees with the parent. If a parent wants the school to assess, they should put the request in writing.
The evaluation must be designed to gather relevant “functional, developmental, and academic information about the child,” that can be used to determine the child’s individual needs. The school must also provide notice to parents about the evaluation and its procedures. Once the school has completed the evaluation, they should provide a copy of the assessment to the parents and hold an IEP meeting to review it.
Assessing a suspected disability is extremely important. Courts have found on multiple occasions that the provision of a FAPE is impossible when the IEP team fails to assess.
As a parent, it is important that any request for assessment be put in writing to the school.
For a comprehensive list, head here.
It is noteworthy that many parents are told prior to conducting an assessment a school must first conduct a student study team meeting (“SST”). This is not true. Once the student is suspected of having a disability, the school must assess, and an SST is not the first step to that process. If an SST is brought up, a good strategy is to tell the school you are OK with conducting an SST but are still requesting they formally assess for special education.
Assessments must be administered by trained personnel in conformance with the instructions provided by the producer of such tests, and must be conducted by individuals who are both “knowledgeable of the student’s disability” and “competent to perform the assessment, as determined by the school district, county office, or special education local plan area.” (Ed. Code, §§ 56320, subd. (g), and 56322; see 20 U.S.C. § 1414(b)(3)(B)(ii).)
School districts must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the student. This includes any information provided by the parent which may assist in determining whether the student is a child with a disability and the content of the IEP. (20 U.S.C. § 1414(b)(2)(A)(i).) The school district must use technically sound instruments to assess the relative contribution of cognitive and behavioral factors, as well as physical or developmental factors. (20 U.S.C. § 1414(b)(2)(C).)
Assessments must be selected and administered to best ensure that the test results accurately reflect the pupil’s aptitude, achievement level, or any other factors the test purports to measure and not the pupil’s impaired sensory, manual, or speaking skills unless those skills are the factors the test purports to measure. (Ed. Code, § 56320, subd. (d); 34 C.F.R. § 300.304(c)(3).)
The assessor must prepare a written report that includes: (1) whether the student may need special education and related services; (2) the basis for making that determination; (3) the relevant behavior noted during observation of the student in an appropriate setting; (4) the relationship of that behavior to the student’s academic and social functioning; (5) the educationally relevant health, development, and medical findings, if any; (6) if appropriate, a determination of the effects of environmental, cultural, or economic disadvantage; and (7) the need for specialized services, materials, and equipment for pupils with low incidence disabilities. (Ed. Code, § 56327.) The report must be provided to the parent at the IEP team meeting.
The IEP team shall meet to review an initial formal assessment and may meet to review any subsequent formal assessment. The team shall also meet upon the request of a parent to review, develop, or revise the IEP. (Ed. Code, § 56343, subd. (a), (c).)
The IEP Document
Although an IEP contains a significant amount of information, it can be helpful to think of the IEP in three distinct parts: the present levels of performance (“PLOP”), Goals, and Placement/Services.
PLOP should accurately describe where the student is functioning when the IEP is developed. This includes academics, adaptive skills, speech, motor development, and behavior. Ideally, a parent should be able to read the PLOP and understand and agree that they are accurate. This means if the PLOP states the student “can count to 10,” this is true, and the student is not counting to 20. This is important because when the PLOPs are not accurate the goals will not be accurate and a child could potentially lose a year of working on incorrect goals. So take the time to read and test the PLOP.
Goals are where we want the student to go at the end of a year and to permit the IEP team to determine whether the student is making progress in an area of need. For each area in which a special education student has an identified need, the IEP team must develop measurable annual goals that are based upon the child’s present levels of academic achievement and functional performance, and which the child has a reasonable chance of attaining within a year.
Placement/Services in the IEP can be vast. Essentially anything from speech services, a special education classroom to a residential treatment facility could be available if the student needs to access their education. Services should be tied to the goals and designed to ensure progress during the year.
Services and placement tend to be one of the most litigated areas of the law. Parents want the best for their child, and schools are not mandated to provide the best only to ensure they make reasonable progress in light of their ability.
Advocating - Understanding Your Rights & Procedural Safeguards
Typically, at the beginning of every IEP, a school will offer a parent their procedural safeguards. Read them! There is a lot there, and it can seem very legal (which it is), but it is worth understanding. These are the rights afforded to you to participate in the process of developing and implementing an IEP.
Parents are often surprised at what is in there, for example, you may call an IEP at any time and not just wait for the one to be held every year. We have provided a brief on of them on our site that is easier to read and understand.
Know What is in the IEP and Assessments
Take the time to read through the IEP before you sign it. Often at IEPs, it can seem like we are pressured to sign. You are not required to sign the IEP the same day of the meeting, and we recommend taking the IEP home for a few days. This way you can review the document independently, and note what you agree with, what you do not agree with, and what you do not understand. One strategy is to take a highlighter and highlight everything you do not agree with or do not understand, then put those questions and concerns in an email, or call another IEP to have them addressed. Remember, the IEP is there for you and you can have as many meetings as necessary to ensure you understand the plan.
At the IEP meeting, you and the other members of the team will write an IEP document that describes your child’s educational needs and the services that will be provided to meet those needs. But IEPs are not just for the development of the IEP documents, it can also be a forum for questions a parent may have, or issues with the services, accommodations, goals, or supports the student is receiving. The process is for you, so use it.
Members of the IEP should include: the parent(s); at least 1 general education teacher, if the child receives or will receive services in a general education classroom; at least 1 special education teacher or provider (for example, a speech therapist or occupational therapist); a qualified representative of the school district or LEA; the person who conducted the assessment or someone who can interpret the results of the assessment, if the results of an assessment are being discussed; other individuals who have knowledge or special expertise about the child, at the discretion of the parents or LEA; and the child (as appropriate; however, must be invited to participate when discussing career and education goals after high school).
Filing a Due Process
It is generally designed only for special education students or those potentially eligible for special education. So general education matters may not be eligible for such hearings. The process is designed to be quick, when a party filed a trial could occur in 45 days, although this is not common due to continuance, mediation, and scheduling.
It is important to be prepared to discuss your remedy. Many parents file a due process without having articulated what they want. It is perfectly reasonable to say, “I just want the best for my child” however, it is important to be more specific. Perhaps additional speech services or an alternative school setting. The more specific you can be, the easier this process will move.
If the case is not resolved at resolution, the parties may agree to attend a mediation.
Mediation is not scheduled automatically as part of a due process filing. Parents and the district must both agree to participate. Once they do, they can formally request OAH schedule mediation by filing a request and proposing dates for the meeting.
At the meditation, the judge will briefly describe the process to both parties. Judges typically have several rules they like parties to agree to such as no regressive bargaining. They will also explain that mediation is a confidential process, meaning anything said cannot be used later at trial.
Following the mediator’s opening, the filing party will have an opportunity to briefly describe the case and what they are seeking to resolve the claims. The defendants then may ask questions relating to the facts and remedy. This is typically a brief part of the process.
Once the pirates are done speaking, the judge will separate the parties into rooms (right now in different microsoft teams rooms in California). The judge will speak with each side privately and will spend most of the day going back and forth attempting to resolve the case. The mediator makes no decisions regarding the case but can give their opinion on the viability of a claim or remedy. Mediation is scheduled for and can last the entire day.
The benefit of meditation is it can help everyone better understand each other’s points of view. While often tiring and emotional, meditation affords the parties the ability to decide on a solution rather than risk having the case go before a court where there is little to no control on how a judge will rule.
The IDEA requires that the parties exchange a list of witnesses and exhibits 5-days before the hearing. This is typically done in a pre-hearing conference statement. The parties must also exchange a copy of their exhibits (often in a binder). If you fail to disclose evidence 5 days before trial, a hearing officer could exclude them at trial.
Typically the hearings are held at the school or district offices. OAH does have courts, but they are rarely used.
Cases can vary but the process is typically the same.
On the first day, the judge will place everyone onto the record and briefly go over the rules for the hearing. Following that, the judge will allow opening statements, with the filing party going first. Once the opening statements are done, the filing party will present their case. This includes calling witnesses and submitting evidence. The defendant will then have an opportunity to present their case.
At the conclusion of trial, the parties may either give a closing statement or agree to submit closing briefs (which is more common).
The judge will typically decide a case within 45-60 days from the day the closing brief is submitted.
Either party may appeal a decision in 90-days.