- Introduction to special education services
- What is special education?
- What is child find?
- What is a free appropriate public education (FAPE)?
- What is least restrictive environment (LRE)?
- What is an IEP?
- What procedural safeguards are available for parents?
- What does the IDEA say about disciplining students with disabilities?
- Where can I get more information?
Introduction to Special Education Services
Part B of the Individuals with Disabilities Education Act, or IDEA, is the federal law that requires schools to provide special education and related services to children with disabilities, ages 3 through 21. There are several important ideas in Part B of the IDEA that parents of children with disabilities should understand. These include: child find, free appropriate public education (FAPE), least restrictive environment (LRE), individualized education programs (IEPs), and procedural safeguards.
What is special education?
First, it is important to understand what special education IS NOT. Special education IS NOT A PLACE. Students do not GO to special education. Special education IS a SET OF SERVICES that children with disabilities receive to make progress at school. The specific services that a child receives are based on that child’s unique needs. The child gets the services wherever he or she needs them. Special education is different for every child, because every child is different.
What is child find?
The IDEA requires school districts to identify all of the children in their district, between the ages of 3 and 21, who might have a disability and need special education services. This responsibility is called child find. That means teachers and school staff have a responsibility to tell an administrator if they have concerns about a child’s performance, and the school must decide whether to do a special education evaluation. Schools must get written permission from the child’s parent before they complete a special education evaluation.
A parent, child care provider, doctor, or any other person who thinks the child might need special education can express concerns to the school district as well. Concerns should always be put in writing. A letter or email should be sent to the local school’s administrator that indicates what the specific concerns are and specifically asks for a special education evaluation. Date and sign any letter sent to the school. Schools usually have 60 days from the date they get the parent’s permission to complete a special education evaluation, though some states give schools more or less time. If the school decides not to evaluate the child when the parent thinks they should, the parent can file a complaint.
A child is eligible for special education services if he or she has one of the disabilities listed in the law and if the disability adversely affects the child’s education – that means the child isn’t making appropriate progress at school. Concerns often start because of bad grades, but adverse effects could also include behavior or discipline problems, social problems, and problems with basic functions like seeing, hearing, walking, and talking. The disabilities listed in the law are:
- Emotional disturbance (usually significant behavior challenges)
- Hearing impairment
- Intellectual disability
- Multiple disabilities
- Orthopedic impairment (often related to a physical disability)
- Other health impairment (includes medical conditions such as asthma, ADHD, diabetes, etc.)
- Specific learning disability
- Speech or language impairment
- Traumatic brain injury
- Visual impairment (including blindness)
Schools must discuss with parents the tests they are going to do as part of an evaluation. Which tests are done depends on what the concerns are, but might include an intelligence test, achievement tests to see how the child is performing, social-emotional tests, and tests for related services, like speech therapy, occupational therapy, and physical therapy. Parents should also have an opportunity to share information during an evaluation, often through a parent interview and/or questionnaire about how the child is at home. Parents can provide any other information that they think will help the school decide whether their child has a disability and needs special education, such as medical records, previous evaluations, and previous school records.
Once the evaluation is done, the school must hold a meeting with the child’s parent to discuss the evaluation and decide whether the child is eligible for special education. Parents must receive copies of any reports completed during the evaluation. Parents should request copies of the reports before the meeting, so that they have plenty of time to read them and write down any questions they have. Parents should also write down any ideas they have about services and supports that will help their child at school.
If a student has a disability, but it doesn’t clearly affect progress at school, the child may not quality for special education services under the IDEA. However, the child may still qualify for accommodations under a Section 504 Plan. If a parent doesn’t agree with the school’s decision about the child’s eligibility for special education, the parent can file a complaint.
What is a free appropriate public education (FAPE)?
The IDEA requires school districts to provide eligible children with disabilities a free appropriate public education, or FAPE.
Free means that the school cannot charge the child’s family for the services the child needs at school. However, for children who receive Medicaid, the school can ask for the parent’s permission to bill certain services to Medicaid, like speech therapy, occupational therapy, physical therapy, applied behavior analysis (ABA), and counseling.
Appropriate means the services the child receives must be based on the child’s unique needs, not what the school provides to all children or what is convenient for the school. In addition, the services must help the child benefit from his or her education. If a child isn’t making progress on his or her goals, then the services he or she is getting aren’t working and should be changed.
Finally, the law only applies to public schools. Charter schools are public schools, so the IDEA does apply to charter schools. Generally, the IDEA does not apply to students attending private schools, although there are some exceptions when the public school cannot or does not provide the student appropriate special education services.
What is least restrictive environment (LRE)?
The IDEA also requires schools to provide children with disabilities special education in the least restrictive environment, or LRE. Special education services can be provided in a variety of placements along a continuum from least to most segregated. The least restrictive special education placement is in a general education classroom in the child’s neighborhood school. The most restrictive special education placement is one-on-one services in a hospital or at home where the child is separated from all other children. Other placements along the continuum include special education classrooms, separate special education programs in public schools, separate special education programs in private schools, and separate residential schools.
Because students with disabilities perform better and have better outcomes after they leave school when they are included at school, the IDEA requires that students with disabilities learn in the same schools and the same classrooms they would be in if they didn’t have a disability, as much as possible. Most students with disabilities, including students with intellectual and/or developmental disabilities (I/DD), can learn in the same classes as students without disabilities when they get the services and supports they need to be successful. The school district must consider all special education, related services, accommodations, modifications, and technology that might help a child with a disability learn in the general education classroom for their age and grade, before the school can place the child in a more restrictive, or more segregated, classroom or school.
What is an IEP?
The IDEA requires schools to provide FAPE in the LRE to a child with a disability through an individualized education program, or IEP. When a child is found eligible for special education services, the IEP is the written document that describes the services and supports the school will provide to help the child achieve his or her educational goals. It must be updated at least once every year. Because IEPs are supposed to ensure that children with disabilities benefit from their education, the process for writing the IEP is very important. Parents must be invited to participate in that process. Some of the items the plan must include are:
- Present levels of performance
- Annual goals
- Amount and type of special education
- Amount and type of related services
- Transition services
What procedural safeguards are available for parents?
To ensure children with disabilities and their families are actively included in the process of deciding whether children will receive special education services and what kinds of services they will receive, a number of protections are included in the law for parents. These protections are called procedural safeguards and include the following:
- Access to records
- Parental consent
- Parental participation
- Independent educational evaluations
- Prior written notice
- Filing a complaint
- Surrogate parents
Access to Records
The IDEA gives parents the right to review any records the school has about their child’s eligibility for special education or special education services. Schools must provide the parent access to the child’s records within 45 days of the parent’s request, and within a reasonable time when requested before an IEP meeting or a hearing for a due process complaint. The IDEA requires schools to give parents free copies of their child’s evaluation reports and IEPs at the time they are discussed. The IDEA does not require schools to give parents free copies at other times or free copies of other records regarding their child, though some state or local laws might require schools to provide parents free copies of their child’s records.
Parents also have the right to give other people permission to see their child’s records. This is usually done through a release the parent signs describing who can see the records and what records the person can see. Parents have the right to request an explanation from the school of any records that they don’t understand. They also have the right to correct any records that they believe are wrong. Parents can file a complaint if the school refuses to change information they believe is wrong. The record must be changed if it is found that the information is wrong. Even if the information is not found to be wrong, parents have a right to add a statement to their child’s record about what they think is wrong, and their statement must be included any time the record is shared.
There are certain actions that a school cannot take before it gets consent from a child’s parent. That means that the parent must give the school permission in writing to take the action. The consent must also be informed, which means that the school must give the parent enough information so that the parent can understand what they are signing. The school must provide information in language the parent can understand, and the parent must understand that the consent is voluntary. No one can force a parent to give consent.
Schools must ask for a parent’s consent before they do an initial evaluation or a reevaluation of a child. If a parent refuses to give consent for an initial evaluation or a reevaluation, the school can file a complaint to get permission from a hearing officer to do the evaluation. If a parent doesn’t respond to a request for an initial evaluation, the school may also file a complaint to get permission from a hearing officer to do the evaluation. However, if a parent fails to respond to a request to do a reevaluation, schools can do the reevaluation without parental consent or filing a complaint, so long as they have made reasonable efforts to reach the parent. Reasonable efforts usually include several attempts to reach a parent by phone, in writing, and personal visit to the child’s home.
Schools must also ask for a parent’s consent before they provide special education services to a child for the first time. If a parent refuses to give consent for special education services, or if the parent doesn’t respond, then the school cannot provide the services. The school also cannot file a complaint to get permission from a hearing officer to provide the services. However, if a parent has not given consent for special education services, then the school is not responsible for failing to provide appropriate services if the child does not make progress at school. Parents are allowed to give consent for the school to provide some special education services but not others. The school must provide the services for which the parent gave consent and cannot provide the services that the parent refused. After the first IEP, the school does not need a parent’s consent to change the child’s services. However, it must give parents prior written notice before making any changes. If a parent doesn’t agree with the change in the prior written notice, then the parent must take action to stop the change from occurring.
Some states require schools to get parental consent before they take other actions as well.
Parents must be invited to participate in any meeting where their child’s eligibility for special education or special education services will be discussed. Parents must be told about any meetings far enough in advance that they have a chance to attend if they want to. The meeting must be held at a time and place that is convenient for both the parent and the school. If the parent cannot be at the meeting in person, he or she must be given an opportunity to participate in other ways, including participating by phone or video. Finally, schools must provide an interpreter for parents who are deaf or do not speak English, so that they can fully participate in the meeting.
Schools can hold meetings without a parent, including meetings where a child’s placement will be decided, if the school keeps detailed records of its attempts to schedule the meeting at a time convenient to the parent, and the parent refuses to participate or doesn’t respond. The attempts must include telephone calls, letters or emails, and home visits.
Independent Educational Evaluations
An independent educational evaluation, or IEE, is simply an evaluation done by someone who doesn’t work for the school. Parents can get an IEE any time they want. In addition to paying for an IEE with their own money, parents can talk with their child’s doctor to determine if their medical insurance, including Medicaid, will pay for an evaluation. If a parent pays for an IEE, the parent can choose whether or not to share it with the school. Schools must consider any information that parents provide, including information from an IEE. However, schools are not required to include services or supports recommended in an IEE. If parents feel certain services or supports are necessary, and the school refuses to provide them, parents can file a complaint.
Parents can also ask the school to pay for an IEE if they disagree with an evaluation that the school has done. Parents may disagree with a school’s evaluation if they do not feel it is complete enough, if they do not feel the evaluator was qualified, or if they do not agree with the evaluation’s results. If parents want the school to pay for an IEE, they need to send the school a letter or email saying that they do not agree with the school’s evaluation and that they want the school to pay for an IEE. Parents do not have to give a reason for disagreeing with the school’s evaluation. The school must either agree to pay for the IEE and give parents information about how they can get one, or the school must file a complaint and prove to a hearing officer that their evaluation was appropriate. Parents often need their own expert to prove that a school’s evaluation is inappropriate, so parents should consider whether to proceed with a due process hearing or withdraw their request for an IEE when the school files a complaint.
Prior Written Notice
Schools must provide prior written notice any time they want to change a child’s eligibility, special education services, or placement, and any time they refuse to make a change that the parent has requested. Prior written notice means that the school must tell parents, in writing, before they do or don’t take an action to change a child’s special education services. The notice must include a description of the change, the reason the school is (or is not) making the change, other options the school considered, and the information the school relied on to make its decision. The notice must also explain to parents that they have the right to disagree with the school’s decision and provide contact information for organizations the parent can call to ask for help.
Most schools send parents a form letter that simply says they are, or are not, making a change to the child’s special education services. The form letters often do not include the information that the IDEA requires. Parents can send a letter or email asking for all of the information required by the IDEA. If parents disagree with the school’s decision about their child’s services, the parents can file a complaint.
Filing a Complaint
The IDEA has tried to create a collaborative process where schools and parents come together to discuss a child’s needs and come to agreement about the services the child needs to learn. In reality, though, there are often disagreements between parents and school staff about what services a child needs to make progress at school. Because students must attend school until they are at least 18 years old, parents and schools should almost ALWAYS try to resolve their disagreements through discussions and meetings before resorting to the complaint process.
When parents have concerns, they should talk to their child’s teacher first. If that doesn’t resolve the concerns, parents can talk to the school’s special education director or school principal. It is good practice for parents to follow up any conversations or meetings with school staff by sending a written thank you letter or email that summarizes any agreements reached, so that everyone is on the same page. Parents or schools can request a meeting at any time one is necessary to discuss issues that come up. Some states are starting to offer Facilitated IEP meetings, where a trained person who is not connected with the parent or the school system attends the IEP meeting to help the IEP team work through issues and create an appropriate IEP for the child.
If disagreements about a child’s eligibility, services, or placement are not resolved through discussions and meetings, then parents have the right to file a complaint against the school. There are two types of complaints: state complaints and due process complaints. Though each state creates its own rules for these processes, the IDEA includes some basic requirements:
- Both state complaints and due process complaints must be filed in writing, typically with an office in the state’s department of education.
- Both state complaints and due process complaints must include the child’s name, the school’s name, a description of the concerns, and a description of how the person would like to see the complaint resolved.
- The person filing a state complaint or a due process complaint must send a copy of the complaint to the school district, so that the school district has an opportunity to respond to the complaint.
A state complaint leads to an investigation by the state department of education. The investigator will typically interview the parent and school staff, review records that relate to the student and the issue raised, and seek any other information that will help the investigator make a decision. The issue raised must have occurred in the last year. The investigator has 60 days to complete the investigation and issue a written decision to both the person who filed the complaint and the school being investigated. If the investigator finds that the school has done something wrong, the state will offer the school technical assistance to fix the problem, negotiate with the school to fix the problem, or send the school a corrective action plan with a description of the actions the school must take to fix the problem and a timeline for fixing the problems. The state complaint process is shorter and less adversarial than the due process complaint process, but there is no appeal if parents don’t like the investigator’s decision, and the state is limited in enforcing its decision if the school district chooses not to comply.
A due process complaint leads to an administrative hearing, which is like a trial, but not quite as formal. An independent hearing officer is assigned to the case, and he or she will decide whether the school is right or the parent is right. The issue raised must have occurred in the last two years. Due process complaints often take longer to resolve than state complaints because the school has 15 days to hold a resolution session, or a meeting with the parent to discuss his or her concerns, and another 15 days to try to resolve the parent’s complaints. If the issue does not resolve in that 30 days, the hearing officer has another 45 days to hold a hearing and issue a decision. Both sides have the right to hire an attorney. Both sides have the right to present evidence that supports their arguments. Both sides can ask the hearing officer to ignore any evidence that the other side did not share with them at least 5 days before the due process hearing. If the parent or school does not like the hearing officer’s decision, they have 90 days to appeal the decision to a state or federal court. In addition, if the school does not follow the hearing officer’s decision, the parent can file a state complaint, or go to state or federal court and ask for a court order to enforce the hearing officer’s decision. If a parent wins at the due process hearing or in court, the school has to pay the parent’s attorney’s fees. Typically, a parent will not have to pay for the school’s attorney’s fees, even if the school wins, but there are some exceptions in very rare cases.
If parents have questions about filing a complaint, their rights, or any part of the special education process, they may be able to get help from a chapter of The Arc or another organization in their state.
Mediation is a process where a trained mediator, who is not connected to the child’s parent or school, meets with the parents and school to help them resolve their disagreement. States must make mediation available free of charge to parents and schools any time there is a disagreement about special education services, even before a state complaint or due process complaint is filed. Mediation must be voluntary, so both sides must agree to participate. Mediation is confidential, which means that no information discussed at mediation can be used later if a due process complaint is filed. If the parents and school reach an agreement through mediation, the agreement must be in writing, and the agreement can be enforced by a court.
During a due process complaint and any appeals, the child has a right to stay-put, or to stay in the last placement agreed to by the child’s parent and school. There is no right to stay-put during the state complaint process or during mediation when no due process complaint has been filed. If a parent is seeking a change of placement in the due process complaint, and the hearing officer orders that change of placement, the hearing officer’s placement becomes the child’s stay-put placement during any appeals.
As described in other sections, the IDEA seeks to create a collaborative process between parents and the school staff who know a child best while also giving parents several protections to ensure a fair process when the school and parent disagree. However, sometimes a school cannot clearly identify or locate a child’s parent. In addition, some children are homeless and on their own, or they are in the custody of the state because their parents have lost their parental rights. In these cases, a surrogate parent, someone who can act as the child’s parent for purposes of the IDEA, must be identified. A court can assign someone to act as a child’s surrogate parent, but when it has not, the school district or state is responsible for identifying the children that need a surrogate parent and assigning a surrogate parent. Surrogate parents must not work for the school district or any other agency that is responsible for the child’s well-being, must not have a conflict of interest with the child, and must have the knowledge and skills to adequately serve in the role of surrogate parent.
What does the IDEA say about disciplining students with disabilities?
Children with disabilities can be disciplined at school just like children without disabilities if they violate their school’s disciplinary code. However, the IDEA does provide some protections for children with disabilities when the discipline would remove them from their IEP placement for more than 10 school days.
If a school wants to suspend or expel a child for more than 10 school days, the IEP team must meet and make a manifestation determination. That means the IEP team must decide whether the behavior that resulted in discipline was caused by the child’s disability or by the school’s failure to appropriately implement the child’s IEP. If the behavior was caused by the child’s disability or by the school’s failure to implement the IEP, then the child cannot be disciplined for that behavior. The child must be immediately allowed to return to school. If the behavior was not caused by the child’s disability or the school’s failure to implement the IEP, then the school can discipline the child in the same way it would discipline any child. However, the child must still be provided special education services, though in another setting, so that the child can make progress on his or her IEP goals. Some schools do this through alternative schools for students who are suspended or expelled, and some schools do this through tutoring or home instruction.
There is an exception to the “10-day rule” for discipline that involves weapons, drugs, and “serious bodily injury.” These terms are all defined in other federal laws, but generally include knives and guns, illegal drugs, and life-threatening injuries. In these cases, a child with a disability can be removed to an interim alternative educational setting, or IAES, for up to 45 school days, regardless of whether the behavior was a manifestation. The IEP team must still meet within 10 days of the incident to make a manifestation determination and to determine what the interim school setting should be. If the behavior is a manifestation, then the child must be allowed to return to his or her IEP placement after 45 school days. If the behavior is not a manifestation, then the child can be suspended or expelled from school like any other child. However, the school must still provide services so that the child can make progress on his or her IEP goals.
If parents disagree with any decisions in the disciplinary process, including the manifestation decision, the interim alternative educational setting chosen, or the services being provided during a suspension or expulsion, then the parent can file a complaint. The timeline for a due process complaint is faster when the issue involves discipline. Schools only have 7 days to have a resolution session and 8 additional days to attempt to resolve the complaint. The hearing must be held within 20 days of the complaint being filed if the complaint isn’t resolved. The hearing officer must issue a written decision within 10 days of the hearing. All other rules for due process complaints are the same.
Another important requirement is that children shouldn’t just be returned to class as if nothing happened when their behavior is a manifestation and they can’t be disciplined. The school must also take steps to prevent future behavioral issues by completing a functional behavior assessment, or FBA, if one hasn’t been done, and creating or reviewing a behavior intervention plan, or BIP.
An FBA is a process for gathering data about when, where, and why a child has behavioral challenges. FBAs can include formal tests, interviews, and observations of the child at school. The observations should occur over several days and in different settings, and include data about what happens before, during, and after an inappropriate behavior occurs. An FBA should not be conducted during a meeting or based on only one test or input from one person. The FBA report should include a summary of the behaviors of concern, data about when and where the inappropriate behaviors occur, and ideas about why the child is acting out. School social workers, psychologists, or behavior specialists usually complete the FBA with input from the child, the child’s parents, and school staff. The more information they have, the better the recommendations will be.
The BIP should be written based on the results of the FBA and will become part of the child’s IEP. The BIP should include supports for the child that will prevent whatever is triggering the child’s inappropriate behaviors, such as changes to the routine, changes to the class or school environment, and changes in how other students and school staff interact with the child. The BIP should also include the teaching and reinforcement of replacement behaviors, or more appropriate ways the child can act to get his or her needs met. Finally, the BIP should include a plan of response on how the child will be calmed and redirected if he or she does have another behavioral issue, without making the behavior worse.
Serious behavior problems do not usually start over night, so the team needs to understand that it will take time, patience, and consistency to change a child’s behavior. The BIP should be regularly reviewed and revised if it isn’t working. However, the team must make sure that the problem is with the strategies in the plan and not with how the plan is being implemented.
Where can I get more information?
- Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. (2004). http://uscode.house.gov/view.xhtml?path=/[email protected]/chapter33&edition=prelim.
- US Department of Education, Office of Special Education Programs, IDEA Website: https://sites.ed.gov/idea/.
- At a Glance: Which Laws Do What, The Understood Team. https://www.understood.org/en/school-learning/your-childs-rights/basics-about-childs-rights/at-a-glance-which-laws-do-what