SPECIAL EDUCATION RIGHTS AND RESPONSIBILITIES Chapter 1 Information on Basic Rights and Responsibilities From a 13-Chapter Manual Available by Chapter and in Manual Form Sixth Edition Written by: Community Alliance for Special Education (CASE) and Protection and Advocacy, Inc. (PAI) - Copyright (c) 1992 by CASE and PAI - Revised February 1997 Written permission of the Community Alliance for Special Education (CASE) and Protection and Advocacy, Inc. (PAI) must be obtained for duplication of the materials contained in Special Education Rights and Responsibilities. These materials are based on special education laws and court decisions in effect at the time of publication. Federal and state special education law can change at any time. If there is any question about the continued validity of any information in the handbook, contact CASE, PAI or a legal authority in your community. ----------------------------------------------------------------- Community Alliance for Special Education (CASE), provides legal support, representation, and educational consulting to parents throughout the greater San Francisco Bay Area whose children need appropriate special education services. Trained advocates and attorneys assist parents at IEP meetings, Mediation Conferences and Due Process Hearings. CASE also provides free consultations about special education rights and services to parents and professionals by telephone or face-to-face. CASE is a nonprofit organization serving all children with disabilities who need or may need special education services. For more information, contact: CASE CASE Office - 1031 Franklin Street, Suite B5 San Francisco, CA 94109 Tel. - (415) 928-2273 FAX - (415) 928-2289 CASE Office - 680 W. Tennyson Road, Room 1 Hayward, CA 94544 Tel. - (510) 783-5333 FAX - (510) 783-8822 Protection and Advocacy, Inc. (PAI), is a private, nonprofit organization that protects the legal, civil and service rights of Californians who have developmental or mental disabilities. PAI provides a variety of advocacy services, including information and referral, technical assistance, and direct representation. For information or assistance with an immediate problem, call: PAI Toll Free/TDD: (800) 776-5746 8:30 AM to 5:00 PM - Monday through Friday PAI Central Office - 100 Howe Ave., Suite 185-N Sacramento, CA 95828 Legal Unit - (916) 488-9950 Administrative - (916) 488-9955 PAI Southern California Area Office - 3580 Wilshire Blvd., Suite 902, Los Angeles, CA 90010, Tel. - (213) 427-8747 PAI San Francisco Bay Area Office 449 - 15th Street, Suite 401 Oakland, CA 94612 Tel. - (510) 839-0811 PAI receives funding under the Developmentally Disabled Assistance and Bill of Rights Act and the Protection and Advocacy for Mentally Ill Individuals Act. Any opinions, findings, recommendations or conclusions expressed in this publication are those of the authors and do not necessarily reflect the views of the organizations which fund PAI. ----------------------------------------------------------------- S P E C I A L E D U C A T I O N R I G H T S A N D R E S P O N S I B I L I T I E S Chapter 1 Information on Basic Rights and Responsibilities TABLE OF CONTENTS Question Introduction 1. Q. I Hear a Lot about Federal Law and State Law, and Federal and State Regulations. What's the Difference? 2. Q. Who Is Eligible for Services under the Individuals with Disabilities Education Act (IDEA)? 3. Q. What Are the Changes in Special Education Eligibility for Preschool Children? 4. Q. Are There Educational Programs for Children under Three Years of Age? 5. Q. What Is the Maximum Age Eligibility for Special Education? 6. Q. Who Is Eligible for Educational Program Modifications under Section 504 of the Rehabilitation Act of 1973? 7. Q. What Is the Definition of Special Education? 8. Q. Who Is Responsible for Providing Special Education Services to My Child? 9. Q. What Are Related Services and Who Provides Them? 10. Q. What Is an "Appropriate" Special Education Program? 11. Q. What Does Least Restrictive Environment (LRE)? 12. Q. What Responsibilities Do I Have in Providing Special Education to My Child Who Has a Disability? 13. Q. How Do I Make a Referral for Special Education Services? 14. Q. How Do I Request an Individual Education Plan (IEP) and Assessment for My Child When She Is Already Receiving Services? 15. Q. What Are the Time Lines for the Assessment and IEP Meeting? 16. Q. What Rights Do I Have in the Assessment and Evaluation Process? 17. Q. What Is an IEP and How Is it Developed? 18. Q. What Rights Do I Have in the IEP Process? 19. Q. What Happens If I Don't Agree with All or Part of the IEP? What Are My Options? 20. Q. I Agreed with the IEP When it Was Written, but I No Longer Think it Is Appropriate. What Can I Do? 21. Q. I've Been to the IEP Meeting, but the School and I Cannot Agree on the Special Education, Related Services or Placement My Child Needs. How Can I Resolve this Difference of Opinion? 22. Q. What Happens to My Child If I File for a Due Process Hearing? 23. Q. What Rights Do I Have in the Hearing Process? 24. Q. I Think the Local Education Agency Is Violating Special Education Law. What Can I Do? 25. Q. Does My Child Have the Right to Participate in Non-academic and Extracurricular Activities Offered at His School? 26. Q. How Do I Find Out If My Child Is Entitled to an Extended School Year or Summer School Program? 27. Q. Can I See the Records That the School Keeps on My Child? 28. Q. How Do I Correct Or Remove Information Contained In My Child's Records? 29. Q. Under What Circumstances May My Child Attend School In A School District Other Than My District Of Residence? 30. Q. What Happens to My Child's Special Education Program If We Move from One School District to Another? 31. Q. What Happens to My Child's Special Education Program If He Is Placed in a Group or Foster Home Located in Another School District? 32. Q. Which District Is Responsible For My Child's Education Program If She is Placed in a Public Hospital, Psychiatric Hospital or Other Residential Medical Facility? 33. Q. What Happens to My Child's Special Education Program If He Is Being Discharged from a State Developmental Center (SDC) a State Mental Hospital or a Medical Hospital? 34. Q. Under What Circumstances Could My Child Be Suspended or Expelled from School? 35. Q. Under What Circumstances Can My Child Graduate with His Non-disabled Peers? 36. Q. What Can I Do If a Teacher or Other School Staff Person Hurts My Child? 37. Q. What Rights Do I Have If English Is Not My First Language Or I Do Not Speak Any English? 38. Q. What Rights Do I Have If English Is Not My Child's First Language Or If She Does Not Speak Any English? 39. Q. Are My Child's Rights To A Free, Appropriate Education Affected If He Is Undocumented? 40. Q. My Child's Behavior Problems Are a Major Obstacle to Her Education. Is There Anything the School District Must Do to Address My Child's Behavioral Needs? Sample Letter - Referral for Special Education Sample Letter - Request for Records Time Lines for Assessment and IEP ----------------------------------------------------------------- S P E C I A L E D U C A T I O N R I G H T S A N D R E S P O N S I B I L I T I E S Chapter 1 Information on Basic Rights and Responsibilities Introduction Special education programs in California are governed by a combination of state and federal laws. Under these laws, school districts must provide each student with a disability with a free appropriate public education (FAPE). FAPE means special education and related services which are provided at public expense and without charge, meet appropriate standards, include preschool through secondary education, and conform with an Individual Education Program (IEP). [Title 20 United States Code (U.S.C.) Sec. 1401(18); Title 34, Code of Federal Regulations (C.F.R.) Sec. 300.4.] Special education must be provided in the least restrictive environment, which means that to the maximum extent appropriate all students with disabilities will be educated with students who are not disabled. [34 C.F.R. Sec. 300.550(b)(1)(2).] 1. Q. I Hear a Lot about Federal Law and State Law, and Federal and State Regulations. What's the Difference? A. The U.S. Congress enacted Public Law 94-142, now called the Individuals with Disabilities Education Act (IDEA) [20 U.S.C. Secs. 1400 and following] in 1975. California has also enacted its own statutes which generally parallel the IDEA and provide the basis for providing services in this state. [California Education Code (Cal. Ed. Code) Secs. 56000 and following.] The federal law and state law contain most of the provisions governing delivery of special education and related services. However, sometimes the law is unclear or leaves something out. Where this has happened, both the Federal and State Departments of Education have created regulations under the authority of the IDEA or state law. The federal regulations are at Title 34, Code of Federal Regulations (C.F.R.) Part 300, and the state regulations are at Title 5, California Code of Regulations (Cal. Code Regs.), Secs. 3000 and following. Federal law and regulations create the broad framework within which California must function as a recipient of federal funds under the IDEA. Since California has enacted its own statutes and regulations, these generally will be followed in providing special education in the state. However, because of the Supremacy Clause of the U.S. Constitution, federal law and regulations must be followed whenever there is a conflict between state and federal law, except when the state law grants more rights to the individual. 2. Q. Who Is Eligible for Services under the Individuals with Disabilities Education Act (IDEA)? A. Eligibility For Special Education Services Under IDEA: Children who have a disability that causes them to need specialized educational services to benefit from their education are entitled to receive special education and related services. Eligible disabilities include but are not limited to sensory (i.e. hearing, visual, or speech/language) or orthopedically impaired, mentally retarded, seriously emotionally disturbed, other health impaired or children with specific learning disabilities (e.g. dyslexia, if it is a significant impediment to learning). In addition, children with autism and traumatic brain injury are eligible for special education under federal law. [20 U.S.C. Sec. 1401(1), (15); 34 C.F.R. Sec. 300.7.] California calls these children "individuals with exceptional needs." [Cal. Ed. Code Sec. 56026.] Children meeting these criteria between the ages of five years and 18 years, inclusive, are eligible for special education. [Cal. Ed. Code Sec. 56026(c)(3).] Individuals between 19 and 21 who are enrolled in or are eligible for a special education program prior to their 19th birthday, and who have not completed their prescribed course of study (or who have not met prescribed proficiency standards), are eligible for special education. 3. Q. What Are the Changes in Special Education Eligibility for Preschool Children? A. Formerly preschool children who were delayed 50% below their chronological age in one skills area or 25% below chronological age in two areas might qualify for special education based on intensive special education needs. Eligibility criteria has been changed to make them more consistent with school age eligibility. [AB 369.] For instance, eligibility based on learning disability and language delay now both require a severe discrepancy between intellectual ability and achievement in order to establish eligibility for a preschool child. A new category, "Established Medical Disability," has been added. This medical condition or congenital syndrome must have a high predictability of requiring special education. 4. Q. Are There Educational Programs for Children under Three Years of Age? A. Early educational opportunities are available to infants and toddlers less than three years of age who have low incidence disabilities (blind, deaf, or orthopedic impairments who are not eligible for regional center services) or who are developmentally delayed or at risk of such delay. [PL 99-457 Part H/Cal. Gov. Code 95000, et seq.] Regional centers are the responsible lead agencies for infants and toddlers who are developmentally delayed or at risk of delay while local education agencies have responsibility for those who have solely low incidence disabilities. Each eligible child must have an Individual Family Service Plan (IFSP) which focuses both on the needs and concerns of the family and the needs of the child. 5. Q. What Is the Maximum Age Eligibility for Special Education? A. Special education students may continue to be eligible for special education services until they turn 22 (and for a number of months beyond) depending on a number of factors, such as whether they have passed the district's regular proficiency standards, or individualized differential proficiency standards which may have been included in their IPP. See Chapter 3, Information on Eligibility Criteria. But how long a student continues to be eligible for special education after his 22nd birthday depends on the month in which he was born. Students born in January through June may finish out the fiscal school year and any extended school year program. Students born in September may not start a new fiscal year, but, if they are on a year-round school program and are completing their IEPs in a term that extends into the new fiscal year, they may complete that term. The law does not mention students born in July or August, but the California Department of Education (CDE) has indicated, and advocates would argue, that the rules applying to students born in September should also apply to those born in July or August. A student born in October through December is eligible for special education only through December 31 of the year in which he turns 22, unless he would otherwise complete his IEP at the end of that current fiscal year or unless he has not had an individual transition plan incorporated into his IEP and implemented from the age of 20 years forward, in which case the student will be able to complete that fiscal year. [Cal. Ed. Code Sec. 56026.] 6. Q. Who Is Eligible for Educational Program Modifications under Section 504 of the Rehabilitation Act of 1973? A. A child who may have problems in learning may not be found eligible for special education services because she does not fit into one of the special education eligibility categories and/or because her learning problems are not severe enough to qualify the student for special education. (This is often the case for children identified as being hyperactive or having dyslexia or Attention Deficit Disorder, none of which automatically qualifies a student for special education under state or federal law.) Such a child, however, may be eligible for special services and program modifications under a federal anti-discrimination law designed to reasonably accommodate the student's condition so that her needs are met as adequately as the needs of students without disabilities. The law is commonly known as Section 504 of the Rehabilitation Act of 1973 [29 United States Code Sec. 794] and its implementing regulations at 34 Code of Federal Regulations Sections 104.1 and following. Section 504 eligibility is not based on a categorical analysis of disabilities (except that some conditions, such as Attention Deficit Disorder, are frequently recognized as Section 504 qualifying conditions). Rather, Section 504 protections are available to students who can be regarded in a functional sense as "handicapped," i.e., students who have a physical or mental impairment which substantially limits a major life activity (such as learning), has a record of such an impairment, or is regarded as having such an impairment. See 34 C.F.R. Sec. 104.3(j) for further definition. Whenever you make a referral for special education assessment, you should also request that your child be assessed for eligibility for accommodations under Section 504. This way, if the child is not found eligible for special education, she may still be able to obtain necessary services or modifications under Section 504. You should also request that the district's Section 504 Coordinator be present at the initial IEP meeting to discuss the results of the Section 504 assessment. If your child is not found to be "handicapped" for purposes of Section 504 accommodations, that determination can be appealed. The local education agency is responsible for arranging the Section 504 hearing process. The hearing officer selected by the local education agency must be independent of the local agency but can be, for example, a special education administrator from another school district, county office of education or special education local plan area as long as there is no conflict of interest. The Office of Civil Rights administers and enforces Section 504 protections in education. If you believe your child has not been afforded her rights under Section 504, you may file a complaint with the Office of Civil Rights at: U.S. Department of Education, Office of Civil Rights, Region IX, Old Federal Building, 50 United Nations Plaza, Room 239, San Francisco, CA 94102, Phone: (415) 437-7700, FAX: (415) 437-7783 See Chapter 6, Information on Due Process Hearings/Compliance Complaints. 7. Q. What Is the Definition of Special Education? A. Special education means specially designed instruction, at no cost to the parent, to meet the unique needs of a child with disabilities. This instruction can include classroom instruction, home instruction, instruction in hospitals and institutions, and instruction in physical education. Special education also includes vocational education. California law adds to the basic definition of special education that the student with disabilities' educational needs cannot be met with modification of the regular instructional program. [20 U.S.C. Sec. 1401(16); 34 C.F.R. Sec. 300.14; Cal. Ed. Code Sec. 56031.] 8. Q. Who Is Responsible for Providing Special Education Services to My Child? A. Your local school district is responsible for ensuring that appropriate special education services are delivered. Services may actually be provided by a school district, special education local plan area (SELPA), county office of education, state school or certified non-public school. If the school district fails to ensure services, the CDE is ultimately responsible for providing your child with educational services. [20 U.S.C. Sec. 1414(a)(1)(A); 34 C.F.R. Sec. 300.220; Cal. Ed. Code Secs. 56300 and following. 9. Q. What Are Related Services and Who Provides Them? A. Related services are supportive services the student requires in order to benefit from his special education program. California calls related services Designated Instruction and Services (DIS). [Cal. Ed. Code Sec. 56363; 5 Cal. Code Regs. Secs. 3051 and following.] It is important to remember that education for children with disabilities includes independent living skills, not just academics; therefore a broad range of related services may be required. The term "related services" means transportation, and such developmental, corrective, and other supportive services (including speech pathology and audiology, psychological services, physical and occupational therapy, recreation, including therapeutic recreation and social work services, and medical and counseling services, including rehabilitation counseling, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education, and includes the early identification and assessment of disabling conditions in children. [20 U.S.C. Sec. 1401(a)(17); 34 C.F.R. Sec. 300.13.] Assistive technology devices and the services necessary to assist a child in the selection, acquisition or use of an assistive technology device are made available to a child if required as part of the child's special education or related services. [20 U.S.C. Sec. 1401(a)(26); 34 C.F.R. Sec. 300.308.] DIS mandated by California special education law may include, but are not limited to, the following: (1) Language and speech development and remediation; (2) Audiological services; (3) Orientation and mobility instruction; (4) Instruction in the home or hospital; (5) Adapted physical education; (6) Physical and occupational therapy; (7) Vision services; (8) Specialized driver training instruction; (9) Counseling and guidance; (10) Psychological services other than assessment and development of the individualized education program; (11) Parent counseling and training; (12) Health and nursing services; (13) Social worker services; (14) Specially designed vocational education and career development; (15) Recreation services; and (16) Specialized services for low-incidence disabilities, such as readers, transcribers, and vision and hearing services. [Cal. Ed. Code Secs. 56000.5, 56026.6, 56026.5 and 56363.] All related services must also be provided without any charge to the parent. In most cases, your local school district is responsible for providing the related services directly or by contracting with appropriate persons. Under California law, some related services, including occupational and physical therapy and mental health services, are provided by other state agencies. [Cal. Gov. Code Secs. 7570-7588.] However, if the other agency does not provide the services, and you can successfully demonstrate to the IEP team or a due process hearing officer that the services are necessary for the student to benefit from his education, the school district is responsible for providing them. Disputes regarding related services are resolved through the fair hearing procedures in the same fashion as disputes about any other part of your child's special education program. See Chapter 2, Information on Related Services, and Chapter 9, Information on Inter-Agency Responsibility for Related Services (AB 3632/882). 10. Q. What Is an "Appropriate" Special Education Program? A. The U.S. Supreme Court issued a decision in the Rowley case which declares that under federal law an "appropriate" educational program and placement is one which provides services to the disabled student sufficient for her to obtain "educational benefit." It does not entitle the student to the "best" possible educational program or a "potential maximizing" education. Specifically, in Rowley the Court was considering a student with disabilities who was mainstreamed in regular classes. For these students, the Rowley court said that educational benefit usually means that the child is making passing grades and is being promoted from grade to grade. For students with disabilities who do not attend classes in regular classrooms or in graded programs, the determination of what is "educational benefit" is still being explored by the courts. Certainly, the plan of instruction and placement should be likely to result in educational progress" not regression or trivial educational advancement. 11. Q. What Does Least Restrictive Environment (LRE) Mean? A. Least Restrictive Environment (LRE) means that: To the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with non-disabled children, and that special classes, separate schooling or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. [34 C.F.R. Sec. 300.550(b)(1) & (2).] State law provides that special education students be provided with "maximum interaction with the general school population" as appropriate. [Cal. Ed. Code Sec. 56005(g).] Further, state policy provides that special education students "should receive their education in chronologically age appropriate environments with non-handicapped peers." [CDE, Office of Special Education, Policy Statement on Least Restrictive Environment (October 10, 1986).] This means, for example, that a 10-year-old student with disabilities should attend public school at a local elementary campus with other non-disabled students of the same age. Depending on the student's individual needs, he could be fully included in a regular classroom with support services, mainstreamed, fully included in a regular classroom with support services, attend a special class or be placed in a combination of both as appropriate. This does not mean that all students must attend school at regular education campuses. Depending on the student's individual needs, as documented by the IEP team, he may need to receive educational programming at a special school, non-public school or residential facility. Innovative and systematic efforts on the part of special and regular educators must be made to promote positive interactions between students with disabilities (severely disabled and learning disabled) and their non-disabled peers. See Chapter 7, Information on Least Restrictive Environment. 12. Q. What Responsibilities Do I Have in Providing Special Education to My Child Who Has a Disability? A. Both federal and state law were designed to give parents a voice in the fundamental decisions regarding provision of special education and related services to their children with disabilities. This includes a responsibility to be knowledgeable and concerned about the child's educational needs and to participate in the procedures set forth in the laws. [34 C.F.R. Sec. 300.345.] When a child has no parent who can be identified or located, or where the child is a ward of the state, the local education agency must assign a surrogate parent to fulfill this role. [34 C.F.R. Sec. 300.514.] 13. Q. How Do I Make a Referral for Special Education Services? A. To refer your child for special education services, write a letter to your child's teacher, principal or special education administrative office. Tell the school district that you are concerned about your child's educational progress. Say that you are making a referral for assessment for special education services. You may also want to let the district know that you are looking forward to receiving an assessment plan within 15 days of the district's receipt of your letter. Keep a copy of this request and any other correspondence with the school district. If you call to make a referral, school district personnel must by law assist you to put your request in writing. If the school district refers your child for special education, it is still critical that you follow up with your own written request. Your written referral will ensure that assessment and IEP time lines will begin. [Cal. Ed. Code Sec. 56029, 56302; 5 Cal. Code Regs. Sec. 3021.] See Sample Letter at the end of this chapter. 14. Q. How Do I Request an Individual Education Plan (IEP) and Assessment for My Child When She Is Already Receiving Services? A. If your child is already receiving special education services, you can request an IEP meeting whenever you think one is needed in order to review or change the IEP. A written request can be made to your child's teacher, principal or special education administrative office. [Cal. Ed. Code Secs. 56343(c) and 56343.5.] You may request additional assessments for your child in the same letter. California law limits the number of IEP meetings that can be held per semester to two. However, federal law has no such restriction. If the district will not grant your request for an IEP meeting, you should inform the school district that federal law should be followed. If the district continues to refuse, see Chapter 6, Information on Due Process Hearings/Compliance Complaints. 15. Q. What Are the Time Lines for the Assessment and IEP Meeting? A. After an initial written referral to special education or a parent's written request for a new or additional assessment of a child already receiving special education, the local education agency has 15 days (not counting days between regular school sessions or terms or days of school vacation in excess of five school days from the date of receipt of the referral) to provide parents with a written proposed assessment plan containing a copy of the notice of parent rights. An assessment plan must be developed within 10 days after commencement of a subsequent regular school year or term for any student who was referred for special education assessment 10 days or less prior to the end of the prior regular school year or term. [Cal. Ed. Code Sec. 56321(a).] Parents have at least 15 days to determine whether they will consent to the proposed assessments. [Cal. Ed. Code Sec. 56321(c).] Starting from the date the local education agency receives the written consent to assessment, the assessment(s) must be completed and the IEP developed at an IEP meeting within 50 days (not counting days between regular school sessions or terms or days of school vacation in excess of five school days from the date of receipt of the referral). [Cal. Ed. Code Sec. 56321(a).] If the initial referral to special education is made 20 days or less prior to the end of the regular school year, an IEP must be developed within 30 days after the commencement of the next school year. [Cal. Ed. Code Sec. 56344.] See Assessment and IEP Time Lines Summary at the end of this chapter. If you are requesting an IEP meeting without the need for new assessments for a child already in special education, the IEP meeting must be held within 30 days (not counting days between school sessions or terms) from the date of receipt of your written request. [Cal. Ed. Code Sec. 56343.5.] 16. Q. What Rights Do I Have in the Assessment and Evaluation Process? A. Among the numerous rules applying to initial evaluations/assessments, and to assessments for revision of an IEP, are: (1) Parental consent must be obtained prior to assessment. [Cal. Ed. Code Sec. 56321(c).] (2) Evaluation is by a multidisciplinary team, and assessment is in all areas related to the child's suspected disability including, where appropriate, vision, hearing, motor abilities, academic abilities, self-help, mobility skills, career and vocational abilities and interest, and social and emotional status. [34 C.F.R. Secs. 300.532(e),(f); Cal. Ed. Code Secs. 56320(e),(f).] (3) Tests must be validated for the specific purpose used and be given by trained personnel. Tests must accurately measure a child's aptitude or achievement and assess specific areas of educational need rather than providing a single IQ and/or reflecting the child's impaired sensory, manual or speaking skills. No single procedure or test is to be used for determining an appropriate educational program for a child. [34 C.F.R. Sec. 300.532(a)(2), (a)(3), (b), (d); Cal. Ed. Code Secs. 56320(b), (c), (d), (e).] (4) The assessments must be given in the student's native language and/or other mode of communication. If this is not feasible an interpreter must be used. [34 C.F.R. Secs. 300.532(a)(1); Cal. Ed. Code Secs. 56320(b)(1); 5 Cal. Code Regs. Secs. 3023.] (5) Testing and evaluation materials must be selected and administered so as not to be racially, culturally or sexually discriminatory. [34 C.F.R. Sec. 300.530; Cal. Ed. Code Sec. 56320(a).] (6) The school must provide the parents a copy of the assessment findings if the parents request one. It is best to request that a copy of the written assessment be sent to you before the IEP meeting so that you can consider the results in planning for the meeting. [Cal. Ed. Code Sec. 56329.] (7) If you disagree with the assessment, you can either challenge it through the fair hearing procedure or obtain an independent assessment. An independent assessment must be considered by the district when it makes any decisions about the student. The district, upon request, must pay for the cost of the private assessment unless it can show, through a hearing which it requests, that the district's assessment was accurate, complete and met the legal requirements described above. [34 C.F.R. Sec. 300.503; Cal. Ed. Code Sec. 56329.] (8) A complete reevaluation must be completed at least every three years and more frequently if requested by either a parent or the student's teacher. Reevaluations in one particular area or evaluation in a new area must also be done at a parent or teacher's request. [34 C.F.R. Sec. 300.534.] See Chapter 2, Information on Evaluations/Assessments. (9) A copy of a notice of parent rights must be attached to the assessment plan. The notice must explain all of the procedural rights of a special education student under federal and state special education law and include information on the procedures for requesting an informal meeting, pre-hearing mediation conference, mediation conference, or due process hearing, the time lines for completing each process, whether the process is optional, and the type of representative who may be invited to participate. [Cal. Ed. Code Sec. 56321(a).] See Chapter 6, Information on Due Process Hearings/Compliance Complaints. 17. Q. What Is an IEP and How Is it Developed? A. An IEP is an Individualized Education Program, which sets forth in writing the educational program for the student. The IEP is developed by a team of people which must include a teacher, a school administrator and a parent. If the IEP meeting is being held following an assessment, a member of the assessment team must participate. Other people who may participate are a therapist, a nurse and anyone else selected by either the parent or the district. [34 C.F.R. Sec. 300.344; Cal. Ed. Code Sec. 56341.] The IEP must include: (1) The student's present levels of educational performance. (2) A statement of annual goals and measurable objectives designed to achieve those goals. (3) The specific special education services to be provided (including, for example, physical education, vocational education, extended school year, instruction in academic or perceptual areas, teacher qualifications, class size, etc.). (4) The specific related services to be provided including the amount of time for each service (for example, occupational therapy twice a week for 45 minutes). (5) The extent to which the student will be able to participate in the regular education program (for example, full inclusion in a regular kindergarten 100% of the time with a full-time instructional aide, integration for lunch, art class daily, science or social studies class, extracurricular activities, etc.). (6) The projected date for initiation and the anticipated duration of the programs and services included in the IEP. (7) Appropriate objective criteria, evaluation procedures and schedules for determining, at least annually, whether the measurable objectives contained in the IEP are being achieved. (8) For students in kindergarten and grades 1 to 6, the IEP must also prevocational career education. (9) For students in grades 7 to 12, the IEP must also include any differential standards which will be used to enable them to graduate, and vocational education, career education, or work experience education, in preparation for remunerative employment, including independent living skill training. (10) For students whose primary language is other than English, the IEP must include linguistically appropriate goals, objectives, programs and services. (11)Extended school year services, when needed. (12) For students 16 years of age or older, the IEP must state the transition services they need. Transition services are "a coordinated set of activities for a student ... which promotes movement from school to post-school activities... The activities shall include instruction, community experiences, the development of employment and other post-school living objectives, and, when appropriate, acquisition of daily living skills and functional vocational evaluation." (13) A description of the type of placement needed to implement the IEP in the least restrictive environment. The school district must ensure that a continuum of alternative placements is available, including instruction in regular classes (with an aide or other adaptations if necessary), special classes, non-public nonsectarian schools, state special schools, residential placement, home instruction, and instruction in hospitals and institutions. [34 C.F.R. Secs. 300.346, 553; Cal. Ed. Code Sec. 56345 and 56345.1.] See Chapter 4, Information on IEP Process. 18. Q. What Rights Do I Have in the IEP Process? A. You should be aware of these basic rights in the IEP process, including the rights to: (1) Receive written notice in your native language of the time, location and participants in the meeting and have the meeting scheduled at a mutually agreed upon time and place. [34 C.F.R. Sec. 300.345(a)(1), (2).] It should be noted that if you refuse to attend a properly scheduled IEP meeting, the local agency may conduct the meeting without you. However, the district must take steps to insure parent participation -- such as conference calls or holding the meetings at after-hours times when you can attend. [34 C.F.R. Sec. 300.345(d).] (2) Attend the meeting and be accompanied by other persons (including a representative, who may be an attorney). [34 C.F.R. Sec. 300.344(a)(3).] When appropriate, the student may also attend and participate. [34 C.F.R. Sec. 300.34(a)(4).] (3) Present information to the IEP team and participate equally in the development of the IEP. [34 C.F.R. Part 300 Appendix C, No. 26. (4) Have language or sign interpreter present if needed for the parent to participate in the meeting. [34 C.F.R. Sec. 300.345.] (5) Obtain a copy of the IEP, on request. [34 C.F.R. Sec. 300.345(f).] (6) Have the IEP reviewed annually, with all the above rights applying. [34 C.F.R. Sec. 300.343(d).] (7) Have the IEP implemented as soon as possible, which is interpreted to mean immediately except where legitimate circumstances require a short delay. [34 C.F.R. Secs. 300.342, 300.346(d), and 300 App. 4 C No. 4; 5 Cal. Code Regs. Sec. 3040.] See Chapter 4, Information on IEP Process. 19. Q. What Happens If I Don't Agree with All or Part of the IEP? What Are My Options? A. Under California law, a student with disabilities is not allowed to participate in any part of a special education program without written parental consent to the IEP. If you do not agree with an IEP, you can refuse to sign it altogether, or you can consent only to the parts with which you agree and specifically state your disagreement with other parts. In the latter case, only those components of the IEP to which you have consented will be implemented. Any parts of the IEP to which you have not consented may become the basis for a Due Process Fair Hearing. [Cal. Ed. Code Sec. 56346.] In addition to a due process fair hearing, several other dispute resolution mechanisms exist but are at your option. See Chapter 6, Information on Due Process Hearings/Compliance Complaints. Federal law makes it clear that the local agency may initiate a Due Process Hearing to attempt to override your consent to initial placement. State law provides the local agency the same option with respect to portions of the IEP to which you have not consented. [34 C.F.R. Sec. 300.506(a); Cal. Ed. Code Sec. 56501(a).] 20. Q. I Agreed with the IEP When it Was Written, but I No Longer Think it Is Appropriate. What Can I Do? A. If you are convinced your child's IEP is no longer appropriate, you can request a new IEP meeting. In particularly serious cases, you have the option under federal law of revoking your consent to the IEP. [34 C.F.R. Sec. 300.500.] It is unclear, however, if revocation of consent after implementation of the new IEP will result in implementation of the previous IEP. See Chapter 4, Information on IEP Process, Question and Answer 24. 21. Q. I've Been to the IEP Meeting, but the School and I Cannot Agree on the Special Education, Related Services or Placement My Child Needs. How Can I Resolve this Difference of Opinion? A. If you have reached the point where further negotiation is fruitless and you believe the local agency is not providing your child a free appropriate public education, you may file for a Due Process Fair Hearing. [Cal. Ed. Code Secs. 56501 and 56502.] Common examples of this situation are the school district's refusal to include an important service in the IEP or a placement for your child where he can be integrated with non-disabled students. To request a hearing write to the address below and send a copy to your child's school district. Special Education Hearing Office (SEHO), Institute for Administrative Justice, McGeorge School of Law, 3200 Fifth Avenue, Sacramento, CA 95817, Telephone: (916) 739-7053 In addition to a due process fair hearing, several other dispute resolution mechanisms exist but are at your option. See Chapter 6, Information on Due Process Hearings/Compliance Complaints. 22. Q. What Happens to My Child If I File for a Due Process Hearing? A. Under federal law, your child will remain in her current educational placement and have her current IEP fully implemented (including all related services) from the time you request a hearing until the Due Process Hearing proceedings (and judicial proceedings, if any) are completed. This "status quo" can be altered only if you and the local education agency agree to a change in placement or services. [20 U.S.C. Sec. 1415(e)(3); 34 C.F.R. Sec. 300.315; Cal. Ed. Code Sec. 56505(d).] This is not true, however, if you elect to utilize one of the optional dispute resolution mechanisms described more fully in Chapter 6, Information on Due Process Hearings/Compliance Complaints. If you are very dissatisfied with the school district program or services, you may choose unilaterally to place your child in a non-public school or to purchase additional services. Should the hearing officer (or a court) later determine that such placement or services are appropriate, the district will be responsible for reimbursing you for the cost of the placement or services. 23. Q. What Rights Do I Have in the Hearing Process? A. It is important to note that parents have many rights in the hearing process, including the right to: (1) Be informed of available free or low-cost legal services. [Cal Ed. Code Sec. 56502(a).] (2) After filing for a due process hearing, and as long as both parties agree, attend a Mediation Conference, which is an informal meeting held between the parent, district and a state mediator in an attempt to negotiate a resolution to the dispute. During the time of this mediation process, the student is entitled to remain in his current school placement and an attorney may represent any of the parties to the mediation. [Cal. Ed. Code Sec. 56501(b)(2) and 56503.] The parents and district may also participate in a mediation session before filing for a due process hearing. [See Cal. Ed. Code Sec. 56500.3]. At this mediation, however, no attorneys or other independent contractor legal advocates may participate on behalf of any party. And, because this mediation process takes place before filing for a due process hearing, the district may not believe it is obligated to maintain the student in his current educational placement. (3) Have the hearing held at a time and place reasonably convenient to the parent and child. [Cal. Ed. Code Sec. 56505(b).] Continuances can be obtained upon a showing of good cause. [Cal. Ed. Code Sec. 56505(g).] The parent also has the rights to have the child attend the hearing and to have the hearing open or closed to the public, if desired. [34 C.F.R. Sec. 300.508; Cal. Ed. Code Sec. 56501(b).] (4) Have the hearing conducted by an impartial Hearing Officer. [34 C.F.R. Sec. 300.507; Cal. Ed. Code Sec. 56505(c).] (5) Be represented by an attorney or advocate. [34 C.F.R. Sec. 300.508(a)(1).] If either party uses an attorney, that party must notify the other party in writing 10 days before the hearing. [Cal. Ed. Code Sec. 56507.] (6) Present evidence and written and oral arguments; confront, cross-examine and compel the attendance of witnesses; and, obtain a written or electronic verbatim record of the hearing. [Cal. Ed. Code Sec. 56505(e); 34 C.F.R. Sec. 300.508(a)(2).] (7) Prohibit the introduction at the hearing of any evidence which has not been disclosed at least 5 days before the hearing. [Cal. Ed. Code Sec. 56505(e)(6).] (8) Obtain a written, reasoned decision containing findings of fact. The completed decision must be mailed to all parties within 45 days after the request for the hearing is received. [Cal. Ed. Code Sec. 56505(g); 34 C.F.R. Sec. 300.508(a)(5).] If you are successful at the due process hearing or in court, and you were represented by an attorney, the attorney's fees and the costs of pursuing the case may have to be paid by the public education agency. [U.S.C. Sec. 1415(e).] The Due Process Hearing Decision is the final administrative determination, and is binding on both sides. [Cal. Ed. Code Sec. 56505(h).] A party who disagrees with the hearing decision can bring an action in state or federal court seeking review of the decision. The action in state or federal court seeking review of the decision must be filed within 90 days of the date of receipt of the decision. [34 C.F.R. Sec. 300.511; Cal. Ed. Code Sec. 56505(i).] See Chapter 6, Information on Due Process Hearings/ Compliance Complaints. 24. Q. I Think the Local Education Agency Is Violating Special Education Law. What Can I Do? A. If you believe the local agency has not followed the terms of an IEP or has violated special education laws, or has discriminated and the student is at risk of suffering some immediate loss of benefit as a result of the discrimination, you may file a complaint with the State Special Education Compliance Office. [5 Cal. Code Regs. Sec. 4600 and following.] Some complaints may be filed first with the local education agency and some will be referred to back to the local education agency by the State Compliance Office, but most issues arising under special education and IEP implementation may be filed directly with the State. [5 Cal. Code of Regs. Sec. 4650.] The complaint procedure is covered in greater depth in Chapter 6, Information on Due Process Hearings/Compliance Complaints. To file a complaint, write to the following address and send a copy to your school district. Program Assistance Complaint Resolution Unit, California Department of Education, State of California, P.O. Box 944272, Sacramento, CA 94244-2720 25. Q. Does My Child Have the Right to Participate in Non-academic and Extracurricular Activities Offered at His School? A. Yes. School districts must take steps to provide nonacademic and extracurricular services and activities in such manner as is necessary to afford children with disabilities an equal opportunity for participation. [34 C.F.R. Sec. 300.306(a).] Such activities include athletics, recreational activities, special interest groups or clubs and employment of students, including employment by the school and assistance in making outside employment available. [34 C.F.R. Sec. 300.306(b).] In addition, in arranging for the provision of such services, lunch and recess, the school district shall ensure that children with disabilities participate with non-disabled children to the maximum extent appropriate. [34 C.F.R. Sec. 300.553.] 26. Q. How Do I Find Out If My Child Is Entitled to an Extended School Year or Summer School Program? A. Special education and related services shall be provided on an extended year basis for students with disabilities whose unique needs require services in excess of the regular academic year. The IEP team makes the determination of whether a child needs such a program and should consider as factors whether the child's disabilities are likely to continue indefinitely or for a prolonged period, or if interruption of her educational programming may cause regression and, coupled with limited recoupment capacity, render it impossible or unlikely that she will attain the level of self-sufficiency and independence that would otherwise be expected in view of her disabling condition. The lack of clear evidence of such factors may not be used to deny extended year services if the IEP team determines the need for an extended year program and includes the services in an IEP. The special education and related services offered during the extended year must be comparable in standards, scope and quality to the program offered during the regular academic year. If the IEP team recommends extended year services, the recommendation should be written into the IEP. [5 Cal. Code Regs. Sec. 3043.] 27. Q. Can I See the Records That the School Keeps on My Child? A. Yes. You or your child's representative have the right to inspect, review and get copies of all education records relating to your child which are collected, maintained or used by the local agency [Cal. Ed. Code Sec. 49069.]. For most special education students, school districts keep both a special education file and a cumulative file (general regular education information). You have the right to have access to both these files. You may need to remind your district to provide all educational records concerning your child to you no matter where they are located. See Sample Letter at the end of this chapter. In addition, the local agency must: explain and interpret records on request; and provide you the opportunity to request correction or removal of information in the record you believe to be inaccurate, misleading, an unsubstantiated personal conclusion or inference, a conclusion or inference outside the observer's scope area of competence, not based on the personal observation of a named person with the time and place of the observation noted, or in violation of the privacy or other rights of your child. [Cal Ed. Code Sec. 49070(a).] Under state law, the local agency must provide you with access to records, and copies as requested, within 5 days after written or oral request. [Cal. Ed. Code Sec. 49069.] The local agency can charge you at most the actual cost of copying the records, but must provide the copies for free if the cost "effectively prevents the parent from exercising the right to receive such copies." [34 C.F.R. Secs. 300.560 and following; Cal. Ed. Code Secs. 49065, 56504.] 28. Q. How Do I Correct Or Remove Information Contained In My Child's Records? A. To correct or remove information contained in your child's records, you can file a written request with the superintendent of the school district. Within 30 days of the request, the superintendent will meet with you and the school staff who recorded the disputed information, and either grant or deny your request. If your request is denied, you have 30 days in which to appeal the denial in writing to the governing board of the school district. When your request or appeal is denied you have the right to submit a written statement of your objections to the information. The statement will become part of your child's record until the information is corrected or removed. [Cal. Ed. Code Sec. 49070(b-d).] An alternative way to correct or remove information from your child's records is to file for a due process hearing. [34 C.F.R. 300.567.] 29. Q. Under What Circumstances May My Child Attend School In A School District Other Than My District Of Residence? A. There are three circumstances where an inter-district transfer may occur: (1) If your district does not have an appropriate placement for implementation of the IEP, it may contract with a neighboring district to enroll your child in a special education program. The receiving district is not obligated to accept your child. Both districts must agree on funding allocations, transportation, etc. [Cal. Ed. Code Sec. 56170.] These inter-district agreements usually allow the receiving district to terminate the enrollment at the district's own discretion. (2) The parent of an elementary school child may elect to have the child enrolled in the district where either parent's employment is located. [Cal. Ed. Code Sec. 48204.] However, the district of employment may refuse to enroll the child if the additional cost of educating the child exceeds the amount of additional state aid received as a result of the transfer. This provision could form the basis for refusal of a special education child. (3) Any district may elect to accept non-resident students. This "receiving" district, however, will not be required to create new programs for these students. Admission of non-resident students must be a random, unbiased process that gives no consideration to academic or athletic skills. There is no limit to the number of non-resident students the district can elect to accept, but under no circumstances may resident students be displaced. Generally, the district of residence has no right to prohibit the transfer. [Cal. Ed. Code Secs. 48209 and 48980.] If an inter-district transfer is made under (2) or (3) above, transportation will be a parental responsibility. Under any of the three options described above, the student's placement and right to any upgrade of service is not as secure as in the district of residence. 30. Q. What Happens to My Child's Special Education Program If We Move from One School District to Another? A. Whenever a child transfers out of one school district into another that does not operate under the same local plan, the new school district must immediately provide an interim placement, to last not more than 30 days. Unless you agree otherwise, the interim placement must conform to an IEP -- either the existing IEP implemented to the extent possible in the new district or a new IEP. Within 30 days after the interim placement was made, the IEP team must review the interim placement and make a final recommendation. The IEP team may use the records and reports from the old school district in making its recommendation. [Cal. Ed. Code Sec. 56325.] 31. Q. What Happens to My Child's Special Education Program If He Is Placed in a Group or Foster Home Located in Another School District? A. In order to encourage communication and planning, before placing a child with a disability in a group home or other residential facility, the placing agency (such as a regional center for the developmentally disabled, the Department of Social Services or a court) must notify the administrator of the special education local plan area in which the group home is located. The administrator must provide the placing agency with information about the availability of an appropriate special education program in the area. [Cal. Gov. Code Sec. 7579.] Thereafter, the receiving school district is responsible for providing your child's special education program. See Question 28. 32. Q. Which District Is Responsible For My Child's Education Program If She is Placed in a Public Hospital, Psychiatric Hospital or Other Residential Medical Facility? A. Individuals with exceptional needs who are placed in a public hospital, state licensed children's hospital, psychiatric hospital, proprietary hospital or a health facility for medical purposes are the educational responsibility of the district, special education local plan area (SELPA), or county office of education in which the hospital or facility is located. [Cal. Ed. Code Sec. 56167.] 33. Q. What Happens to My Child's Special Education Program If He Is Being Discharged from a State Developmental Center (SDC) a State Mental Hospital or a Medical Hospital? A. At least ten days prior to the discharge of a child who has had an active IEP from an SDC, mental hospital or medical hospital, the operator of the facility must give notice of the discharge, in writing, to the receiving special education local plan area. In addition, the operator must provide the special education local plan area with information useful in implementing your child's IEP, including a copy of the IEP and the name of the child's representative for educational and placement issues. It is the responsibility of the receiving school district to ensure that your child receives an appropriate educational placement that starts without delay upon her discharge. [Cal. Gov. Code Sec. 7579.1.] 34. Q. Under What Circumstances Could My Child Be Suspended or Expelled from School? A. The law governing suspension and expulsion of students with disabilities has undergone substantial changes in recent years. Students with disabilities are treated the same as non-disabled students in most suspension cases. Students may be suspended for up to five school days if they violate certain provisions of the Education Code. The district must give you written notice of the suspension. The district must also give you and/or your child the right to contest the evidence of the misconduct and the appropriateness of the suspension at a meeting with school officials. Students with disabilities may be suspended for up to ten days by the governing board of the school district if their presence at school would be dangerous. Students with disabilities cannot be expelled from school for misconduct that is directly related to their disability or if it is determined by the IEP team that the student was not appropriately placed at the time of the misconduct. [Cal. Ed. Code Sec. 48915.5; Doe v. Maher, Education for the Handicapped Law Reporter (EHLR) 557:353, 359-60.] Because expulsion is a significant change in placement, prior to expelling a student with disabilities from school, the district must follow certain procedures including notice, assessment of the student and convening an IEP team meeting to determine if the misconduct is related to the student's disability. In analyzing whether the misconduct is related to the student's disability, the analysis cannot be limited to the student's "identified" disability as Cal. Ed. Code Sec. 48915.5(a)(2) indicates. A federal appellate case in California calls into question the validity of that portion of the state statute when compared with federal law. [See Hacienda La Puente Unified School District of Los Angeles v. Honig, 976 F.2d 487 (9th Cir., 1992).] In that case, the school district had failed to identify all of the child's conditions and was attempting to expel the child because her misbehavior was not related to the condition the district had identified the child as having. If you or your child disagree with the IEP team decision, regarding relationship of the misconduct to the child's disability or the appropriateness of the placement at the time of the misconduct, you have a right to appeal the decision. During the pendency of the appeal, your child must remain in her current placement unless you consent to a change in placement or the district obtains a Court order which allows the placement to be changed. If it is properly determined that the misconduct is not related to all the student's actual disabilities, and that the student was appropriately placed at the time of the misconduct, she is treated the same as a student without any disability -- regular expulsion proceedings may be initiated. [Doe v. Maher, EHLR 557:353, 360.] See Chapter 8, Information on Discipline of Students with Disabilities. 35. Q. Under What Circumstances Can My Child Graduate with His Non-disabled Peers? A. School districts are required to adopt differential proficiency standards for students enrolled in special education and unable to meet the regular graduation requirements. The IEP team must develop or modify these standards and include them in the IEP document. [Cal. Ed. Code Sec. 51215.] Special education students who meet the differential standards provided for by state law should be permitted to participate in graduation ceremonies and receive diplomas. A district's refusal to allow a student to participate in graduation or receive a diploma would be a violation of state law and Section 504 of the Rehabilitation Act of 1973. Even if a special education student did not or could not meet differential proficiency standards, he could participate in graduation ceremonies as part of the mainstreaming requirement if specified in the IEP. The student would not, however, be allowed to receive a diploma or certificate under state law. [Cal. Ed. Code Sec. 51412.] 36. Q. What Can I Do If a Teacher or Other School Staff Person Hurts My Child? A. If a child or group of children has been hurt, mistreated verbally and/or emotionally, or is in immediate physical danger, or the health, safety or welfare of a child or group of children is threatened, you may file a complaint with the CDE under the Uniform Complaint Procedure [5 Cal. Code Regs. Secs. 4600 and following]. The CDE must investigate your complaint. [5 Cal. Code Regs. Secs. 4611(a) and 4650(a)(viii)(C).] See questions and answers regarding Compliance Complaints in Chapter 6, Information on Due Process Hearings/Compliance Complaints. 37. Q. What Rights Do I Have If English Is Not My First Language Or I Do Not Speak Any English? A. Families who do not speak or write English as their primary language have the right to participate fully in special education proceedings. These rights include: (1) Receive written notice in your native language of the time, location, and participants in the IEP meeting and have an interpreter present to enable you to participate fully in the IEP meeting. [34 C.F.R. Sec. 300.345.] (2) Obtain copies of assessment plans, notices of parents' rights explaining the procedural rights of special education students, and copies of the IEP, upon request, translated into your native language. [34 C.F.R. Sec. 300.345(f); Cal. Ed. Code Sec. 56321(a).] (3) The right to obtain an independent evaluation at public expense when the assessment conducted by the school district is incomplete or inappropriate (such as an assessment completed without an interpreter). [34 C.F.R. Sec. 300.503, Cal. Ed. Code Sec. 56329(b).] (4) The right to have an interpreter present at mediation and a fair hearing. [5 Cal. Code Regs. Sec. 3082(d).] (5) Upon request, receive written information in your native language regarding the procedures for filing a complaint with local child protective agencies against a school employee or other person that commits an act of child abuse against your child at his school site. If oral information is to be given, an interpreter must be provided. [Cal. Ed. Code Sec. 48987.] 38. Q. What Rights Do I Have If English Is Not My Child's First Language Or If She Does Not Speak Any English? A. Your rights include: (1) Assessments of your child's abilities and needs must be in her native language. If this is not possible, an interpreter must be provided. The need for an interpreter does not mean completion of the assessments can be delayed. [34 C.F.R. Sec. 300.532(a)(1); Cal. Ed. Code Sec. 56320(b)(1); 5 Cal. Code Regs. Sec.3023.] (2) Testing and evaluation materials must be selected and administered so as not to be racially, culturally or sexually discriminatory. [34 C.F.R. Sec. 300.530; Cal. Ed. Code Sec. 56320(a).] (3) For students whose primary language is other than English, the IEP must include linguistically appropriate goals, objectives, programs and services. The school district must provide special help through a trained teacher to assist your child to learn English to the extent appropriate given her disability and must provide special assistance to help your child meet her IEP goals even if she does not speak sufficient English to understand everything her classmates do. This help must continue until your child no longer has a barrier due to her English language skills. [5 Cal. Code Regs. Sec. 2001(p); Cal. Ed. Code Sec. 56345(b)(4); 20 U.S.C. Sec. 703(f).] (4) For students whose primary language is other than English, linguistically appropriate services includes bilingual instruction. Bilingual instructional services can be provided by both special education and bilingual education staff, as appropriate. The coordination of bilingual instructional services should be described specifically and included in the students IEP. 39. Q. Are My Child's Rights To A Free, Appropriate Education Affected If He Is Undocumented? A. No. All children in the united states have the right to a free public school education in the school district in which they live. If your child has a disability as discussed in these materials, then he is entitled to special education services. Immigrant children do not need a green card, visa, passport, social security number or any other proof of citizenship or immigration status in order to register for school. You do not have to and should not check with ins before sending your child to school. It is illegal for a school to require you to do so. It is also important that only those children who are in need of special education receive it. Categorizing children whose English in incomplete or who have a different culture as "retarded" or "mentally disabled" has been a common problem in the united states. As discussed above, there are laws that require testing for a disability to take language and culture into consideration. 40. Q. My Child's Behavior Problems Are a Major Obstacle to Her Education. Is There Anything the School District Must Do to Address My Child's Behavioral Needs? A. Yes. In May of 1993, the CDE issued new regulations which require school districts to assess special education students who demonstrate serious behavior problems and to then develop and implement a positive behavior intervention plan for each such student. The plan becomes part of the student's IEP, has its own set of goals and objectives for replacement of targeted maladaptive behaviors with socially acceptable alternative behaviors, and is reviewed regularly for its effectiveness. A serious behavior problem is one which is assaultive, self-injurious, or causes serious property damage, or which is otherwise severe, pervasive, and maladaptive and has not been effectively addressed with instructional/behavioral approaches specified in the IEP. The assessment, behavior intervention plan development, implementation, and monitoring must be done by personnel trained in behavior analysis with an emphasis on positive behavior intervention. The behavior interventions used by the district must be those which respect the student's dignity and privacy, assure his/her physical freedom, social interaction, and individual choice, help the student learn to interact effectively socially, assure the student's access to education in the least restrictive environment, and result in lasting positive behavioral change. The behavior interventions used by the district may never be used simply to eliminate maladaptive behaviors; behavior interventions may only be used to replace maladaptive behaviors with alternative acceptable behaviors. In addition, the behavior interventions used by the district cannot involve the infliction of pain or trauma and cannot include verbal abuse, ridicule, humiliation, or the infliction of emotional trauma. Moreover, these behavior interventions cannot include denial of adequate sleep, food, water, shelter, bedding, comfort, or access to bathroom facilities. Nor can they include impediments to adequate supervision of the student. Also specifically prohibited are interventions which involve locked seclusion, toxic or unpleasant sprays or mists released in or near the student's face, deprivation of one or more of the student's senses, and any device, material or object which simultaneously immobilizes all four extremities (except that in unanticipated emergency situations, prone containment may be used by trained staff for only that period of time necessary to abate the emergency). [See generally 5 Cal. Code Regs. Secs. 3001(c)-(f),(y) and 3052.] For more information on positive behavior intervention regulations, see Chapter 5, Information on Related Services, and Chapter 8, Information on Discipline of Students with Disabilities. ----------------------------------------------------------------- Sample Letter - Referral for Special Education Ms. Bev Blue, Address, City, State, Zip Code, Telephone Number Date Mr. Gary Green Director of Special Education Local Unified School District Address City, State, Zip Code Dear Mr. Green: I am the parent of John Blue, who is currently enrolled at the Regular Elementary School in the fifth grade. My child has not been doing well in school and I am concerned about his educational progress. I am writing to make a referral for assessment for special education services for John. He may be eligible for special education assistance. I am requesting that John be given a comprehensive assessment by the school district and that an IEP meeting be scheduled for him. [Optional: As part of the assessment process, I also request that my child be assessed under Section 504 of the Rehabilitation Act of 1973 to determine whether he should be identified as "handicapped" pursuant to that law and to determine what, if any, accommodations might be required in his educational program in the event that he does not qualify for special education services or in addition to special education services. This is also to request that the Unified School District's Section 504 Coordinator be present at the IEP meeting to discuss the results and recommendations of the Section 504 assessment.] I look forward to receiving an assessment plan within 15 days. If you have any questions, please feel free to contact me. Thank you for your cooperation and assistance. Sincerely, Bev Blue ----------------------------------------------------------------- Sample Letter - Request for Records Ms. Bev Blue, Address, City, State, Zip Code, Telephone Number Date Mr. Gary Green Director of Special Education Local Unified School District Address City, State, Zip Code Dear Mr. Green: I am the parent of John Blue, who is currently enrolled at the Regular Elementary School in the fifth grade. An IEP meeting has been scheduled for John on June 8. I would like to arrange a time to review my son's educational records (both his special education file and cumulative file) at his school within the next five days. I would like to make copies of some of his records at that time. OR I am writing to request that you provide copies of John's educational records for my review within the next five days. I would like copies of both his cumulative file and his special education file. I cannot afford to pay for the copies of his records. I will call you soon to make arrangements for my school visit. (OR - Please send the records to my home address.) Thank you for your cooperation. Sincerely, Bev Blue ----------------------------------------------------------------- Time Lines for Assessment and IEP Child Referred for Assessment "Referral for assessment" means any written request for assessment to identify an individual with exceptional needs made by a parent, teacher, or other service provider. Within 15 Calendar Days(1) District must Give Parent Proposed Assessment Plan The proposed assessment plan given to parents shall meet all the following requirements: 1. Be in language easily understood by the general public. 2. Be provided in the primary language of the parent or other mode of communication used by the parent, unless to do so is clearly not feasible. 3. Explain each type of assessment instrument to be administered, the purpose of the instrument, and the professional personnel responsible for the administration and interpretation of the instrument. 4. Fully explain the facts which make an assessment necessary or desirable. 5. State that no educational placement will result from the assessment without the consent of the parent. 6. Include a copy of the notice of parent rights which includes an explanation of all of the procedural safeguards of state and federal special education law and of any optional dispute resolution procedures under state law. Parent must Give Written Consent to Conduct Assessments: Parent Has 15 Calendar Days to Arrive at a Decision Written parental consent shall be obtained before any assessment of the student is conducted unless the public education agency prevails in a due process hearing relating to such assessment. The parent shall have at least 15 days from the receipt of the proposed assessment plan to arrive at a decision. Assessment may begin immediately upon receipt of such consent. Assessment Completed and IEP Developed(2) Within 50 Calendar Days of Receipt of Parent's Written Consent for Assessment It Is Expected That a Student's IEP Will Be Implemented Immediately Following the IEP Meeting Exceptions to the 50-day time limit would be (1) when the meetings occur during the summer or a vacation period, or (2) where there are circumstances which require a short delay (for example, working out transportation arrangements). However, there can be no undue delay in providing special education and related services to the child. If a parent does not consent to all the components of the IEP, then those components of the program to which the parent has consented shall be implemented so not to delay providing special education and related services to the child.. [Cal. Ed. Code Sec. 56346(a).] If the public education agency determines that the part of the proposed IEP to which the parent does not consent is necessary to provide a free and appropriate education to the child, they shall initiate a mediation conference or a due process hearing. While the mediation conference or due process hearing is pending, the child shall remain in his or her then-current placement, unless the parent and public education agency agree otherwise. [Cal Ed. Code Sec. 56346(b).] ----------------------------------------------------------------- 1. The 15 calendar days do not include days between the pupil's regular school sessions or terms or days of school vacation in excess of five school days from the date of receipt of the referral. If a referral is made 10 days or less before the end of the regular school year or term, the school district must develop an assessment plan within 10 days after the next school year or term begins. [Cal. Ed. Code Sec. 56321.] 2. An individualized education program shall be developed within a total time not to exceed 50 days, not counting days between school sessions or terms or days of school vacation in excess of five schooldays, from the date of receipt of the parent's written consent for assessment, unless the parent agrees, in writing, to an extension. However, an individualized education program shall be developed within 30 days after the commencement of the subsequent regular school year for each student for whom a referral has been made 20 days or less prior to the end of the previous regular school year. In the situation of an initial referral to special education made 20 days or less prior to the end of the regular school year, the law does not begin counting the 50 days for assessment and development of the IEP from the date of receipt of the parent's signed assessment plan but rather from the earlier date of the initial referral of the pupil to special education. [Cal. Ed. Code Sec. 56344.] ---------- Chapter 2 Information on Evaluations/assessments TABLE OF CONTENTS Question 1. Q. How Can I Get the School District to Evaluate or Assess My Child? 2. Q. How Long Will it Take for the District to Complete My Child's Assessment? 3. Q. My Child's School Is on a Year-round Schedule, but I Was Told That They Didn't Have to Test My Child in July or August. Is That True? 4. Q. My Child's School Is on a Traditional School Calendar (September Through June). Does the District Have to Assess During July and August? 5. Q. Does My Child Have to Be Referred to the Student Study Team Before Assessment for Special Education? 6. Q. My Child Has Been Referred for Special Education, and I Received an Assessment Plan with a Long List of Tests That Might Be Administered. Shouldn't the District Be More Specific? 7. Q. How Can I Contribute to the Assessment Process? 8. Q. What Questions Should I Ask When My Child Is Scheduled for an Assessment? 9. Q. What Should an Assessment Cover? 10. Q. Can I Ask for Very Specific Kinds of Assessments -- Such as a Neurological Examination or a Non-oral Assessment? What If the District Does Not Have Appropriate Trained Personnel to Do the Testing? 11. Q. How Can I Ensure That the Assessment Covers Emotional and Behavioral Areas? 12. Q. I Believe That My Child Has a Learning Disability. Does the School Have to Do Anything Different When Assessing for a Specific Learning Disability? 13. Q. Are There Documents Which I May Have that Would Help in the Assessment Process? 14. Q. How Can I Explain to My Child Why She Is Being Assessed? 15. Q. How Can I Prepare My Child for Assessment? 16. Q. What Are the Requirements for Assessment Tests? 17. Q. Who Conducts the Assessment? 18. Q. Does the Assessment Have to Be Provided in My Child's Primary Language? 19. Q. What Are the Most Common Tests Used in the Assessment of a Child with Suspected Learning Disabilities? 20. Q. Are There Public Education Facilities Outside of the Local Education Agency Which Can Assess My Child? 21. Q. How Much Detail Should Be Included in My Child's Written Assessment? 22. Q. Can I Get Copies of Written Assessment Reports Before the IEP? 23. Q. Are Formal Tests the Only Kinds of Assessment Data The IEP Team Can Use? 24. Q. What If I Disagree with an Evaluation Performed by the School? Can I Get an Independent Evaluation from Someone Who Is Qualified but Is Not Employed by the School? 25. Q. Is There Any Other Way to Obtain an Independent Evaluation If the District Refuses to Provide One and I Am Unable to Pay for One? 26. Q. How Often must Assessments Be Completed? 27. Q. What Recourse Do I Have If I Believe That a Psychological Assessment Is Done Superficially Just to Meet the Legal Mandate That it Be Done Every Three Years? 28. Q. My Child Is Temporarily Placed in a Psychiatric Hospital that Is Located in Another County. Who is Responsible for Conducting a Special Education Assessment or Re-evaluation? 29. Q. Is a Doctor The Only Professional Who Can Provide an ADD/ADHD Diagnosis as Part of the Special Education Assessment Process? 30. Q. If the School District Requires a Doctor's Diagnosis of ADD/ADHD as a Condition of Special Education Eligibility, Who Pays for the Doctor's Diagnosis? 31. Q. What Is the Assessment Process for Section 504? Is it the Same as the Special Education Assessment Process? 32. Q. If I Request an Assessment for Section 504 Eligibility, Does the School District Have to Assess My Child to Determine His Eligibility for Accommodations and/or Service? Sample Letter - Request for Assessment Sample Letter - Independent Evaluation Notification Patterns to Look for Learning Processes: A Diagnostic Framework, Copyright (c) 1994 Martha Lewis S P E C I A L E D U C A T I O N R I G H T S A N D R E S P O N S I B I L I T I E S Chapter 2 Information on Evaluations/assessments 1. Q. How Can I Get the School District to Evaluate or Assess My Child? A. Contact your local school administrator (for example, the principal or special education program consultant). Outline your areas of concern about your child's suspected disability and request an evaluation. Follow up with a written, dated request in order to document time lines. Once the school district receives your written request for assessment, the assessment process must begin. [California Education Code (Cal. Ed. Code) Secs. 56029, 56302, and 56321(a); 5 California Code of Regulations (Cal. Code Regs.) Sec. 3021.] School district personnel must help you put your request in writing. See Sample Letter at the end of this chapter. 2. Q. How Long Will it Take for the District to Complete My Child's Assessment? A. By state law, your school district must give you an assessment plan within 15 days of their receipt of your written referral for special education services. [Cal. Ed. Code Sec. 56321(a).] The assessment plan shall: (1) Be in language easily understood by the general public. (2) Be provided in the primary language of the parent or other mode of communication used by the parent, unless to do so is clearly not feasible. (3) Explain the types of assessments to be conducted. (4) State that no individualized education program will result from the assessment without the consent of the parent. [Cal. Ed. Code Sec. 56321(b).] (5) Include a description of any recent assessments conducted (including independent assessments and assessment information the parent requests to be considered). (6) Include information stating the student's primary language and proficiency in that language. [5 Cal. Code Regs. Sec. 3022.] (7) Include a copy of the notice of parent rights which includes an explanation of all of the procedural safeguards under state and federal special education law and a description of any optional dispute resolution mechanisms available under state law. You have at least 15 days to respond to or approve the assessment plan. [Cal. Ed. Code Sec. 56321; see Question 3 below.] Once the district has received the signed assessment plan, the district has 50 days (excluding days of school vacation in excess of five and days that school is not in session) in which to complete the assessment and develop an Individual Education Plan (IEP). [Cal. Ed. Code Sec. 56344.] 3. Q. My Child's School Is on a Year-round Schedule, but I Was Told That They Didn't Have to Test My Child in July or August. Is That True? A. An IEP must be developed as the result of an assessment within 50 days from the date the district receives your written consent for assessment (not counting days of school vacation in excess of five and days between regular school sessions). However, assessments must be completed and an IEP developed within 30 days after the subsequent regular school year begins (as determined by each district's school calendar) for any student for whom a referral to special education was made 20 days or less prior to the end of the prior regular school year. [Cal. Ed. Code Sec. 56344.] This exception would vary according to actual time between sessions -- not strictly by the calendar. If the year-round schedule has three weeks between sessions, only 15 days would be added to the time lines, so testing might be needed in July or August. 4. Q. My Child's School Is on a Traditional School Calendar (September Through June). Does the District Have to Assess During July and August? A. Based on the answer given to Question 3 above, it appears that the district is not required to assess a child from the end of the spring term until the beginning of the fall term because that is the period of time "between regular school sessions." [Cal. Ed. Code Sec. 56344.] However, the term "regular school sessions" is not defined in law, so it could be argued that summer school is a "regular school session", during which assessment is required. Districts uniformly maintain that assessments are not required during the summer in traditional calendar schools. 5. Q. Does My Child Have to Be Referred to the Student Study Team Before Assessment for Special Education? A. No. A written request for assessment will initiate the assessment process and time lines regardless of the student study team process. However, before referring the student for special education, the school district must consider and utilize, where appropriate, the resources of the regular education program. One way the district can ensure that it has considered regular education modifications and support is by having the student study team review your child's case. If you have requested a special education assessment, your child's study team referral cannot delay the assessment and IEP time lines without your consent. [Cal. Ed. Code Sec. 56303, 56321(a).] 6. Q. My Child Has Been Referred for Special Education, and I Received an Assessment Plan with a Long List of Tests That Might Be Administered. Shouldn't the District Be More Specific? A. Prior to conducting any assessment, the district must provide you with an assessment plan. The assessment plan must include the type of assessments to be conducted. Frequently, several tests will be listed in each area to be assessed because the evaluator may have to determine which tests are most appropriate during the actual assessment as the evaluator gets to know your child better. If you do not understand the type of assessments that are being used, you should ask for clarification. If you believe that certain test instruments are not appropriate for your child, you can request that those instruments not be used and not sign the consent for assessment until you and the district reach agreement on the assessments to be used. [34 C.F.R. Sec. 300-500, Cal. Ed. Code Sec. 56321.] 7. Q. How Can I Contribute to the Assessment Process? A. As a parent, you know your child best. You can contribute by observing your child at home, noting the areas of educational concern to you, writing them down, and pointing out those areas to school personnel. See Patterns to Look For, later in this chapter. After you receive the assessment plan, you should review it carefully to determine whether you want additional information about the proposed assessments and/or want to request additional areas that need assessment. No assessment may be done without your written approval unless the district seeks and wins a due process hearing to compel assessment. [Cal. Ed. Code Secs. 56321(c), 56506.] 8. Q. What Questions Should I Ask When My Child Is Scheduled for an Assessment? A. You may ask about any areas of the assessment that concern you. Specifically, you may want to know who or how many people will be working with your child during the assessment. How long will the assessment last? How many times will your child be seen? Can you be present during the assessment? In addition, you should ask the school district to explain the assessments to be given to your child if you do not understand why the assessments will be administered. The school district should explain any tests that are to be given to your child. 9. Q. What Should an Assessment Cover? A. The student is to be assessed in all areas related to the suspected disability including, where appropriate, health and development, vision (including low vision), hearing, motor abilities, language function, general ability, academic performance, self-help, orientation and mobility skills, career and vocational abilities and interest, and social and emotional status. A developmental history is obtained, when appropriate. [34 C.F.R. Sec. 300.532(f); Cal. Ed. Code Sec. 56320(f).] 10. Q. Can I Ask for Very Specific Kinds of Assessments -- Such as a Neurological Examination or a Non-oral Assessment? What If the District Does Not Have Appropriate Trained Personnel to Do the Testing? A. Yes, you can ask for specific assessments. The district has the responsibility for assessment in all areas related to the suspected disability. If there is no district person competent to carry out certain kinds of evaluation, the district may contract out for the service or may use the results of any available independent assessment. See Sample Letter at the end of this chapter. 11. Q. How Can I Ensure That the Assessment Covers Emotional and Behavioral Areas? A. The law specifies that your child must be assessed in all areas related to his suspected disability. If you or your child's teachers have observed that he has behaviors which adversely affect school performance (for example, has poor impulse control, has problems making friends, or is withdrawn), you should request assessment of your child's social and emotional status as part of any assessment plan you sign. You may ask for an assessment in this area even if the district has not identified it as an area for assessment on the assessment plan. The assessment may be done by the school district or by Community Mental Health under AB 3632/882. See Chapter 9, Information on Interagency Responsibility for Related Services (AB 3632/882). In addition, the Hughes Bill [Cal. Ed. Code Sec. 56520, Cal. Code Regs. Sec. 3052] requires that every special education student who demonstrates a serious behavior problem be given a functional behavioral analysis assessment. The assessment is then used to develop a positive behavior intervention plan. See Chapter 5, Information on Related Services. 12. Q. I Believe That My Child Has a Learning Disability. Does the School Have to Do Anything Different When Assessing for a Specific Learning Disability? A. Federal law contains special procedures for assessing students suspected of having a learning disability. The interdisciplinary team that evaluates the child must include her teacher or a regular classroom teacher qualified to teach someone your child's age. A team member, other than your child's teacher, must make a classroom observation. The law also requires that the team's assessment report indicate if there is a severe discrepancy between ability and achievement in one or more specified areas: oral expression, listening comprehension, written expression, basic reading skills, reading comprehension, or math calculation or reasoning. The team must also determine whether or not the discrepancy is primarily the result of physical handicap, mental retardation, emotional disturbance, or environmental, cultural or economic disadvantage. The team's written assessment report must include the basis for its determination of whether or not there is a specific learning disability and its relationship to the child's academic functioning and observed behavior. [34 Code of Federal Regulations (C.F.R.) Secs. 300:540-300:543.] Finally, the evaluation is to be made by a multidisciplinary team or group of persons, including at least one teacher or other specialist with knowledge in the area of suspected disability. The child is to be assessed in all areas related to the suspected disability, including, where appropriate, health, vision, hearing, social and emotional status, general intelligence, academic performance, communicative status, and motor abilities. 13. Q. Are There Documents Which I May Have that Would Help in the Assessment Process? A. Yes. Various professional reports which you may have received on your child from other sources -- such as a regional center or doctors -- would help the assessment process. For example, speech and language, occupational and physical therapy, neurological or ophthalmological reports; current teachers' observations (from preschool or a different district); respite, recreational or camp personnel observations; and special medical reports are often useful. School districts generally ask you to share the other professional reports with them to assist in determining your child's needs. 14. Q. How Can I Explain to My Child Why She Is Being Assessed? A. You may want to explain that you and your child's teachers believe that she is not learning as much as she can. Then, you could individualize the explanation by giving a simple example of her difficulty. You could point out that each child is unique and that everyone learns in a different way. Some learn by hearing; some learn by seeing; and some learn through their sense of touch. Explain to her that assessments will show how she learns best, so her teacher can help her learn more. 15. Q. How Can I Prepare My Child for Assessment? A. Keep your explanation short and simple. You may say something like this: "You will be working with someone like a teacher who will have you look at pictures, play some games, do a little reading and math, draw some designs and pictures." That will give your child a general idea of what to expect. 16. Q. What Are the Requirements for Assessment Tests? A. Tests must be selected and administered so as not to be racially, culturally, or sexually discriminatory; must be administered in the student's primary language or other mode of communication; and must be validated for the specific purpose for which used. In addition, testing must assess specific areas of educational need and not merely produce a single general intelligence quotient. No single procedure can be used as the sole criterion for determining an appropriate educational program for the student. Finally, when a student with impaired sensory, manual, or speaking skills is being tested, the testing must ensure that the results accurately reflect the student's aptitude or achievement level, and not the student's impaired skills, unless those skills are to be measured by the testing. [20 United States Code (U.S.C.) Sec. 1412(5)(C); 34 C.F.R. 300.530 and following; Cal. Ed. Code Sec. 56320.] See lists of commonly given tests and what they test later in this chapter. 17. Q. Who Conducts the Assessment? A. Each test administered in the assessment must be administered by trained personnel in conformance with the test producer's instructions. The law requires that the assessment be conducted by persons knowledgeable about the disability being assessed, and competent to perform the assessment. Further, these persons must be competent in both the oral and written skills of the student's primary language or mode of communication, and must have knowledge and understanding of the student's cultural and ethnic background. California regulations require the use of an interpreter when necessary. A psychological assessment must be conducted by a credentialed school psychologist trained and prepared to assess cultural and ethnic factors appropriate to the student being assessed. A health assessment must be conducted by a credentialed school nurse or physician with similar training. Individually administered tests of intellectual or emotional functioning must be administered by a psychometrist or credentialed school psychologist where available. [34 C.F.R. Secs. 300.530 and following; Cal. Ed. Code Secs. 56320, 56322, 56324; 5 Cal. Code Regs. Sec. 3023.] 18. Q. Does the Assessment Have to Be Provided in My Child's Primary Language? A. Yes. This is a requirement of both federal and state law, unless it is not feasible and is so stated on the Assessment Plan. If the assessor is not bilingual, the district should provide an interpreter. In addition, state law requires that testing and assessment material be selected so as not to be racially, culturally, and sexually discriminatory. [20 U.S.C. Sec. 1412(5)(C); 34 C.F.R. Secs. 300.530(b), 300.532(a)(1); Cal. Ed. Code Secs. 56320(a), (b).] 19. Q. What Are the Most Common Tests Used in the Assessment of a Child with Suspected Learning Disabilities? A. The law requires that the student be given an individually administered test of ability or intelligence, and tests of achievement in areas such as reading, math, and writing. The most commonly used test of intelligence is the Wechsler Intelligence Scale for Children-III (WISC-III). Sometimes the Wechsler Pre-School and Primary Scale of Intelligence (WPPSI) or the Stanford-Binet (S-B) are used. The most commonly used achievement tests are the Wide Range Achievement Test (WRAT), the Peabody Individual Achievement Test (PIAT), and the Woodcock-Johnson Psycho Educational Battery (WJPEB). All of these are short tests designed to tell you the grade level at which the student is performing in reading, writing, spelling and math. In order for a student to be eligible for special education based on a learning disability, there must be a severe discrepancy between ability and achievement. See Chapter 3, Information on Eligibility Criteria. Since Larry P. v. Riles prohibits districts from using intelligence tests to assess Black students, more and more districts are moving away from the use of IQ tests and are relying instead on measures of adaptive behavior. Districts may administer standardized instruments such as: Adaptive Behavior Inventory for Children (ABIC); Adaptive Behavior Scales (ABS); Scales of Independent Behavior (SIB-Woodcock, Johnson Battery, Part IV); or Vineland Adaptive Behavior Scales. The districts will also use clinical observations and informal interviews to gather data about daily living skills and functioning in the home and community. See Chapter 11, Information on Minority Assessment Issues. 20. Q. Are There Public Education Facilities Outside of the Local Education Agency Which Can Assess My Child? A. Yes. Students may be referred as appropriate for further assessments and recommendations to the California Schools for the Deaf or Blind or the Diagnostic Schools for Neurologically Handicapped Children. [Cal. Ed. Code Sec. 56326; 5 Cal. Code Regs. Sec. 3025.] Under state law, other state agencies also have responsibilities for providing assessments. County Departments of Mental Health are responsible for conducting certain mental health assessments; California Children's Services (CCS) has responsibility for conducting assessments regarding occupational and physical therapy. See Chapter 9, Information on Inter-Agency Responsibility for Related Services (AB 3632/882). 21. Q. How Much Detail Should Be Included in My Child's Written Assessment? A. The written assessment should give you a clear picture of your child's functioning in all the areas tested. California Education Code Section 56327 requires that the report shall include, but it is not limited to, all of the following: (1) Whether the student may need special education and related services. (2) The basis for making the determination. (3) The relevant behavior noted during the 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 and development and medical findings, if any. (6) For students with learning disabilities, whether there is such a discrepancy between achievement and ability that cannot be corrected without special education and related services. (7) A determination concerning the effects of environmental, cultural, or economic disadvantage, where appropriate. (8) The need for specialized services, materials, and equipment for students with low incidence disabilities. In addition, specific details should be included on areas of deficit (weakness or delay) and areas of strength that can be used to assist the child in remedying those deficits. As a parent, you should be able to understand how your child's learning style and learning deficits and strengths affect your child's ability to learn. If this is not clear to you, ask school personnel to explain it to you. Do not be afraid to ask them to explain technical terms in language you can understand. 22. Q. Can I Get Copies of Written Assessment Reports Before the IEP? A. Yes. [Cal. Ed. Code Sec. 56329.] School districts are required by law to provide copies of assessments before an IEP. [34 C.F.R. Sec. 300.562.] You should request that the assessments be sent to you before the IEP, in writing, within a reasonable time before the IEP. 23. Q. Are Formal Tests the Only Kinds of Assessment Data The IEP Team Can Use? A. No. Parents, teachers and other adults who know your child are also good sources of observational data that the IEP team can use to describe your child's current levels of functioning and to n develop educational goals and objectives. [Cal. Ed. Code Sec. 56341(f).] 24. Q. What If I Disagree with an Evaluation Performed by the School? Can I Get an Independent Evaluation from Someone Who Is Qualified but Is Not Employed by the School? A. Yes. If you feel that your child has been wrongly classified or inappropriately placed or the IEP is not a quality plan because the school district has made its decision based on an inaccurate or incomplete evaluation of your child, you can seek an independent evaluation at public expense which can then be used to obtain appropriate educational services for your child. While there is nothing that indicates that parents must formally notify the school district of their intent to obtain an independent evaluation at district expense, it is strongly recommended that they do so. See Sample Letter at the end of this chapter. The district has but two options once they have been notified, and that is to pay the bill for the evaluation or to go to a hearing to prove that the district's evaluation is appropriate. If the district elects to go to a hearing and the hearing officer determines that the evaluation is appropriate, the parent has a right to the independent evaluation, but not at public expense. [34 C.F.R. Sec. 300.503; Cal. Ed. Code Sec. 56329(b).] Regardless of who pays, and even if the district has not assessed your child in that particular area, the local agency must consider the results of an independent evaluation in any decision regarding the provision of a free appropriate public education to your child. The results may also be presented as evidence at a due process hearing. [34 C.F.R. Sec. 300.503; Cal. Ed. Code Sec. 56329(c).] 25. Q. Is There Any Other Way to Obtain an Independent Evaluation If the District Refuses to Provide One and I Am Unable to Pay for One? A. During the mediation process, parents and school districts will often agree to an independent assessment. A hearing officer at a due process hearing may also order an independent evaluation as part of the hearing. In this case, the independent evaluation is at public expense. [20 U.S.C. Sec. 1415(b)(1)(A); 34 C.F.R. Sec. 300.503; Cal. Ed. Code Sec. 56505.1(e).] 26. Q. How Often must Assessments Be Completed? A. Complete re-evaluations must be conducted at least every three years for all individuals with exceptional needs. Re-evaluation requires a reexamination of all areas of suspected disability, not necessarily repetition of an identical test battery and procedures as done initially. Additionally, re-evaluation in all or some areas must be conducted whenever school personnel or parents request, and when re-evaluation appears to be needed for program planning. (Informed parental consent is required.) [34 C.F.R. Sec. 300.534.] 27. Q. What Recourse Do I Have If I Believe That a Psychological Assessment Is Done Superficially Just to Meet the Legal Mandate That it Be Done Every Three Years? A. All assessments, including the three-year evaluation, must be conducted in accordance with state and federal law. The school district's Assessment Plan should give you enough information to determine the appropriateness of the evaluation. If the plan is not comprehensive enough, you may suggest that additional tests be administered and/or may ask to postpone the IEP meeting until a comprehensive re-evaluation can be done. The thoroughness of the re-evaluation can also be the subject of a due process hearing. 28. Q. My Child Is Temporarily Placed in a Psychiatric Hospital that Is Located in Another County. Who is Responsible for Conducting a Special Education Assessment or Re-evaluation? A. Individuals with exceptional needs who are placed in a public hospital, state licensed children's hospital, psychiatric hospital, proprietary hospital or a health facility for medical purposes are the educational responsibility of the district, special education local plan area, or county office of education in which the hospital or facility is located. [Cal. Ed. Code Sec. 56167.] Therefore, the community mental health agency of the county in which the facility is located is responsible for conducting an AB 3632 service evaluation. If your child is placed in a hospital (as described above), this section indicates that the LEA does not have to assess or re-evaluate your child until she returns to the home district. Unfortunately, this could result in delays or postponement of the assessment/re-evaluation process. The position of the authors of this manual is that your local school district has responsibility for assessment during this temporary or short-term hospitalization. A temporary or short-term stay in a hospital should not preclude or delay assessment by your school. Contact your local district to request an assessment of your child and indicate that the stay in the hospital is temporary. 29. Q. Is a Doctor The Only Professional Who Can Provide an ADD/ADHD Diagnosis as Part of the Special Education Assessment Process? A. No. Other qualified personnel can conduct the evaluation for Attention Deficit Disorder (ADD) and Attention Deficit Hyperactive Disorder (ADHD) as long as all of the protections of the evaluation requirements in federal and state law are met. [OSEP Clarification Letter, February 18, 1992, 18 IDELR 963; 34 C.F.R. Secs. 300.530-300-534; Cal. Ed. Code Sec. 5632(b)(3).] The school staff selected to conduct an ADD evaluation must be trained to do so. 30. Q. If the School District Requires a Doctor's Diagnosis of ADD/ADHD as a Condition of Special Education Eligibility, Who Pays for the Doctor's Diagnosis? A. A federal Office of Special Education and Rehabilitative Services clarification letter makes it clear that: If a public agency (school district) believes that a medical evaluation by a licensed physician is needed as part of the evaluation to determine whether a child ... suspected of having ADD meets the eligibility criteria of the Other Health Impaired category, the school district must ensure that this evaluation is conducted and is at no cost to parents. Therefore, if a school district requires a doctor's diagnosis, the school district must pay the cost of the doctor's diagnosis if the parent does not already have such a diagnosis. [34 C.F.R. 300.16; OSEP Clarification Letter, February 18, 1992, 18 IDELR 963; see Question 28.] 31. Q. What Is the Assessment Process for Section 504? Is it the Same as the Special Education Assessment Process? A. No specific assessment process is outlined in Section 504. However, 504 regulations require that school districts "conduct an evaluation ... of any person who, because of disability, needs or is believed to need special education or related services ..." The school district must establish standards and procedures for 504 evaluation and ensure that: (1) Tests and other evaluation materials have been validated for the specific purpose for which they are used and are administered by trained personnel in conformance with the instructions provided by their producer; (2) Tests and other evaluation materials include those tailored to assess specific areas of educational need and not merely those which are designed to provide a single general intelligence quotient; and (3) Tests are selected and administered so as best to ensure that, when a test is administered to a student with impaired sensory, manual, or speaking skills, the test results accurately reflect the student's aptitude or achievement level or whatever other factor the test purports to measure, rather than reflecting the student's impaired sensory, manual, or speaking skills (except where those skills are the factors that the test purports to measure). Section 504 evaluation standards and procedures may be different for each school district. The district may choose to use the special education assessment process or develop a separate process for Section 504 evaluation. Contact your local school district to determine how your district has chosen to operate the Section 504 evaluation process. [34 C.F.R. Sec. 104.35.] 32. Q. If I Request an Assessment for Section 504 Eligibility, Does the School District Have to Assess My Child to Determine His Eligibility for Accommodations and/or Service? A. No. If you request a Section 504 assessment, and the school district agrees that there is reason to believe your child needs special education or related services, the school district must evaluate her to see if she qualifies for accommodations and/or services under Section 504. However, if the school district does not agree that your child may need special education and related services, the school district may refuse to evaluate her. You would therefore have to utilize the Section 504 fair hearing process to require the district to evaluate your child for Section 504 eligibility. [OCR Memorandum April 29, 1993; 19 IDELR 876.] Sample Letter - Request for Assessment Ms. Bev Blue Address City, State, Zip Code Telephone Number Date Mr. Gary Green Director of Special Education Local Unified School District Address City, CA Zip Code RE: John Blue Dear Mr. Green: I request that the Local Unified School District (your District) conduct the following evaluations of my son, John: (1) A psychological evaluation to determine his learning potential, using instruments designed for non-oral children such as the Leiter International Performance Scale or the Hiskey Nebraska Test of Learning Aptitude; (2) An evaluation by a non-oral communications specialist. To my knowledge, the district does not have on staff any experts in this field. I have been recommended to Barbara Brown, Ph.D. in non-oral communication, and unless the district has a comparable expert, I am requesting that you contract with Dr. Brown to do the non-oral communication evaluation of my son. (3) An occupational therapy assessment. Note: In every request for initial assessment, you should include a paragraph requesting that your child also be evaluated under the provisions of Section 504 for any "disabling condition" which would require service accommodations and/or services that will allow the child to benefit from public education to the extent that students without disabilities do. Such a paragraph might read as follows: I also request that my son be evaluated under Section 504 of the Rehabilitation Act of 1973 for the presence of any educational service need which may require any accommodation or program modification not available under special education. I also request that the Section 504 Coordinator for Local Unified School District be present at the initial IEP meeting to discuss the results and recommendations of the Section 504 Evaluation. I look forward to receiving an assessment plan in 15 days. I hope that these evaluations can be completed promptly. Thereafter, we can have an IEP meeting to discuss the results of these evaluations and plan for John's continued education. Please ensure that I get copies of the assessment reports one week before the IEP meeting. Sincerely yours, Bev Blue Sample Letter - Independent Evaluation Notification Bev Blue Address City, CA Zip Code Telephone Number Date Mr. Gary Green Director of Special Education Local Unified School District Address City, CA Zip Code RE: John Blue Dear Mr. Green: We have just received the psychological and occupational therapy evaluations of our son, John, which were completed by district personnel. Since we believe that both evaluations are inadequate and do not show an accurate picture of our son's intellectual or fine motor functioning, we plan to obtain independent assessments at public expense. After the independent assessments are completed, we will submit bills for the assessors' services to you. Further, we would like to postpone the upcoming IEP meeting for three weeks so that the independent assessments are available for the team's review. Sincerely yours, Bev Blue If you believe an independent evaluation of your child is needed, give a brief description of current functioning and suspected disability when you write your request. Then state the rationale for having an outside evaluation at public expense. Some of the reasons why an independent evaluation is necessary may be: (1) There is no one on the district staff who is qualified to perform the evaluation. (2) You believe the district relied on insufficient testing when it made recommendations at the IEP meeting. (3) The school district results are at odds with other testing done on your child, so clarification is needed. Patterns to Look for All children exhibit some of the following behaviors at times. It is important to separate occasional from persistent behavior, and not to worry about an isolated incident which could be totally insignificant for the child as a whole. IN INFANCY: Trouble with nursing or sucking or digesting Resistance to cuddling and body contact Lack of response to sounds; excessive response to sounds Trouble following movements with his eyes Absence of creeping or crawling Delay in sitting, standing or walking Delay in learning to talk IN PRE-SCHOOL YEARS: Inability to follow directions Impulsive and uncontrolled behavior Excessive crying and undisturbed sleep Poor sense of rhythm; uneven walk Fear of swings and slides Frequent falls and tendency to bump into things Purposeless hyperactivity Unusual quietness and inactivity Excessive craving for sweets Poor eating habits Constant interrupting and persistent chatter Excessive repetition in speaking, questioning, or playing Tendency to become more upset with people around than when alone Language problems as evidenced by delayed talking and garbled speaking Tendency to be fearless, climbing counters and roofs with no concern IN SCHOOL YEARS: Very poor handwriting Difficulty cutting with scissors and coloring inside lines Inability to tie shoelaces, button clothes, or use hands well Trouble in matching shapes and sizes: squares, circles, triangles Confusion in discriminating between letters, words and numbers: "b" and "d", "was" and "saw", 6 and 9 No understanding of the difference between up and down, in and out, left and right, front and back Good verbal ability, but trouble in reading Mechanical reading without comprehension Difficulty in expressing ideas Erratic school work Excessive activity which seems purposeless, restless and undirected Unusual inactivity characterized by daydreaming and inner distraction Clumsiness and awkwardness in throwing and catching balls Difficulty in skipping, hopping and jumping Trouble with game playing and following group rules Confused sense of time or distance Emotional instability; explosions for no apparent reason Tendency to be extremely literal or humorless Excessive gullibility Extremely uneven performance in testing with some potential high, and some way below normal Copyright 1975 CANHC, Contra Costa West Chapter P. O. Box 515, San Pablo, CA 94806 Reprinted with permission from CANHC. +------------------------+-----------------+--------------------------+ Learning Processes: A Diagnostic Framework Copyright (c) 1994 Martha Lewis Kentfield +------------------------+-----------------+--------------------------+ PROCESS DEFINITION TESTS WHICH GIVE INFORMATION +------------------------+-----------------+--------------------------+ Cognition/Intelligence Ability to * Wechsler Tests: reason, to WISC-III, WAIS-R, think WPPSI-R abstractly, and to solve * Stanford-Binet: problems. Fourth Edition * Differential Ability Scales (DAS) +------------------------+-----------------+--------------------------+ Verbal Intelligence Ability to use * Wechsler: Verbal cognitive Scales processes which rely * Stanford-Binet: primarily on FE-Verbal Comprehension verbal Factor language. * DAS: Verbal Ability +------------------------+-----------------+--------------------------+ Nonverbal Intelligence Ability to use * Wechsler: Performance cognitive Scales processes which do not * Stanford-Binet: FE - rely primarily Nonverbal on verbal Reasoning/Visualization language. Factor * DAS: Nonverbal Ability * Kaufman Assessment Battery for Children (K-ABC): Nonverbal Scale * Leiter International Performance Scale * Columbia Mental Maturity Scale * Raven's Progressive Matrices +------------------------+-----------------+--------------------------+ Language +------------------------+-----------------+--------------------------+ Receptive Verbal Ability to * Wechsler: Verbal Language understand Scales incoming spoken * Test of Language language. Development-2 (TOLD-2): Listening Composite * Test of Auditory Comprehension of Language-Revised * Clinical Evaluation of Language Fundamentals (CELF-R): Receptive Subtests * Peabody Picture Vocabulary Test-Revised +------------------------+-----------------+--------------------------+ Expressive Verbal Ability to * Wechsler: Verbal Language convey ideas Scales and relate information * TOLD-2: Speaking through oral Composite language. * CELF-R: Expressive Subtests * Woodcock-Johnson, Revised-Rests of Cognitive Ability (WJ-R COG): Oral Language Cluster * Speech Exam and Language Sample +------------------------+-----------------+--------------------------+ Receptive Nonverbal Ability to * Wechsler: Picture Language derive meaning Completion, Picture from pictures, Arrangement, Object gestures, and Assembly facial expressions, * Stanford-Binet: FE - and to Absurdities interpret social * K-ABC: Gestalt situations Closure, Photo Series, without verbal Face Recognition clues. * Detroit Tests of Learning Aptitude-2 (DTLA-2): Conceptual Matching * Observations of behavior +------------------------+-----------------+--------------------------+ Expressive Nonverbal Ability to * Goodenough-Harris Language convey meaning Drawing Test through gestures, * Kinetic Family facial Drawing expressions, and drawings. * ITPA: Manual Expression * Observations of behavior +------------------------+-----------------+--------------------------+ Auditory Skills +------------------------+-----------------+--------------------------+ Auditory Ability to * Wepman Auditory Discrimination detect subtle Discrimination Test-2nd likenesses and Edition differences between speech * Test of Auditory sounds. Perceptual Skills (TAPS): Auditory Word Discrimination * Goldman-Fristoe-Woodcock Test of Auditory Discrimination +------------------------+-----------------+--------------------------+ Auditory Analysis Ability to * WJ-R, Cognitive: break words Incomplete Words into syllables and/or * Slingerland: Test 7, discrete sound Echolalia components. * Auditory Analysis Task (plant = p-l-a-n-t) +------------------------+-----------------+--------------------------+ Auditory Synthesis Ability to * WJ-R, Cognitive: combine Sound Blending supplied sounds or * Mann-Suiter Sound syllables into Blending words (sound blending). +------------------------+-----------------+--------------------------+ Auditory Immediate Ability to * Wechsler: Digit Span Memory retain information * Stanford-Binet: just heard for FE-Memory for a short period Sentences, Memory for of time (no Digits storage involved). * K-ABC: Number Recall, Word Order * WJ-R, Cognitive: Memory for Sentences, Memory for Words * DTLA-2: Sentence Imitation, Word Sequences, Oral Directions +------------------------+-----------------+--------------------------+ Auditory Recent Memory Ability to * Slingerland: Tests 6, store and 8 recall recently heard * Ray Auditory-Verbal auditory Learning Test material. +------------------------+-----------------+--------------------------+ Auditory Remote Memory Ability to * Wechsler: store and Information, recall Similarities, auditory Vocabulary, material heard Comprehension several months or years * Stanford-Binet: FE - earlier. Vocabulary, Comprehension, Verbal Relations * WJ-R, Achievement: Knowledge Cluster * Peabody Individual Achievement Test-Revised: General Information +------------------------+-----------------+--------------------------+ Visual Skills +------------------------+-----------------+--------------------------+ Visual Discrimination Ability to * Wechsler: Performance detect subtle Scale likenesses and differences in * WJ-R, Cognitive: visual stimuli Visual Matching, Cross such as Out symbols, pictures, and * Motor Free Visual designs. Perception Test * Slingerland: Test 4 * Test of Visual Perceptual Skills (TVPS): Visual Discrimination +------------------------+-----------------+--------------------------+ Visual Analysis Ability to * Wechsler: Performance identify the Scale parts of a visual * K-ABC: Gestalt stimulus and Closure, Triangles, to Matrix Analogies, Photo differentiate Series figure from ground. * Slingerland: Tests 1, 2, 3, 8 * Motor Free Visual Perception Test * Jordan Left-Right Reversal Test (1990 Edition) * Observations of word list and paragraph reading +------------------------+-----------------+--------------------------+ Visual Ability to * Wechsler: Picture Analysis/Synthesis identify the Arrangement, Block parts of a Design, Object Assembly visual stimulus and * K-ABC: Triangles, to combine Photo Series visual elements into * Raven's Progressive a whole. Matrices +------------------------+-----------------+--------------------------+ Visual Immediate Ability to * Wechsler: Coding Memory retain information * Stanford-Binet: FE - just seen for Bead Memory, Memory for a short period Objects of time (no storage * K-ABC: Hand involved). Movements, Spatial Memory * WJ-R, Cognitive: Picture Recognition +------------------------+-----------------+--------------------------+ Visual Recent Memory Ability to * Slingerland: Tests 3, store and 5 recall recently seen * Ray Complex Figure visual Drawing information. * Weekly spelling tests +------------------------+-----------------+--------------------------+ Visual Remote Memory Ability to * Wechsler: Picture store and Completion, Object recall visual Assembly information seen several * Achievement tests: months or word recognition, oral years earlier. reading, spelling +------------------------+-----------------+--------------------------+ Visual-Spatial Ability to * Slingerland Tests: 1, Orientation perceive 2 spatial relationships * Bender Visual-Motor involving Gestalt Test one's own body and the * Jordan Left-Right environment. Reversal Test (1990) Ability to organize and * Wechsler: Block interpret Design spatial relationships * Right-Left on a Discrimination Test two-dimensional level as in * Observations of copying, written work, reading, writing or and behavior reading. +------------------------+-----------------+--------------------------+ Visual Scanning Ability to * Slingerland: Tests 3, investigate 4, 8 visual material in a * Motor Free Visual systematic, Perception Test organized way. * Jordan Left-Right Reversal Test (1990) * Observations of paragraph reading +------------------------+-----------------+--------------------------+ Motor Skills +------------------------+-----------------+--------------------------+ Fine Motor Ability to * Wechsler: Coding, Coordination control fine Mazes muscle movements, as * Stanford-Binet: FE - in writing, Copying drawing and cutting. * Bender-Gestalt * Developmental Test of Visual-Motor Integration (VMI) * Slingerland: Tests 1, 2, 5, 6 * Observations of writing, drawing, and cutting +------------------------+-----------------+--------------------------+ Fine Motor Ability to * Speech Exam Coordination - Speech coordinate articulatory * Slingerland: Echolalia movement patterns for speech. +------------------------+-----------------+--------------------------+ Tactile-Kinesthetic Ability to * Task: Examiner moves Discrimination identify and child's fingers to form interpret letters or numbers with information eyes closed; child gained through identifies touch and movement. +------------------------+-----------------+--------------------------+ Kinesthetic Memory Ability to * Task: Examiner remember teaches a new word information through repeated gained through writing; child movement. reproduces later * Observation of motor patterns in writing +------------------------+-----------------+--------------------------+ Gross Motor Ability to * Bruininks-Oseretsky Coordination coordinate Test of Motor large muscle Proficiency movements as in running, * Observation of gross walking, motor activities skipping and throwing. +------------------------+-----------------+--------------------------+ Modality Integration Ability to * Slingerland transfer information * Halstead-Reitan and from one Reitan-Indiana sensory Neuropsychological Test modality to Batteries another. Ability to * WJ-R, Cognitive: coordinate two Visual-Auditory or three Learning modalities in the production * Comparisons of of outgoing performance on academic responses. tasks such as reading, copying, and dictated spelling +------------------------+-----------------+--------------------------+ Social and Emotional Adjustment +------------------------+-----------------+--------------------------+ Self-Concept and * Projective Drawing Relationships with Tests Others * Apperception Tests (CAT, TAT, Roberts) * Piers-Harris Self Concept Scale * Sentence Completion Tests * Rorschach +------------------------+-----------------+--------------------------+ Social Maturity and * Woodcock-Johnson Appropriateness of Scales of Independent Behavior Behavior (SIB) * Vineland Adaptive Behavior Scale * Developmental Profile II * Child Behavior Checklist * Conners Parent & Teacher Rating Scales * Behavior Evaluation Scale-2 +------------------------+-----------------+--------------------------+ Academic Skills and Achievement +------------------------+-----------------+--------------------------+ Reading and Phonics Ability to * Wechsler Individual Skills decode Achievement Test unfamiliar (WIAT): Reading words, to Composite recognize familiar * Woodcock-Johnson, words, and to Revised-Tests of understand Achievement (WJ-R ACH): written Reading Subtests material. * Kaufman Test of Educational Achievement (K-TEA): Reading Composite * Ekwall Reading Test * Informal survey of phonics skills +------------------------+-----------------+--------------------------+ Spelling Skills Ability to * WIAT: Spelling encode words in written * K-TEA: Spelling form. Use of spelling * Wide Range rules, visual Achievement Test-3 recall, and (WRAT-3): Spelling auditory analysis * Dictated Spelling skills in Tasks encoding words. +------------------------+-----------------+--------------------------+ Handwriting Skills Neatness, * WIAT: Written spatial Expression organization, and knowledge * Test of Written of manuscript Language-2 (TOWL-2) and/or cursive alphabets. * Slingerland, Tests 1, 2, 5, 6 * Alphabet writing task * Classroom Writing Samples +------------------------+-----------------+--------------------------+ Written Language Ability to * WIAT: Writing Skills organize and Composite relate ideas in written * Test of Written form. Language-2 Knowledge of written * Test of Early Written language Language (TEWL) mechanics skills. * Test of Written English * WJ-R, Achievement: Written Language Subtests +------------------------+-----------------+--------------------------+ Mathematics Skills Ability to * WIAT: Mathematics perform Composite arithmetic computations * Key Math-Revised and to solve problems * WJ-R, Achievement: involving Mathematics Subtests mathematical concepts and * K-TEA: Mathematics reasoning. Composite * WRAT-3: Arithmetic +------------------------+-----------------+--------------------------+ Physical Health and Development +------------------------+-----------------+--------------------------+ Visual Acuity Keenness of * Snellen Vision vision Screening * Titmus Test +------------------------+-----------------+--------------------------+ Auditory Acuity Keenness of * Pure Tone Audiometric hearing Screening * Tympanometry +------------------------+-----------------+--------------------------+ Health & * Health & Developmental History Developmental Interview * Neurodevelopmental Exam +------------------------+-----------------+--------------------------+ ---------- Chapter 3 Information on Eligibility Criteria TABLE OF CONTENTS Question 1. Q. Who Is Eligible for Special Education under Federal and State Law? 2. Q. Does My Child Have to Be Deaf in Order to Be Eligible for Special Education as a Hearing Impaired Student? 3. Q. The County or District Has a Program for Deaf/blind Children. Does My Child Really Have to Be Both Deaf and Blind to Be Eligible for the Program? 4. Q. How Are Students with Speech and Language Disorders Served? What Are the Eligibility Criteria for Service? 5. Q. The District Provides Services for "Visually Handicapped" Students. Is That Limited to Students Who Are Actually Blind? 6. Q. What Kind of Physical Disabilities Would Make My Child Eligible for Special Education? 7. Q. How Do School Districts Determine That a Child Has Autism or a Disorder Like Autism? 8. Q. Are IQ Scores the Only Basis for Eligibility for Special Education Based on Mental Retardation? 9. Q. What Are the Eligibility Criteria for Seriously Emotionally Disturbed Students? 10. Q. Can a Child with Attention Deficit Disorder (ADD) or Attention Deficit Hyperactive Disorder (ADH D) Be Eligible for Special Education Services? 11. Q. How Do the Eligibility Criteria Apply to Students with a Suspected Learning Disability? 12. Q. Are Some Children Penalized by the Learning Disability Eligibility Criteria? 13. Q. Does a Student Have to Be Two Years Behind Academically to Be Eligible for Special Education as a Learning Disabled Student? 14. Q. Can Gifted Students Be Denied Special Education Eligibility for Specific Learning Disabilities Based Solely on Intelligence? 15. Q. What Are the Eligibility Criteria for Children from Age Three Through Five Years of Age? 16. Q. Can My Child Be Eligible for Designated Instruction and Services (DIS) If He Is in a Regular Education Class and DIS Is All He Needs? 17. Q. If My Family Moves to a New School District, Does My Child Need to Be Found Eligible Again for Special Education by the New School District? 18. Q. If My Child Does Not Establish Special Education Eligibility, Is There Any Other Way to Obtain Some Special Services to Address Educational Problems? 19. Q. My Child Has Attention Deficit Disorder, but He Is Not Eligible for Special Education. Is There Any Way He Can Get Help from the School District? 20. Q. If a Student Is Eligible for Services under Section 504, Can She Receive Special Education Services? S P E C I A L E D U C A T I O N R I G H T S A N D R E S P O N S I B I L I T I E S Chapter 3 Information on Eligibility Criteria 1. Q. Who Is Eligible for Special Education under Federal and State Law? A. You will find the California special education eligibility criteria in regulations adopted by the State Board of Education. These regulations went into effect March 2, 1983. This is the first time California has had a uniform statewide policy for determining eligibility for special education. The criteria generally parallel the federal guidelines in defining "children with disabilities." [34 Code of Federal Regulations (C.F.R.) Sec. 300.7.] Eligibility criteria under state law cannot be narrower than eligibility criteria under federal guidelines. The regulations establish eligibility criteria for all students seeking special education services. In order to qualify as an individual with exceptional needs under the eligibility criteria, the assessment must demonstrate that the student's impairment (1) adversely affects his educational performance and (2) requires special education. The qualifying areas of impairment set out in state eligibility regulations are: hearing impaired; both hearing and visually impaired; speech or language impaired; visually impaired; severely orthopedically impaired; impaired in strength, vitality, or alertness due to chronic or acute health problems (other health impaired); exhibiting autistic-like behaviors; mentally retarded; seriously emotionally disturbed; or learning disabled. In addition, children with autism and traumatic brain injury are eligible for special education under federal law. [34 C.F.R. 300.7; 5 California Code of Regulations (Cal. Code Regs.) 3030.] The IEP team makes the actual determination of eligibility for special education and related services, based upon the assessment reports. The determination is not made solely by assessment personnel. Even if the student does not meet the eligibility criteria based on standardized testing, the IEP team may still find him eligible for special education services. Other measures of school performance may enable the student to qualify for services. Examples of other measures include class grades, classroom performance, school behavior, etc. [California Education Code (Cal. Ed. Code) Secs. 56321, 56323, 56327.] In terms of minimum age, a child may be eligible for special education services, in the form of early intervention services, from birth. Early intervention services are discussed in separate materials. After age three and until school age, a child may be eligible for preschool special education. See Chapter 12, Information on Preschool Education Services. In terms of maximum age (and assuming the student has not yet graduated from high school), a student continues to be eligible for special education through his 18th year. Between the ages of 19 and 21, if the student has been in special education at the time he turned 19, and if he has not met his "differential proficiency standards" (as agreed to by the IEP team, including his parents, and specifically described in the IEP), or if he has not completed his "prescribed course of study", then he may continue in special education until he meets the differential standards, completes a course of study or turns 22. [Cal. Ed. Code Sec. 56026(c)(4).] "Prescribed course of study" means the school district's required subjects, credits and normal proficiency standards in English, math, reading, etc., as set by the local board of education for granting a diploma or certificate and pursuant to Cal. Ed. Code Sec. 51000 and following. [See 5 Cal. Code Regs. Sec. 3001(q).] "Differential proficiency standards" are alternative proficiency standards individually developed for, and specifically described in, the IEP of a special education student in grade 7 through 12 who is unlikely to be able to meet the regular district proficiency standards. [Cal. Ed. Code Sec. 56345(b) (3) and 51215.] The IEP team, including the parents, develops the differential proficiency standards, and the student must meet the standards before he may receive a diploma or certificate of completion. If a student cannot pass the regular proficiency standards, and his IEP team did not develop differential proficiency standards and describe them in his IEP, a school district may not exit him between the ages of 19 and 21. How long a student may continue in special education after his 22nd birthday depends, for the most part, on the month in which he turns 22. -- If he was born between January 1 and June 30, the student may only remain in the program for the rest of the fiscal year ending June 30, plus any extended school year program. -- If he was born in July, August or September, a student on a traditional school-year calendar is treated similarly and may continue in the program through the end of the previous fiscal year that ended June 30. However, if the student was born in July, August or September and is on a year-round school calendar, he can finish the current term, even if the term extends into the next fiscal year. -- A student who was born in October, November or December may continue in special education only until December 31 of the year he turns 22, unless (1) he would otherwise complete his IEP at the end of that current fiscal year, or (2) he has not had an individual transition plan incorporated into his IEP and implemented from the age of 20 years forward. In either of these two cases, he would be able to complete the fiscal year. [Cal. Ed. Code Sec. 56026(c)(4)(A)-(C).] 2. Q. Does My Child Have to Be Deaf in Order to Be Eligible for Special Education as a Hearing Impaired Student? A. No. Your child is eligible if she has either a permanent or fluctuating hearing loss that impairs her ability to process information presented through amplified hearing channels and which also adversely affects educational performance. [34 C.F.R. Sec. 300.7(b)(3); 5 Cal. Code Regs. Sec. 3030(a).] 3. Q. The County or District Has a Program for Deaf/blind Children. Does My Child Really Have to Be Both Deaf and Blind to Be Eligible for the Program? A. No. If your child has both hearing and visual impairments (see Questions 2 and 5) which, in combination, cause severe communication, developmental, and educational problems, he is eligible for the program. [34 C.F.R. Sec. 300.7(b)(2); 5 Cal. Code Regs. Sec. 3030(b).] 4. Q. How Are Students with Speech and Language Disorders Served? What Are the Eligibility Criteria for Service? A. A student with speech and language difficulties is eligible for special education services if she meets one or more of the following criteria: (1) Articulation Disorder which reduces intelligibility and significantly interferes with communication and attracts adverse attention. The student's articulation competency must be below what is expected for her chronological age or developmental level; (2) Abnormal Voice which is characterized by persistent, defective voice quality, pitch, or loudness; (3) Fluency Disorder in which the flow of verbal expression, including rate and rhythm, adversely affects communication between the student and listener; (4) Language Disorder in which the student has a language disorder when she meets both of the following criteria: (a) Scores at least 1.5 standard deviations below the mean, or below the seventh percentile, for her chronological age or developmental level, on two or more standardized tests in one or more of the following areas of language development: morphology, syntax, semantics; and (b) Displays inappropriate or inadequate usage of receptive or expressive language as measured on a representative spontaneous language sample of a minimum of fifty utterances. Once a student qualifies for special education services, she is eligible for any service required to meet the educational her needs. The related service of speech and language therapy may be the only service some students need. Other students have speech and language disorders that are too severe for remediation through speech and language therapy. These students may require placement in a communicatively handicapped or severe language disorder special day class program. [34 C.F.R. Sec. 300.7(b)(11); Cal. Ed. Code Sec. 56333; 5 Cal. Code Regs. Sec. 3030(c).] 5. Q. The District Provides Services for "Visually Handicapped" Students. Is That Limited to Students Who Are Actually Blind? A. "Visually handicapped" means a visual impairment which, even with correction, adversely affects a child's educational performance. The term includes both partially sighted and blind children. [34 C.F.R. Sec. 300.7(b)(13); 5 Cal. Code Regs. Sec. 3030(d).] 6. Q. What Kind of Physical Disabilities Would Make My Child Eligible for Special Education? A. Her condition would have to (1) affect your child's educational performance adversely and (2) not be temporary in nature. She might have severe orthopedic impairments such as polio, cerebral palsy, amputations, etc. Or, she might have limited strength, vitality, or alertness due to chronic or acute health problems such as heart disease, epilepsy, hemophilia, diabetes, childhood cancer, Auto Immune Deficiency Syndrome (AIDS), etc. [34 C.F.R. Sec. 300.7(b)(7),(8); 5 Cal. Code Regs. Secs. 3021.1, 3030(e), 3030(f) and 3051.17.] Students with traumatic brain injury are also eligible for special education. These include an injury to the brain caused by an external force, resulting in total or partial functional disability or psychosocial impairment, or both, that adversely affects her educational performance. The term applies to open or closed head injuries resulting in impairments in one or more areas, such as cognition; language; memory; attention; reasoning; abstract thinking; judgment; problem-solving; sensory, perceptual and motor abilities; psychosocial behavior; physical functions; information processing; and speech. The term does not apply to brain injuries that are congenital or degenerative, or to brain injuries induced by birth trauma. [34 C.F.R. Sec. 300.7(b)(12).] 7. Q. How Do School Districts Determine That a Child Has Autism or a Disorder Like Autism? A. School districts determine that a student has autism or a disorder like autism if he exhibits any combination of the following autistic-like behaviors: (1) An inability to use oral language for appropriate communication; (2) A history of extreme withdrawal or relating to people inappropriately and continued impairment in social interaction from infancy through early childhood; (3) An obsession to maintain sameness; (4) Extreme preoccupation with objects or inappropriate use of objects or both; (5) Self-stimulating, ritualistic behavior. [5 Cal. Code Regs. Sec. 3030(g); see also 34 C.F.R. Sec. 300.7(b)(1).] 8. Q. Are IQ Scores the Only Basis for Eligibility for Special Education Based on Mental Retardation? A. No. In order for a student to be considered mentally retarded, she must show deficits in adaptive behavior, as well as significantly below average general intellectual functioning, which adversely affect her educational performance. [34 C.F.R. Sec. 300.5(b)(4); 5 Cal. Code Regs. Sec. 3030(h).] Because of the Larry P. v. Riles case, the California State Department of Education has prohibited school districts from using standardized IQ tests to determine special education eligibility for all Black students. Therefore, school districts are developing alternative methods of assessment to avoid the use of IQ scores for special education eligibility determination. See Chapter 11, Information on Minority Assessment Issues. 9. Q. What Are the Eligibility Criteria for Seriously Emotionally Disturbed Students? A. A student is considered seriously emotionally disturbed if, because of a serious emotional disturbance*, he exhibits one or more of the following characteristics, over a long period of time and to a marked degree, which adversely affects educational performance: (1) An inability to learn which cannot be explained by intellectual, sensory, or health factors; (2) An inability to build or maintain satisfactory interpersonal relationships with peers and teachers; (3) Inappropriate types of behavior or feelings under normal circumstances exhibited in several situations; (4) A general pervasive mood of unhappiness or depression; (5) A tendency to develop physical symptoms or fears associated with personal or school problems. [34 C.F.R. Sec. 300.7(b)(9); 5 Cal. Code Regs. Sec. 3030(i).] * This phrase is included in the state definition only. Note that the disability category "seriously emotionally disturbed" is a creation of Congress, not a recognized psychiatric diagnostic category. Thus, the term does not require a particular psychiatric diagnosis -- such as schizophrenic, depressive, etc. A student does not need to have a psychiatric label to be eligible under federal and state definitions of seriously emotionally disturbed. On the other hand, the state definition does require that the characteristics enumerated above be caused by a "serious emotional disturbance." In addition, federal regulations specifically exclude students whose behaviors are caused solely by "social maladjustment", a term which the regulations do not define. As a result of ambiguous federal and California laws, there has been considerable debate as to what conditions qualify as a "serious emotional disturbance" and what conditions are to be considered non-qualifying "social maladjustment." 10. Q. Can a Child with Attention Deficit Disorder (ADD) or Attention Deficit Hyperactive Disorder (ADHD) Be Eligible for Special Education Services? A. Yes. However, a medical diagnosis of attention deficit disorder (ADD) or attention deficit hyperactive disorder (ADHD) alone is not sufficient to make a student eligible for special education services. An IEP team, after the required comprehensive evaluation, must determine that the student meets a federal and/or state eligibility category. A September 16, 1991, Joint Policy Memorandum from the U.S. Department of Education says that state and local education agencies: ... must ensure that children with ADD who are determined eligible for services ... receive special education and related services designed to meet their unique needs, including special education and related services needs arising from ADD. Most commonly, students with ADD/ADHD may be eligible under the "specific learning disability" category, the "seriously emotionally disturbed" category, or the "other health impaired" category. [Cal. Ed. Code Sec. 56339(a).] School districts have not widely utilized the "other health impaired" category to qualify a student with ADD/ADHD for special education services. However, the federal Joint Policy Memorandum specifically addresses the "other health impaired" category: Children with ADD, where the ADD is a chronic or acute health problem resulting in limited alertness, may be considered disabled under Part B solely on the basis of this disorder within the "other health impaired" category in situations where special education and related services are needed because of ADD. 11. Q. How Do the Eligibility Criteria Apply to Students with a Suspected Learning Disability? A. To be considered learning disabled under the eligibility criteria, a student must meet three major requirements. First, he must have a disorder in one or more of the basic psychological processes involved in understanding or using spoken or written language. The basic psychological processes include: attention, visual processing, auditory processing, sensory-motor skills, and cognitive abilities (including association, conceptualization and expression). Second, this disorder may manifest itself in an impaired ability to listen, think, speak, read, write, spell, or do mathematical calculations. Third, the student must have a severe discrepancy between intellectual ability and achievement in one or more of the academic areas referred to in the law. [34 C.F.R. Sec. 300.7(b)(10).] The regulations define intellectual ability as including both acquired learning and learning potential as determined by a systematic assessment of intellectual functioning. The student's level of achievement includes his level of competence in materials and subject matter explicitly taught in school as measured by standardized achievement tests. The academic areas identified in the law are: oral expression, listening comprehension, written expression, basic reading skills, reading comprehension, mathematics calculation and mathematics reasoning. [Cal. Ed. Code Secs. 56337-8; 5 Cal. Code Regs. Sec. 3030(j).] In determining whether or not a severe discrepancy exists, the IEP team must take into account all relevant material available on the student. No single score (or product of scores) test or procedure shall be used as the sole criterion for the IEP team's decisions as to the student's eligibility for special education. [5 Cal. Code Regs. Sec. 3030(j)(4) (emphasis added).] The IEP team makes the final determination of eligibility after considering all information presented about the student's educational needs. When standardized tests have been deemed appropriate, the regulations set out a formula for determining whether or not a severe discrepancy between ability and performance is present. [5 Cal. Code Regs. Sec. 3030(j)(4)(A).] However, many school districts no longer allow IQ testing of any child who has been referred for special education as a result of the court order in the Larry P. v. Riles case, which prohibited intelligence testing of African-American children. See Chapter 2, Information on Evaluations/Assessments, and Chapter 11, Information on Minority Assessment Issues. When standardized tests are determined to be invalid for a specific student, the discrepancy shall be measured by alternative means as specified on the assessment plan. [5 Cal. Code Regs. Sec. 3030(j)(4)(B).] If the standardized tests do not reveal a severe discrepancy, the IEP team may still find that one does exist, provided that the team documents in a written report that the severe discrepancy between ability and achievement exists as a result of a disorder in one or more of the basic psychological processes. The report shall include a statement of the area, the degree, and the basis and method used in determining the discrepancy. The report shall contain information considered by the team which shall include, but not be limited to: (1) Data obtained from standardized assessment instruments; (2) Information provided by the parent; (3) Information provided by the student's present teacher; (4) Evidence of the student's performance in the regular and/or special education classroom obtained from observations, work samples and group test scores; (5) Consideration of the student's age, particularly for young children; and (6) Any additional relevant information. [5 Cal. Code Regs. Sec. 3030(j)(4)(C).] Finally, the regulations specify that the discrepancy shall not be primarily the result of limited school experience or poor school attendance. [5 Cal. Code Regs. Sec. 3030(j)(5).] 12. Q. Are Some Children Penalized by the Learning Disability Eligibility Criteria? A. Yes. Young children, between kindergarten and second grade, have a difficult time qualifying because the achievement tests for those grade levels often do not reveal the child's difficulties. Children who test low average in intelligence are also penalized, as it is difficult to find a "severe discrepancy" between ability and achievement. On the other hand, under these criteria, very bright children are more likely to show a discrepancy between their academic performance and their potential. 13. Q. Does a Student Have to Be Two Years Behind Academically to Be Eligible for Special Education as a Learning Disabled Student? A. No. There is no reference in either the federal or state eligibility criteria for learning disabilities requiring that a student be two years behind academically. The criteria do require that the student have a severe discrepancy between ability and achievement. Therefore, the student's academic achievement must be compared to his own ability levels, not to other students' ability or to expected grade level performance. The district has an obligation to follow federal and state eligibility criteria. See Question 10. [34 C.F.R. Sec. 300.7(b)(10); 5 Cal. Code Regs. Sec. 3030(j).] 14. Q. Can Gifted Students Be Denied Special Education Eligibility for Specific Learning Disabilities Based Solely on Intelligence? A. No. A federal Office of Special Education Programs Clarification Letter written January 14, 1992, states: Neither Part B nor Part B regulations provide for any exclusions based on intelligence level in determining eligibility for Part B services ... All children, except those specifically excluded in the regulations, regardless of IQ, are eligible to be considered as having a specific learning disability, if they meet the eligibility requirements ... [18 IDELR 683.] 15. Q. What Are the Eligibility Criteria for Children from Age Three Through Five Years of Age? A. Preschool children are eligible for special education under Cal. Ed. Code Sec. 56441.11 if the child: (1) Has one of the following disabling conditions: (A) Autism (B) Deaf-blindness (C) Deafness (D) Hearing impairment (E) Mental retardation (F) Multiple disabilities (G) Orthopedic impairment (H) Other health impairment (I) Serious emotional disturbance (J) Specific learning disability (K) Speech or language impairment in one or more of voice, fluency, language, and articulation (L) Traumatic brain injury (M) Visual impairment (N) Established medical disability Conditions A through M are defined in Section 300.7 of the Code of Federal Regulations, and further criteria regarding each condition is contained in Title 5, California Code of Regulations. Condition N, "established medical disability," is defined as a disabling medical condition or congenital syndrome that the individualized education program team determines has a high predictability of requiring special education and services. (2) Needs specially designed instruction or services as defined in Sections 56441.2 and 56441.3. (3) Has needs that cannot be met with modification of a regular environment in the home or school, or both, without ongoing monitoring or support as determined by an individualized education program team pursuant to Section 56431. (4) When standardized tests are considered invalid for children between the ages of three and five years, alternative means, for example, scales, instruments, observations, and interviews shall be used as specified in the assessment plan. (5) A child is not eligible for special education and services if the child does not otherwise meet the eligibility criteria and his or her educational needs are due primarily to: (A) Unfamiliarity with the English language (B) Temporary physical disabilities (C) Social maladjustment (D) Environmental, cultural, or economic factors See Chapter 12, Information on Preschool Education Services. 16. Q. Can My Child Be Eligible for Designated Instruction and Services (DIS) If He Is in a Regular Education Class and DIS Is All He Needs? A. Yes. The education program for all students in special education must be based on individual needs. Any child who meets the eligibility requirements for special education is entitled to the related services needed to help him benefit from special education. [Union School District v. Smith, 20 IDELR 987 (9th Cir. 1993).] Special education law favors placement in regular classrooms whenever possible. Children who can be Mainstreamed full-time are entitled to the supportive services that enable them to attend school or function in a regular classroom environment. State regulations explicitly say that related services may be provided to students "who are served throughout the full continuum of educational settings." [5 Cal. Code Regs. Sec. 3051(a)(1).] It is worth noting that even children with disabilities who are not eligible for special education, and who would attend regular education classes, would be entitled to receive supportive services (for example, school health services) necessary to enable them to benefit from their school program under other state and federal laws that ensure access of persons with disabilities to state and federally funded programs. [For example, see Section 504 of the Rehabilitation Act of 1973; Cal. Gov. Code Sec. 11135.] 17. Q. If My Family Moves to a New School District, Does My Child Need to Be Found Eligible Again for Special Education by the New School District? A. No. Whenever a student transfers into a school district from a school district not operating under the same local plan, the new school district must ensure that she is immediately provided an interim placement for a period not to exceed 30 days. The interim placement must be in conformity with her IEP, unless you agree otherwise. The IEP implemented during the interim placement may be either your child's existing IEP or a new IEP developed in accordance with state law. Before the end of the 30-day interim placement, an IEP team shall review the interim placement and make a final recommendation on placement. The team may use information, records and reports from the school district or county program from which the student transferred. [Cal. Ed. Code Sec. 56325.] 18. Q. If My Child Does Not Establish Special Education Eligibility, Is There Any Other Way to Obtain Some Special Services to Address Educational Problems? A child who may have problems in learning may not be found eligible for special education services because he does not fit into one of the special education eligibility categories and/or because his learning problems are not severe enough to qualify him for special education. (This is often the case for children identified as being hyperactive or having dyslexia or ADD, none of which automatically qualify a student for special education under state or federal law.) Such a child, however, may be eligible for special services and program modifications under a federal antidiscrimination law designed to reasonably accommodate the student's condition so that his needs are met as adequately as the needs of non-disabled students. The law is commonly known as Section 504 of the Rehabilitation Act of 1973. [29 U.S. Code Sec. 794; implementing regulations at 34 C.F.R. 104.1 and following.] Section 504 eligibility is not based on a categorical analysis of disabilities (except that some conditions, such as ADD, are frequently recognized as Section 504 qualifying conditions). Rather, Section 504 protections are available to students who can be regarded as "disabled" in a functional sense. Such students: (1) Have a physical or mental impairment which substantially limits a major life activity (such as learning); (2) Have a record of such an impairment; or (3) Are regarded as having such an impairment. [See 34 C.F.R. Sec 104.3(j) for further definition.] If your child is not found to be "disabled" for purposes of Section 504 accommodations and/or services, you can appeal that determination. The local education agency is responsible for arranging the Section 504 hearing process. The hearing officer selected by the local education agency must be independent of the local agency. The hearing officer could be, for example, a special education administrator from another school district, from the county office of education or from a special education local plan area -- as long as there is no conflict of interest. The Office of Civil Rights administers and enforces Section 504 protections in education. If you believe your child has not been afforded her rights under Section 504, you may file a complaint with the Office of Civil Rights at: U.S. Department of Education, Office For Civil Rights, Region IX Office, Old Federal Building, 50 United Nations Plaza, Room 239, San Francisco, CA 94102, Telephone: (415) 556-7000, TDD: (415) 556-6806 See Chapter 6, Information on Due Process Hearings/Compliance Complaints. 19. Q. My Child Has Attention Deficit Disorder, but He Is Not Eligible for Special Education. Is There Any Way He Can Get Help from the School District? A. If your child is found to be a "qualified disabled person" under Section 504 of the Rehabilitation Act, the district must provide accommodations and/or services in order to meet his individual needs. ADD would seem to meet the definition of "qualified disabled person" found in the Act. In addition to the protections potentially available under Section 504 for students with ADD, the California Legislature has expressed its intent, without actually requiring, that districts promote coordination between special education and regular education programs. Such coordination is intended to ensure that all students, including those with ADD and ADHD, receive appropriate educational interventions. It is also intended to ensure that regular education teachers and other personnel receive training to develop an awareness about ADD and ADHD, and the manifestations of these disorders, and the adaptations that can be implemented to address them in regular education. [Cal. Ed. Code Sec. 56339.] 20. Q. If a Student Is Eligible for Services under Section 504, Can She Receive Special Education Services? A. Yes. An OCR Memorandum written April 29, 1993, addresses this question: Is a child ... who has a disability within the meaning of Section 504 but not under the IDEA, entitled to receive special education services? Yes. If a child ... is found to have a disability within the meaning of Section 504, he or she is entitled to receive any special education services the placement team decides are necessary. [19 IDELR 876.] ---------- Chapter 4 Information on IEP Process TABLE OF CONTENTS Question 1. Q. How Do I Request Special Education Services? 2. Q. How Do I Request an Individual Education Plan (IEP) for My Child Who Is Already Receiving Services? 3. Q. What Are the Time Lines for Holding an IEP Meeting? 4. Q. How Often Are IEP Meetings Held? 5. Q. Can I Get Copies of Assessments Before the IEP Meeting? 6. Q. Will I Receive Notice of the IEP Meeting? What Happens If I Cannot Attend? 7. Q. Who Is Required to Attend the IEP Team Meeting? 8. Q. Can I Bring an Advocate or Attorney to an IEP Meeting? 9. Q. How Can I Contribute to the IEP Process? 10. Q. If I Need an Interpreter at the IEP Meeting, must One Be Provided? 11. Q. How Should an IEP Meeting Operate? 12. Q. What Information Should Be Considered at the IEP for Deaf or Hard-of-hearing Pupils? 13. Q. What Should Be Written in the IEP? 14. Q. How Should the Present Levels of My Child's Educational Performance Be Described in the IEP? 15. Q. Why Are Annual Goals and Short-Term Instructional Objectives Important? 16. Q. Should the IEP Team Write Specific Instructional Plans into the IEP? 17. Q. Must the IEP Contain All Services My Child Needs? 18. Q. Is There a Mandated Length or Format for an IEP? 19. Q. If My Child Is Mainstreamed into Regular Classes, Can I Write Modifications to the Regular Classroom in the IEP? 20. Q. Can Class Size Limits Be Included in the IEP? 21. Q. Do I Have to Approve an IEP at the IEP Meeting? 22. Q. Can I Consent to Only Part of the IEP? 23. Q. Can I Consent to the Content of the IEP and Not Consent to Placement? 24. Q. Can I Change My Mind after I Sign the IEP? 25. Q. What Kinds of Educational Placements must a School District Offer? 26. Q. Can I Find out about Placement Options at an IEP Meeting? 27. Q. Can the IEP Require Particular Teachers, Classrooms or Placements? 28. Q. May Children with Differing Disabilities Be Grouped Together for Instruction in the Same Classroom? 29. Q. When must the IEP Be Implemented? 30. Q. If I Place My Child in a Religious School or Other Non-public School, Does She Have the Right to an IEP and Special Education Services? 31. Q. Should the IEP Respond to Real, Documented Needs, or Does it Accommodate the Available Funds/resources of the School District? 32. Q. When Considering Placements, Should the Child Fit the Program Placement or the Program Fit the Child? 33. Q. Can My School District Be Required to Purchase Equipment Needed to Implement My Child's IEP? 34. Q. Can I Tape Record an IEP Meeting? 35. Q. What If Participants in My IEP Meeting Use Initials or Jargon That I Do Not Understand? 36. Q. Can a School District Use Pre-written or Computer Generated IEP Goals and Objectives? 37. Q. Who Is Responsible for Implementing My Child's IEP? 38. Q. If My Child Already Is a Special Education Student, Can the School Withhold Eligibility or Existing Service? Sample Letter - Request for IEP Meeting ----------------------------------------------------------------- S P E C I A L E D U C A T I O N R I G H T S A N D R E S P O N S I B I L I T I E S Chapter 4 Information on IEP Process 1. Q. How Do I Request Special Education Services? A. To request special education services for your child, write a letter to your child's teacher, principal or special education administrative office. Tell the school district that you are concerned about your child's educational progress. Say that you are making a referral for assessment for special education services. You may also want to let the district know that you look forward to receiving an assessment plan within 15 days from the district's receipt of your letter. Keep a copy of this request and any other correspondence with the school district. If you call or speak to school staff to make a referral, school district personnel must by law help you put your request in writing. If the school district refers your child for special education, it is still critical that you follow up with your own written request. Your written referral will ensure that assessment and IEP time lines will begin. [California Education Code (Cal. Ed. Code) Secs. 56029 and 56302.] In any initial referral to special education, you may also request that your child be assessed under Section 504 of the Rehabilitation Act of 1973 to determine whether the child might be identified as having a disability under that law. If so, the school district may be required to provide reasonable accommodations and/or services to allow your child to benefit from school like children without disabilities. These accommodations and/or services may be important if your child does not qualify for special education per se, or if such accommodations and/or services are, for some reason, not provided under special education. [19 IDELR 876.] 2. Q. How Do I Request an Individual Education Plan (IEP) for My Child Who Is Already Receiving Services? A. If your child is already receiving special education services, you can request an Individual Education Plan (IEP) meeting whenever you think one is needed in order to review or change the IEP. You can make a written request to your child's teacher, principal or special education administrative office. [Cal. Ed. Code Secs. 56343(c) and 56343.5.] You may request additional assessments for your child in the same letter. The California Education Code no longer limits the number of IEP meetings you may request in one year. [Cal. Ed. Code Sec. 56343(c).] See Sample Letter at the end of this chapter. 3. Q. What Are the Time Lines for Holding an IEP Meeting? A. After your initial written request for special education, or your written request for a new assessment, the school district has 15 days to prepare and provide you with a written proposed assessment plan containing a copy of the notice of parent rights. In counting 15 days, days in between regular school sessions or terms or days of school vacation in excess of five school days do not count. If a referral is made 10 days or less prior to the end of the regular school year or term, the school district must develop an assessment plan within 10 days after the commencement of the next school year or term. [Cal. Ed. Code Sec. 56321(a).] You have at least 15 days to determine whether you will consent to the proposed assessments. [Cal. Ed. Code Sec. 56321(c).] Starting from the date the local education agency receives your written consent to assessment, the assessment(s) must be completed and the IEP developed at an IEP meeting within 50 calendar days. In determining days for completion of assessments and scheduling IEP meetings, you do not count the days between school sessions or terms or days of school vacation in excess of five school days. If an initial referral of a student to special education has been made 20 days or less prior to the end of the regular school year, an IEP shall be developed within 30 days after commencement of the subsequent regular school year. [Cal. Ed. Code Sec. 56344.] If you are requesting an IEP meeting without the need for new assessments for a child already in special education, the IEP meeting shall be held within 30 days (not counting days in July and August) from the date of receipt of your written request. [Cal. Ed. Code Sec. 56343.5.] 4. Q. How Often Are IEP Meetings Held? A. An IEP meeting must be held at least annually. A parent or a teacher may request an IEP meeting more often if needed to review or change a student's education program or when a formal assessment has been completed. [Cal. Ed. Code Sec. 56343.] Neither federal nor state law limits the number of IEPs you may request per year. See Question 2. 5. Q. Can I Get Copies of Assessments Before the IEP Meeting? A. By law, school districts must provide copies of assessments and other educational records before an IEP meeting. [34 Code of Federal Regulations (C.F.R.) Sec. 300.562.] You can request that they give you copies. You should make such requests in writing. Most districts will accommodate parents if they make a request within a reasonable time. However, there are no specific time lines in federal or state law to tell school districts how many days before the IEP meeting they must provide assessments to the parents. 6. Q. Will I Receive Notice of the IEP Meeting? What Happens If I Cannot Attend? A. The school district must take steps to ensure that one or both of the parents of the student with disabilities attend the IEP meeting or have the opportunity to participate. This means notifying you far enough in advance, providing notice in your language, scheduling or rescheduling the IEP at a mutually agreed upon time and place, or allowing you to participate by conference call. Only if it has taken and documented adequate steps can the school district proceed without your participation. [34 C.F.R. Sec. 300.345.] If you want to attend the meeting and cannot because of a conflict, call the special education administrator or teacher and reschedule so that you can be there. 7. Q. Who Is Required to Attend the IEP Team Meeting? A. The school district should ensure that the following people attend the IEP meeting: (1) An educational agency representative (other than the teacher). This person must know about special education programs and be qualified to provide or supervise special education services. This person must also have the authority to approve funding for special education and related services without having to seek permission from others within the school district. [34 C.F.R. Part 300, App. C, No. 13.] (2) Your child's teacher. If your child has a suspected learning disability, the IEP team must also include one other person who has observed your child in an appropriate setting (such as a classroom or preschool). (3) You, as parent(s) (remember, the district must provide you with notice and schedule the meeting at a mutually agreed upon time and place). (4) Your child, where appropriate. (5) People who conducted any assessments or a person who is qualified to interpret and explain the assessment results. [34 C.F.R. Sec. 300.344 and Part 300, App. C, Nos. 13-28; Cal. Ed. Code Sec. 56341.] In addition, if your child is receiving services from Medi-Cal, California Children's Services, or a county mental health agency, representatives from those agencies may have to attend. See Chapter 9, Information on Inter-Agency Responsibility for Related Services. The school district must also notify the parent in writing regarding who will attend the IEP Team meeting. [34 C.F.R. Sec. 300.345(b) and Part 300, App. C, No. 28.] 8. Q. Can I Bring an Advocate or Attorney to an IEP Meeting? A. Yes. Parents can bring whoever they want to the meeting -- including an advocate, friend, regional center or other caseworker or attorney. Any decision that is made with regard to an IEP must be made with the informed consent of the parent. An advocate or case manager should assist in this process by fully explaining to parents the actions or consequences that are being discussed or contemplated. With the consent of the parent, the advocate/case manager/attorney can actively advocate for the rights of the child. 9. Q. How Can I Contribute to the IEP Process? A. The parents of a student with disabilities are expected to be equal participants, along with school personnel, in developing, reviewing, and revising the student's IEP. [34 C.F.R. Part 300, App. C, No. 26.(1)] You can contribute to the IEP process by bringing to the IEP meeting a written summary describing your child's needs as you see them. This summary should include these areas: (1) Strengths (for example, outgoing, open, optimistic, articulate, imaginative); (2) Weaknesses/Problem Areas (for example, poor self-concept, academic deficits, fighting, disorganization, takes longer than average to complete assignments, discouraged easily); (3) Functioning Levels (for example, difficulty with reading, math or spelling, responds to individual attention, needs verbal reinforcement for presented material); and, (4) What the Child Needs to Learn (for example, more positive self-concept, proficiency at grade level in academic areas, age-appropriate social skills, self help skills, job training, needs to be better organized, work at a more rapid pace). This written format should help you organize your ideas. Then you can help school personnel in identifying goal areas for your child, and in writing a full description of your child's educational needs. You also can contribute by bringing others who know your child to support you, by being assertive at the IEP meeting, and by knowing your rights under the law. 10. Q. If I Need an Interpreter at the IEP Meeting, must One Be Provided? A. Yes. If you need a language or sign interpreter to participate at the IEP meeting, one must be provided at no expense to you, the parent. [34 C.F.R. Sec. 300.345.] 11. Q. How Should an IEP Meeting Operate? A. You and the school district should develop your child's IEP as a partnership. Both parent and school district share the final decisions that are made about your child's program. Ideally, the IEP meeting should follow this process: Step l: Discussion and description of your child's current level of functioning (includes academic and non-academic functioning). Step 2: Development of annual goals and short-term objectives that are derived from your child's current functioning. Step 3: Discussion and description of the support services required by your child. (Related Services, Designated Instruction and Services.) Step 4: Discussion and description of the special education and related services, including placement recommendation and significant details of placement (for example, class size, integration and mainstreaming opportunities) that make up your child's appropriate educational program. See Questions 10, 11 and 15 for specific details. All members of the IEP team should attend and participate in the team meeting. An IEP team member should not sign the IEP before the team meeting. [California State Department of Education (CDE), Special Education Division, Technical Assistance and Clarification Statement (TACS) 12-89.] Your school district is required to have a procedure in place for reaching agreement in an IEP meeting. [CDE, Special Education Division, TACS 13-89.] You should ask your school district for a copy of its procedure if you have any questions about your school's IEP process. 12. Q. What Information Should Be Considered at the IEP for Deaf or Hard-of-hearing Pupils? A. In determining what is an appropriate education in the least restrictive environment for deaf or hard-of-hearing pupils, the IEP team shall specifically discuss the communication needs of the pupil, including: (1) Pupil's primary language mode (e.g., spoken language, sign language, or a combination); (2) Availability of language peers which may be achieved by consolidating services into an area-wide program; (3) Ongoing language access to teachers and specialists proficient in the pupil's language mode; and (4) Services necessary to ensure community accessible academic instruction and extracurricular activities. [Cal. Ed. Code Sec. 56345(e).] 13. Q. What Should Be Written in the IEP? A. Under federal law, the Individualized Education Program for each student with disabilities must include: (1) The student's present levels of educational performance. (2) A statement of annual goals and measurable objectives designed to achieve those goals. (3) The specific special education services to be provided (including, for example, physical education, vocational education, extended school year, instruction in academic or perceptual areas, teacher qualifications, class size, etc.). (4) The specific related services to be provided including the amount of time for each service (for example, occupational therapy twice a week for 45 minutes). (5) The extent to which the student will be able to participate in theregular education program (for example, full inclusion in a regular kindergarten 100% of the time with a full-time instructional aide, integration for lunch, art class daily, science or social studies class, extracurricular activities, etc.). (6) The projected date for initiation and the anticipated duration of the programs and services included in the IEP. (7) Appropriate objective criteria, evaluation procedures and schedules for determining , at least annually, whether the measurable objectives contained in the IEP are being achieved. (8) For students in kindergarten and grades 1 to 6, the IEP must also contain prevocational career education. (9) For students in grades 7 to 12, the IEP must also any differential standards which will be used to enable them to graduate, and vocational education, career education, or work experience education, in preparation for remunerative employment, including independent living skill training. (10) For students whose primary language is other than English, the IEP must include linguistically appropriate goals, objectives, programs and services. (11) Extended school year services, when needed. (12) For students 16 years of age or older, the IEP must state the transition services they need. Transition services are "a coordinated set of activities for a student ... which promotes movement from school to post-school activities... The activities shall include instruction, community experiences, the development of employment and other post-school living objectives, and, when appropriate, acquisition of daily living skills and functional vocational evaluation." (13) A description of the type of placement needed to implement the IEP in the least restrictive environment. The school district must ensure that a continuum of alternative placements is available, including instruction in regular classes (with an aide or other adaptations if necessary), special classes, non-public nonsectarian schools, state special schools, residential placement, home instruction, and instruction in hospitals and institutions. [34 C.F.R. Secs. 300.346, 553; Cal. Ed. Code Sec. 56345 and 56345.1.] 14. Q. How Should the Present Levels of My Child's Educational Performance Be Described in the IEP? A. The present levels of educational performance should reflect your child's unique needs in any area of education affected by your child's disability, including academic areas (reading, math, communication, etc.), non-academic areas (daily life activities, mobility, social/emotional/behavioral issues, etc.), and perceptual functioning (auditory or visual processing, motor abilities, concentration problems). The IEP team should try to describe your child's performance in objective, measurable terms. Information from your and from your child's teacher may be used. The team may use test scores and other information from your child's assessments, but any such information used should be easily understandable to you and all other members of the team. [See 34 C.F.R. Part 300, App. C, No. 36.] 15. Q. Why Are Annual Goals and Short-Term Instructional Objectives Important? A. Annual goals and short-term instructional objectives allow you to track your child's progress in school and help you determine if your child's educational program is appropriate. [34 C.F.R. Part 300, App. C, No. 37.] Goals and objectives are also important because they help form and guide your child's specific instructional plans. An IEP is not designed to be a detailed instructional plan (see Question 13 below), but instructional plans must relate directly to IEP goals and objectives. The best way for you as parents to influence the specific instruction your child receives is to participate in developing appropriate IEP goals and objectives. [34 C.F.R. Part 300, App. C, No. 41.] Most importantly, the goals and objectives define what kind of special education program and related services the school district must provide. The school district must provide the programs and services necessary to meet the goals and objectives in your child's IEP. If your child needs a particular kind of special education program or service, the school district is not required to provide it unless it is necessary to meet an IEP goal or objective. [34 C.F.R. Part 300, App. C, No. 45.] 16. Q. Should the IEP Team Write Specific Instructional Plans into the IEP? In many respects, IEP objectives are like objectives in daily instructional plans. However, the IEP is not intended to be detailed enough to be used as an instructional plan. The IEP, through its goals and objectives, (1) sets the general direction those who will implement the IEP should take, and (2) serves as the basis for developing a detailed instructional plan for the child. [34 C.F.R. Part 300, App. C, Nos. 39, 41.] 17. Q. Must the IEP Contain All Services My Child Needs? A. According to the federal regulations: Each public agency must provide a free appropriate public education to all children with disabilities under its jurisdiction. Therefore, the IEP for a child with a disability must include all of the specific special education and related services needed by the child -- as determined by the child's current evaluation (which may include parental input as well as district and independent evaluations). This means that the services must be listed in the IEP even if they are not directly available from the local agency, and must be provided by the agency through contract or other arrangements. The IEP must set out the amount of services to be provided, so that the level of the agency's commitment of resources will be clear to parents and other IEP team members. The amount of time to be committed to each of the various services to be provided must be (1) appropriate to that specific service, and (2) stated in the IEP in a manner that is clear to all who are involved in both the development and implementation of the IEP. Changes in the amount of services listed in the IEP cannot be made without holding another IEP meeting. However, as long as there is no change in the overall amount, some adjustments in scheduling the services should be possible (based on the professional judgment of the service provider) without holding another IEP meeting. (NOTE: The parents should be notified whenever this occurs.) [34 C.F.R. Part 300, App. C, Nos. 44, 51.] 18. Q. Is There a Mandated Length or Format for an IEP? A. The school district may determine the length and format of an IEP, so long as it contains all the elements described above. [34 C.F.R. Part 300, App. C, No. 56.] 19. Q. If My Child Is Mainstreamed into Regular Classes, Can I Write Modifications to the Regular Classroom in the IEP? A. Yes. Students who are able to participate in regular programming classes may require modifications, supplementary aids or services, within that regular class in order to learn. Such modifications may include the use of a tape recorder, oral testing, special seating, etc. Such modifications must be specifically written into your child's IEP. [34 C.F.R. Part 300, App. C, No. 48.] 20. Q. Can Class Size Limits Be Included in the IEP? A. Yes. Federal law and state law and policy state that special education means "specially designed instruction . . . to meet the unique needs of a child with disabilities . . ." One of those unique needs may be a limit on special education class size. A school district may disagree with a parent on the need for a class size limit. The district may believe that class size is not a critical element in an appropriate program for a student. However, a school district may not categorically refuse to add class size to an IEP as a matter of policy. Such a policy would not allow the IEP team to develop an IEP based on the unique needs of the student. You may wish to consider filing a compliance complaint if your school district has such a policy. [34 C.F.R. Sec. 300.17; Cal. Ed. Code Sec. 56031.] See Chapter 6, Information on Due Process Hearings/Compliance Complaints. 21. Q. Do I Have to Approve an IEP at the IEP Meeting? A. No. You have the right to take your IEP home to review it before you sign. Your child remains eligible for special education and stays in his current placement while you decide whether to consent. If you do not consent or file for a fair hearing in a reasonable period of time, then the LEA may file for a fair hearing. 22. Q. Can I Consent to Only Part of the IEP? A. You can consent to those parts of the IEP that you agree with, so those services can begin. If you disagree with certain parts of the IEP, those parts cannot be implemented and may be issues at a due process hearing if your concerns cannot be resolved informally. You may wish to file a written dissent with the IEP document to make your position clear. [Cal. Ed. Code Sec. 56346.] If a parent does not consent to all the components of the IEP, then those components of the program to which the parent has consented shall be implemented so not to delay providing special education and related services to the child. [Cal. Ed. Code Sec. 56346(a).] If the public education agency determines that the part of the proposed IEP to which the parent does not consent is necessary to provide a free and appropriate education to the child, they shall initiate a mediation conference or a due process hearing. While the mediation conference or due process hearing is pending, the child shall remain in his or her then-current placement, unless the parent and public education agency agree otherwise. [Cal. Ed. Code Sec. 56346(b).] 23. Q. Can I Consent to the Content of the IEP and Not Consent to Placement? A. Yes. You may consent to the content of the IEP as written, including the placement recommendation; yet you may disagree with the actual placement site or classroom. For example, after visiting the proposed placement or classroom, you may feel that it does not meet the requirements of the IEP as written. Your disagreement with the actual classroom may become the basis for a due process hearing if your concerns cannot be resolved informally. See Question 13; see also Chapter 6, Information on Due Process Hearings/Compliance Complaints. 24. Q. Can I Change My Mind after I Sign the IEP Document? A. Yes, where a parent has changed her mind, she may revoke her consent at any time [34 C.F.R. Sec. 300.500(a)(3)] and should immediately send a written revocation of consent to the special education administrator who represented the school district at the IEP meeting and ask that a new IEP meeting be scheduled as soon as possible. [A parent is entitled to an IEP review meeting within 30 days of a written request, not counting days in July or August. (Cal. Ed. Code Sec. 56343.5).] The district might not, however, revert to implementing the previous IEP, especially if the new IEP is already being implemented at the time the parent attempts to withdraw consent, or if any significant period of time has elapsed before the revocation. At the IEP meeting, if there is a dispute about the child's program or placement, it is unclear whether the "stay-put" provision (see Chapter 6) would apply to maintain the program as described by the IEP to which the parent wishes to withdraw consent or to the previous IEP. As always, the best practice is not to sign an IEP until one is sure about its contents. You need not sign an IEP at the IEP meeting where it was developed. You can and should take an IEP home to think about for a day or two if you are not sure you should agree to it at the time of the IEP meeting. You can also sign an IEP in part [Cal. Ed. Code Sec. 56346] as described previously in this chapter. 25. Q. What Kinds of Educational Placements must a School District Offer? A. School districts must to offer a continuum of alternative placements, including: (1) Instruction in a regular classroom; (2) Related services (in California, these are called "designated instruction and services") necessary to help your child benefit from special education. See Chapter 5, Information on Related Services; (3) Resource specialist services in which a school resource specialist provides specialized instruction and services to children who spend more than half their day in a regular classroom; (4) Special day classes and centers in which a school provides specialized instruction and services to children who spend less than half their day in a regular classroom; (5) State special schools, such as the California School for the Deaf and California School for the Blind; (6) Home instruction; (7) Instruction in hospitals or institutions, such as medical facilities, state hospitals and developmental centers, and juvenile schools; (8) Placement in appropriate non-public, non-sectarian schools when no appropriate public school placement is available; and (9) Out-of-home residential placement, including non-medical care and room and board when educationally appropriate or when the only appropriate school is too far away from your home. [34 C.F.R. Sec. 300.551; Cal. Ed. Code Secs. 56361, 56363.](2) The continuum of placements must permit students to receive an education to the maximum extent appropriate with children who do not have disabilities. [34 C.F.R. Sec. 300.550.] See Chapter 7, Information on Least Restrictive Environment. 26. Q. Can I Find out about Placement Options at an IEP Meeting? A. Some districts will tell you which placements (specific classrooms) they are recommending and describe those classrooms. Other school districts will recommend general placement categories (for example, resource specialists, special day class). Then, specific classroom assignments follow the IEP. You have the right to obtain as much specific information as possible about the recommended placements during your IEP meeting. 27. Q. Can the IEP Require Particular Teachers, Classrooms or Placements? A. You do not have the power to require that the school district provide its services from a particular person or in a particular classroom. However, the school district must provide "that unique combination of facilities, personnel, location or equipment necessary to provide instructional services ... as specified in the individualized education program." [Title 5, California Code of Regulations (Cal. Code Regs.) Sec. 3042(a).] Your child's IEP team must consider these unique factors when deciding what program your child should attend. For example, the IEP team should consider the accessibility and location of classrooms when considering whether a particular program is the least restrictive environment for your child. Similarly, the school district should consider teachers' qualifications, such as knowledge of particular languages or techniques, when deciding what program your child should attend. [CDE, Special Education Division, TACS 05-89.] In other words, the school district must provide services in settings and with people who can meet your child's IEP goals and objectives. If the school district's proposed classroom or teacher cannot meet your child's IEP goals, you can ask the district to change them. In most cases, you should observe the classroom yourself before agreeing to placement if you have concerns. If you wish, you can also ask an education professional to observe your child's recommended placement so that you can be sure it is appropriate. If you disagree with your child's specific classroom assignment, it is best to share your concerns with your school district and work together to arrange for another classroom assignment. However, this may not be possible and you may need to use the due process procedures available to you. See Chapter 6, Information on Due Process Hearings/Compliance Complaints. The school district cannot force you to accept a service or placement without your consent, except through the due process procedure. [Cal. Ed. Code Sec. 56346.] 28. Q. May Children with Differing Disabilities Be Grouped Together for Instruction in the Same Classroom? A. Heterogeneous or non-categorical classroom placements for children with disabilities are allowed under federal and state law because education needs, rather than disability category or label, should ultimately determine placement. However, such a placement must meet your child's IEP goals and objectives or it is not appropriate. 29. Q. When must the IEP Be Implemented? A. The IEP must be implemented as soon as possible following the IEP meeting. This means immediately following except when IEP meetings occur during a vacation period or where circumstances require a short delay (for example, to work out transportation). There can be no undue delay in providing special education and related services; however, the IEP may specify projected dates for initiation of services. [34 C.F.R. Sec. 300.342 and comment, and Sec. 300.346(d), and Part 300, App. C, No. 4; 5 Cal. Code Regs. Sec. 3040.] 30. Q. If I Place My Child in a Religious School or Other Non-public School, Does She Have the Right to an IEP and Special Education Services? A. Yes. School districts must develop IEPs for all eligible students in both public and private schools. If you choose to pay for the religious or non-public school placement, the school district is still responsible for holding IEP meetings and providing services specified in the IEP. [34 C.F.R. Sec. 300.348.] What services a student may receive and where those services are delivered may depend on the nature of the non-public school and/or the circumstances of the student's placement there. See Chapter 5, Information on Related Services, Questions 30 and 31. 31. Q. Should the IEP Respond to Real, Documented Needs, or Does it Accommodate the Available Funds/resources of the School District? A. While many school districts do have financial burdens, school districts must provide educational services based on the educational needs of your child. School districts cannot use economic issues to deny your child the services he needs. [34 C.F.R. Part 300, App. C, No. 44.] However, a hearing officer can consider costs in choosing between appropriate placements. [Cal. Ed. Code Sec. 56505(i).] 32. Q. When Considering Placements, Should the Child Fit the Program Placement or the Program Fit the Child? A. The program placement should be determined based on your child's needs as described in her IEP. The intent of the law is that the program be based on the unique needs of your child, rather than the programs available in the school district. If a program which meets your child's unique needs does not exist, the school district is required to secure a program by, for example, starting a new program, modifying an existing program, providing for an interdistrict transfer or paying for a non-public school placement as appropriate. [34 C.F.R. Sec. 300.552.] 33. Q. Can My School District Be Required to Purchase Equipment Needed to Implement My Child's IEP? A. Yes. Districts must provide equipment needed to implement your child's IEP. State law provides money to school districts to purchase equipment required in the IEP for students with low-incidence disabilities (for example, Braille equipment for blind students or communication devices for students with oral language handicaps). In addition, schools are required to purchase equipment needed to provide related services such as occupational and physical therapy equipment. [Cal. Ed. Code Sec. 56771; Cal. Gov. Code Sec. 7575(d).] In addition, federal law requires that districts ensure that assistive technology devices and/or services are available (1) to special education students who need them as part of their special education or related services or (2) to the supplemental aids and services used to assist students in being placed in the least restrictive environment. [34 C.F.R. Sec. 300.308.] An assistive technology device is any item, piece of equipment, or product system, whether acquired commercially off the shelf, modified, or customized, that is used to increase, maintain, or improve the functional capabilities of children with disabilities. [34 C.F.R. Sec. 300.5.] Assistive technology services include evaluation for and purchasing, modifying or repairing of such a device, and training necessary for the student and others to use it effectively. [34 C.F.R. Sec. 300.6.] See, Chapter 5 Information on Related Services, Questions 41 through 44. 34. Q. Can I Tape Record an IEP Meeting? A. Yes. Parents may tape record an IEP meeting, even without the school district's permission, as long as you give the school district 24 hours' notice of your intention to do so. A school district may tape record an IEP meeting as long as it gives you 24 hours notice of its intention to do so. However, the school district must have the parent's permission to tape record the meeting. [Cal. Ed. Code Sec. 56341(g).] Under federal law, audio tape recordings made by the school district are governed by the Family Educational Rights and Privacy Act of 1974. [20 United States Code (U.S.C.) Sec. 1232(g).] In addition, you have the right: (1) To inspect and review district-made tape recordings; (2) To request that the tape recordings be amended if you believe that they contain information that is inaccurate, misleading, or in violation of the rights of privacy or other rights of the individual with exceptional needs; and (3) To challenge, in a hearing, information that you believe is inaccurate, misleading, or in violation of the individual's rights of privacy or other rights. [34 C.F.R. Sec. 99.10-99-22; Cal. Ed. Code Sec. 56341(g)(2)(A)(B).] 35. Q. What If Participants in My IEP Meeting Use Initials or Jargon That I Do Not Understand? A. Remember, parents have a right to equal participation in the IEP process. [34 C.F.R. Part 300, App. C, No. 26.] Do not let the meeting proceed until you fully understand what is being said. Stop the meeting, ask what the jargon or professional term means, and continue to ask until you are comfortable that you understand the meaning. Do not allow the jargon to intimidate you. Above all, remember MOST parents do not understand the jargon. Asking questions is not an indication that you are uninformed, but rather an indication that you are rightfully concerned about developing the appropriate education program for your child. 36. Q. Can a School District Use Pre-written or Computer Generated IEP Goals and Objectives? A. The law does not allow the school district to present a completed IEP for approval without a full discussion of your child's need for special education and the services offered. [34 C.F.R. Part 300, App. C, No. 55.] Sometimes, in order to save time, school personnel prepare suggested goals or meet with the parent before the IEP meeting. This is permitted only if it does not prevent team members (especially parents) from providing input and if it results in an individualized education program. However, the CDE recommends that your school district should not send you a draft IEP before your IEP meeting. [CDE, Special Education Division, TACS 07-89.] 37. Q. Who Is Responsible for Implementing My Child's IEP? A. Federal law requires that the state education agency be ultimately responsible for ensuring that the procedures in Public Law 94-142 are followed and that students receive needed education services in accord with their IEPs. [34 C.F.R. Sec. 300.600.] California law delegates to local education agencies the direct responsibility for providing the services in students' IEPs and for ensuring that a continuum of program options exists to meet the needs of students for special education and related services. [Cal. Ed. Code Secs. 56360.] However, if the local education agency refuses or wrongfully neglects to provide a student with disabilities with a free appropriate public education, then the state education agency is responsible for directly providing the needed services. [20 U.S.C. Secs. 1412(6) and 1414(d).] 38. Q. If My Child Already Is a Special Education Student, Can the School Withhold Eligibility or Existing Service? A. No. If the parents and the school disagree on services, the last agreed-upon IEP remains in effect. [34 C.F.R. Part 30, App. C, Question 35.] ----------------------------------------------------------------- Sample Letter - Request for IEP Meeting Ms. Bev Blue, Address, City, CA Zip Code, Telephone Number Date Mr. Gary Green Director of Special Education Local Unified School District Address City, CA Zip Code RE: John Blue Dear Mr. Green: I am the parent of John Blue, who is currently enrolled in 5th grade at Regular Elementary School in the special day class for disabled students with learning disabilities. I am requesting that an IEP meeting be held for my son as soon as possible. He has been having some problems at school and has been suspended once. I think his program may need to be modified to address his individual needs. I am also requesting that a behavioral assessment be completed before the meeting and that I receive a copy of this assessment and all of John's school records regarding the suspension prior to the IEP meeting. [Optional: In addition, please have the Section 504 Coordinator for Local Unified School District present at the IEP meeting to discuss whether assessment and/or accommodations under Section 504 of the Rehabilitation Act of 1973 might be indicated for John.] Since I work in the afternoon, a morning IEP meeting would be convenient for me. If you have questions or need to discuss this letter further, please call me at work at 555-5555. Thank you in advance for your prompt action regarding this request. Sincerely, Bev Blue ----------------------------------------------------------------- 1. In 1981, the federal Department of Education issued regulations and interpretations intended to provide a comprehensive clarification of IEP requirements. [34 C.F.R. Part 300, App. C.] The clarifications and interpretations are legally binding and are followed by the Department of Education in determining whether state and local education agencies are in compliance with the Individuals with Disabilities Education Act (IDEA) and its implementing regulations. 2. For more specific information on individual types of placements, see Cal. Ed. Code Secs. 56362 (resource specialist program), 56364 (special day class), 56360 and 56367 (state special schools), 56356 (non-public schools), 56167 (medical institutions), 56850 (state developmental centers and hospitals), 56150 (juvenile schools), and 56156 (out-of-home residential placement). See also 34 C.F.R. Sec. 300.302 (out-of-home residential placements). For more information on services provided by other agencies, see Chapter 9, Inter-Agency Responsibilities. ---------- Chapter 5 Information on Related Services TABLE OF CONTENTS Question 1. Q. What Are Related Services? 2. Q. What Is the Difference Between "Related Services" and "Designated Instruction and Services" (DIS)? 3. Q. What Does "Required to Assist a Child with a Disability to Benefit from Special Education" Mean? 4. Q. What Is an Example of a Needed Service That Is Not "Related" to Education? 5. Q. When Can My Child Get Transportation as a Related Service? 6. Q. Can the School District Refuse to Provide Out of District Transportation for my Child? 7. Q. Can the School District Stop Providing Transportation If My Child Is Mainstreamed in Regular Classes? 8. Q. May a School District Provide Transportation Only to Those Students Who Live at Least a Specified Minimum Distance from Their School Site (for Example, Two Miles)? 9. Q. May A School District Require Parents to Provide Transportation If They Are Able? 10. Q. When Can My Child Get Occupational or Physical Therapy as a Related Service? 11. Q. When Can My Child Get Psychological Counseling or Other Mental Health Services as a Related Service? 12. Q. Does My Child Need to Be Classified as "Seriously Emotionally Disturbed" to Receive Mental Health Services? 13. Q. When Can My Child Get Speech or Language Therapy as a Related Service? 14. Q. Can the School District Limit All Children to Two Half-hour Speech Therapy Sessions per Week Because it Only Has One Speech Therapist on Staff? 15. Q. Can My Child Get Communication Services and Equipment If He Is Non-oral? 16. Q. Can My Child Receive Vision Therapy as a Related Service? 17. Q. What Are School Health Services and Who Provides Them? 18. Q. My Child Needs Health Services Such as Tracheostomy Care or Catheterization in Order to Attend School, but the School District Told Me it Does Not Have to Provide Such Services Because They Are "Medical." Is this True? 19. Q. My Child Needs Nursing Services in Order to Attend School, but the School District Told Me it Does Not Have to Provide Such Services Because They Are "Medical." Is this True? 20. Q. Can the School District Require Me to Attend School with My Child to Perform Health-Related Services? 21. Q. Can I Have the School District Provide a Certain Type of Related Service? 22. Q. How Do I Decide Who Is Qualified to Provide a Related Service? 23. Q. What must Be Written in My Child's IEP Concerning Related Services? 24. Q. Can the Amount of Related Services, or IEP Objectives for Related Services, Be Changed Without Convening an IEP Meeting? 25. Q. If My Child Is Placed Full Time in a Regular Classroom Is He Entitled to Receive Related Services? 26. Q. Are School Districts Responsible for Providing Children with Instructional Aides? 27. Q. What Can I Do If My Child Is Not Receiving a Related Service, as Provided in the IEP, Because the Person Who Is to Provide the Service Is Absent? 28. Q. Looking at the List of Related Services Stated in the Law, it Seems That School Districts Must Provide Many Non-academic Services. Do School Districts Actually Provide These Services? 29. Q. Under What Circumstances Is My Child Entitled to Residential Placement? 30. Q. Must My Child Be Classified as Seriously Emotionally Disturbed Before She Is Entitled to a Residential Placement? 31. Q. My Child Is Placed in A Non-public School. Can He Receive Related Services from the Public School System If He Needs the Services to Benefit from Education, and the Services Are Not Available from the Non-public School? 32. Q. My Child Attends a Religious School. Can She Receive Related Services from the Public School System If She Needs Such Services to Benefit from Education and the Services Are Not Available at the Religious School? 33. Q. My Child Has Ongoing Behavior Problems. Does the School District Have Any Service Responsibility to Address Those Problems? 34. Q. What Does "Behavioral Intervention" Mean and What Purpose Does it Serve? 35. Q. What Do the New Positive Behavior Intervention Regulations Require of School Districts? 36. Q. What Is a "Serious Behavior Problem" for Purposes of Qualifying for Positive Behavior Intervention Services under the Regulations? 37. Q. What Is a "Functional Analysis Assessment"? 38. Q. What Is a "Positive Behavior Intervention Plan"? 39. Q. What Are "Positive Behavior Interventions"? 40. Q. What Behavioral Interventions Are Prohibited? 41. Q. What Can School Personnel Do If My Child Suddenly Has A Dangerous Behavioral Outburst? 42. Q. What Is Assistive Technology under Idea? 43. Q. How Can I Determine When Assistive Technology Is a Related Service? 44. Q. Can My Child Use the Assistive Technology Equipment Outside of the School Day? 45. Q. Who Pays for Assistive Technology Devices? Positive Behavioral Intervention Procedural Flowchart Positive Behavioral Intervention Procedural Flowchart -- Emergency Intervention Procedures ----------------------------------------------------------------- S P E C I A L E D U C A T I O N R I G H T S A N D R E S P O N S I B I L I T I E S Chapter 5 Information on Related Services 1. Q. What Are Related Services? A. Put simply, related services are any services which are necessary to help a student benefit from his special education program. The following definition is quoted from federal regulations, but also includes any new related services recently added by amendments to federal special education law [Title 20 United States Code (U.S.C.) Sec. 1401(a)(17)]: 34 Code of Federal Regulations (C.F.R.) Sec. 300.16: Related Services (a) As used in this part, the term "related services" means transportation and such developmental, corrective, and other supportive services as are required to assist a handicapped child to benefit from special education, and includes speech pathology and audiology, psychological services, physical and occupational therapy, recreation, early identification and assessment of disabilities in children, counseling services, and medical services for diagnostic or evaluation purposes. The term also includes school health services, social work services in schools, and parent counseling and training. As a result of recent amendments to federal law, the definition has been expanded to include rehabilitation counseling. This term is not defined in either the statute or regulations. (1) Audiology includes: (i) Identification of children with hearing loss; (ii) Determination of the range, nature, and degree of hearing loss, including referral for medical or other professional attention for the habilitation of hearing; (iii) Provision of habilitative services, such as language habilitation, auditory training, speech reading (lip reading), hearing evaluation, and speech conservation; (iv) Creation and administration of programs for prevention of hearing loss; (v) Counseling and guidance of students, parents and teachers regarding hearing loss; and (vi) Determination of the child's need for group and individual amplification, selecting and fitting an appropriate aid, and evaluating the effectiveness of amplification. (2) Counseling services, including rehabilitation counseling, means services provided by qualified social workers, psychologists, guidance counselors, or other qualified personnel. (3) Early identification means the implementation of a formal plan for identifying a disability as early as possible in a child's life. (4) Medical services means services provided by a licensed physician to determine a child's medically related handicapping condition which results in the child's need for special education and related services. (5) Occupational therapy includes: (i) Improving, developing or restoring functions impaired or lost through illness, injury or deprivation; (ii) Improving ability to perform tasks for independent functioning when functions are impaired or lost; (iii) Preventing, through early intervention, initial or further impairment or loss of function. (6) Parent counseling and training means assisting parents in understanding the special needs of their child and providing parents with information about child development. (7) Physical therapy means services provided by a qualified physical therapist. (8) Psychological services include: (i) Administering psychological and educational tests, and other assessment procedures; (ii) Interpreting assessment results; (iii) Obtaining, integrating, and interpreting information about child behavior and conditions relating to learning; (iv) Consulting with other staff members in planning school programs to meet the special needs of children as indicated by psychological tests, interviews, and behavioral evaluations; and (v) Planning and managing a program of psychological services, including psychological counseling for children and parents. (9) Recreation includes: (i) Assessment of leisure function; (ii) Therapeutic recreation services; (iii) Recreation programs in schools and community agencies; and (iv) Leisure education. (10) School health services means services provided by a qualified school nurse or other qualified person. (11) Social work services in schools include: (i) Preparing a social or developmental history on a handicapped child; (ii) Group and individual counseling with the child and family; (iii) Working with those problems in a child's living situation (home, school and community) that affect the child's adjustment in school; and (iv) Mobilizing school and community resources to enable the child to receive maximum benefit from his or her educational program. (12) Speech pathology includes: (i) Identification of children with speech or language disorders; (ii) Diagnosis and appraisal of specific speech or language disorders; (iii) Referral for medical or other professional attention necessary for the habilitation of speech or language disorders; (iv) Provision of speech and language services for the habilitation or prevention of communicative disorders; and (v) Counseling and guidance of parents, children, and teachers regarding speech and language disorders. (13) Transportation includes: (i) Travel to and from school and between schools; (ii) Travel in and around school buildings; and (iii) Specialized equipment (such as special or adapted buses, lifts and ramps), if required to provide special transportation for a handicapped child. The comment to this regulation states: The list of related services is not exhaustive and may include other developmental, corrective, or supportive services (such as artistic and cultural programs, and art, music, and dance therapy), if they are required to assist a student with a disability to benefit from special education. The comment to the regulation further makes clear that not all related services will be required for each individual child. Related services may be provided by persons from varying professional backgrounds. Not all such personnel will be directly employed by school districts; they may be provided by other public agencies or by contracts between school districts and private providers. However, in all cases the state education agency (generally through the local education agencies) is ultimately responsible for ensuring that related services are provided. [34 C.F.R. Sec. 300.600; California Education Code (Cal. Ed. Code) Secs. 56360, 56361, 56363.] Although not specifically identified as a related service, federal law requires that districts ensure that assistive technology devices and/or services are available to special education students who need them as part of their special education or related services or as part of the supplemental aids and services used to assist them in being placed in the least restrictive environment. [34 C.F.R. Sec. 300.308.] See Questions 38 to 41 below. 2. Q. What Is the Difference Between "Related Services" and "Designated Instruction and Services" (DIS)? A. "Designated Instruction and Services" (DIS), is California's definition of the term "related services." [Cal. Ed. Code Sec. 56363; 5 California Code of Regulations (Cal. Code Regs.) Sec. 3051.] California's definition of DIS basically follows the federal definition of related services, although it is narrower in scope in some respects. However, a child's entitlement to special education and related services is a right established under federal law; state law cannot beapplied to deny services to which a child would be entitled under federal law. 3. Q. What Does "Required to Assist a Child with a Disability to Benefit from Special Education" Mean? A. This phrase is the key in determining whether a school district is responsible for providing a related service to a student with a disability. A school district does not have to provide a service to a student with a disability just because he will benefit from the service, or even if he requires the service. The service is only "related" if it is necessary to help him benefit from educational instruction. Examples of such situations are given in the questions and answers below. 4. Q. What Is an Example of a Needed Service That Is Not "Related" to Education? A. A student and her family could require social work services because of problems at home, but she is progressing appropriately in school in spite of the problems. The student needs the service, but not for educational reasons. If she were not performing appropriately in school as a result of family problems, social work services could be "related" to her ability to succeed in school. In that case, the services would be the school district's responsibility. 5. Q. When Can My Child Get Transportation as a Related Service? A. Transportation is a related service when it is necessary in order for a student to attend a special education program due to the distance he lives from school or his disability. Transportation is also available to and from related services which are not provided at the school site. Note that while the state reimburses school districts only for certain types of transportation, the school district cannot use lack of reimbursement as a reason to deny needed services. [34 C.F.R. Sec. 300.16.] The California Department of Education (CDE) developed guidelines for use by IEP teams in determining when transportation is needed as a related service. The guidelines, issued October 1993, state in part: Guidelines for Use by the Individualized Education Program (IEP) Team ... The specific needs of the pupil must be the primary consideration when an IEP team is determining any transportation needs. These may include, but are not limited to: 1. Medical diagnosis and health needs. Consideration of whether long bus rides could affect a certain pupil's health (duration, temperature control, need for services, health emergencies); general ability and/or strength to ambulate/wheel; approximate distance from school or the distance needed to walk or wheel oneself to the school; consideration of pupil needs in inclement or very hot weather, other; 2. Physical accessibility. For pupils using wheelchairs who may live close to school or use public transportation, consideration of the physical accessibility of curbs, sidewalks, streets, and public transportation systems; 3. Pupil capacity. Consideration of a pupil's capacity to arrive at school on time, to avoid getting lost, to avoid dangerous traffic situations, and to avoid other potentially dangerous of exploitative situations o the way to and from school; 4. Behavior Intervention Plans. Behavior intervention plans (5 Cal. Code Regs. 3001) specified by the pupil's IEP and consideration of how to implement such plans while a pupil is being transported; 5. Other transportation needs. Mid-day or other transportation needs as required on a pupil's IEP (for example, occupational or physical therapy or mental health services at another site, community based classes, etc.) must also be taken into consideration when the IEP team discusses a pupil's placement and transportation needs... Transportation Options: Considering the identified needs of the pupil, transportation options may include, but not be limited to: walking, riding the regular school bus, utilizing available public transportation (any out-of-pocket costs to pupil or parents are reimbursed by the local education agency), riding a special bus from a pick up point, and portal-to-portal special education transportation via a school bus, taxi, reimbursed parent's driving with a parent's voluntary participation, or other mode as determined by the IEP team. When developing specific IEP goals and objectives related to the pupil's use of public transportation, the IEP team may wish to consider a blend of transportation services as the pupil's needs evolve. Specialized transportation as a related service must be written on the pupil's IEP with specificity and should be approved by the transportation administrator. It is recommended that transportation services be described in sufficient enough detail to inform the parties of how, when and from where to where transportation will be provided and, where arrangements for the reimbursement of parents are required, the amount and frequency of reimbursement. Suspension from the school bus: Occasionally pupils receiving special education services are suspended from bus transportation (Cal. Ed. Code 48900-48900.5, Grounds for Suspension). The suspension of a pupil receiving special education services from California transportation can constitute a significant change of placement if the district: 1) has been transporting the student; 2) suspends the student from transportation as a disciplinary measure; and 3) does not provide another mode of transportation (Office of Civil Rights, Letter of Finding, Complaint No. 04-89-1236, December 8, 1989). A significant change in placement requires a meeting of the IEP team to review the pupil's IEP. During the period of any exclusion from bus transportation, pupils must be provided with an alternative form of transportation at no cost to the pupil or parent in order to be assured of having access to the required special education instruction and services [Cal. Ed. Code 48915.5(j)]... The guidelines do not override the general provisions of federal law that require districts to provide transportation to special education students when, because of distance or disability, the transportation is necessary for the child to get to his school program. [Cal. Ed. Code Sec. 56040, 41850(d).] 6. Q. Can the School District Refuse to Provide Out of District Transportation for my Child? A. Yes. However, it may be possible to compel the district to provide out of district transportation when the transportation is necessary and appropriate to meet the individual needs of the child. When establishing the necessity and appropriateness of out of district transportation, consider the following: (1) The unique nature of the program or service to be provided out of district; (2) The availability of comparable programs or services within the district/lack of appropriate alternatives; (3) The specific needs of the child and family; (4) The child's disability and level of functioning; (5) Cost; (6) Academic and non-academic benefits; (7) Least restrictive environment; (8) Inability to secure alternative means of transportation. 7. Q. Can the School District Stop Providing Transportation If My Child Is Mainstreamed in Regular Classes? A. No. So long as the IEP team determines that your child needs transportation, he is entitled to receive it. For example, even though your child with learning disabilities is in regular classes for more than half the day, his learning disabilities may make it unsafe or very difficult for him to take public transportation to school. Thus, transportation should be provided. 8. Q. May a School District Provide Transportation Only to Those Students Who Live at Least a Specified Minimum Distance from Their School Site (for Example, Two Miles)? A. No. Such a categorical limitation would be inconsistent with the requirement that related services be provided based on individual need. If, because of the child's disability, she needs transportation to attend school, the school district must provide it. 9. Q. May A School District Require Parents to Provide Transportation If They Are Able? A. No. The patents' ability to provide transportation does not relieve the school district of its responsibility. In some instances, where the parents have agreed, school districts have reimbursed parents for mileage for providing transportation which the school district would otherwise have to provide. In these instances, parents are entitled to be reimbursed at the rate the district reimburses its employees and to be reimbursed for the total round trip mileage. 10. Q. When Can My Child Get Occupational or Physical Therapy as a Related Service? A. Occupational therapy and physical therapy (OT/PT) address a student's gross and fine motor functioning. For example, a student may have difficulty running, walking, throwing, catching, jumping, etc. (gross motor), or writing, drawing, buttoning and zipping clothes, etc. (fine motor). In addition, a student's motor functioning may affect independent living skills. If a student of normal intelligence has verbal skills that are higher than motor skills, or if a more severely disabled student has difficulty with daily living skills such as feeding, dressing, etc., this may be an informal indicator that could prompt a request for evaluation of OT/PT as "related services." OT/PT are among the services affected by California legislation commonly referred to as "AB 3632", which shifted responsibility for providing certain related services from school districts to other agencies (in this case, to California Children's Services (CCS)) under certain circumstances. Many of the issues that arise concerning OT/PT are discussed in Chapter 9, Information on Inter-Agency Responsibility for Related Services (AB 3632/882). Among these issues are the following: (1) What are the procedures for obtaining OT/PT? (2) What happens if a student does not meet CCS's eligibility requirements but still needs OT/PT? (3) If CCS determines that OT/PT is not "medically necessary", is the student still entitled to receive the service as a related service? If so, who provides it? 11. Q. When Can My Child Get Psychological Counseling or Other Mental Health Services as a Related Service? A. Psychological services include counseling and psychotherapy. The difference between the two is determined by the qualifications of the provider. Counseling is provided by a credentialed counselor or school psychologist. Psychotherapy in California must be provided by a psychiatrist, licensed psychologist, a licensed marriage, family, and child counselor (MFCC), or a licensed clinical social worker (LCSW). Counseling generally focuses on school and school-related issues such as behavior in school, grades, curriculum, etc. Psychotherapy generally focuses on a student's emotional status, and feelings towards peers and family. Psychotherapy is available when your child's emotional status has a negative effect on his educational performance. Other mental health services such as "day treatment programs" which integrate psychological counseling throughout the school day can also be provided. Like OT/PT, AB 3632 affects some mental health services, including psychotherapy. In this case, responsibility for mental health services was given to the California Department of Mental Health (DMH) and local mental health agencies. Among the issues concerning AB 3632 and mental health services, which are addressed in Chapter 9, Information on Inter-Agency Responsibility For Related Services (AB 3632/882), are the following: (1) What are the procedures for obtaining mental health services from mental health agencies? (2) Which mental health services are available from mental health agencies? (3) What happens if a child does not meet eligibility requirements for services from a local mental health agency but still needs mental health services to help him benefit from special education? 12. Q. Does My Child Need to Be Classified as "Seriously Emotionally Disturbed" to Receive Mental Health Services? A. No. Mental health services, such as counseling and psychotherapy, must be provided to any child who needs the service to help her benefit from special education. 13. Q. When Can My Child Get Speech or Language Therapy as a Related Service? A. Speech and language therapy may be the most frequently requested related service, primarily because language is so closely related to education. Speech therapy addresses articulation difficulties, a common disability. Language therapy addresses difficulties with memory, verbal expression, and listening problems. If your child has any difficulties with speech or language, you should ask school district, in writing, to do a speech and language evaluation. Any student eligible for special education may receive speech and language therapy if he needs the service to benefit from special education. Special education students do not need to meet the special education eligibility criteria for speech and/or language disorders in order to receive speech and language therapy as a related service. 14. Q. Can the School District Limit All Children to Two Half-hour Speech Therapy Sessions per Week Because it Only Has One Speech Therapist on Staff? A. No. The frequency of a related service and the amount of time in each session must be individually determined based on your child's needs at the IEP team meeting. Frequency and amount of time should be written on the IEP. See Question 20 . 15. Q. Can My Child Get Communication Services and Equipment If He Is Non-oral? A. Yes. If your child is non-oral, you may want to ask the school district to contract with a non-oral communications specialist to do an assessment. Depending on the results of the assessment, the IEP team may decide that your child would benefit from specialized services such as a computerized communications device and instruction in using this device. [Cal. Ed. Code Sec. 56363(b)(16).] 16. Q. Can My Child Receive Vision Therapy as a Related Service? A. Yes, if your child needs vision therapy in order to benefit from special education. Vision therapy may include remedial and/or developmental instruction provided directly by or in consultation with an optometrist, ophthalmologist, or by another qualified licensed physician or surgeon. [5 Cal. Code Regs. Sec. 3051.75.] 17. Q. What Are School Health Services and Who Provides Them? A. School health services are services provided by a qualified school nurse or other qualified person. These services include health and nursing services such as: (1) Managing a student's health problems on the school site; (2) Consulting with students, parents, teachers and others; (3) Counseling with parents and students concerning health problems; and (4) Providing specialized physical health care services which are necessary during the school day to enable the child to attend school. [5 Cal. Code Regs. Sec. 3051.12.] California law defines specialized physical health care services to include "catheterization, tube feeding, suctioning or other services that require medically related training." [Cal. Ed. Code Sec. 49423.5(d).] Under state law, there are two ways in which specialized physical health care services may be provided. The California Department of Health Services (DHS) is responsible for providing a home health aide through Medi-Cal if the following conditions exist: (1) The child is eligible for Medi-Cal; (2) The child is being considered for a less restrictive placement from home to school; (3) The child requires the personal assistance or attention of a nurse, home health aide, or other specially trained adult; and, (4) Medical support services through the Medi-Cal program are being provided during the time the student would be in school, or traveling to or from school. [California Government Code (Cal. Gov. Code) Sec. 7575(e); 2 Cal. Code Regs. Sec. 60400.] For special education students who do not meet these conditions, specialized physical health care needs are to be provided by the responsible local school district. [Cal. Ed. Code Secs. 49423.5, 56363(b)(12); 5 Cal. Code Regs. Sec. 3051.12; 2 Cal. Code Regs. Sec. 60400.] 18. Q. My Child Needs Health Services Such as Tracheostomy Care or Catheterization in Order to Attend School, but the School District Told Me it Does Not Have to Provide Such Services Because They Are "Medical." Is this True? A. The distinction between "medical services" and school health services is important. Except for those medical services that are for "diagnostic or evaluation purposes", school districts are not responsible for providing medical services as related services. The U.S. Supreme Court addressed this issue in the Tatro case. The court pointed out that "medical services" are defined in federal law as "services provided by a licensed physician." Therefore, the court reasoned that if a service can be performed by a school nurse or other qualified person and is not one that must be provided by a licensed physician, then it is not a medical service -- but it is a related service if it is necessary to help a child with a disability benefit from special education. If your child needs the health service to be able to attend school at all, then she needs it to benefit from special education. 19. Q. My Child Needs Nursing Services in Order to Attend School, but the School District Told Me it Does Not Have to Provide Such Services Because They Are "Medical." Is this True? A. The law in this area is not entirely settled. Courts in other states have ruled that school districts need not provide nursing services as related services if they are intensive or continuous in nature. School districts are more likely to challenge their responsibility for providing such services, especially if only a full-time skilled RN or LVN can provide the service. If you are confronted with this situation, you should get clear documentation from your child's doctor as to what services he needs and the necessary qualifications of the persons who can provide the services. If you cannot resolve the issue with the school district informally, it may be necessary to use the compliance complaint or due process procedures. See Chapter 6, Information on Due Process Hearings/Compliance Complaints. 20. Q. Can the School District Require Me to Attend School with My Child to Perform Health-Related Services? A. No. Any such requirement would violate the idea of a free appropriate public education, since it is not free to the parents if they must commit their time. Nor can your child's right to attend school be legally conditioned on your presence at the school. 21. Q. Can I Have the School District Provide a Certain Type of Related Service? A. There are frequently different "methods" of providing a particular service. For example, the State Office of Special Education has determined that "sensory integration therapy" is one method for providing OT. While a school district must provide a related service that is educationally necessary, it has been decided generally that the district has no obligation to provide a specific method. Unless you can show that the school district's chosen method would be inappropriate for your child, the choice of method usually is up to the trained specialist providing the service. 22. Q. How Do I Decide Who Is Qualified to Provide a Related Service? A. State and federal regulations specify that a person is qualified if they meet federal and state certification, licensing or registration requirements. In addition, the person must adhere to the standards of professional practice established under state or federal law. If you have questions about a person's qualifications, you should ask what licenses or certifications they hold. If provider qualifications are a central component to ensuring your child's appropriate education, you should ask that the qualifications be written into your child's IEP. 23. Q. What must Be Written in My Child's IEP Concerning Related Services? A. Related services should be requested at an IEP meeting and, if determined appropriate, written in your child's IEP. It is not enough to merely list related services (e.g., "speech therapy", "OT/PT", "psychotherapy", etc.) that your child is to receive in the IEP. The IEP must also set out the specific frequency and duration of the service to be provided. [34 C.F.R. Sec. 300.346 and Part 300, App. C, Nos. 44, 45, 51; 5 Cal. Code Regs. Sec. 3051(a)(2).] The U.S. Department of Education's clarification to the regulations [34 C.F.R. Part 300, App. C, No. 511], which is legally binding, states: The amount of services to be provided must be stated in the IEP, so that the level of the agency's commitment of resources will be clear to parents and other IEP team members. The amount of time to be committed to each of the various services to be provided must be (1) appropriate to that specific service, and (2) stated in the IEP in a manner that is clear to all who are involved in both the development and implementation of the IEP. Changes in the amount of services listed in the IEP cannot be made without holding another IEP meeting. However, as long as there is no change in the overall amount, some adjustments in scheduling the services should be possible (based on the professional judgment of the service provider) without holding another IEP meeting. (NOTE: The child's parents should be notified whenever this occurs.) It is also appropriate to detail clearly the services required. Instead of "speech therapy", the statement might include: "individual instruction for a minimum of one hour on a weekly basis in phonology and syntax provided by a credentialed Language, Speech and Hearing Specialist, with supportive group activities on a daily basis in the classroom, provided by the teacher or aide in consultation with the Specialist." Other examples of appropriate provider qualifications include "health aide with CPR training", "instructional aide fluent in signing", etc. In addition, the IEP should include the goals and objectives of each service, and appropriate objective criteria, evaluation procedures and schedules for determining whether the objectives are being achieved. (Obviously, this would not be required for a service intended only to enable the child to get to or attend school, such as transportation.) The above information must be written in the IEP regardless of whether the service is to be provided directly by the school district, by a private provider or by another public agency (such as CCS) or a local mental health agency under AB 3632/882). [34 C.F.R., Part 300, Appendix C, No. 44.] [For more information on requirements for the IEP, see Chapter 4, Information on IEP Process.] 24. Q. Can the Amount of Related Services, or IEP Objectives for Related Services, Be Changed Without Convening an IEP Meeting? A. No. State and federal law are quite clear that IEP meetings must be held for purposes of "developing, reviewing, and revising" a student's individualized education program. [Cal. Ed. Code Secs. 56340, 56341(a), 56343(c); 34 C.F.R. Sec. 300.343(a) and Part 300, App. C, Nos. 43 and 51.] Parents must be notified of the proposed changes prior to the IEP meeting. [34 C.F.R. Sec. 300.504 and Part 300, App. C., No. 43.] Again, this is true regardless of what agency actually provides the related service. Further, if you disagree with a proposed reduction or termination of a related service at an IEP meeting, you can request a due process hearing. Your child must continue to receive the related service while the hearing (and court proceedings, if any) are under way. [20 U.S.C. Sec. 1415(e)(3); 34 C.F.R. Sec. 300.315; Cal. Ed. Code Sec. 56505(d).] 25. Q. If My Child Is Placed Full Time in a Regular Classroom Is He Entitled to Receive Related Services? A. Yes. The education program for all students in special education must be based on individual needs. Any child who meets the eligibility requirements for special education is entitled to the related services needed to help him benefit from special education. Special education law favors placement in regular classrooms whenever possible. Children who can be mainstreamed full time are entitled to the supportive services that enable them to attend school or to function in a regular classroom environment. State regulations also say explicitly that related services may be provided to students "who are served throughout the full continuum of educational settings." [5 Cal. Code Regs. Sec. 3051(a)(1).] Even children with disabilities who are not eligible for special education and who would, thus, attend regular education classes, would be entitled to receive supportive services (for example, school health services) necessary to enable them to benefit from their school program under other state and federal laws that ensure access of persons with disabilities to state and federally funded programs. [For example, see Section 504 of the Rehabilitation Act of 1973; Cal. Gov. Code Sec. 11135.] 26. Q. Are School Districts Responsible for Providing Children with Instructional Aides? A. Yes. The school district must provide an aide if your child needs an aide to help her benefit from her education -- including situations where your child needs an aide to assist her in a regular classroom. Thus, an aide might be required to help a child with severe physical disabilities perform educational tasks (such as note taking), or to assist in a behavioral management program for a child with severe behavior problems. The aide should be qualified to perform the particular duties needed. Any required qualifications (for example, "trained in behavior modification", "knowledgeable in algebra", "fluent in signing") should be written in the IEP, as well as the frequency, amount and type of services the aide will provide. 27. Q. What Can I Do If My Child Is Not Receiving a Related Service, as Provided in the IEP, Because the Person Who Is to Provide the Service Is Absent? A. The best remedy is prevention. It would be proper to discuss the issue of a service provider's absence at the IEP meeting when the team writes the service in the IEP. The IEP team could then plan for, and set out in the IEP, what will happen if a related service provider is absent. Obviously, advance planning is most critical in the case of services required to enable a child to attend school at all (such as transportation or school health services) or to attend school safely (such as a behavioral aide). It is not acceptable for a child to miss school or to be denied the right to participate in special activities like field trips because the school district fails to provide a necessary service. It is critical in these instances that the school district have plans for ensuring that a substitute provider will be available. In the case of other services, such as OT/PT, speech therapy, etc., occasional, unanticipated absences may be unavoidable. However, it would not be proper to deny services specified in an IEP when an absence occurs more than occasionally or is predictable. Remember, school districts must provide services specified in a student's IEP. Failure to provide a service listed in the IEP can be the subject of a compliance complaint submitted to the CDE. See Chapter 6, Information on Due Process Hearings/Compliance Complaints. The same applies even when a private provider or another public agency (such as CCS or a local mental health agency under AB 3632/882) is to provide the related service. 28. Q. Looking at the List of Related Services Stated in the Law, it Seems That School Districts Must Provide Many Non-academic Services. Do School Districts Actually Provide These Services? A. In this day of scarce resources and limited school district budgets, there is a huge gap between the ideal in the law and the reality. While the law requires school districts to pay for any non-medical service necessary for a student to learn appropriately, federal and state legislatures have not given districts adequate money to provide all these services. As a result, except for transportation, speech and language therapy, OT/PT, and counseling, school districts will often assert that services not historically provided by school districts (for example, parent training, parent counseling, recreation, complicated health services, etc.) are not educationally necessary -- that is, not "related." The net effect of this political reality is that you should be prepared to use independent experts at the IEP meeting to support your child's need for related services. You should also be prepared to use the due process procedures when necessary. See Chapter 2, Information on Evaluations/Assessments, for information on obtaining independent assessments at public expense. 29. Q. Under What Circumstances Is My Child Entitled to Residential Placement? A. Federal law provides that "[i]f placement in a public or private residential program is necessary to provide special education and related services to a handicapped child, the program, including non-medical care and room and board, must be at no cost to the parents of the child." [34 C.F.R. Sec. 300-302.] Thus, if a residential placement is necessary for educational purposes, then it must be provided at no cost to the parents. You need not give up custody of your child (for example, permit your child to be made a "ward of the court") in order to get residential placement. Typically, the need for residential placement is indicated when a student needs the structure, intensity and consistency of programming that a day program could not offer. Due to behavioral or emotional problems, for example, a student may need a 24-hour therapeutic environment with programming that is consistent across the classroom and residential components of the program in order to meet the goals and objectives of his IEP. A school district may contend that residential placement is needed, in a particular case, to meet a student's social, emotional or medical needs, rather than educational needs, and that the placement is not its responsibility. Except in cases where the child needs placement in a psychiatric hospital, courts presented with this question have consistently found that it is not possible to sever a child's social and emotional needs from his educational needs. The courts have, therefore, held that residential placements are necessary for educational reasons. In cases involving psychiatric hospitalization, courts have been less consistent. In limited circumstances, courts have found that placement does meet educational needs and is, therefore, the school district's responsibility. It is also helpful to keep in mind that addressing a child's social and emotional needs, as well as traditional academic needs, is part of special education. However, courts have held that school districts are not responsible for paying for the cost of psychiatric hospitalizations. Residential placement would also be required if an appropriate day placement were located so far from the student's home that daily commuting would not be feasible. In this instance, residential placement would serve a purpose similar to transportation -- that is, it would enable the student to attend his education program. In fact, in California, residential placement for this purpose is classified as "transportation." [Cal. Ed. Code Sec. 41850(b)(3).] 30. Q. Must My Child Be Classified as Seriously Emotionally Disturbed Before She Is Entitled to a Residential Placement? A. No. There is some confusion because AB 3632 addresses procedures and responsibilities for obtaining residential placement for seriously emotionally disturbed children. Other children who need residential placement for educational purposes are still entitled to such placements. They would not be covered by AB 3632, but the local school districts would remain responsible for their residential placement. See Chapter 9, Information on Inter-Agency Responsibility for Related Services (AB 3632/882). 31. Q. My Child Is Placed in A Non-public School. Can He Receive Related Services from the Public School System If He Needs the Services to Benefit from Education, and the Services Are Not Available from the Non-public School? A. Yes. Students are entitled to receive related services through the public school system. However, the public school system may not be required to provide the service on the premises of the non-public school if the parents unilaterally placed the student there. See Question 31 below for additional concerns when the non-public school is a religions school. If the IEP team placed your child at a non-religious, non-public school, he is entitled to receive appropriate related services. This may, and often does, require delivery of services at the non-public school site. If you placed your child at a non-religious, non-public school unilaterally, without the consent of the rest of the IEP team, he is still entitled to free appropriate related services, even though the school district is not required to pay for his tuition costs. This may mean delivery of the services on the non-public school site. [34 C.F.R. Secs. 300.403(a) and 300.450-300.460.] However, the U.S. Department of Education has interpreted these regulations differently and does not believe that a school district is obligated to provide related services to students placed in non-public schools by their parents at the non-public school site if the school district has offered an appropriate special education placement for the student at a public school site. [Education for the Handicapped Law Report (EHLR), Vol. 17, Page 523, 1991.] 32. Q. My Child Attends a Religious School. Can She Receive Related Services from the Public School System If She Needs Such Services to Benefit from Education and the Services Are Not Available at the Religious School? A. Yes. A student placed at a school where religion is a significant part of the curriculum may receive related services as readily as a student placed by parents at a non-religious, non-public school (see Question 30 above) as long as the related services do not promote the religion of the school. The problem with getting related services at religious schools is that public employees are generally prohibited from promoting religion. This does not automatically bar a student placed by her parents in a religious school from receiving related services. However, it may mean that public employees cannot provide certain services at the religious school site. The U. S. Supreme Court in the Zobrest case held that a public school district's employment of an interpreter to provide services to a deaf student in a religious school does not impermissibly promote religion. [Zobrest v. Catalina School District, 113 S Ct 2462 (1993).] 33. Q. My Child Has Ongoing Behavior Problems. Does the School District Have Any Service Responsibility to Address Those Problems? A. Yes. Although not specifically identified as related services under federal or state special education law, services to address serious behavior problems must exist in California. In 1990, the Legislature enacted Assembly Bill 2586 (Hughes). [Cal. Ed. Code Sec. 56520 to 56524.] This law prohibited the use of aversive behavior interventions and mandated the development and implementation of positive behavior intervention plans for special education students with serious behavior problems. In addition, the law required that CDE develop regulations to implement positive behavior intervention services for special education students in school. The regulations are at Title 5, California Code of Regulations, Sections 3001 and 3052. The "Positive Behavioral Intervention Procedural Flowchart" at the end of this chapter sets out procedures to (1) identify and assess behavior problems, and (2) develop intervention plans. The second page of the flow chart sets out "Emergency Intervention Procedures." 34. Q. What Does "Behavioral Intervention" Mean and What Purpose Does it Serve? A. "Behavioral intervention" means the systematic use of procedures that results in lasting positive changes in the student's behavior. The intent of using a behavioral intervention program is to provide the student with greater access to a variety of community settings, social contacts and public events, and ensure that her behavior does not hinder her placement in the least restrictive educational setting. Positive behavioral interventions respect the student's dignity and personal privacy and assure physical freedom, social interaction, and individual choice. Positive behavioral interventions do not include procedures which cause pain or trauma. [5 Cal. Code Regs. Sec. 3001(d).] 35. Q. What Do the New Positive Behavior Intervention Regulations Require of School Districts? A. The new regulations require that every special education student who demonstrates a serious behavior problem receive a functional analysis assessment. The assessment is then used in developing a positive behavior intervention plan for him. The plan becomes part of his IEP. [5 Cal. Code Regs. Sec. 3001(f).] The plan has its own set of goals and objectives related to reducing maladaptive behaviors and substituting appropriate behaviors. Personnel with training in behavior analysis, with an emphasis on positive behavior intervention, must perform the functional analysis assessment, develop the positive behavior intervention plan, and supervise the implementation of the plan. This individual, called a behavior intervention case manager, becomes a member of the IEP team for every student with serious behavior problems. [5 Cal. Code Regs. Sec. 3052(a)(1).] The regulations include many other procedures for evaluating the intervention plan, for modifying the plan, and for documenting emergency interventions. You can obtain a copy of the positive behavior intervention regulations by calling a Protection and Advocacy office -- 1-800-776-5746. 36. Q. What Is a "Serious Behavior Problem" for Purposes of Qualifying for Positive Behavior Intervention Services under the Regulations? A. A "serious behavior problem" is a behavior problem which: (1) is self-injurious or assaultive or (2) causes serious property damage or (3) is severe, pervasive, and maladaptive, and for which instructional/behavioral approaches specified in the student's IEP are found to be ineffective. [5 Cal. Code Regs. Sec. 3001(y).] If the child's behaviors are not to the level of a serious behavior problem which would entitle her to a functional analysis assessment, parents should insist that any behavioral interventions used be specified in the IEP. If the milder behavioral problems develop into more severe, pervasive and maladaptive behaviors, but nothing has been specified in the IEP to address them, a child may not technically meet the definition of "serious behavior problem," and a school district may insist on one more opportunity to try to address the otherwise serious behaviors with "instructional/behavioral approaches" rather than a functional analysis. 37. Q. What Is a "Functional Analysis Assessment"? A. A functional analysis assessment report must include the following: (1) A description of the serious behavior problems targeted for change; (2) The current frequency of the behaviors; (3) A description of the circumstances that often lead to the behaviors (for example, the physical and social setting, the activities going on, and the student's degree of choice at the time); (4) The consequences that maintain the behaviors (for example, does the behavior serve a communicative function for the student -- is it a request or a protest?); (5) A description of the frequency of alternative behaviors, the circumstances under which they occur, and the consequences of those alternative behaviors. [5 Cal. Code Regs. Sec. 3052(b)(2).] The functional analysis assessment involves a great deal of observation of the student and study of his environments and past history as part of the process of obtaining the information described above. [5 Cal. Code Regs. Sec. 3052(b)(1).] 38. Q. What Is a "Positive Behavior Intervention Plan"? A. A positive behavior intervention plan must include the following: (1) A summary of information from the functional analysis assessment; (2) An objective and measurable description of the targeted serious behaviors and positive replacement behaviors; (3) Goals and objectives specific to the targeted behaviors; (4) a detailed description of the behavioral interventions to be used and the circumstances for their use; (5) Schedules for recording the frequency of use of the interventions and the demonstration of replacement behaviors; (6) Criteria for determining when the interventions will be phased out or replaced with less intense or less frequent interventions; (7) The extent to which interventions will be used in the student's home and in other settings. (8) Specific dates for the IEP team to review the behavior intervention program's effectiveness. [5 Cal. Code Regs. Sec. 3001(f).] Behavior intervention plans must contain sufficient detail to direct their implementation. [5 Cal. Code Regs. Sec. 3052(c).] 39. Q. What Are "Positive Behavior Interventions"? A. Positive behavior interventions are procedures which, for example, a teacher could use each time a student displays, or is likely to display, a targeted serious behavior problem. Behavior interventions must not simply eliminate serious behavior problems, but must simultaneously teach alternative positive behaviors. [5 Cal. Code Regs. Sec. 3052(a)(2).] In other words, school districts should not use techniques that simply contain or suppress problem behaviors unless they also teach the student substitute appropriate behaviors. The procedures include, but are not limited to: (1) Altering events in anticipation of a serious behavior problem to try to prevent its occurrence; (2) Teaching an alternative behavior that produces the same results for the student but is more socially acceptable; (3) Teaching adaptive behaviors, that is, methods of coping with unanticipated events; and/or (4) Manipulating the consequences for serious behavior problems and appropriate behavior so that appropriate behavior achieves the desired outcome and serious behavior problems are ignored. [5 Cal. Code Regs. Sec. 3052(d)(2).] Positive behavior interventions also include procedures for responding to and reinforcing appropriate behaviors. [5 Cal. Code Regs. Sec. 3052(e).] 40. Q. What Behavioral Interventions Are Prohibited? A. Behavior interventions cannot involve infliction of pain or trauma, including emotional trauma. [5 Cal. Code Regs. Secs. 3001(d), 3052(a)(5).] More specifically, behavior interventions cannot involve any of the following: (1) Release of toxic or unpleasant sprays near the student's face; (2) Denial of adequate sleep, food, water, shelter, bedding, comfort, or access to bathroom facilities; (3) Subjecting the student to verbal abuse, ridicule or humiliation, or causing emotional trauma; (4) Use of locked seclusion; (5) Prevention of adequate supervision of the student; (6) Depriving the student of one or more of his/her senses; (7) Employing any device, material or object that simultaneously immobilizes all four extremities (except for prone containment in emergencies). [5 Cal. Code Regs. Secs. 3052(i), 5052(l).] 41. Q. What Can School Personnel Do If My Child Suddenly Has A Dangerous Behavioral Outburst? A. If your child exhibits unpredictable spontaneous behavior which poses a clear and present danger to herself or others or serious property damage, the school personnel may use emergency interventions, including prone containment by trained staff, for the time necessary to address the emergency. [5 Cal. Code Regs. Sec. 3001(c), 3052(i).] To prevent emergency interventions from being used in place of systematic behavioral interventions, the parent (and residential care provider, if appropriate) shall be notified of the emergency intervention, or if serious property damage occurs, within one school day and a Behavioral Emergency Report shall be filed. If the student does not have a behavioral intervention plan, then an IEP meeting shall be scheduled within two days to determine whether a functional analysis assessment is necessary and to determine the necessity for an interim behavioral intervention plan. If a functional analysis assessment is not initiated, the IEP team must document the reasons for that decision. [5 Cal. Code Regs. Sec. 3052(i)(7).] If the student has a behavioral intervention plan which was not effective for the emergency behavior, then an IEP review shall be conducted to see if the plan needs to be modified. [5 Cal. Code Regs. Sec. 3052(i)(8).] 42. Q. What Is Assistive Technology under Idea? A. An assistive technology device is any item, piece of equipment, or product system -- whether acquired commercially off the shelf, modified or customized -- that is used to increase, maintain or improve the functional capabilities of children with disabilities. [34 C.F.R. Sec. 300.5.] Assistive technology services include: (1) evaluation for an assistive technology device; (2) purchasing, modifying or repairing such a device; and (3) training necessary for the student and others to use the device effectively. [34 C.F.R. Sec. 300.6.] An August 1990 letter from the Office of Special Education Programs (OSEP) clearly interpreted the definition of related services to include assistive technology. The letter emphasized the hallmark of special education law -- that the determination of what constitutes a free, appropriate public education must be made on an individual basis, and any needed services must be included in the student's IEP. Other OSEP policy letters and hearing decisions provide further clarification of the types of assistive services and devices that fall within the scope of IDEA's mandate. Assistive devices that OSEP found to be related services within IDEA's mandate include: Apple IIe computer; auditory training equipment; computer assistance; computerized communication system; device for loading/unloading students from a bus; and a $7,000 liberator communication device. A 1978 Bureau of Education for the Handicapped policy letter concluded that individually prescribed devices (such as glasses and hearing aids) are generally considered personal items and not the responsibility of educational agencies to provide. It is not clear how or whether this "related services exception" will be applied to assistive technology. 43. Q. How Can I Determine When Assistive Technology Is a Related Service? A. A determination of whether an assistive technology device or service is a related service under IDEA follows the basic legal mandates for providing a free, appropriate public education. It includes a determination of whether the device or service is necessary to assist the student in benefitting from his education, and/or whether the device or service is necessary to fulfill the school district's obligation to educate students with disabilities in the regular education environment unless "the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily." In applying these standards, hearing officers have considered: (1) The importance of language to education, the lack of alternative systems, and positive prognosis in ordering a district to provide a communication device; (2) The ability of a lift to improve gross motor skills and safety, normalcy and family acceptance of the device in deciding which means of removing a child from a buss would be acceptable; and (3) Whether the student's IEP appropriately considered his potential. 44. Q. Can My Child Use the Assistive Technology Equipment Outside of the School Day? A. An increasingly common request is for the assistive technology to be available for the student to use at home. Hearing officers have consistently held that, even though the district owns the device, it cannot limit use to the school grounds if a student needs the device at home or in a community setting to receive a free, appropriate public education -- to complete school homework, to practice functional skills in non-school environments. 45. Q. Who Pays for Assistive Technology Devices? A. Although most assistive technology equipment is not expensive, one of the most frequent barriers to providing assistive technology devices is cost -- and the corresponding question of who is responsible for purchasing the needed equipment. IDEA places the ultimate responsibility on school districts for providing (and funding) all services necessary to provide a student with a free and appropriate education -- including assistive technology. School districts have no obligation to pay for services if there are alternate funding sources -- such as private insurance, Medicaid, EPSDT, and vocational rehabilitation. However, school districts cannot require parents to buy assistive devices. Districts can only require parents to use private insurance in limited circumstances. Positive Behavioral Intervention Procedural Flowchart Positive Behavioral Intervention Procedural Flowchart -- Emergency Intervention Procedures ----------------------------------------------------------------- Protection & Advocacy, Inc. 1-800-776-5746 ---------- Chapter 6 Information on Due Process Hearings/Compliance Complaints TABLE OF CONTENTS Question 1. Q. What Is a Due Process Hearing? 2. Q. What Is a Compliance Complaint? 3. Q. What Is the Difference Between a Compliance Complaint and a Due Process Hearing? 4. Q. Would I Follow Different Complaint Procedures If OT/PT or Mental Health Services Are Not Provided as Specified in My Child's IEP? 5. Q. Who Can File a Compliance Complaint? 6. Q. What Can I Do If a Teacher or Other School Staff Person Hurts My Child -- Other than Bringing a Civil Lawsuit Against a School District or Reporting The Incident to the Appropriate Law Enforcement Authorities? 7. Q. When Should I File A Compliance Complaint Directly with the CDE? 8. Q. How Do I File a Compliance Complaint with the CDE? 9. Q. What Happens After I File a Complaint? 10. Q. How Does the CDE Investigate Complaints? 11. Q. Who Handles Complaints When the CDE Does Not Intervene Directly? 12. Q. How Do I File a Compliance Complaint with My Local School District? 13. Q. How Does a Local School District Conduct Investigations? 14. Q. Can a Local School District Try to Mediate a Complaint as Part of its Local Investigation Process? 15. Q. What Happens If I Disagree with the Local Education Agency's Report? 16. Q. What Happens When the CDE Finds a Public Education Agency to Be out of Compliance? 17. Q. What Can I Do If I Do Not Agree with the CDE's Decision? 18. Q. Can I File a Complaint with Any Other Agencies? 19. Q. How Would I File a Complaint with the OCR? 20. Q. When Would I File a Section 504 Discrimination Complaint with OCR? 21. Q. How Does the OCR Act on Complaints? 22. Q. Can I File a Discrimination Complaint with the CDE? 23. Q. When Would I Request a Due Process Hearing? 24. Q. When Must a School District Notify Me if the District Proposes to Change of Modify My Child's Special Education Program? 25. Q. What Information Should the School District Include in This Notice? 26. Q. What Happens to My Child If I File for a Due Process Hearing? 27. Q. How Do I Set up a Due Process Hearing? 28. Q. Can the Local Education Agency Request a Due Process Hearing? 29. Q. Once a Request for a Due Process Hearing Is Made, How Long Does the Special Education Hearing Office (SEHO) Have to Hold the Hearing and Make a Decision? 30. Q. What Is a Mediation Conference? 31. Q. What Are the Pros and Cons of Going Through Mediation? 32. Q. Are There Any Dispute Resolution Procedures Other than the Compliance Complaint and Due Process Mediation and Hearing? 33. Q. Should I File for Due Process Immediately, That Is as Soon as it Becomes Apparent That the School District and I Are at an Impasse Over Services or Placement at the IEP Meeting? 34. Q. How Do I Know If I Am Prepared for the Due Process Hearing? 35. Q. Where Do I Get the Evidence I Will Need to Present at the Due Process Hearing? 36. Q. Can Experts Testify at a Due Process Hearing? 37. Q. How Would I Use An Expert Witness? 38. Q. Instead of Having Witnesses Come to the Due Process Hearing, Can I Submit Letters, Records, or Other Documents to Prove My Case? 39. Q. Will the Hearing Officer Read All the Documents that I Submit and the District Submits? 40. Q. Must I Be Represented By a Lawyer in Order to Go Through Due Process? 41. Q. What If I Have Already Initiated Due Process But I Need More Time to Prepare or to Find a Representative Before the Hearing? 42. Q. Where Is the Due Process Hearing Held? 43. Q. Who Attends the Due Process Hearing? 44. Q. Can the Parties Submit Written Information to the Hearing Officer? How Soon must They Submit It? Do the Parties Have to Disclose Their Exhibits and Lists of Witnesses Before the Hearing? 45. Q. Is the Due Process Hearing a Trial or like Court? 46. Q. How Does the Hearing Proceed? 47. Q. What Is the Record? 48. Q. What If a Witness Does Not Want to Attend the Hearing? 49. Q. Does the Hearing Officer at a Due Process Hearing Simply Listen to Witnesses and Review the Documents Submitted, or Can the Hearing Officer Participate in the Hearing Process? 50. Q. Can I Get the Public Education Agency to Pay for My Attorney and Expert Witnesses? 51. Q. If I Lose the Due Process Hearing, Can I Do Anything? 52. Q. What Remedies Can I Ask for When I File for a Due Process Fair Hearing or an Action in Court? Sample Letter -- Compliance Complaint Sample Letter -- Due Process Hearing Request ----------------------------------------------------------------- S P E C I A L E D U C A T I O N R I G H T S A N D R E S P O N S I B I L I T I E S Chapter 6 Information on Due Process Hearings/Compliance Complaints 1. Q. What Is a Due Process Hearing? A. When the parents of a student with disabilities and the educational agency disagree about the child's eligibility, placement, program needs or related services, either side can request a due process hearing. At the hearing, both sides present evidence by calling witnesses and submitting any pertinent reports and evaluations that support their position. An independent hearing officer (hired by the state) decides whose witnesses and documents are correct and what program is appropriate. A DUE PROCESS HEARING IS GENERALLY NOT APPROPRIATE TO ADDRESS ISSUES ADDRESSED BY THE COMPLIANCE COMPLAINT PROCESS. See Question 2. 2. Q. What Is a Compliance Complaint? A. When the educational agency appears to have violated a part of special education law or procedure (for example, will not assess or refer a child to special education, does not follow time lines for assessment and referral, does not inform parents of an individual education plan [IEP] meeting, does not implement the IEP, or fails to implement a due process hearing decision), a parent, individual, public agency or organization can file a complaint with the California State Department of Education (CDE). An investigator from the CDE investigates the allegations and makes a written determination of whether the education agency was "out of compliance" with law or with the student's IEP. If the CDE finds an education agency to be "out of compliance", it should order the agency to come back into compliance. In addition, the CDE may order the agency to submit a plan of correction -- a document describing the steps the agency has taken and will take to assure that the problem does not occur again, either to this student or to others. 3. Q. What Is the Difference Between a Compliance Complaint and a Due Process Hearing? A. Although people often confuse compliance complaints and due process hearings, the main difference is this: -- when there is a disagreement about what should go into a child's IEP, or where to implement the IEP, then a due process hearing is appropriate; -- when the education agency has not followed special education laws or procedures or has not implemented what is already specifically written into a student's IEP, then a compliance complaint is appropriate. In other words, a due process hearing involves a disagreement over what a child's program should include, while a compliance complaint involves a failure by the educational agency to follow the rules or to do what has already been agreed to in writing in the IEP. 4. Q. Would I Follow Different Complaint Procedures If OT/PT or Mental Health Services Are Not Provided as Specified in My Child's IEP? A. If occupational or physical therapy (OT/PT) or mental health services are not provided in accordance with your child's IEP, you can file the complaint described in Question 2and/or a complaint under the Assembly Bill (AB) 3632 interagency dispute resolution procedures. Filing complaints under both processes may bring a quicker resolution. The interagency dispute resolution procedures apply if your child is not receiving OT/PT or mental health services as specified in the IEP. In that situation, you can file a notice of failure to provide related services with the Superintendent of Public Instruction (Superintendent) or the Secretary of Health and Welfare (Secretary). [California Government Code (Cal. Gov. Code) Sec. 7585(a).] Secretary of Health & Welfare Superintendent of Public Instruction 1600 Ninth Street, 4th Floor 721 Capitol Mall, Room 524 Sacramento, CA 95814 Sacramento, CA 95814 Before reviewing your complaint, the agencies involved will want to see a copy of your child's IEP. You should send a copy of the IEP with your complaint. The Superintendent and the Secretary must meet to resolve the issue within 15 calendar days of receiving the complaint. They must mail a written copy of the meeting resolution to you, to the local education agency, and to the affected departments, within 10 days of the meeting. [Cal. Gov. Code Sec. 7585(b).] If the issue cannot be resolved within 15 days to the satisfaction of the departments involved, it can be appealed to the Office of Administrative Hearings (OAH). The OAH will review the issue and submit findings within 30 days of receipt of the case. The OAH decision is binding on all parties to the dispute. [Cal. Gov. Code Sec. 7585(c)-(e).] When a complaint is filed pursuant to Section 7585(a), the student affected by the dispute must receive the service pending resolution of the dispute if the student had been receiving it. [Cal. Gov. Code Sec. 7585(f).] 5. Q. Who Can File a Compliance Complaint? A. Any individual, public agency, or organization (such as a parent group) may file a written complaint. [5 California Code of Regulations (Cal. Code Regs.) Sec. 4600(b).] The complaint may concern a single child, a group of children, or a policy of a local education agency which you think violates federal or state special education law. 6. Q. What Can I Do If a Teacher or Other School Staff Person Hurts My Child -- Other than Bringing a Civil Lawsuit Against a School District or Reporting The Incident to the Appropriate Law Enforcement Authorities? A. If a child or group of children is in immediate physical danger, or the health, safety or welfare of a child or group of children is threatened, you may file a complaint with the CDE under the Uniform Complaint Procedure [Title 5, Cal. Code Regs. Sec. 4600 et seq.], and the CDE must investigate directly. [Title 5 Cal. Code Regs. Secs. 4611(a) and 4650(a)(viii)(C).] 7. Q. When Should I File A Compliance Complaint Directly with the CDE? A. Nearly all the violations that can form the basis of a compliance complaint should be filed with the CDE. The CDE must directly intervene (not refer the complaint to the local agency for self-investigation) in any of the following situations: (A) The complaint indicates that a public agency, other than a local educational agency, as specified in Cal. Gov. Code Sec. 7570 (AB 3632), has failed or refused to comply with an applicable law or regulation relating to the provision of free, appropriate public education to individuals with disabilities. (B) The complaint indicates that the local educational agency or public agency has failed or refused to comply with the due process procedures established in federal and state law and regulations, or has failed or refused to implement a due process hearing order. (C) The complaint indicates that the child or group of children may be in immediate physical danger or that the health, safety or welfare of a child or group of children is threatened. (D) The complaint indicates that a student with disabilities is not receiving the special education or related services specified in the student's IEP. (E) The complaint involves a violation of federal law governing special education, 20 U.S.C. Sec. 1400 et seq., or its implementing regulations. [5 Cal. Code Regs. Sec. 4650(a)(viii).] If the facts of your situation fit into any one or more of the five situations described above and if you feel that your local school district should not investigate your complaint, you should specifically request that the CDE investigate your complaint directly. See Sample Letter -- Compliance Complaint, at the end of this chapter. You should identify the letter(s) outlined above -- (A) through (E) -- that most resembles your situation. You should mention the specific subsections in your complaint letter. Since subsections (A) through (E) cover most of the situations that can lead to filing a Compliance Complaint, you should be able to identify a subsection that fits your situation. Outline the reasons for your request in your complaint letter. Your reasons may not conform exactly to the criteria stated above. However, this should not prevent you from at least making the request. The Compliance Unit will determine whether or not to first refer your complaint for a local investigation. 8. Q. How Do I File a Compliance Complaint with the CDE? A. To file a Compliance Complaint with the CDE, write to: Program Assistance Complaint Resolution Unit California State Department of Education P. O. Box 944272 Sacramento, CA 94244-2720 You should fully describe the situation that caused you to request the Compliance Investigation, including which parts of the law have been violated and the basis for your request. You may not know the exact section(s) of law that have been violated. That is all right. If you describe the situation adequately, the Compliance Unit should match the correct section(s) with your particular situation. If your child's IEP or other documents are relevant to your complaint, you should attach them. See Sample Letter -- Compliance Complaint at the end of this chapter. 9. Q. What Happens After I File a Complaint? A. Under federal and state law, the CDE has 60 calendar days from receipt of the complaint to carry out any necessary investigation and to resolve the complaint. [34 Code of Federal Regulations (C.F.R.) Sec. 76.781; 5 Cal. Code Regs. Sec 4631(a).] When it receives your complaint, the CDE must review the complaint to determine if it is a matter for state or local investigation. Once the CDE makes its determination, CDE must immediately notify you of its decision and either refer the complaint for local investigation or begin its direct investigation. [5 Cal. Code Regs. Sec. 4651.] If you do not hear from the Compliance Unit within 10 days after you mail your complaint, you should call the Compliance Unit at (916) 657-5465 to follow up. 10. Q. How Does the CDE Investigate Complaints? A. When the CDE either directly investigates your complaint or you appeal a local education agency's decision after a self-investigation, the CDE must offer to mediate the dispute. The mediation must be conducted within the 60-calendar-day time line for completion of the complaint investigation. The time to complete the mediation cannot exceed 30 days unless you and the local education agency agree to the extension. [5 Cal. Code Regs. Sec. 4660(a)(1) and (c).] Either you or the local education agency can waive (give up) your right to the mediation process. If mediation is waived or if mediation does not resolve the issues, CDE must conduct an on-site investigation of the complaint. However, the parties may agree to mediate some of the issues and submit the other issues for state investigation. [5 Cal. Code Regs. Sec. 4660(a)(2), (b).] If an on-site investigation is necessary, the CDE will appoint a compliance investigator to act on your complaint. At least two weeks before the investigation, the CDE will send a written notice of the investigator's name and the investigation dates. The notice will also explain the investigation process. The investigator will contact you and the local education agency to obtain both views of the problem and will review records if necessary. [5 Cal. Code Regs. Secs. 4662, 4663.] The CDE must complete its investigation and resolve the complaint within 60 calendar days after receiving a request for direct state intervention or an appeal of a local investigation. [34 C.F.R. Sec. 76.78; 5 Cal. Code Regs. Sec. 4662(d).] 11. Q. Who Handles Complaints When the CDE Does Not Intervene Directly? A. If the CDE chooses not to intervene directly, it must send the complaint immediately to the local education agency involved for investigation. [5 Cal. Code Regs. Sec. 4640(a)(1).] In addition, the CDE must notify you by letter that it has transferred the complaint and that the CDE is requesting local resolution of the complaint. The letter must also advise you of the appeal procedures should you disagree with the results of the local investigation. [5 Cal. Code Regs. Sec. 4640(a)(2).] 12. Q. How Do I File a Compliance Complaint with My Local School District? A. You should file a compliance complaint with your local school district unless you are requesting a direct investigation by the CDE. See Question 6. You should send the complaint to your Superintendent of Schools or the Director of Special Education. [5 Cal. Code Regs. Sec. 4630(b)(2).] Each school district must have its own written complaint investigation policy and procedure that has been approved by its Board of Education. Be sure to request a copy of your school district's specific complaint investigation process before you file a complaint with your local district. You should fully describe the situation that has caused you to request the compliance investigation, including which parts of the law have been violated. You may not know the exact section(s) of law that have been violated. That is all right. If you describe the situation adequately, the school district should match the correct section(s) with your particular situation. If your child's IEP or other documents are relevant to your complaint, you should attach them. See Sample Letter -- Compliance Complaint at the end of this chapter. 13. Q. How Does a Local School District Conduct Investigations? A. The school district has 60 calendar days after receiving your complaint to complete an investigation. This time period may be extended only with your written agreement. [5 Cal. Code Regs. Sec. 4631(a).] You or your representative, or both, and the school district must have the opportunity to present information relevant to the complaint. Depending on your school district's policies and procedures, the investigation may include a way for you and the school district to meet and discuss the complaint or to question each other or each other's witnesses. [5 Cal. Code Regs. Sec. 4631(b).] The school district's decision after investigation must be in writing. It should contain findings of fact, a determination of whether the school district was out of compliance, corrective actions required by the school district (if any), and the reasons for making the decision. The decision should also include a notice of your right to appeal to the CDE and the procedures you must follow in making an appeal to the CDE. [5 Cal. Code Regs. Sec. 4631(c).] 14. Q. Can a Local School District Try to Mediate a Complaint as Part of its Local Investigation Process? A. Yes. School districts may develop a mediation procedure in order to resolve complaints before conducting a formal investigation. This mediation process cannot extend the 60-day time line for resolving complaints unless you agree in writing to the extension. However, mediation cannot be a mandatory part of the process. You may waive this mediation step. [5 Cal. Code Regs. Sec. 4631(d).] 15. Q. What Happens If I Disagree with the Local Education Agency's Report? A. You may appeal directly to the CDE, Superintendent of Public Instruction, for review of the local decision. You must make any appeal to the CDE for review of a local education agency decision within 15 days after you receive the final written decision of the local agency. [5 Cal. Code Regs. Sec. 4652(a).] If you appeal a decision to the Superintendent of Public Instruction in the CDE, an impartial review must be completed and a report mailed within 60 days of receipt of the request for appeal. [5 Cal. Code Regs. Sec. 4662(d).] See Questions 9 and 10 for the CDE investigation process. When appealing a local education agency decision, your complaint must set out the reasons for appealing the decision. The appeal must include a copy of the original complaint and a copy of the local education agency decision. [5 Cal. Code Regs. Sec. 4652(b) and (c).] 16. Q. What Happens When the CDE Finds a Public Education Agency to Be out of Compliance? A. If the investigation indicates a failure by the public education agency to comply with law, the CDE may require corrective action. The CDE investigation report must set forth the corrective actions the education agency is to take, along with time lines for correction. [5 Cal. Code Regs. Sec. 4664.] If the non-compliance is not remedied, the Superintendent shall take further action. Actions may include a court proceeding for an order compelling compliance, or a proceeding to recover or curtail state funding to the non-compliant local education agency. [5 Cal. Code Regs. Sec. 4670(a).] 17. Q. What Can I Do If I Do Not Agree with the CDE's Decision? A. If you or the local education agency are dissatisfied with the CDE's investigation report, either of you may request reconsideration by the Superintendent within 35 days of receipt of the CDE's investigation report. The Superintendent may respond in writing within 15 days, either modifying the conclusions or corrective actions of the CDE's report, or denying the request outright. The CDE's report remains in effect and enforceable pending the Superintendent's reconsideration. [5 Cal. Code Regs. Sec. 4665(a).] If you are dissatisfied with the final decision of the Superintendent of Public Instruction for the CDE, you may request review of that final decision by the U.S. Department of Education, Office of Special Education and Rehabilitative Services (OSERS). [5 Cal. Code of Regs. Sec. 4665(c); 34 C.F.R. 300.660-300.662. OSERS's review is discretionary. In other words, OSERS may, but is not required to, review every request for review of the CDE's final decisions. Any request for OSERS review of the final decision of the CDE must include the following: 1. A copy of the CDE's final decision on the complaint; 2. A copy of the complaint filed with the CDE that resulted in the CDE's final decision; and 3. A letter that outlines the specific aspects of the decision with which the requester disagrees, the basis for that disagreement, and the relief that the requester is seeking. Review by OSERS is not a new investigation. It is simply a review of the matter based only on the written materials listed above. Requests for review should be directed to: Judith E. Heuman Assistant Secretary Office of Special Education and Rehabilitative Services 330 C Street, S.W. Suite 3006 Switzer Building Washington, DC 20202-2500 If review is granted, an OSERS staff person will be assigned the review and will notify the requester by letter that review has been granted. There is no time line for receipt of this letter. The criteria used by OSERS to grant review are generally as follows: Complaint raises issues of the proper interpretation of federal special education law by the CDE and where there does not appear to be disagreement about the pertinent facts. Complaints that raise issues of national or statewide significance for the education of children with disabilities are more likely to be granted review. Complaints which raise new issues or issues on which states or courts have issued conflicting decisions and review would give OSERS an opportunity to clarify the situation for everyone. Review will generally not be granted when the complaint presents factual disputes. Factual disputes must be filed under the due process hearing procedure. In addition, complaints that raise issues which depend on laws other than federal special education law (such as state law or Section 504 of the Rehabilitation Act or the Family Education Privacy Rights Act, etc.) will not be granted review. OSERS will in most cases advise the requester in writing the general reasons for denial. If a review is granted, the decision of the CDE will either be upheld by OSERS or it will be overturned. If the CDE decision is overturned, there will be an order from OSERS regarding the appropriate corrective action to be taken by the CDE. As an alternative, if OSERS finds that the CDE decision failed to address and resolve all issues presented by the complaint, OSERS may order the CDE to do so. The parent, or whoever is pursuing the complaint, may ask for review by OSERS of the results of the CDE further consideration of the complaint. 18. Q. Can I File a Complaint with Any Other Agencies? A. Yes. If your complaint involves an issue of educational discrimination under Section 504 of the Rehabilitation Act of 1973 (see Question 19), you can file a discrimination complaint with the U.S. Department of Education, Office of Civil Rights (OCR). Complaints of educational discrimination against students by education agencies may also be filed with the CDC. [5 Cal. Code of Regs. (s) 4600(c); 4630(b); 4650(a)(ii).] Issues of educational discrimination, however, are usually appropriate for filing with the OCR under Section 504. 19. Q. How Would I File a Complaint with the OCR? A. The OCR is responsible for investigation of complaints regarding allegations of discrimination on the basis of disability that may constitute violations of Section 504 of the Rehabilitation Act of 1973. [29 U.S.C. Sec. 794.] You will find the regulations defining what constitutes discrimination in education under Section 504 at 34 C.F.R. Sec. 104.1 et seq. If you wish to file a complaint with the OCR, you should write or call OCR at the address below and ask for a copy of the complaint form and instruction sheet for filing such a complaint. U.S. Department of Education, Office for Civil Rights Region IX Office, Old Federal Building 50 United Nations Plaza, Room 239 San Francisco, CA 94102 Telephone: (415) 437-7700; TDD (415) 437-7786; FAX (415) 437-7783 Complaints that do not allege violations of Section 504, but may constitute violations of P.L. 94-142, should be filed with the CDE as a compliance complaint. See Questions 1, 2, 3,5, 6, 19and 20. 20. Q. When Would I File a Section 504 Discrimination Complaint with OCR? A. A parent or other interested party may wish to file a Section 504 complaint whenever, as a result of the conduct or policy of the education agency, a student with a disability does not receive educational benefit from the program commensurate with that received by his/her non-disabled peers. This includes, of course, the situation where a student with a disability is excluded from participation in any federally funded program or activity, such as public education. [34 C.F.R. Sec. 104.4(a).] Schools generally receive federal funding. A student does not have to be a special education student for you to file a discrimination complaint with OCR against a school. (See Chapter 1, Q&A 6 of this manual.) Such complaints could include access issues like architectural barriers or program access. You must file a discrimination complaint within 180 days from the date of the discrimination. [34 C.F.R. Sec. 100.7(b).] 21. Q. How Does the OCR Act on Complaints? A. The OCR will acknowledge your complaint within 15 days of its receipt. However, OCR may take up to 45 days to review your complaint if additional information is necessary to process your complaint. OCR will investigate your complaint and send you a letter of finding within 120 days from the start of the investigation. If it finds the school district to be out of compliance, OCR will seek voluntary compliance within 60 days from date the school district receives the letter of finding. If arrangements for compliance cannot be achieved, OCR will begin enforcement measures within the next 30 days. If you requested a state due process fair hearing on the same issue that you filed with OCR, OCR will postpone action on your complaint until resolution of your request for a hearing. 22. Q. Can I File a Discrimination Complaint with the CDE? A. Yes. You may file a complaint of discrimination under the CDE Compliance Complaint process. Complaints alleging discrimination are one type of that calls for direct CDE intervention, as opposed to local education agency self-investigation. [5 Cal. Code of Regs. Sec. 4650(a)(ii).] Complaints alleging discrimination must be filed within six months of (1) the discriminatory conduct or (2) when the complaining party first learned of the discriminatory conduct. The Superintendent of Public Instruction may extend the six-month filing period by 90 days for good cause upon a written request that describes the reasons for needing the extension. [5 Cal. Code or Regs. Sec. 4630(b).] The individual who files the complaint must ask for direct CDE intervention pursuant to Section 4650(a)(ii). Otherwise, the complaint should have been filed with the local education agency. [Cal. Code of Regs. Sec. 4630(b)(2).] These investigations must be conducted in a manner that protects the confidentiality of the parties and the facts. [5 Cal. Code of Regs. Sec. 4630(b)(3).] 23. Q. When Would I Request a Due Process Hearing? A. Normally, you would request a due process hearing after an IEP meeting (1) if you disagree with the special education service or placement being proposed by the district, or (2) when the district refuses to provide an assessment, a service or a placement for your child which you believe is necessary. [Cal. Ed. Code Sec. 56501(a); 34 C.F.R. Sec. 300.506(a).] At the present time, under state law, students cannot initiate due process procedures unless they are emancipated or are wards or dependents of the court for whom no parent can be identified or located and for whom no appropriate surrogate parent has been appointed. [Cal. Ed. Code Sec. 56501(a).] 24. Q. When Must a School District Notify Me if the District Proposes to Change or Modify My Child's Special Education Program? A. An important first step to due process of law in special education is an adequate written notice from the school district to you of exactly what the district is proposing or refusing to do and why. Any time a school district proposes to initiate or change the identification, evaluation, or educational placement of a student or the provision of a free, appropriate public education, it must provide the parent of the student with a written notification. In other words, any time a district proposes: To change a student's special education qualifying condition or "label" (e.g., learning disability) including a determination that the student has no special education qualifying condition; To initiate or change an evaluation of a student; To change a student's educational placement; and To change a component of a child's IEP, it must provide the parent a written notice that contains all the information described in question 25 . [34 C.F.R. (s)300.504(a)(1).] In addition, any time a district refuses a parent's request for a specific identification (qualifying condition) change, for a certain evaluation or change to an existing evaluation, for an educational placement change, for a change in a component of her child's IEP, the district must provide the parent with the same kind of written notice described below which explains and supports the reasons for its refusal. [34 C.F.R. (s)300.504(a)(2).] 25. Q. What Information Should the School District Include in This Notice? A. The written notice required above must contain all of the following: 1. A full explanation of all procedural rights available to the student, including rights to pursue due process procedures and rights to confidentiality of information as provided in federal special education regulation; 2. A description of the action proposed or refused by the district; an explanation of why the district proposes or refuses to take the action, and a description of any options the district considered and the reasons why those options were rejected; 3. A description of each evaluation procedure, test, record, or report the district used as a basis for the proposed or refused action; 4. A description of any other factors that are relevant to the district's proposal or refusal. 5. The notice must be written in language that is understandable to the general public and must be provided in the native language or other mode of communication of the parent, unless it is clearly not feasible to do so. 6. If the native language or other mode of communication of the parent is not a written language, the district shall take steps to ensure that the notice is translated orally or by other means to the parent in his or her native language or other mode of communication, that the parent understands the content of the notice, and that there is written evidence that these steps have been taken. [34 C.F.R. (s)300.505.] The information contained in a written notice is crucial to a parent making intelligent and informed decisions. In Union School District v. B. Smith, 20 IDELR 987, a Federal Circuit Court in California ruled that notice provisions were not merely technical requirements but substantive rights, and precluded the district from arguing the appropriateness of a placement that had been verbally offered by the district and refused by the parents. Unfortunately, this notice of proposed or refused changes by districts is one of the most universally ignored provisions of special education law in California. 26. Q. What Happens to My Child If I File for a Due Process Hearing? A. Under federal law, your child must remain in his then current educational placement and have his current IEP fully implemented (including all related services) from the time you request a hearing until the due process hearing proceedings (and judicial proceedings, if any) are completed. A pupil's current educational placement is the operative placement actually functioning at the time the dispute first arises. This "status quo" can be altered only if the parents and local agency agree to a change in placement or services or the school district obtains a court order barring the student from returning to his then current placement. This protection is sometimes called the "stay-put" provision. [20 U.S.C. Sec. 1415(e)(3); 34 C.F.R. Sec. 300.513; Cal. Ed. Code Sec. 56505(d).] Note: Although the "stay-put" provision applies after filing for a due process hearing and during the period of any due process mediation conference, this protection does not apply to the pre-due process mediation conference provided for by Cal. Ed. Code Sec. 56500.3. See Question 32. Sometimes districts attempt to move a student to a new school or class that also meets the program description of the IEP. The district may then argue that such a change is not a "change in placement", thus allowing the district to make the move while due process is pending. Recent State Hearing Office decisions have held that such a move is unlawful, unless the original placement has been discontinued by the district for budgetary reasons. Student v. Saddleback Valley Unified School District, SN60-94; Student v. Oxnard Elementary School District, No. 77794A. The "status quo" rule has been considered to be inapplicable to a situation where a student is placed by a district in a private school and the parents then move to a new district. This understanding has been fostered by 5 Cal. Code Regs. 3067, which allowed the new district to provide an alternative public placement if it does not believe continued placement in the private school is necessary. However, Section 3067 was declared void by the Legislature in Section 11 of AB 1250, effective January 1, 1995. A Federal District Court in Maine has held that the "status quo" rule does apply to this situation, even when the parents move to a new state. It is arguable that Section 3067 conflicted with IDEA. Now that it has been voided, it appears that a parent of a publicly funded private school student who moves to a new district and files for due process can require the new district to continue to fund that placement while due process is pending. 27. Q. How Do I Set up a Due Process Hearing? A. You must make your hearing request in writing and send it to: Special Education Hearing Office Institute for Administrative Justice McGeorge School of Law 3200 Fifth Avenue Sacramento, CA 95817 You should also send a copy to the local education agency. [Cal. Ed. Code Sec. 56502.] Your request should state the reason for the request, your child's name, the name of the school district, and your name, address and telephone number. See Sample Letter -- Due Process Hearing Request at the end of this chapter. When you make your written request for a due process hearing, you should also ask for a copy of the Special Education Hearing Office Practice and Procedures Bulletin No. 90-1, dated December 20, 1990, and any amendments or updates to it, so that you know all the rules for conducting the hearing. Within three days after receipt of your request, the local education agency must inform you of free or low cost legal services available in the area. [Cal. Ed. Code Sec. 56502.] 28. Q. Can the Local Education Agency Request a Due Process Hearing? A. Yes. Either the parent or the local education agency may request a due process hearing. [34 C.F.R. Sec. 300.506(a); Cal. Ed. Code Sec. 56501(a).] 29. Q. Once a Request for a Due Process Hearing Is Made, How Long Does the Special Education Hearing Office (SEHO) Have to Hold the Hearing and Make a Decision? A. The SEHO has 45 days from the day it receives the due process hearing request to make a decision. [34 C.F.R. Sec. 300.512; Cal. Ed. Code Sec. 56502(a).] Upon request, the SEHO can grant a continuance for good cause. [Cal. Ed. Code Sec. 56505(9).] 30. Q. What Is a Mediation Conference? A. After a due process hearing request is made, the SEHO will provide a mediator to sit down informally with both sides and try to resolve the disagreement. The first step in due process is usually a mediation conference where a mediator from the SEHO helps the parent and school district to resolve their disagreement. The mediator will meet with the parties together and/or separately in an attempt to find common ground and issues on which the parties can move toward resolution. The mediator has no power to force either side to do anything, but only tries to help you reach an agreement. You have a right to a mediation conference, but you can also waive your right to the mediation conference and proceed directly to the due process hearing. The educational agency has the same right to waive the mediation conference, even if you request the due process hearing. [Cal. Ed. Code Secs. 56502(c), 56501.] The mediation conference must be scheduled within 15 days of the request for mediation. Mediation must be completed within 30 days of receipt of the request a due process hearing, unless both parent and district agree to extend time for completing mediation. [Cal. Ed. Code Sec. 56503(e).] Although many disputes are settled in mediation, you cannot assume that your dispute will be resolved. Accordingly, it is in your best interests to be as prepared as possible at mediation. The benefits of being well prepared include having increased negotiating power at mediation, and advanced preparation for the due process hearing if that becomes necessary. 31. Q. What Are the Pros and Cons of Going Through Mediation? A. Mediation is encouraged because it gives both sides another chance to reach agreement. An impartial mediator increases the possibility of resolution. The mediation does not change the 45-day rule, although parents are sometimes asked to extend the 45 days to aid in the mediation process. From a tactical standpoint, mediation often gives parents more information about the education agency's point of view. Such information may be helpful if there is a due process hearing. On the negative side, mediation requires additional time and energy. If it appears that there is absolutely no hope for agreement, it may be best to waive mediation. However, before waiving mediation, make sure that you are prepared to proceed to the due process hearing. Waiving mediation may result in the due process hearing being scheduled sooner than if you participated in mediation. See Question 32 for a discussion of the distinction between "pre-due process mediation" and "due process mediation" conferences, and the disadvantages of the "pre-due process mediation" conference. 32. Q. Are There Any Dispute Resolution Procedures Other than the Compliance Complaint and Due Process Mediation and Hearing? A. Yes. After identification of a disputed issue, you may ask for a "pre-due process" mediation. This pre-due process mediation is not mandatory and you may proceed directly to filing for a due process hearing. A pre-due process mediation is conducted exactly like a due process mediation. The state will provide a mediator to sit down informally with both sides and try to resolve the disagreement. See Question 30. The pre-due process mediation must be scheduled within 15 days and completed within 30 days of receipt of your request by the Special Education Hearing Office. A copy of the written resolution, if any, must be mailed to you and the school district within 10 days following the pre-due process mediation conference. It is not clear whether the Special Education Hearing Office will offer a due process mediation after the parties have participated in a pre-due process mediation without success. You must request your pre-due process mediation in writing. You should send your request to the Special Education Hearing Office with a copy to your local school district. See Question 27for the address. In order to assist the Special Education Hearing Office, you should include a specific request for a pre-due process mediation in your letter. [Cal. Ed. Code Sec. 56500.3.] There are several major disadvantages to participating in a pre-due process mediation. One disadvantage of the pre-due process mediation is that parents cannot have an attorney or independent contractor to provide legal advocacy and participate at the mediation. Another critical disadvantage of the pre-due process mediation, and the reason advocates do not recommend it, is because the "stay-put" protections, which guarantee that the student will remain in his existing placement until the dispute is resolved, do not apply until a due process hearing has been requested [Cal. Ed. Code Sec. 56500.3 and 56501.] Beginning in the fall of 1993, and for the following three school years, a pilot dispute resolution program will be implemented in selected school districts in the state. Placement specialists, ombudsmen, and mediators retained by the school district will be available to try to resolve disputes between parents and school districts over special education programs. One disadvantage of this pilot program, and the reason advocates do not recommend it, is the inherent conflict of interest which exists when persons charged with investigating complaints, making program recommendations, and mediating disputes are employed by the school district. [Cal. Ed. Code Sec. 56138.] 33. Q. Should I File for Due Process Immediately, That Is as Soon as it Becomes Apparent That the School District and I Are at an Impasse Over Services or Placement at the IEP Meeting? A. If the school district is threatening to change your child's program or placement without your consent and you wish to keep things the way they are, you may have to file for due process just to preserve the status quo by taking advantage of the "stay-put" provision. See Question 26 of this chapter. Generally, however, you should not file for due process until you are prepared to properly participate in due process, even if you feel your child is currently being inappropriately served. Nothing about the inappropriate program is likely to change simply by your filing for due process; on the other hand, the time spent preparing your evidence will increase your chances of a successful result. Within a few days of filing for due process, you will receive a notice from the SEHO of two dates. The first will be the date for mediation, which will be a date approximately three weeks from the day the SEHO receives your request for due process. In the same notice, the SEHO will inform you of the date set for the first (of two) days on which the due process hearing will take place. The due process hearing dates will be set for approximately five weeks from the date the SEHO receives your request for due process. The reason these dates for mediation and hearing are set approximately three and five weeks from the date of receipt of your request for due process is because of the SEHO's attempt to comply with the federal law requiring your receipt of the due process hearing decision within 45 days of your request for due process. 34. Q. How Do I Know If I Am Prepared for the Due Process Hearing? A. At the due process hearing, you will be required to present evidence which establishes that your child needs services you are seeking through due process. The following are some examples. You are dissatisfied with the goals and objectives of your child's IEP. For example, you believe that they are unclear or that your child could with certain services accomplish more than the district is willing to acknowledge. You will need evidence that the objectives you would like to write are reasonable expectations for learning and skill acquisition for your child in light of his her disability and the amount of time in which you would expect the objective to be reached. You may agree with the goals and objectives but disagree with the district on the level of services needed to accomplish these objectives. You will need evidence regarding the level of services which will be required by your child to achieve the IEP objectives. You may disagree with the placement the district is proposing. For example, you may believe that the placement does not offer your child maximum appropriate interaction with nondisabled children. You will need evidence regarding the supportive services that could be employed to make it possible to serve your child in the regular classroom or in a more integrated way than that which the district is proposing. 35. Q. Where Do I Get the Evidence I Will Need to Present at the Due Process Hearing? A. The information you will need to support and establish your beliefs on these issues may come from your testimony if you can give examples of other similar learning experiences, good or bad, which you have had with your child when he/she received a certain level or type or service or when he/she was placed in a certain environment. However, it is likely that there may be a need for testimony from someone who knows your child and who is knowledgeable in the education or training of persons with disabilities to establish some of these elements and to describe what kinds of services may be needed, and in what amounts, and in what environments, and why. Before requesting due process, the parent, who believes such additional testimony is necessary or desirable for the best chance of success, must find such a witness and make sure that he/she is both willing and available to provide that kind of testimony approximately five weeks from the time the parent is contemplating filing for due process. 36. Q. Can Experts Testify at a Due Process Hearing? A. Yes. It is often very important to have expert witnesses at a due process hearing. An expert witness is someone who has a great deal of knowledge about special education and, specifically, about your child's disability and special education needs. The expert witness can assess your child and the various components of the programs at issue and make a professional observation about what is and is not appropriate for your child. 37. Q. How Would I Use An Expert Witness? A. Since both sides usually have witnesses who will testify that their position is correct, it is important to have an "expert" testify for you. Normally, the expert will meet your child, review his educational records, visit his class, speak with his teachers, and generally analyze his special education needs and the programs/services the educational agency is offering. You will then call that expert as a witness to testify. 38. Q. Instead of Having Witnesses Come to the Due Process Hearing, Can I Submit Letters, Records, or Other Documents to Prove My Case? The SEHO follows a regulation which provides that a hearing officer may not base his or her decision on hearsay alone, but must have some other evidence to support the decision. Most documents are considered hearsay because they cannot be cross-examined by the other parties like live witnesses can. The right to cross-examine is an essential part of due process. Therefore, it is crucial to bring witnesses to the hearing who can testify about what they observed and/or what their opinions are concerning the issues in the hearing. Documents further support and establish the testimony of the witness. Parents should gather and submit any and all documents that are supportive of their position in the case. However, parents should always make sure that some competent witness is available and willing to testify at the hearing on each major point the parents must establish in order to win. 39. Q. Will the Hearing Officer Read All the Documents that I Submit and the District Submits? A. You cannot assume that the hearing officer will read all of the records submitted by the parties at any point during or after the hearing and prior to issuance of a written decision. Therefore, it is crucial to point out important statements and passages in the records you submit to the hearing officer, either directly or by references to those records by your witnesses while they are testifying. In addition, you should organize all the documents you plan to submit and identify them by numbers or letters. That way the hearing officer can easily refer to and locate documents both during and after the hearing. 40. Q. Must I Be Represented By a Lawyer in Order to Go Through Due Process? A. No, it is not required that you be represented by a lawyer. However, whether you need a lawyer depends on whether you can collect and properly present the evidence you will need to prevail. If you do not use a lawyer in due process, you should make every effort to consult with a lawyer or advocate who has training and experience in special education law and procedure. A special education lawyer or advocate is important because he/she can inform you of what law applies to your child's situation. It is important to know what the legal standards are regarding the extent of your child's entitlement to special education services and placement. Your presentation of evidence through your witnesses and documents should be consistent with the legal standards that apply. The things which you and your witnesses will say and the contents of the documents you will submit must be consistent with what your child is entitled to under the special education laws in terms of the kinds and degrees of services and the location of the program. If you choose to be represented by an attorney at the hearing, you must notify the other parties of this at least 10 days prior to the hearing. (Cal. Ed. Code Section 56507.) If you do not use an attorney, you may wish to view Protection and Advocacy's video tape on preparing for and conducting a due process hearing. 41. Q. What If I Have Already Initiated Due Process But I Need More Time to Prepare or to Find a Representative Before the Hearing? A. As soon as you realize that you need more time, you should contact the school district to ask for the school district's agreement to a postponement. If the school district does not agree to a postponement, you should immediately make a written request for a postponement to the SEHO. A copy of that written request must also be sent to the district. Your written request to the SEHO must also indicate that a copy has been sent to the district. The SEHO has the authority to grant postponements for "good cause." What constitutes good cause is not specified by the SEHO. Therefore, you should mention as many reasons as you have for needing the postponement (for example, the unavailability of an important witness or the inability to retain an advocate or attorney to represent you). The first postponement may be granted by the SEHO, but any further postponements may require much greater justification. 42. Q. Where Is the Due Process Hearing Held? A. The due process hearing is often held at the educational agency offices. It must be at a time and place that is convenient for you and your child. [Cal. Ed. Code Sec. 56505(b).] However, you will not be consulted by the SEHO regarding convenient dates. If the date assigned is inconvenient, you should request a postponement. 43. Q. Who Attends the Due Process Hearing? A. As a parent, you have the right to have the hearing open or closed. If the hearing is open, members of the public can attend. However, even if the hearing is open, you can still have witnesses sequestered. "Sequestered" means that witnesses cannot be present at the hearing to hear the testimony of other witnesses. [34 C.F.R. Sec. 300.508(b)(2); Cal. Ed. Code Sec. 56501(c)(2).] If the hearing is closed, members of the public cannot attend. A closed hearing usually consists of you (and your child if you want), your representative, the hearing officer, the education agency's representative and the agency's advocate. 44. Q. Can the Parties Submit Written Information to the Hearing Officer? How Soon must They Submit It? Do the Parties Have to Disclose Their Exhibits and Lists of Witnesses Before the Hearing? A. Both sides can submit exhibits (for example, letters of support, assessment reports, IEPs, etc.) and should do so. At least five days before the hearing, you must make sure the district has: (1) copies of all documents you intend to submit as exhibits at the hearing; and (2) a list of the potential witnesses you may call to testify at the hearing, along with a very brief and general statement regarding what each witness will testify about. Mailing this information five days before the hearing is not sufficient; the local education agency must receive these materials five days before the hearing. Likewise, the local education agency must submit its documents and list of witnesses to you at least five days before the hearing. Any exhibits or written material exchanged less than five days before the hearing can be prevented from going into the record, and any witnesses whose names were not disclosed five days before the hearing can be prevented from testifying. In addition, both you and the education agency should submit documents and lists of witnesses to the Special Education Hearing Office at least seven days before the hearing. [34 C.F.R. Sec. 300.508(a)(3); Cal. Ed. Code Sec. 56505(e)(6).] At least 10 days before the hearing, each party must submit to each other party to the hearing a statement of (1) what that party believes are the issues to be decided at the hearing and (2) that party's proposed resolution of those issues. As a parent, you may have an attorney represent you and your child at the due process hearing. If you do not have an attorney in the due process proceeding, upon your request, a mediator must help you identify the proposed issues and resolutions. [Cal. Ed. Code Sec. 56505(e)(6).] 45. Q. Is the Due Process Hearing a Trial or like Court? A. The due process hearing is not a trial and it is not technically like going to court (although they are similar in that witnesses are called). A due process hearing is an "administrative" hearing and does not take place in a courtroom or before a judge. The hearing officer is someone hired by the state who knows about special education, and who will impartially review all the evidence and make a decision. 46. Q. How Does the Hearing Proceed? A. Normally, both sides give opening statements which generally describe the issues in the case. The party that calls for the hearing (the petitioner) then presents her case by calling witnesses. The responding party (the respondent) may then cross-examine the petitioner's witnesses, and the petitioner has the right to ask additional questions (re-direct) after the respondent has cross-examined. After petitioner finishes her case, respondent calls her witnesses (the same procedure as before, examination, cross-examination, and then re-direct examination). Finally, both parties give closing arguments. You can also request that the record remain open so that you can submit a written closing argument. [34 C.F.R. Sec. 300-508(a)(2), Cal. Ed. Code Sec. 56505(e).] 47. Q. What Is the Record? A. The record is simply all evidence (written or oral) received by the hearing officer. Although not part of the evidence, the oral or written opening and/or closing statements of the parties are also included in the record of the administrative hearing. Oral evidence (testimony from witnesses), the opening and closing statements of the parties, and questions asked of witnesses are tape recorded by the hearing officer. The record also includes exhibits and other written material which have been accepted into evidence by the hearing officer. You are entitled to receive a copy of the tape recording after a decision is rendered if you ask for it. [34 C.F.R. Sec. 300-508(a)(4); Cal. Ed. Code Sec. 56505(e)(4).] 48. Q. What If a Witness Does Not Want to Attend the Hearing? A. The law provides that witnesses can be subpoenaed for a due process hearing. This means that the Special Education Hearing Office will give you subpoena forms to fill out and personally serve on the proposed witness. (For more information on personal service of subpoenas and other requirements for compelling attendance of witnesses, see Special Education Hearing Office Notice of Procedural Safeguards. It is available from the Special Education Hearing Office where you requested due process hearing.) A subpoena is an order from the state. It orders the witness to attend the due process hearing. [34 C.F.R. Sec. 300.508(a)(2); Cal. Ed. Code Sec. 56505(e)(3); 5 Cal. Code Regs. Sec. 3082(c)(2).] 49. Q. Does the Hearing Officer at a Due Process Hearing Simply Listen to Witnesses and Review the Documents Submitted, or Can the Hearing Officer Participate in the Hearing Process? A. Hearing officers have a variety of powers in the conduct of a due process hearing, which allow them to participate in the process and to further develop the evidence on which they will base their decision. Hearing officers may do any of the following: (1) Question a witness before any party does; (2) With the consent of both parties, have conflicting expert witnesses discuss issues with each other on the record; (3) Visit a proposed placement site; (4) Call a new witness, not identified by any party, to testify if all parties consent or if there is a five-day postponement; (5) Order an independent assessment and postpone the hearing until it is completed (with the costs of the assessment to be borne by the hearing officer); (6) Call as a witness an independent medical specialist to testify about a student's medical disability (with the cost to be borne by the hearing officer). 50. Q. Can I Get the Public Education Agency to Pay for My Attorney and Expert Witnesses? A. Under federal law, if you are successful or partially successful in a mediation, a due process hearing, or a court hearing, then the court may award you reasonable attorneys' fees. Attorneys' fees are generally not available when you have an attorney represent you at an IEP meeting. [20 U.S.C. Sec. 1415(e)(4).] The term "reasonable attorneys' fees" means the lawyer's hourly charges consistent with rates in your area and the costs of pursuing the case -- for example, the cost of expert witnesses. The education agency may offer a settlement agreement which asks you to waive your right to attorneys' fees. If so, you should discuss this with your lawyer. Other specific details about the federal attorneys' fee law cannot be included here. However, you can review these laws with your lawyer when you hire him. 51. Q. If I Lose the Due Process Hearing, Can I Do Anything? A. Both sides have the right to go to court to appeal the due process hearing officer's decision.Any appeal to court must be filed within 90 calendar days of receipt of the administrative hearing decision. [34 C.F.R. Sec. 300.511; Cal. Ed. Code Sec. 56505(i).] 52. Q. What Remedies Can I Ask for When I File for a Due Process Fair Hearing or an Action in Court? A. The most common remedy that parents request and obtain is an order that the school do something -- such as provide the educational services and/or placement that the parents believe constitutes a free appropriate public education in the least restrictive environment for their child. Other remedies include: Reimbursement is the most common (and practically the only) type of monetary relief parents obtain. In the typical situation, the parents disagree with a school's decision about their child; the parents provide the services to the child at their own expense; a hearing officer or court holds that the parents' view was the correct one and gives the parents the remedy of reimbursement of unilateral expenses. This can include reimbursement of expenses for independent assessments, witness fees, private school tuition, etc.(1) Compensatory education is sometimes awarded to a child when a school district's significant failure to provide a free appropriate public education has caused the child harm and the child needs additional education. Courts sometimes require evidence that the school district acted in bad faith before they will order compensatory education. This remedy results in the child getting extra schooling -- for example, summer school or school after age 22. It does not mean a monetary award. In California, compensatory education is generally difficult to obtain. Generally No Damages. A hearing officer cannot award punitive damages for emotional distress or damages for educational malpractice or negligence. Actions requesting damages can be brought in court, but have generally not been successful. Courts have not awarded damages for educational malpractice, because what constitutes acceptable educational practices has not been defined. They have in rare instances found a common-law theory of negligence for certain acts such as the negligent supervision of a student resulting in injury to the student. Claims for punitive and emotional distress damages have generally not been successful. However, some students have been successful in actions brought exclusively against individual school personnel in their individual capacities and have obtained awards of damages for emotional distress and punitive damages. [Doe v. Withers (1993) 20 IDELR 422.] In addition, as a result of changes in federal law, it may be possible in a few situations to obtain damages, including punitive damages, in court actions under Title 42 United States Code Section 1983 for violation of your child's statutory or constitutional rights. [See K. L. v. Southeast Delco School District (1993) 828 F.Supp. 1192 (20 IDELR 244); and Jane Doe v. Taylor Independent School District (1992) 975 F.2d 137 for cases involving physical and/or sexual abuse of students by school district employees.] One case, brought under Title 42 U.S.C. Sec. 1983 and under special education law, sought compensatory and punitive damages. [See Woods ex rel. T. W. v. New Jersey Dept. of Ed. (1993) 796 F.Supp. 767 (19 IDELR 327).] Note also that recent amendments to the federal special education laws have clarified a student's/parent's right to sue a state in federal court for reimbursement for the costs of placement in an appropriate program where it is determined that a free appropriate public education was not made available to a student. This clarification reverses the U.S. Supreme Court decision in Dellmuth v. Muth, which held that the Eleventh Amendment guarantee of State Sovereign Immunity prohibited such a suit in federal court. ----------------------------------------------------------------- Sample Letter -- Compliance Complaint Ms. Bev Blue, Address, City, CA Zip, Telephone Number Date Program Assistance Complaint Resolution Unit California State Department of Education P. O. Box 944272 Sacramento, CA 94244-2720 Dear Sir or Madam: This is a special education compliance complaint. [5 Cal. Code Regs. Sec. 4600 and following.] I feel that Local Unified School District (LUSD) is out of compliance with federal and state special education laws. My child's name is John, and he is seven years old. He is developmentally delayed and has a physical disability which requires him to use crutches. I had the following problems with my school district: NOTE: Pick the problems that apply to your child's situation. If you have a different problem from the ones listed, describe the situation fully and include the part of the law that has been violated. If you do not know the law that has been violated, the Compliance Unit should match the correct law to your situation. See Question 8. (1) I never consented to psychological assessments done by the district on January 21, 1986. (Failure to get written parental consent for assessment, Cal. Ed. Code Sec. 56321.) (2) When I asked the district for a copy of the tests done by the psychologist, they refused to give me a copy. (Failure to provide parent with requested records, Cal. Ed. Code Sec. 56504; 34 C.F.R. Sec. 300.502.) (3) At the February 8, 1986, IEP meeting, LUSD refused to write down in the IEP the need for, and frequency and duration of, physical therapy services (related services). (Failure to provide frequency and duration of related service, 5 Cal. Code Regs. Sec. 3051; 34 C.F.R. Sec. 300-346.) (4) John's IEP states that he will have lunch and music class with non-disabled students, but the district has not provided these opportunities. (Failure to implement the IEP, Cal. Ed. Code Sec. 56345; failure to provide least restrictive environment, Cal. Ed. Code Sec. 56364; 34 C.F.R. Sec. 300.550-553.) (5) John's IEP states that he is to receive speech therapy twice a week for 30 minutes but LUSD says they do not have a therapist available. (Failure to implement the IEP, Cal. Ed. Code Sec. 56345.) In order to resolve this complaint, I am asking for the following remedies: (1) Allow me access to my child's records; (2) Get my consent before future assessments; (3) Order the district to allow John to have lunch and music class with non-disabled students as per his IEP; (4) Modify the IEP to state that physical therapy three times per week, 30 minutes per week must be provided; and, (5) Immediately begin the twice weekly speech therapy sessions specified in John's IEP. I have enclosed a copy of my child's IEP and a letter to the district asking for a copy of the psychologist's report. Because my complaint involves a matter which calls for direct State Department of Education intervention pursuant to Title 5 Cal. Code of Regulations Section 4650(a)(viii) (C)[if it involves immediate physical danger or threat to children], (D)[if it involves nonimplementation of a student's IEP], or (E)[if it involves a violation of federal special education statute or regulation (see Q&A 7 for a listing of those situations in which direct state intervention is required)], I have not filed with the local education agency. Rather, I request direct state intervention in this matter. I ask for immediate investigation and resolution, as my child cannot afford to wait for these services. Thank you for your assistance. Very truly yours, Bev Blue NOTE: See Due Process Hearings/Complaints for information on time lines that apply to compliance complaints. NOTE: If you have not heard from the Compliance Unit within 10 days after you mail your complaint, we recommend that you call to follow up at (916) 445-4632 (direct). ----------------------------------------------------------------- Sample Letter -- Due Process Hearing Request Ms. Bev Blue, Address, City, State, Zip, Telephone Number Date Special Education Hearing Office Institute for Administrative Justice McGeorge School of Law 3200 Fifth Avenue Sacramento, California 95817 RE: Due Process Hearing Dear Sir/Madam: I am writing to request a due process fair hearing for my son, John, who attends school in the School District. At my child's IEP, I requested that he attend school in an integrated setting. The IEP team refused to make any changes in my son's placement. I want a due process hearing in order to resolve the issue about changing my child's placement to an integrated setting. Please send me a copy of the Special Education Hearing Office Notice of Procedural Safeguards and any amendments thereto or subsequent revisions thereof. Please contact me as soon as possible to advise me of the date of the mediation conference. Thank you. Sincerely, Bev Blue NOTE: You can also use your school district's form for requesting a due process hearing, if your district has one. You should send a courtesy copy of your request for a due process fair hearing to the superintendent of the school district. ----------------------------------------------------------------- 1. A recent unanimous U.S. Supreme Court opinion ruled in the parent's favor and ordered reimbursement. [Florence County v. Carter, 20 IDELR 532.] The parents of a special education student had enrolled their child in a private school that the state department of education had not approved. The parents later established that all placements the school district had offered were inappropriate. They sought reimbursement from the school district for tuition at the private school. (This case is limited to retroactive reimbursement for placements by parents in nonapproved private schools. It cannot be used to argue that IEP teams may place students in nonapproved private schools.) ----------------------------------------------------------------- Protection & Advocacy, Inc. - 1-800-776-5746 ---------- Chapter 7 Information on Least Restrictive Environment TABLE OF CONTENTS Question 1. Q. What Does Least Restrictive Environment (LRE) Mean? 2. Q. What Do the Terms "Mainstreaming", "Integration", "Full Inclusion" and "Reverse Mainstreaming" Mean? 3. Q. What Are the Major Legislative and Judicial Provisions of Law Underlying the Least Restrictive Environment Requirement? 4. Q. What Factors May Be Important in Determining Whether My Child Is Being Educated to the Maximum Extent Appropriate with Her Nondisabled Peers? 5. Q. Does the District Have to Provide Aids and Services to Assist My Child's Integration? What If the District Says That Providing Those Aids and Services Is Too Expensive? 6. Q. The District Told Me That My Child May Not Be Integrated Because He Cannot Benefit Academically from Regular Class Instruction. Is this True? 7. Q. Must The Determination of Whether My Child Would Be Too Disruptive In The Classroom Be Made in Light of The Possibility of Supplementary Aids and Services to Address My Child's Behavior? 8. Q. What Sorts of Things May I Ask For in the Way of Supplemental Aids and Services To Assist My Child in the Regular Classroom? 9. Q. If My Child Is Not Placed in a Regular Classroom, Does the District Have Any Least Restrictive Environment Obligations With Regard to My Child's Education? 10. Q. Are There Any Factors Which the District May Not Consider in Determining What the Least Restrictive Educational Environment for My Child Would Be? 11. Q. If My Child Cannot Benefit from the Regular Academic Program, Can He Participate in Other School Programs? 12. Q. When I Develop My Child's IEP, How Can I Include Services and Placement in the Least Restrictive Environment? How Can the IEP Team Write this Specifically? 13. Q. How Can I Extend Integration Outside the School Grounds and into the Community? 14. Q. What If the Only Educational Placement My School District Has Available for My Child Is a Special Center for Students with Disabilities Operated by the County? 15. Q. What must School Districts Do to Ensure That Programs in the Least Restrictive Environment Are Available to Meet the Needs of All Students? 16. Q. Can the Nature or Severity of My Child's Disability Be Used to Justify a Segregated Educational Setting? 17. Q. Does "Least Restrictive Environment" Apply to Students in Public Institutions, Residential or Non-public School Placements? 18. Q. Does Regular Education Staff Have to Cooperate in Providing My Child with Integration, Full Inclusion and Mainstreaming Opportunities? 19. Q. Can the Lack of a Willing Regular Education Teacher Prevent My Child From Being Educated in a Regular Classroom? 20. Q. If I Think My Child's Right to an Education in the Least Restrictive Environment is Being Denied, What Can I Do? 21. Q. Can a Hearing Officer Order a School District to Start a New Classroom to Ensure Placement in the Least Restrictive Environment? 22. Q. How Can I Ensure That My District or County Is Moving Toward an Effective Model of Integrated Services for All Students with Disabilities? 23. Q. What If My School District Tells Me That My Child Can Only Get Related Services If She Attends School on a Segregated Site? 24. Q. I Think My Child Could Be in Regular Classes at Least Part of the Day If She Could Be in the Resource Class the Rest of the Day. The School District Says That the Maximum Time My Child Can Be in a Resource Class Is 50 Percent of the School Day. Is That True? 25. Q. The School District Says it Will Lose Money If it Places My Child in a Regular Class More than Half of the School Day Instead of in a Special Class. Is That True? What Can the District Do to Avoid this Result? Appendix I -- Indicators of Fully Inclusive Programs for Students with Disabilities ----------------------------------------------------------------- S P E C I A L E D U C A T I O N R I G H T S A N D R E S P O N S I B I L I T I E S Chapter 7 Information on Least Restrictive Environment 1. Q. What Does Least Restrictive Environment (LRE) Mean? A. Least Restrictive Environment (LRE) is the requirement in federal law that children with disabilities receive their education, to the maximum extent appropriate, with nondisabled peers. 2. Q. What Do the Terms "Mainstreaming", "Integration", "Full Inclusion" and "Reverse Mainstreaming" Mean? A. Mainstreaming refers to placement of a student with disabilities into ongoing activities of regular classrooms so that the student receives education with nondisabled peers -- even if special education staff must provide supplementary resource services. Integration includes (1) mainstreaming into regular classes and (2) access to, inclusion in, and participation in the activities of the total school environment. Integration combines placement in public schools with ongoing structured and non-structured opportunities to interact with nondisabled, age-appropriate peers. A student with severe disabilities should be able to participate in many general school activities -- such as lunch, assemblies, clubs, dances or recess. The student should also be able to participate in selected activities in regular classes -- such as art, music, or computers. The student should also be able to participate in regular academic subjects in regular classes if appropriate curriculum modifications are made and adequate support is provided. The student should be able to use the same facilities as nondisabled students -- including hallways, rest rooms, libraries, cafeterias and gymnasiums. "Integration" can refer to integration of a special education student into a regular education classroom in the same sense as in "mainstreaming." However, "integration" also refers to placement of a student in special education classes located on integrated campuses (that is, campuses that have both special and regular education classes). An "integrated" placement includes systematic efforts to maximize interaction between the student with disabilities and nondisabled peers. Full inclusion refers to the total integration of a student with disabilities into the regular education program -- with special support. In full inclusion the student's primary placement is in the regular education class. The student has no additional assignment to any special class for children with disabilities. Thus, the student with disabilities is actually a member of the regular education class. The student is not being integrated or mainstreamed into the regular education class from a special day class. The student need not be in the class 100% of the time, but can leave the class to receive supplementary services such as speech or physical therapy. For a proposed list of characteristics of a "Full Inclusion" approach to integrated special education programming, see Appendix I. Reverse mainstreaming refers to the practice of giving a student who is placed at a segregated school site or in a segregated classroom, or who resides in and attends school at a state hospital, opportunities to interact with nondisabled children. It brings nondisabled children to a segregated site or to state hospital classrooms for periods of time to work with or tutor children with disabilities. School districts should not attempt to fulfill the LRE mandate by using reverse mainstreaming exclusively. They should make systematic efforts to get special education students out of special classrooms and into the school's integrated environments. Reverse mainstreaming alone is an artificial means of integration. The IEP team should consider placements that encourage more natural interaction with nondisabled peers. Special and regular educators must make innovative and systematic efforts to promote positive interactions between students with disabilities (both severely disabled and learning disabled) and their nondisabled peers. 3. Q. What Are the Major Legislative and Judicial Provisions of Law Underlying the Least Restrictive Environment Requirement? A. Federal law provides that each local education agency must ensure that: ... to the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with nondisabled children, and that special classes, separate schooling or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. [34 Code of Federal Regulations (C.F.R.) Sec. 300.550(b)(1)&(2); 20 United States Code (U.S.C.) Sec. 1412(5)(B); California Education Code (Cal. Ed. Code) Sec. 56364.] State law provides that: Individuals with exceptional needs [shall be] offered special assistance programs that promote maximum interaction with the general school population in a manner which is appropriate to the needs of both. [Cal. Ed. Code Sec. 56001(g).] For students not yet receiving special education, but for whom special education eligibility is being considered, state law provides that: A pupil shall be referred for special educational instruction and services only after the resources of the regular education program have been considered and, where appropriate, utilized. [Cal. Ed. Code Sec. 56303.] The LRE regulations of federal law, Title 34, Code of Federal Regulations, Section 300.552(c), (d), provide: Unless the IEP [individualized education program] of a child with a disability requires some other arrangement, the child is educated in the school that he or she would attend if non disabled; [and] [i]n selecting the least restrictive environment, consideration is given to any potential harmful effect on the child or on the quality of services that he or she needs. The Comments section following the federal LRE regulations contains this language: ... it should be stressed that, where a handicapped child is so disruptive in a regular classroom that the education of other students is significantly impaired, the needs of the handicapped child cannot be met in that environment. Therefore regular placement would not be appropriate to his or her needs. Numerous federal courts have issued decisions on the issue of special education in the least restrictive environment. For the most part, these courts have encouraged integrated education and have established a solid trend in this direction. There is "a presumption that, among the alternative programs of education and training required by statute to be available, placement in a regular public school class is preferable to placement in a special public school class." [P.A.R.C. v. Pennsylvania.] The court adopted "a presumption that among the alternative programs of education, placement in a regular public school class with appropriate ancillary services is preferable to placement in a special school class." [Mills v. Board of Education.] The U.S. Supreme Court has stated: "The Act requires participating states to educate handicapped children with nonhandicapped children whenever possible." [Board of Education v. Rowley.] In California, the federal appeals court has stated that the: "Congressional preference for educating handicapped children in classrooms with their peers is made unmistakably clear." [Dept. of Educ., State of Hawaii v. Katherine D.] Denying access to a regular public school classroom without a compelling education justification constitutes discrimination. [Tokarcik v. Forest Hills School District.] Federal special education law "requires school systems to supplement and realign their resources to move beyond those systems, structures and practices which tend to result in unnecessary segregation of children with disabilities." [Oberti v. Board of Education.] The courts, including the federal courts in California, have established that the burden is on the school district to prove that a student cannot be educated successfully in the regular classroom. "[T]he District has not justified, to the satisfaction of this reviewing court, its decision to exclude [the student] from a regular classroom." [Mavis v. Sobol.] "[T]he Act's strong presumption in favor of mainstreaming...would be turned on its head if parents had to prove that their child was worthy of being included, rather than the school district having to justify a decision to exclude the child from the regular classroom. [Oberti v. Board of Education.] "The statutory presumption in favor of mainstreaming has been construed as imposing a burden on the school district to prove that a child cannot be mainstreamed. [Sacramento City Unified School District v. Holland.] 4. Q. What Factors May Be Important in Determining Whether My Child Is Being Educated to the Maximum Extent Appropriate with Her Nondisabled Peers? A. In the recent case of Sacramento City Unified School District v. Holland, the court identified several factors which are critical in analyzing whether a school district is complying with the least restrictive environment mandate. These factors are: (1) Educational benefits available to the student with a disability in a regular classroom, supplemented with appropriate aids and services, as compared with educational benefits of a special education classroom; (2) Non-academic benefits of interaction with children who are not disabled; (3) Effect on the teacher and the other children in the classroom of the presence of the student with disabilities in terms of disruptive behavior and/or undue consumption of the teacher's time; (4) Cost of mainstreaming a student with disabilities in a regular education classroom as compared to the cost of placement of the student in a special education classroom. 5. Q. Does the District Have to Provide Aids and Services to Assist My Child's Integration? What if the District Says That Providing Those Aids and Services Is Too Expensive? A. The district must provide supplementary aides and services to accommodate the special educational needs of students with disabilities in integrated environments. The court in Obertistated that a district must take meaningful steps to include children with disabilities in regular classrooms with supplementary aids and services. In another appellate court opinion, Daniel R. v. El Paso Independent School District, the court said: The [law] does not permit states to make mere token gestures to accommodate handicapped students; its requirement for modifying and supplementing regular education is broad. Another federal appellate court opinion, Roncker v. Walter, contained the following statements on the LRE issue: In a case where [a] segregated facility is considered [academically] superior, the court should determine whether the services which make the placement superior could be feasibly provided in a non-segregated setting. If they can, the placement in the segregated school would be inappropriate under the [law]. The Roncker court also noted that: Cost is a proper factor to consider since excessive spending on one handicapped child deprives other handicapped children. Cost is no defense, however, if the school district has failed to use its funds to provide a proper continuum of alternative placements for handicapped children. The provision of such alternative placements benefits all handicapped children. While the court in Holland decided that cost was a consideration in determining the appropriate placement for a child, it found that providing a part-time instructional aide and making academic curriculum modifications would not cost more than a special education placement. As is obvious from a review of these authorities, the presumption in favor of maximum appropriate contact with nondisabled students is a strong one. 6. Q. The District Told Me That My Child May Not Be Integrated Because He Cannot Benefit Academically from Regular Class Instruction. Is this True? A. No. The court in Holland noted that mainstreaming requires educating a student with disabilities in a regular classroom if the child can receive a satisfactory education there, even if it is not the best academic setting for the child. The court looked at whether the student's IEP goals and objectives could be met in the classroom with some curriculum modification, or by providing supplementary aids and services. Another federal appellate court opinion, Oberti v. Board of Education of the Borough of Clementon School District, contained the following comments on academic benefit: [IDEA] does not require states to offer the same educational experience to a child with disabilities as is generally provided for nondisabled children... To the contrary, states must address the unique needs of a disabled child, recognizing that child may benefit differently from education in the regular classroom than other students... In short, the fact that a child with disabilities will learn differently from his or her education within a regular classroom does not justify exclusion from that environment. 7. Q. Must The Determination of Whether My Child Would Be Too Disruptive In The Classroom Be Made in Light of The Possibility of Supplementary Aids and Services to Address My Child's Behavior? A. Yes. Before making the determination that a special education student would be so disruptive as to significantly impair the education of the other students, the district must ensure that consideration has been given to the full range of supplementary aids and services that could be provided to the student in the regular education environment to accommodate the unique needs of the special education student. [Questions and Answers on the Least Restrictive Environment Requirements of the IDEA, U.S. Department of Education, Office Of Special Education and Rehabilitative Services, OSEP-95-9, 11/23/94, Q&A 9.] The Court in Sacramento City Unified School District v. Holland stated that "when evaluating the burden that would be created by placing a handicapped child in a regular education class, the school district must consider all reasonable means to minimize the demands on the teacher: A handicapped child who merely requires more teacher attention than most other children is not likely to be so disruptive as to significantly impair the education of other children. In weighing this factor, the school district must keep in mind its obligation to consider supplemental aids and services that could accommodate a handicapped child's need for additional attention. . . . This factor weighs against placing a handicapped child in regular education only if, after taking all reasonable steps to reduce the burden to the teacher, the other children in the class will still be deprived of their share of the teacher's attention. [Sacramento City Unified School District v. Holland.] In response to contentions about negative effects of special education students on regular education students in regular classes, it should be noted that recent federally-funded research projects indicate that: (1) achievement test performance among students who were classmates of students with significant disabilities were equivalent or better than a comparison group (Salisbury, 1993); (2) students developed more positive attitudes toward peers with disabilities (Cal. Research Institute, 1992); and 3) self concept, social skills, and problem solving skills improved for all students in inclusive settings (Peck, Donaldson, & Pezzoli, 1990; Salisbury & Palombaro, 1993.). [Id.] 8. Q. What Sorts of Things May I Ask For in the Way of Supplemental Aids and Services To Assist My Child in the Regular Classroom? A. There is no all-inclusive list of the supplemental aids and services which might be used to assist special education students in regular classes. However, the U.S. Department of Education in a recent advisory on LRE issues has stated that the IEP team should consider a range of supplementary aids and services in light on the student's abilities and needs. The determination of what supplementary aids and services are needs must be made on an individual basis. Some aids and services which have been successfully used include, but are not limited to, modifications to the regular class curriculum, assistance of an itinerant special education teacher, special education training for the regular teacher, use of computer-assisted devices, provision of notetakers, and the use of a resource room. Any supplemental aids and services used must be described in the student's IEP. [Questions and Answers on the Least Restrictive Environment Requirements of the IDEA, U.S. Department of Education, Office Of Special Education and Rehabilitative Services, OSEP-95-9, 11/23/94, Q&A 3 and 4.] One federal appellate court described the provision regarding supplemental aids and services as follows: "[The federal special education] Act does not permit states to make mere token gestures to accommodate handicapped students; its requirement for modifying and supplementing regular education is broad." [Daniel R. v. El Paso Independent School District.] 9. Q. If My Child Is Not Placed in a Regular Classroom, Does the District Have Any Least Restrictive Environment Obligations With Regard to My Child's Education? A. Even though a student may not be placed in a regular class, the district must still take steps to maximize opportunities for the student to interact with nondisabled peers to the extent appropriate to the needs of the special education student. Where a placement other than a regular classroom is proposed by the district, it must provide written notice to the parents of the placement options that were considered and the reasons why those options were rejected. [34 C.F.R. (s)300.504-300.505; Questions and Answers on the Least Restrictive Environment Requirements of the IDEA, U.S. Department of Education, Office Of Special Education and Rehabilitative Services, OSEP-95-9, 11/23/94, Q&A 7.] 10. Q. Are There Any Factors Which the District May Not Consider in Determining What the Least Restrictive Educational Environment for My Child Would Be? A. The district may not make placement decisions based solely on factors such as the following: category of disability; severity of disability; configuration of delivery systems; availability of educational or related services; availability of space; or administrative convenience. [Questions and Answers on the Least Restrictive Environment Requirements of the IDEA, U.S. Department of Education, Office Of Special Education and Rehabilitative Services, OSEP-95-9, 11/23/94, Q&A 8.] 11. Q. If My Child Cannot Benefit from the Regular Academic Program, Can He Participate in Other School Programs? A. Yes. The law is clear that students with disabilities have the right to participate in non-academic and extracurricular services and activities to the maximum extent appropriate to their needs. Further, school districts must provide these activities in a way that gives students with disabilities an equal opportunity to participate. Such services and activities include lunch, recess, counseling services, athletics, transportation, health services, recreational activities, special interest groups or clubs, and employment opportunities. [34 C.F.R. Secs. 300.306 and 300.553.] 12. Q. When I Develop My Child's IEP, How Can I Include Services and Placement in the Least Restrictive Environment? How Can the IEP Team Write this Specifically? A. As mentioned in Question 4, academics are not the only measure of educational benefit, in light of the Holland case. A student with disabilities will have a stronger case for an integrated environment or full inclusion regular classroom placement if her IEP includes goals and objectives that relate, at least in part, to the curriculum in use in the desired placement. Such goals and objectives need not call for mastery of the subject matter or even for completion of every task or activity. An appropriately accommodating goal and objective for a student with disabilities might call for learning only a portion or the first few steps of a skill that nondisabled students might go on to complete. The important factor in analyzing the appropriateness of that placement for the student with disabilities may be the fact that she is participating to some degree in the activities of the surrounding classroom. Objectives that require integrated activities are another means of ensuring integration. Such a goal might read: "Sandra will participate in a team sport with nondisabled peers three times per week for 45 minutes per activity." Including such goals assures your child of regular contact with nondisabled children. Holland also stressed the importance of non-academic benefits derived from a regular education classroom placement for students with disabilities. Because of the importance the court in Holland gave to non-academic benefits, the IEP should also include information and goals and objectives related to the non-academic benefits of an integrated placement. Such benefits for a student with a disability may include language and behavioral models; improved self-esteem and increased motivation for learning; or improved social skills. If possible, you should meet with your child's teacher before the IEP meeting or annual review. Many teachers regularly plan such meetings with their students' parents or guardians. At the meeting, you and the teacher will identify your priorities for objectives, discuss options for integration and/or mainstreaming, and reach a consensus regarding educational priorities. This may help you state your priorities at the IEP meeting itself, and is a positive way of developing goals and objectives. State law specifically requires that "[t]he IEP team shall document its rationale for placement in other than the pupil's school and classroom in which the pupil would otherwise attend if the pupil were not handicapped. The documentation shall indicate why the pupil's handicap prevents his or her needs from being met in a less restrictive environment even with the use of supplementary aids and services." [Title 5, Cal. Code of Regs. Sec. 3042(b).] The law specifically requires that the IEP include the extent to which the child will be able to participate in regular education programs. [20 U.S.C. Sec. 1401(19)(C); 34 C.F.R. Sec. 300.346(a)(3); Cal. Ed. Code Sec. 56345(a)(4).] You can document this in the IEP in a number of ways. Some school districts indicate the percentage of time in regular education classes (for example, participation in regular education 30% of the school day). It is preferable, however, to list specific classes (such as regular education, art, music, and computers) or specific activities (such as assembly, lunch, recess, and circle time with nondisabled peers). In addition, it may be appropriate for your child to participate in a special friend or buddy system. A special friend or buddy is a nondisabled peer, who meets with your child in or outside the classroom for certain activities. The goal of the special friend or buddy system is to foster interaction and friendship. You should also document this type of system in your child's IEP. In terms of integration, you may wish to include contact with regular education peers as part of specific objectives. This would be a component of the conditions or setting described in the objective. For example: (1) John will use the sign for "hello" to greet nondisabled peers at lunch and on the playground each day; (2) Denise will engage in structured games with a nondisabled peer tutor from another class three times per week during leisure periods after lunch; (3) Anne-Marie will begin a self-feeding program by scooping her food at lunch, in the presence of a nondisabled "peer buddy." Integration can and should be built into objectives across areas of skill(communication, mobility, social) and domain (vocational, leisure, domestic, community). As noted above, contact with nondisabled and less severely disabled students in school may occur during periods such as community skill instruction, food preparation and lunch periods, vocational skill training, etc. See Question 9 below. In terms of mainstreaming or full inclusion, students who can participate in regular programming or regular classes may require modifications, supplementary aides or services within that regular class in order to learn. Such modifications may include the use of a tape recorder, oral testing, curriculum adaptations, special seating, an instructional aide, etc. Any modifications or services must be specifically written into your child's IEP. [34 C.F.R. Part 300, App. C, No. 48.] The IEP document should specifically describe placement in the LRE. This can be written in the placement section, in the notes section or in an addendum attached to the IEP. Some examples of placement statements are: (1) Placement in a special day class (SDC) on an age-appropriate regular school site with daily opportunities for integration and mainstreaming; (2) Placement in fully mainstreamed model kindergarten program that is team taught by special and regular education teachers; (3) Placement in a resource specialist program (RSP) for 30% of the school day. Mainstreamed for social studies, math, computers and all non-academic classes with front row seating and oral testing in all classes; (4) Placement at Rose Elementary School SDC with mainstreaming aide for music, art, homeroom and lunch; (5) Placement in SDC at a regular senior high school site with integrated and community-based programming as set out in the IEP; or (6) Full inclusion placement in a regular education first grade classroom with a full-time instructional aide. See also Question 13 below. 13. Q. How Can I Extend Integration Outside the School Grounds and into the Community? A. An important aspect of education for a student with severe disabilities is how to function appropriately in the community. IEP goals should address integration of students with disabilities in the real world environments they will have to use as adults. These include recreation, community, and vocational environments. Skills that will facilitate your child's acceptance (such as social or communication skills) should be incorporated into the educational objectives. If this type of programming begins during the school years, successful integration as an adult is much easier to achieve. In order to accomplish the above, parents and teachers need to first inventory possible activities in which the student could participate in the local community. Some suggestions are: Boy/Girl Scouts, Boys/Girls clubs, local weight lifting gym, local Jazzercize classes, local parks, playgrounds, parks and recreation programs, local library, movie theaters, fast food restaurants, shopping centers. From these ideas, parents and teachers can identify the skills a student needs to learn to participate in the community activity and build these into the IEP goals and objectives. For example: (1) Rebecca will learn to shop for groceries from a picture list, select items from the shelves, give money and receive change as measured by teacher observation three times per week; (2) Given a community work site at Pizza Hut, Kevin will clear and wipe tables and sweep floors up to competitive standards as measured by teacher and employer observation, for one hour two times per week; (3) When at a fast food restaurant, Ryan will order food and appropriately thank server 80% of the time as measured by teacher observation. Peer tutors or buddies who attend the student's school can also help promote integration in the community. They may be encouraged to: (1) Visit the student with disabilities' home; (2) Invite the student with disabilities to visit their home; or (3) Participate in one of the above activities or organizations with the student with disabilities. 14. Q. What If the Only Educational Placement My School District Has Available for My Child Is a Special Center for Students with Disabilities Operated by the County? A. School districts must provide students with disabilities with maximum opportunities to interact with nondisabled peers. The law requires school districts to provide a full continuum of alternative placements to ensure that students receive services in the LRE. The full continuum of alternative placements must include the following: regular class placement; regular class with resource or itinerant instructional services; regular class with special education related services; special classes or special schools (either of which often also involve the provision of related services); nonpublic schools; state schools for students with low incidence disabilities; and instruction in settings other than classrooms (such as in homes or hospitals). [34 C.F.R. Sec. 300.551; Education Code Sec. 56361.] The school district must provide students with maximum opportunities to interact with nondisabled peers, which includes providing placements on regular school sites. Federal and state policy specifically forbid selecting a placement in a segregated setting over placement on a regular school site if the placement decision is based on administrative factors and not on the student's needs. A school cannot use lack of appropriate placements as an excuse for denying students with disabilities their right to an education in the least restrictive environment. Although a school district can contract with the county to provide programs for students, the district cannot use this arrangement as an excuse to deny a student an education in the LRE. [Federal Policy Letter on LRE, Education for the Handicapped Law Reporter (EHLR) page 211:384, March 21, 1986; CDE, Office of Special Education, Policy Statement on LRE.] 15. Q. What must School Districts Do to Ensure That Programs in the Least Restrictive Environment Are Available to Meet the Needs of All Students? A. The CDE has said: To ensure that a full continuum of program options are available, all education agencies should review their current delivery systems to determine that: (1) Program options in regular education environments are available at local neighborhood schools. (2) Special education programs, to the maximum extent appropriate to student needs, are housed on regular school campuses and dispersed throughout the district. (3) The physical location of the program facilitates social interaction with non-handicapped students. (4) Individuals with exceptional needs have equal access to all regular education activities, programs, and facilities on the regular school site and participate in those activities as appropriate to their needs. (5) Administrative policies and procedures encourage close cooperation of all school personnel to facilitate opportunities for social interaction between individuals with exceptional needs and non-handicapped individuals. (6) Administrative policies and procedures allow individuals with exceptional needs maximum access to appropriate general education academic programs and school personnel are given necessary support to insure the student's success. (7) Long-range plans and commitments for physical housing on regular school campuses are made in order to avoid frequent and disruptive program relocations. (8) Through long-range commitments for physical housing on regular school campuses, individuals with exceptional needs are afforded opportunities to develop and maintain continuing relationships with non-handicapped peers. [CDE, Office of Special Education, Policy Statement on LRE.] 16. Q. Can the Nature or Severity of My Child's Disability Be Used to Justify a Segregated Educational Setting? A. All students with disabilities have the right to an education in the LRE based on their individual educational needs rather than the label describing their disabling condition. Just because your child is labeled "severely retarded" or "seriously emotionally disturbed" does not necessarily mean that contact with nondisabled students would not be appropriate. According to the Holland case a district must take all reasonable steps (including provision of supplemental aids and services) to reduce the burden to the regular education teacher and the other children in the class before removing a child with a disability from the regular education classroom. The court in Holland said that merely requiring more attention than most children is not likely to impair the other children's education. The law does recognize that the nature or severity of a child's disability may justify removal of a child from the regular class, particularly when the student disrupts other students. However, total removal from the regular education environment may not be warranted. The school district should still provide opportunities for interaction with nondisabled peers in extra-curricular or non-academic settings when appropriate. [34 C.F.R. Secs. 300.550(b)(1)(2) and 300.552.] 17. Q. Does "Least Restrictive Environment" Apply to Students in Public Institutions, Residential or Non-public School Placements? A. Yes. Even if your child needs to receive services at a public institution, a residential facility or a non-public school placement, appropriate opportunities for participation in regular education programs and activities must be made. Again, this determination is based on the student's individual needs as set forth in his IEP. [34 C.F.R. Sec. 300.553 Comment and Sec. 300.554; Cal. Ed. Code Secs. 56850 and following.] 18. Q. Does Regular Education Staff Have to Cooperate in Providing My Child with Integration, Full Inclusion and Mainstreaming Opportunities? A. Special education law requires that the IEP document specify the supplementary aids and services necessary to ensure a student's participation in the regular education program. These supplementary aids and services might include: (1) Special seating arrangements; (2) Modification of tests to accommodate the student's disability (3) Curriculum modifications (4) Instructional or health aides to accompany the student; and (5) Adaptive equipment. Such arrangements apply to any class in which the student might participate -- including physical education, art, music and vocational education. [34 C.F.R. Part 300, App. C, No. 48.] The IEP document is binding on the school district. Therefore, both special and regular education personnel must follow its provisions. The best way to ensure cooperation between the regular and special education programs is to make sure that adequate training and support are available to the regular education staff regarding the needs of your child. You can accomplish part of this through the IEP planning process. You should insist that your child's regular education teacher(s) also attend her IEP meetings together with any special education teacher(s) who will be working with your child. Where no regular education teacher does attend, it is important that either you (the parent) or the special education teacher relay the information covered at the IEP meeting to the regular education staff. The school district is responsible for (1) giving a copy of your child's IEP to her regular education teachers or informing them of its contents and (2) ensuring that the special education teacher or other appropriate support person is available to consult with the regular education teacher. [34 C.F.R. Part 300, App. C, No. 16.] In addition, CDE and the local school districts have general responsibility to ensure that both regular and special education personnel are adequately prepared to provide instruction to special education students. Specifically, school districts must provide in-service training to regular and special education teachers who serve special education students about those students' needs. This program should include information on the latest educational practices. Parents of special education students should provide input into its development. [Cal. Ed. Code Secs. 56001(o), 56240-43; 34 C.F.R. Secs. 300.380, 300.382.] 19. Q. Can the Lack of a Willing Regular Education Teacher Prevent My Child From Being Educated in a Regular Classroom? A. No. The lack of adequate personnel or resources does not relieve school districts of their obligation to educate a child in the regular classroom in accordance with his IEP. Placement of a student in a particular regular class based on the competencies of the teacher is permitted. The district has an affirmative responsibility to ensure sufficient numbers of regular education teachers who are qualified, with needed aids and supports, to provide services to students with disabilities in regular educational environments. [Questions and Answers on the Least Restrictive Environment Requirements of the IDEA, U.S. Department of Education, Office of Special Education and Rehabilitative Services, OSEP-95-9, 11/23/94, Question 6.] 20. Q. If I Think My Child's Right to an Education in the Least Restrictive Environment is Being Denied, What Can I Do? A. If your child's IEP calls for a specific integrated placement or specific amounts of integration activities, and the school district is not following the IEP, you can file a compliance complaint with the CDE and the federal Office of Civil Rights (OCR). If the school refuses to put integrated services or activities which you believe are appropriate into the IEP, you can ask for a fair hearing. See Chapter 6, Information on Due Process Hearings/Compliance Complaints. 21. Q. Can a Hearing Officer Order a School District to Start a New Classroom to Ensure Placement in the Least Restrictive Environment? A. A hearing officer must determine which type of placement is appropriate for a student with disabilities based on evidence presented at the hearing. A hearing officer is not authorized or required to limit her decision to available classrooms or personnel. If the evidence shows that a special day class on a regular school site is the LRE for your child, the hearing officer must order that type of placement. A school district must then make those services available. [California State Policy on the Authority of the Office of Administrative Hearings Regarding the Least Restrictive Environment; Federal Policy Letter on LRE, EHLR 211.384 (March 21, 1986).] 22. Q. How Can I Ensure That My District or County Is Moving Toward an Effective Model of Integrated Services for All Students with Disabilities? A. If your school system is not yet fully integrated, or is just beginning to consider integrated or full inclusion options for its students with disabilities, you can take several actions. For example, you can approach your district's Community Advisory Committee/Council on Special Education (CAC). CAC's are state-mandated committees of parents, district and agency personnel which are present in every school system. [Cal. Ed. Code Secs. 56190-56194.] Ask your CAC how the district's local Special Education Plan addresses integration, what options are currently available, how the CAC plans to participate in and/or monitor integration planning, etc. The CAC may want to arrange for informational presentations from neighboring districts, parent or university groups involved with parallel integration programs. They might also want to schedule a session with their own administration regarding the local plan. Several parent groups and CACs in California have begun district-wide Integration Task Forces composed of parents, CAC members, teachers, related service personnel, regular and special education administrators, interested disabled and nondisabled community members, regional center, advocacy group representatives, etc. These task forces have developed cooperative planning efforts with the goal of effective integration. At the same time, parents and teachers have helped their district evaluate potential school sites for future integration. They have begun IEP development to ensure integration. Finally, some districts/counties have developed Board of Education policies on integration, full inclusion and mainstreaming at the request of their CAC and/or school administration. A board policy and/or resolution can be highly effective in developing an integration process. Integration requires careful planning and structure, not a "dump and hope" approach, to be effective for all students. A cooperative planning group or task force representing all constituencies is essential. If your district will not cooperate in developing integration services, or refuses to write integration language into your child's IEP, you may use the compliance complaint or due process procedures set up through state and federal law. See Chapter 6, Information on Due Process Hearings/Compliance Complaints. Several pilot projects have recently begun in California to foster more integrated educational opportunities for special education students. The PEERS Outreach Project (Providing Education for Everyone in Regular Schools) assists school districts in creating fully inclusive educational options. PEERS Outreach is under the direction of CDE and is providing technical assistance to eight school district over the course of a three year period. Each district will develop technical assistance centers, school sites demonstrating inclusive education so that others can be trained in inclusive strategies. The program has two regional coordinators: Ann Halvorsen - (510) 881-3087 or (415) 338-7849 (voice mail) Tom Neary - (916) 641-0465 x277 Districts that are currently receiving assistance in establishing inclusive options are: Pierce Joint Unified School District, Davis Joint Unified School District, Napa Valley Unified School District, San Lorenzo Valley Unified School District, Dry Creek Elementary School District, Merced Union High School District, San Francisco Unified School District, and Berkeley Unified School District. 23. Q. What If My School District Tells Me That My Child Can Only Get Related Services If She Attends School on a Segregated Site? A. The school district cannot use location or availability of related services to justify placement on a segregated site. The district is responsible for providing necessary related services appropriate for the individual student in the least restrictive environment. [34 C.F.R. Sec. 300.552 and comment.] CDE states: The determination of appropriate program placement, related services needed, and curriculum options to be offered is made by the IEP team based upon the unique needs of the handicapped student rather than the label describing the handicapping condition or the availability of programs. [CDE, Office of Special Education, Policy Statement on LRE.] 24. Q. I Think My Child Could Be in Regular Classes at Least Part of the Day If She Could Be in the Resource Class the Rest of the Day. The School District Says That the Maximum Time My Child Can Be in a Resource Class Is 50 Percent of the School Day. Is That True? A. There is a provision in state law limiting the amount of time a child can be enrolled in a resource class to 50% of a school day -- without prior approval from the Superintendent of Public Instruction. [Cal. Ed. Code Sec. 56362(e).] Many school districts do not inform parents that they might obtain the Superintendent's prior approval for placement in a regular class less than 50% of the time and in a resource class for more than 50% day -- if this extra resource time is appropriate and least restrictive for the student. Usually, students for whom half-day regular class placement would not be appropriate are automatically placed in a special day class. As a result, these students do not receive any significant degree of integrated education. If you believe your child could benefit from the regular class environment, or should have the services of a resource teacher more than half of the school day, you should ask the IEP team to pursue approval from the Superintendent of Public Instruction pursuant to Education Code Sec. 56362(e). 25. Q. The School District Says it Will Lose Money If it Places My Child in a Regular Class More than Half of the School Day Instead of in a Special Class. Is That True? What Can the District Do to Avoid this Result? A. For a school district to receive funding at the level for a special day class student, that student must be in the special day class at least 50% of the day. [Cal. Ed. Code Sec. 56364.] When a school district tries to provide appropriate education, with supplementary aids and services, in a regular class more that 50% of the day, to a student who would otherwise be in a special class, the district does not receive the higher level of funding it would receive if the student were in a special class for that time. The district may need the higher funding level, however, to support the child appropriately in the regular class. Fortunately, the district can obtain a waiver of the requirement that a student be in the special class a majority of the time. Under Cal. Ed. Code Sec. 56101, a district can petition the State Board of Education for a waiver so that it can receive the higher level of funding. Inclusion of students who would otherwise be in special classes in regular classes, where appropriate, cannot depend on obtaining one of these waivers, however. If the district says that money for the necessary supports to serve your child appropriately in regular class is not available unless your child spends more than 50% of the day in special class, you should remind the district of the waiver procedure under Section 56101. You might also remind the district that lack of money is no excuse for not including your child, with appropriate supports, in regular class. ----------------------------------------------------------------- Appendix I -- Indicators of Fully Inclusive Programs for Students with Disabilities The following characteristics are indicators of fully inclusive programs for students with disabilities. They can serve as guidelines in planning for inclusion and also as a means for maintaining the integrity of the term, Inclusive or Supported Education. 1. Students are members of chronologically age-appropriate general education classrooms in their normal schools of attendance, or in magnet schools or schools of choice when these options exist for students without disabilities. 2. Students move with peers to subsequent grades in school. 3. No special class exists except as a place for enrichment activities for all students. 4. Disability type or severity of disability does not preclude involvement in full inclusion programs. 5. The special education and general education teachers collaborate to ensure: a. the student's natural participation as a regular member of the class b. the systematic instruction of the student's IEP objectives c. the adaptation of core curriculum and/or materials to facilitate student participation and learning. 6. Effective instructional strategies (e.g., cooperative learning, activity based instruction, whole language) are supported and encouraged in the general education classroom. 7. The staff to student ratio for an itinerant special education teacher is equivalent to the special class ratio and aide support is at least the level it would be in a special class. 8. Supplemental instructional services (e.g. communication, mobility, adapted P.E.) are provided to students in classrooms and community settings through a transdisciplinary team approach. 9. Regularly scheduled collaborative planning meetings are held with general education staff, special education staff, parents and related-service staff in attendance as indicated, in order to support initial and ongoing program development and monitoring. 10. There is always a certificated employee (special education teacher, resource specialist or other) assigned to supervise and assist any classified staff (e.g., paraprofessional) working with specific students in general education classrooms. 11. Special education students who are fully included are considered a part of the total class count for class size purposes. In other words, even when a student is not counted for general education ADA, s/he is not an "extra" student above the contractual class size. 12. General ability awareness is provided to staff, students and parents at the school site through formal or informal means, on an individualized basis. This is most effective when ability awareness is incorporated with general education curriculum. 13. Plans exist for transition of students to next classes and schools of attendance in inclusive situations. 14. Districts and SELPAs obtain any necessary waivers of the Education Code to implement supported education. 15. Supported education efforts are coordinated with school restructuring at the district and site level. In summary, all students are members of the general education classroom, with some students requiring varying levels of support from special education. Hence the term "Supported Education." This term, though synonymous with "Full Inclusion", is explicit in acknowledging the importance of providing support services within the regular classroom, when necessary, to ensure a quality educational program. PEERS 1992 With appreciation to Dr. Wayne Sailor, "Special Education in the Restructured School" Remedial and Special Education, 12, 6 (1991). [1992 DRAFT, Authors: Neary, T.; Halvorsen, A.; & Smithey, L., Inclusive Education, Sacramento, PEERS Project.] ----------------------------------------------------------------- Protection & Advocacy, Inc. - 1-800-776-5746 ---------- Chapter 8 Information on the Discipline of Students with Disabilities TABLE OF CONTENTS Question 1. Q. Under What Circumstances Can a School District Suspend or Expel a Student with Disabilities? 2. Q. What Are the Reasons a School District Can Suspend or Expel My Child? 3. Q. Are There Any Limitations on Suspension of Students with Disabilities? 4. Q. Are There Any Limitations on a School District's Right to Expel a Student with Disabilities from School? 5. Q. What Procedures Must the School District Follow When it Wants to Expel a Student with Disabilities from School? 6. Q. What Type of Evaluation must Be Done When the School District Is Considering Expelling My Child? 7. Q. What Are the Time Lines for Holding the IEP Team Meeting? 8. Q. What Decisions Should the IEP Team Make? 9. Q. Does My Child Have the Right to Attend School While the IEP Team Is Meeting and During Any Appeals from the IEP Team Decision? 10. Q. What Happens If It Is Determined That the Misconduct Is Not Related to My Child's Disability, and My Child Was Appropriately Placed at the Time? 11. Q. What must a School District Show in Order to Obtain a Court Order that Changes My Child's Placement or Indefinitely Extends His Suspension Without Parental Consent? 12. Q. May My Child Be Expelled from Just the Transportation Portion of Her School Program? 13. Q. If My Child Is Expelled, Is He Entitled To Any Special Education During the Period of His Expulsion? 14. Q. What Can I Do If a Teacher or Other School Staff Person Hurts My Child? 15. Q. Are There Any Special Rules Governing the Discipline of Students Identified as "Disabled" under Section 504 of the Rehabilitation Act of 1973? 16. Q. My Child Was Expelled. Is She Entitled to Any Services from the School District That Expelled Her? 17. Q. My Child Was Expelled from School. What Are His Rights to Return to School in the School District that Expelled Him? 18. Q. What Rules Govern the Readmission Process? 19. Q. My Child Was Expelled from Our School District. What Are the Rules Governing Admission of My Child to a New School District? 20. Q. My Child Has Behavior Problems Which May Put Her at Risk of Suspension and/or Expulsion. Are There Any Special Services or Protections That Apply to Her? 21. Q. Do the New Positive Behavior Intervention Regulations Specifically Prohibit Some Behavior Programming or Techniques? 22. Q. Do the New Positive Behavior Intervention Regulations Have Any Impact on the Discipline of Special Education Students? ----------------------------------------------------------------- S P E C I A L E D U C A T I O N R I G H T S A N D R E S P O N S I B I L I T I E S Chapter 8 Information on the Discipline of Students with Disabilities 1. Q. Under What Circumstances Can a School District Suspend or Expel a Student with Disabilities? A. The law governing suspension and expulsion of students with disabilities has undergone substantial changes in recent years as a result of amendments to the California Education Code (Cal. Ed. Code) and judicial decisions in Doe v. Maher, Education for the Handicapped Law Reporter (EHLR) 557:3531 and Honig v. Doe, EHLR 559:231. Students with disabilities generally are treated the same as their nondisabled peers in suspension cases. There are, however, significant limits on a school district's right to expel a student with disabilities. Before expelling a student with disabilities, the school district must follow procedures in federal law for changing his placement. In addition, a school district may not expel a student with disabilities if the misconduct is directly related to his disability or if he was inappropriately placed at the time of the misconduct. [Cal. Ed. Code Sec. 48915.5(a).] 2. Q. What Are the Reasons a School District Can Suspend or Expel My Child? A. The grounds for suspension or a recommendation of expulsion are the same for children with and without disabilities. The permissible grounds for taking disciplinary action under Cal. Ed. Code Sec. 48900 are: (1) Causing or threatening physical danger to another; (2) Possessing without school authorities' permission a knife, gun or other dangerous object, or furnishing such an object; (3) Unlawfully possessing, using, or furnishing a controlled substance or alcoholic beverage, or being under the influence of such a substance or beverage; (4) Offering or furnishing a substance misrepresented to be a controlled substance or alcoholic beverage; (5) Committing robbery or extortion; (6) Damaging or attempting to damage school or private property; (7) Stealing or attempting to steal school or private property; (8) Possessing or using tobacco in an unauthorized manner; (9) Committing an obscene act or engaging in habitual profanity or vulgarity; (10) Dealing in drug paraphernalia; (11) Disrupting school activities or otherwise willfully defying school authorities; (12) Knowingly receiving stolen school or private property. (13) Engaging in sexual harassment which a reasonable person of the same gender as the victim would consider sufficiently severe or pervasive as to have a negative impact on such a victim's academic performance or to create an intimidating, hostile, or offensive educational environment. [See Cal. Ed. Code Sec. 48900.2]. Suspension or expulsion for any of these acts must be related to school activity or attendance. This includes misconduct which occurs on school grounds, while going to or coming from school, during lunch (whether on or off campus), during a school sponsored activity, or while going to or coming from a school sponsored activity. [Cal. Ed. Code Sec. 48900.] School districts should use alternatives to suspension or expulsion to address problems of truancy, tardiness, and other absences from school activities. [Cal. Ed. Code Sec. 48900.] Suspension is appropriate only after other means of correction fail to bring about proper conduct. [Cal. Ed. Code Sec. 48900.5.] A student may be suspended on a first offense only for reasons (1) through (5) above, or because her presence causes a danger to persons or property, or threatens to disrupt the educational process. [Id.] Expulsion is appropriate only if the student: -- Committed the offenses listed in (1) through (5) above or -- Committed the offenses listed in (6) through (12) above and either: (a) Other means of correction are not feasible or have failed repeatedly or (b) The student's presence causes a continuing danger to the physical safety of the student or others. [Cal. Ed. Code Sec. 48915.] 3. Q. Are There Any Limitations on Suspension of Students with Disabilities? A. Students with disabilities are subject to the same suspension rules as non-disabled students, except with regard to the length of suspension. Under certain circumstances, a non-disabled student can be suspended for a period in excess of 30 days cumulatively per school year. However, a student with a disability may not be suspended for more than 10 consecutive days without a court order or parental consent. [Cal. Ed. Code Sec. 48911(h); Doe v. Maher, EHLR 557:353, 361.] Cumulative suspensions of more than 10 days per year, under the particular circumstances of each case, may constitute: (1) a significant change of placement without an IEP, in violation of 34 CFR Sec. 104.35(a), or (2) an attempt by the school district to avoid the impact of Doe v. Maher. [EHLR 307:06 (OCR, 1988).] This issue, while it does involve compliance issues that could be addressed by a Compliance Complaint, is best addressed by Due Process, which is quicker and better suited to resolving the factual issues that may be involved. It also places the student back in school immediately pending resolution of the matter. (See Question 9.) There are general rules and procedures that apply to both special and regular education students. Suspensions may range in length from: -- two consecutive days when ordered by a teacher [Cal. Ed. Code Sec. 48910(a)] to -- five consecutive days when ordered by a principal or superintendent [Cal. Ed. Code Sec. 48911(a)] to as many as -- ten consecutive days when ordered by the governing board of a school district [Cal. Ed. Code Sec. 48912(a)]. An informal, pre-suspension conference with the student must precede suspensions by a principal, principal's designee, or by a superintendent. At the pre-suspension conference, the student must be told why he is being suspended. He must also have an opportunity to present his version of the events and evidence in his defense. The student's parents need not be invited to the pre-suspension conference with the student. [Cal. Ed. Code Sec. 48911(b).] The pre-suspension conference need not take place if the principal or designee or superintendent believes that an "emergency situation" exists. An "emergency situation" is one where it is believed that the student presents a clear and present danger to the lives, safety or health of students or school personnel. In this situation, the student may be suspended without a conference, but the student and his parents must be notified of the student's right to a conference within two school days and of the student's right to return to the campus to attend the conference. [Cal. Ed. Code Sec. 48911(c).] At the time of any suspension, a school employee must make reasonable efforts to contact the student's parents or guardian in person or by telephone. The parents or guardian must receive a written notice of the suspension. [Cal. Ed. Code Sec. 48911(d).] Parents must respond without delay to any request from school officials that they attend a conference regarding their child's misconduct. [Cal. Ed. Code Sec. 48911(f).] 4. Q. Are There Any Limitations on a School District's Right to Expel a Student with Disabilities from School? A. Students with disabilities cannot be expelled from school unless an assessment has take place and an IEP team has met. The assessment and IEP meeting are to determine whether the student's misconduct was related to her disability and whether she was appropriately placed at the time of the misconduct. A student with disabilities cannot be expelled for conduct that directly relates to her disabling condition. In addition, before a student with disabilities can be expelled, the IEP team must determine that she was appropriately placed at the time the misconduct occurred. [Cal. Ed. Code Sec. 48915.5; Doe v. Maher, EHLR 557:353, 359-60.] Expulsion is a significant change in placement. [Doe v. Maher, EHLR 557:353, 360.] Before expulsion proceedings can begin for any student enrolled in a special education program, the procedures prescribed by federal and state law for changing the placement of a student with disabilities must be followed. [Id.] It is important to note that Cal. Ed. Code Sec. 48915.5 limits the inquiry into whether the misbehavior was a manifestation of the student's disability to an analysis of whether it was a manifestation of the student's "identified disability." [See Cal. Ed. Code Sec. 48915.5(a)(2).] School districts have interpreted "identified disability" to mean the disability or disabilities that the district has identified and acknowledged and which may have caused the student to become eligible for special education. However, in many cases, school districts have not identified a student as having any disability (or may not have identified all the disabilities a student may have) that may be manifested by misbehavior. A recent appellate-level federal ruling in California offers students protection from this narrow analysis under Section 48915.5. [See Hacienda La Puente Unified School District of Los Angeles v. Honig, 976 F.2d 487 (9th Cir., 1992).] Recently, California law has been amended to require that the governing board of a school must expel any student who is found to be in possession of a firearm at school or at a school activity off campus. Similarly, the new law requires that a principal or superintendent recommend expulsion for any student who: (1) causes serious physical injury to another person (except in self-defense); (2) possesses a knife, explosive or other dangerous object of no reasonable use to the student at school or at a school activity off campus; (3) sells any controlled substance; or (4) engages in robbery or extortion. [Cal. Ed. Code Sec. 48915.] To the extent that these and other provisions of California law are inconsistent with or appear to circumvent the procedural protections of federal and other state laws with respect to special education students or students identified as "handicapped" under Section 504, they are not enforceable. However, federal special education statutes have also been recently amended by the Improving America's Schools Act with regard to special education students who possess firearms at school, even where the possession of the firearm is a manifestation of the student's disability. Currently, if a special education student brings a firearm to school, the school district must recommend expulsion pursuant to the federal Gun-Free Schools Act. That recommendation leads to the mandatory pre-expulsion assessment and IEP meeting to determine whether the act of the bringing the firearm to school was related to the student's disability and whether the student was appropriately placed at the time. However, while this assessment and IEP process is taking place, the school district may now move the student to an alternative educational placement of its choosing for a period of up to 45 days. The statute does not specify whether this means calendar days or school days. Most references to days of suspension are to "school" days. See the limitation to 10 consecutive days by the U.S. Department of Education Office of Special Education Programs [20 IDELR 1255 (1993); 20 IDELR 1463 (1994)] or the limitation to 10 cumulative days of suspension by the U.S. Department of Education Office For Civil Rights [20 IDELR 549 (1993)]. However, the amendment states: "the child may be placed in an interim alternative educational setting...for not more than 45 days." It may have been Congress' intention that such alternative "placement" last only 45 calendar days, and not that the student necessarily attend 45 school days at the alternative placement. In addition, the 45 days may have been intended by Congress to coincide with the 45-day requirement of 34 Code of Fed. Regs. (s)300.512 for receipt of a hearing decision following a request for due process. That 45-day requirement refers to calendar days. It is not unreasonable to assume Congress intended that the alternative placement last as long as it would take for a parent to exercise his due process rights to challenge the findings or actions of the district concerning the behavior of the student. Absent a request for due process, the district will have up to 45 days to complete its pre-expulsion assessment and IEP processes and the expulsion or change of placement processes. Where it is found that the conduct was not related to the student's disability, and that the student was appropriately placed at the time, the child must be expelled pursuant to the Gun-Free Schools Act. However, pursuant to a U.S. Department of Education policy statement, which the State of California has agreed to follow, districts must continue to provide a free, appropriate public education to special education students who are expelled. Where the conduct is found to be related to the student's disability, or the student was inappropriately placed at the time, the student may not be expelled. However, the district may attempt to change the student's placement by initiating due process against the student. Before the assessment and IEP meeting results are known, it will do a parent no good, in terms of trying to preserve the student's previous educational placement, to initiate due process and thereby invoke the "stay-put" provision (see Chapter 6 of this manual, Information on Due Process Hearings/Compliance Complaints). The "stay-put" provision [20 U.S.C. (s)1415(e)(3)] of federal special education law maintains the status quo and assures that during the pendency of due process procedures (mediation and fair hearing), a student is entitled to continue to attend his/her then current educational placement and program. Then current educational placement means: "the operative placement actually functioning at the time the dispute first arises. If an IEP has been implemented, then that program's placement will be the one subject to the stay-put provision. And where ... the dispute arises before any IEP has been implemented, the current 'educational placement' will be the operative placement under which the child is actually receiving instruction at the time the dispute arises." [Thomas v. Cincinnati Board of Education, 17 EHLR 113 (1990).] The "stay-put" provision will be applied to the alternative educational placement selected by the district and not to the placement the student was in at the time he brought the firearm to school. Similarly, if the district, following the assessment and IEP, asserts that the bringing of the firearm to school was not related to the student's disability and that the student was appropriately placed at the time, and if the parent initiates due process to challenge that finding, the stay-put provision will preserve the student's right to educational services in the alternative educational placement, not the previous placement, pending the results of due process. The limitation of 45 days on the alternative educational placement is, therefore, only a limitation where no due process is requested, because once due process is requested, the alternative placement becomes the student's placement until the matter is finally resolved. Due Process, therefore, may extend the alternative placement beyond 45 days. 5. Q. What Procedures Must the School District Follow When it Wants to Expel a Student with Disabilities from School? A. Expulsion is a change in placement and, therefore, the school district must follow the same procedures with expulsion that it must follow in making other significant changes to the program of a student with disabilities. These procedures include: (1) Notifying the parents in writing of the educational agency's intention to seek expulsion [20 United States Code (U.S.C.) Secs. 1415(b)(1)(C)(i), (D); 34 Code of Federal Regulations (C.F.R.) Secs. 300.504-300.5051]; the parents must also receive written notice of the district's intent to conduct a pre-expulsion assessment (the purpose of the pre-expulsion assessment is to determine whether the student was appropriately placed at the time of the misconduct and whether the misconduct was related to the student's disability. [Cal. Ed. Code Sec. 48915.5(e).]; (2) Conducting the pre-expulsion assessment of the student. [Doe v. Maher, EHLR 557:353, 363-64; 20 U.S.C. Sec. 1415(b)(1)(A)]; Parental consent to the pre-expulsion assessment is not required, and the parents shall make the student available for the assessment at a site chosen by the school district without delay; however, the parents' right to an independent assessment under Cal. Ed. Code Sec. 56329 applies despite the fact that the student has been referred for expulsion [Cal. Ed. Code Sec. 48915.5(e).]; (3) Convening an IEP team meeting (with at least 48 hours notice to the parents) to determine if the misconduct is directly related to the student's disability and whether the student was appropriately placed at the time of the misconduct; the pre-expulsion IEP must be held at a time mutually convenient to the school district and parents and within the period of any pre-expulsion suspension or may be conducted by telephone; if the parents do not request a postponement, the meeting may proceed without the parents; the parents may have up to a three-day postponement, but the period of suspension will then be extended by that number of days if the student poses an immediate threat to his own health or safety or to that of others; the period of pre-expulsion suspension cannot be extended beyond 10 consecutive school days without the written agreement of the parents or a court order; however, if the parents have requested a postponement which would result in more than 10 consecutive days of suspension and refuses to give written consent, the meeting may take place at the originally scheduled time with or without the parents' participation [Cal. Ed. Code Secs. 48915.5(d)-(e)]; (4) Informing the parents of their right to request both impartial administrative review of any IEP team decisions and judicial review of the state's final administrative determination [20 U.S.C. Secs. 1415(b)(1)(D), (c), (d), and (e); Cal. Ed. Code Sec. 48915.5(g)]; and (5) Continuing the student's then current educational placement pending resolution of any previously mentioned review proceedings, unless the parents otherwise agree or unless the school district believes the student is dangerous and has obtained a court order which allows a change in placement. [Doe v. Maher, EHLR 557:353, 362-363 (overruling part of Cal. Ed. Code Sec. 48915.5(g) on the basis of 20 U.S.C. Sec. 1415(e)(3)), affirmed in Honig v. Doe, EHLR 559:231.] No expulsion hearing can proceed until all administrative due process hearing and judicial appeals procedures that the parents choose to pursue have been completed. [Cal. Ed. Code Sec. 48915.5(h)(3).] NOTE: Please see the previous question and answer for a discussion of the different process which will occur where the student's misconduct involves bringing a firearm to school. 6. Q. What Type of Evaluation must Be Done When the School District Is Considering Expelling My Child? A. Once a decision has been made that your child's misconduct may warrant expulsion (and your child has disabilities), the school district must notify you and evaluate your child. The school district cannot rely only on information in its own files. It must conduct an assessment with trained personnel. Under Doe v. Maher, the evaluation procedures must comply with the requirements of Section 504 of the Rehabilitation Act and should provide information about the relationship between the misconduct and your child's disability and the appropriateness of your child's program. In addition to considering the results of the pre-expulsion assessment, the IEP team must also review and consider your child's health records and school discipline records. [Cal. Ed. Code Sec. 48915.5(e).] Under state law, the school district is not required to obtain parental consent prior to this pre-expulsion assessment. If the student's parents disagree with the evaluation, they can request an independent evaluation. [20 U.S.C. Sec. 1415(b)(1)(A); 34 C.F.R. Sec. 300.503; Cal. Ed. Code Secs. 48915.5(b), 56329(b), 56506(c).] 7. Q. What Are the Time Lines for Holding the IEP Team Meeting? A. After the evaluation is completed, the IEP team shall convene. Parents have a right to participate in the IEP meeting and must be notified of the meeting time at least 48 hours in advance. [Cal. Ed. Code Sec. 48915.5(d).] Parents may ask that the meeting be postponed for up to three school days. The school district may extend the student's suspension for the period of postponement. However, the student may not be suspended for more than 10 days without written parental consent. [Honig v. Doe, EHLR 559:231.] If the parents refuse such consent and request a postponement of the pre-expulsion IEP meeting that would cause the pre-expulsion suspension to exceed 10 consecutive days, the IEP meeting can proceed on the originally scheduled date with or without the parents' participation. [Cal. Ed. Code Sec. 48915.5(d).] 8. Q. What Decisions Should the IEP Team Make? A. At the meeting, the IEP team must attempt to reach agreement as to whether the misconduct was disability-related and whether the student was appropriately placed at the time of the misconduct. If the misconduct was related to the student's disability, or the student was inappropriately placed, the school district may not proceed with expulsion and the IEP team must consider additional services or other placement options rather than expulsion. If the IEP team cannot agree, then the school district must make these decisions, and must give the parents the right to appeal the school district's decisions through a due process hearing and, if necessary, through court proceedings. [Doe v. Maher, EHLR 557:353, 365-66; Cal. Ed. Code Sec. 48915.5(g),] Any hearing and further judicial appeal of the hearing decision must be completed before the expulsion procedures begin. [Id.] While the hearing and court proceedings are pending, the student must be returned to her last school placement unless her parents have agreed to a change in placement or the school district has obtained a court order permitting a change in placement. [Honig v. Doe, EHLR 559:231; Cal. Ed. Code Sec. 48911(h) and Sec. 48915.5(h)(3).] 9. Q. Does My Child Have the Right to Attend School While the IEP Team Is Meeting and During Any Appeals from the IEP Team Decision? A. Generally, a student has the right to remain in his current placement during the pendency of the IEP meeting and any appeals. The United States Supreme Court in Honig v. Doe ruled that a student with disabilities who poses an immediate threat to the safety of others may be suspended from school for up to 10 days following an incident of misconduct. Under California law, only the governing board has the authority to suspend a student for periods of time longer than five days. If the school district wants to suspend a student it considers a danger to others for 10 days, the school district's governing board has to approve the suspension. [Cal. Ed. Code Sec. 48912.] Under the California Education Code, a student generally may be suspended for no more than 20 days, and in some instances 30 days, per school year. [Cal. Ed. Code Sec. 48903.] If the student has already been suspended for a number of days in any one school year, the school district's right to suspend him for a 10-day period may be limited. At the end of the suspension, the student has the right to return to his current placement unless his parents have agreed to a different placement or the school district has obtained a court order allowing the placement to be changed. [Doe v. Maher, EHLR 557:353, 362-63 (overruling part of former Cal. Ed. Code Sec. 48915.5(g)), affirmed by Honig v. Doe, EHLR 559:231.] For a student who is not currently identified as a special education student or under assessment for special education, a parental request for assessment or for due process after a disciplinary suspension or expulsion has begun does not obligate the school to maintain the student's prior placement pending any assessment or due process procedures. This is because the "stay-put" provision applies to the student's "then current placement," and the student's "then current placement" is the student's status as a student on suspension or in the process of being expelled. However, a court has the power to order a suspension or expulsion terminated and the student reinstated in his/her prior educational placement if the court determines that the school knew or reasonably should have known that the student was in need of special education all along. [OSEP Memorandum 95-16, 4/26/95, 22 IDELR 531, Question 7, Footnote 4.] The U.S. Department of Education's position is somewhat in conflict with a California Federal District Court (M.P. v. Grossmont Union H.S. Dist. (S.D. Cal., 1994) 858 F.Supp. 1044), wherein the court applied the stay-put provision to a student not identified for special education. However, the Special Education Hearing Office has failed to apply the M.P. case to extend the stay-put provision to students who request special education assessment and attempt to invoke stay-put after a disciplinary action by the school. [See California Special Education Hearing Office decisions SN 36-95 and SN 185-95.] Some school districts are trying to avoid the impact of Honig v. Doe by making a "disciplinary transfer" of the child to a new school and relying on a line of case law which holds that a change of schools is not a change of placement if the same IEP service is offered at the new site. However, recent State Hearing Office decisions have determined that a change of school site for disciplinary or any other reasons while due process is pending is unlawful, except in the very limited situation where the placement has been eliminated for all students for budgetary reasons. [Student v. Saddleback Valley Unified School District, SN 60-94; Student v. Oxnard Elementary School District, No. 77794A.] 10. Q. What Happens If It Is Determined That the Misconduct Is Not Related to My Child's Disability, and My Child Was Appropriately Placed at the Time? A. If, after the conclusion of these procedures, it is properly determined that the misconduct of a student with disabilities was not disability-related, and she was in an appropriate placement at the time of the misconduct, then she is treated the same as non-disabled students. Regular expulsion proceedings may begin. [See Cal. Ed. Code Sec. 48918-48924 for the rules governing expulsion proceedings and appeals.] Your child may be suspended indefinitely pending the conclusion of those proceedings. [Cal. Ed. Code Sec. 48911(g); Doe v. Maher, EHLR 557:353, 361.] The proceedings may result in an expulsion order. [Doe v. Maher, EHLR 557:353, 360.] 11. Q. What must a School District Show in Order to Obtain a Court Order that Changes My Child's Placement or Indefinitely Extends His Suspension Without Parental Consent? A. The school district must persuade the judge that maintaining your child in his current placement, pending the assessment, IEP, and/or due process hearing procedures, is substantially likely to result in injury either to your child or to others. [Honig v. Doe, EHLR 559:231.] One federal appellate court and the U.S. Department of Education have taken the position that the school district must also show that it has made reasonable efforts to accommodate the student's disabilities so as to minimize the likelihood that the student will injure himself or others. [See Light v. Parkway C-2 School District, 41 F.3d 1223 (8th Cir., 1994) and OSEP Memorandum 95-16, 4/26/95, 22 IDELR 531, Question 5.] 12. Q. May My Child Be Expelled from Just the Transportation Portion of Her School Program? A. Yes. However, if a special education student is excluded from school bus transportation, and transportation is a part of her IEP, she is still entitled to an alternative form of transportation to and from school at no cost to the student or her parents. [Cal. Ed. Code Sec. 48915.5(j).] 13. Q. If My Child Is Expelled, Is He Entitled To Any Special Education During the Period of His Expulsion? A. Yes, the U.S. Department of Education has taken the position that the obligation of school districts to provide a free, appropriate, public education to every student with special needs survives even a proper expulsion. As part of the Gun-Free Schools Act of 1994, Congress directed the U.S. Department of Education to widely disseminate that federal policy to the states. [Section 14603, Gun-Free Schools Act of 1994, Congressional Record, Vol. 140, No. 138 - Part II, p. 10111.] Although California initially disagreed with the U.S. Department's policy on this issue, it has, in light of Congress' apparent adoption of it, agreed to follow it and to continue to provide special education services in some form (although not at the school the child was attending when expelled) to special education students who are expelled. This policy does not apply to students eligible only under Section 504. NOTE: There are several bills currently pending in the 1995 California Legislative session which call for the creation of more alternative/community schools for the placement of, among other students, those special education students who have been expelled but who continue to be entitled to a free, appropriate, public education during the period of their expulsions. 14. Q. What Can I Do If a Teacher or Other School Staff Person Hurts My Child? A. Whether it is in the context of "discipline" or otherwise, if a child or group of children is in immediate physical danger, or the health, safety or welfare of a child or group of children is threatened, a complaint may be filed with the California Department of Education (CDE) under the Uniform Complaint Procedure. [5 Cal. Code Regs. Sec. 4600 et seq.] The CDE must directly intervene and not refer the complaint for a local investigation. [5 Cal. Code Regs. Secs. 4611(a) and 4650(a)(vii)(C).] See questions and answers regarding Compliance Complaints in Chapter 6, Information on Due Process Hearings/Compliance Complaints; see also CDE Legal Advisory LO:1-94, January 25, 1993. 15. Q. Are There Any Special Rules Governing the Discipline of Students Identified as "Disabled" under Section 504 of the Rehabilitation Act of 1973? A. For students not in special education but identified as "disabled" under Section 504 of the Rehabilitation Act of 1973, the rules and protections are very much the same as those that apply to students in special education. See Chapter 1, Information on Basic Rights and Responsibilities, Question 6. Section 504 students must be evaluated prior to expulsion to determine whether their misconduct was related to their disabilities. This evaluation may not be made by the same school officials who are responsible for the school's regular disciplinary procedures, such as the principal or the school board. However, the same team of persons who initially determined that the student was "disabled" under Section 504 may make the evaluation. If the evaluation shows that the student's conduct is related to his disabling condition, he cannot be expelled. The evaluation team must also determine whether the student's current educational placement is appropriate. It appears, under Section 504 however, that as long as it is determined that the student's misconduct was not related to his "disability", he may be expelled like any student without a disability. [See Discipline Of Students With Handicaps In Elementary And Secondary Schools, U.S. Department of Education, Office for Civil Rights, September, 1992.] If the parents disagree with the determination that their child's misconduct was not related to his disabling condition, they can ask for an impartial hearing on the issue. The school district is required by Section 504 to facilitate such a hearing. [Id.] The protections of Section 504 do not apply to students who are currently using alcohol or illegal drugs. A current user of alcohol or illegal drugs is not considered "disabled" for purposes of Section 504 eligibility. [Id.] 16. Q. My Child Was Expelled. Is She Entitled to Any Services from the School District That Expelled Her? A. The U.S. Department of Education has taken the position that school districts cannot terminate services for a special education student, even if the student was expelled for conduct that was not related to her disabilities. [18 IDELR 685, 1992, 22 IDELR 372, 1994.] Several federal appellate-level court decisions support this position to some extent. [See S-1 v. Turlington (1981) 635 F.2d 342 at 348 and Kaelin v. Grubbs (1982) 682 F.2d 595 at 600.] Although services in the student's placement at the time of expulsion may properly be terminated upon expulsion, the U.S. Department of Education believes that school districts receiving federal special education monies must continue to provide a free appropriate public education -- even to their properly expelled special education students. The courts have stated that the complete cessation of educational services to a special education student during a period of expulsion cannot be authorized under federal special education law. This policy does not apply to students who are eligible only under Section 504. 17. Q. My Child Was Expelled from School. What Are His Rights to Return to School in the School District that Expelled Him? A. The order expelling a student must specify the date when he may apply for readmission to a school in the district from which he was expelled. That date cannot be later than the last day of the semester following the semester in which the expulsion occurred. The date can be earlier. The order can include a plan of rehabilitation which the student must follow during the period of expulsion. It may also include an assessment at the time of application for readmission. The plan may also include recommendations for counseling, employment, community service, or other rehabilitative programs. [Cal. Ed. Code Sec. 48916.] If any of the reasons for expulsion related to controlled substances, the district may require, as a condition of readmission and with parental consent, that the student enroll in a county-supported drug rehabilitation program. [Cal. Ed. Code Sec. 48916.5.] 18. Q. What Rules Govern the Readmission Process? A. The governing board of a district must adopt local rules and regulations that establish a procedure for filing and processing requests for readmission by expelled students. However, her completion of the readmission process does not entitle your child to automatic readmission. Actual readmission is discretionary with the school district. [Cal. Ed. Code Sec. 48916.] In addition, the governing board, after voting to expel a student, may suspend enforcement of the expulsion for a period up to one year. During this period, your child may be assigned to another program for rehabilitation. During this period, she is "on probation." Probation may be revoked and the expulsion enforced if the student commits any act for which she could have been suspended or expelled (see Question 2) or for any violation of the district's student conduct code. [Cal. Ed. Code Sec. 48917.] After one year of successful probation, she must be reinstated. The district may, but is not required to, expunge the student's records of all information related to the suspended expulsion. [Id.] 19. Q. My Child Was Expelled from Our School District. What Are the Rules Governing Admission of My Child to a New School District? A. Your child could be admitted to school in another school district only if: (1) he established legal residence in the jurisdiction of the new school district or (2) his current school district granted him an interdistrict transfer. [See Cal. Ed. Code Sec. 46600 and following.] However, an expelled student's rights to be admitted to a school in a new school district during the period of his expulsion depends on the reasons for expulsion from the previous school district. If your child was expelled for any of the following reasons: (1) causing serious physical injury to another person (except in self-defense); (2) possessing a knife, explosive or other dangerous object of no reasonable use to her at school or at a school activity off campus; (3) selling any controlled substance; or (4) engaging in robbery or extortion, he cannot enroll in any other California school district during the period of his expulsion -- unless it is a county community school or juvenile court school. [Cal Ed. Code Sec. 48915.2(a).] After the period of expulsion is over, a student expelled for one of the four reasons listed above may be admitted to the new school district if, after a hearing, the new district determines that he does not pose a danger to the students or employees of the new school district. He must also have established residence in the new district or obtained an interdistrict transfer. [Cal. Ed. Code Sec. 48915.2(b).] The hearing is conducted under the same rules and procedures as regular expulsion hearings. [See Cal. Ed. Code Sec. 48918.] If your child was not expelled for any of the four reasons listed above, he may be admitted to a school in a new school district before expiration of the previous school district's expulsion if, after a hearing, the new district determines that he does not pose a continuing danger to the students or employees of the new district. In this process, the new district may request information and/or a recommendation from the previous school district. If you or your child have not informed the new district of his expulsion from the previous district, and the district finds out, the fact of nondisclosure must be recorded. This fact may be discussed at the hearing to determine whether your child is a continuing danger. [Cal. Ed. Code Sec. 48915.1(a)-(b).] The hearing is conducted under the same rules and procedures as regular expulsion hearings. [See Cal. Ed. Code Sec. 48918.] If, after the hearing, the district determines that your child does pose a continuing danger, it may deny his request for admission. If the district agrees to admit him anyway, it may condition enrollment on attendance in a specified program. [Cal. Ed. Code Sec. 48915.1(c)-(d).] If the district determines that your child does not pose a continuing danger, it must admit him to one of its schools, provided he has established residence in the new district or has obtained an interdistrict transfer. [Cal. Ed. Code Sec. 48915.1(e).] 20. Q. My Child Has Behavior Problems Which May Put Her at Risk of Suspension and/or Expulsion. Are There Any Special Services or Protections That Apply to Her? A. In 1990, the California Legislature enacted Assembly Bill 2586 (Hughes). This bill, and especially its accompanying regulations at Title 5, California Code of Regulations (5 Cal. Code Regs.) Sections 3001 and 3052, have substantially changed the way school districts must serve special education students with serious behavior problems. These regulations do not apply to students who are only identified as "disabled" under Section 504 or to any other students. If your child is enrolled in special education and exhibits a serious behavior problem, the district must provide a functional analysis assessment by a behavior intervention case manager -- who must have training and experience in positive behavior intervention. The behavior intervention case manager must develop a positive behavior intervention plan which (1) identifies the function of the negative behavior for your child and (2) teaches her positive replacement behaviors which accomplish the same objectives for her but in a socially appropriate way. A "serious behavior problem" is a behavior problem which (1) is self-injurious or assaultive or (2) causes serious property damage or (3) is severe, pervasive, and maladaptive and for which instructional/behavioral approaches specified in the student's IEP are found to be ineffective. [5 Cal. Code Regs. Sec. 3001(y).] When agreed upon by the IEP team, the positive behavior intervention plan becomes part of your child's IEP. It must contain goals and objectives specific to the targeted behaviors, and it must describe the services to be provided in order to achieve the goals and objectives. [Id.] The behavior interventions selected by the case manager must be positive. That is, they must respect your child's dignity and privacy, assure her physical freedom, social interaction, and individual choice, help her learn to interact effectively socially, assure her access to education in the least restrictive environment, and result in lasting positive change. [5 Cal. Code Regs. Sec. 3001(d).] Positive behavior interventions shall be used only to replace specified negative behaviors with acceptable behaviors and shall never be used solely to eliminate maladaptive behaviors. [5 Cal. Code Regs. Sec. 3052(a)(2).] In other words, districts should not use techniques that simply contain or suppress maladaptive behaviors -- they must simultaneously try to teach appropriate substitute behaviors. 21. Q. Do the New Positive Behavior Intervention Regulations Specifically Prohibit Some Behavior Programming or Techniques? A. The behavior interventions used by the district cannot involve the infliction of pain or trauma. [5 Cal. Code Regs. Sec. 3001(d), 3052(a)(5).] In a behavioral emergency, that is, the demonstration of a behavior that has not been previously observed and addressed or for which no previous intervention has been effective, properly trained school personnel may use prone containment. The regulations contain very specific guidelines on the handling and documentation of emergencies. However, even in emergencies (and in all other behavior services) behavior interventions may not include: (1) Release of toxic or unpleasant sprays near the student's face; (2) Denying adequate sleep, food, water, shelter, bedding, comfort, or access to bathroom facilities; (3) Subject the student to verbal abuse, ridicule or humiliation or cause emotional trauma; (4) Use locked seclusion; (5) Impede adequate supervision of the student; (6) Deprive the student of one or more of his/her senses; or (7) Employ any device, material, or object that simultaneously immobilizes all four extremities (except for prone containment in emergencies). [5 Cal. Code Regs. Sec. 3052(i), (l).] 22. Q. Do the New Positive Behavior Intervention Regulations Have Any Impact on the Discipline of Special Education Students? A. Yes. If a district wishes to expel a student for a behavior that has been targeted for change under a positive behavior intervention plan, the IEP team would almost certainly have to find that the behavior was related to the student's disability. Thus, expulsion would be prohibited. In California, a special education student cannot be expelled unless the IEP team determines that she was appropriately placed at the time of her misconduct. [Cal. Ed. Code Sec. 48915.5(a)(3).] Thus, if a student did not receive a positive behavior assessment and intervention for a behavior that fit the definition of serious behavior problem (see Question 20), the IEP team should find that she was not appropriately placed at the time of her misconduct. This situation would also preclude expulsion. However, school districts may suspend special education students for misconduct even though the behavior involved is targeted for change in the student's positive behavior intervention plan -- subject to the limitations discussed above regarding consecutive and total number of days. For further information on the positive behavior intervention regulations, see Chapter 5, Information on Related Services. ----------------------------------------------------------------- Protection & Advocacy, Inc. - 1-800-776-5746 ---------- Chapter 9 Information on Inter-agency Responsibility for Related Services (AB 3632/882) TABLE OF CONTENTS Question Introduction Abbreviations 1. Q. What Is Assembly Bill 3632/882 and Why Was Such Legislation Necessary? 2. Q. Which Students Does AB 3632/882 Affect? 3. Q. When Did this Bill Take Effect? 4. Q. How Is this Bill Implemented? 5. Q. What Is the Relationship Between Public Law 94-142 (Federal Law) and AB 3632/882 (State Law)? 6. Q. Who Is Ultimately Responsible for Providing Services under this Bill? 7. Q. Who Is Responsible for Monitoring AB 3632/882? 8. Q. Who Is Responsible for Coordinating These Related Services Once The IEP Team Writes Them in an Individual Education Plan (IEP)? 9. Q. What Services Are School Districts Responsible for? 10. Q. Under this Bill, Who Advocates for a Student Who Is a Ward of the Court or a Student in Foster Care? 11. Q. When the LEA Appoints a Surrogate Parent, Does It Give Preference to Certain People in the Appointment Process? 12. Q. What Are the Eligibility Requirements and Specific Services Available from Community Mental Heath? 13. Q. My Child May Need Mental Health Services or a Residential Setting in Order to Be Educated Appropriately. Under AB 3632/882, How Will this Process Work? 14. Q. My Child Is Temporarily Placed in a Psychiatric Hospital That Is Located in Another County and May Need a Residential Treatment Setting. Who Is Responsible for Conducting a Special Education Assessment And/or an Assessment for Mental Health Services? 15. Q. If My Child Needs Residential Treatment to Benefit from Education, must I Make Him a Ward of the Court? Do I Have to Pay for Part of the Cost of Residential Treatment? 16. Q. What Is the Role of the Department of Social Services in the AB 3632/882 Process? 17. Q. What Are the Eligibility Requirements and Specific Services Available from California Children's Services? 18. Q. If My Child Is Not Receiving OT/PT Services, but Needs Them, Who Makes the Initial Referral and Does the Assessment? 19. Q. Can a Private Physician Write a Prescription for OT/PT Services? Will CCS Accept this Prescription? How Will this Process Work? 20. Q. What Services Is Medi-Cal Responsible for under AB 3632/882? 21. Q. What Happens If My Child Does Not Meet Eligibility Requirements of California Children's Services (CCS), Community Mental Health (CMH) or Medi-Cal but Still Needs the Services? 22. Q. How Does AB 3632/882 Affect the IEP Process? Will CCS or CMH Representatives Attend the IEP Meeting? 23. Q. Should Services Be Written in the IEP? 24. Q. Can CCS or CMH Refuse to Write the Frequency and Duration of Related Services in the IEP? 25. Q. Can CCS or CMH Modify or Change a Service Written in an IEP Without Calling for an IEP Meeting? 26. Q. Does this Law Affect State Assessment and IEP Time Lines? 27. Q. If I Get an Independent Assessment for OT/PT or Mental Health Services, How Will it Be Considered? 28. Q. How Does AB 3632/882 Affect Due Process Hearing Rights? 29. Q. What Can I Do If the LEA and CCS or CMH Cannot Agree on Which Agency Is Responsible to Provide Specific Services Already Included in My Child's IEP? 30. Q. CMH and the LEA Have Told Me That My Child Will Be on a Waiting List for Services. They Say That Services May Be Delayed Because My Child's Emotional Disturbance Is Not as Acute as Others'. Can They Do this? 31. Q. I Believe My Child Needs Residential Placement, but the AB 3632 Process Seems Too Slow. I Heard That a Quicker Response Is Available Through a Court-ordered Placement under Juvenile Court or Mental Health Laws. Will a Court-ordered Placement Differ in Any Substantial Way from an AB 3632 Placement? 32. Q. My Child's Case Is Already Pending Before the Court, and She Is Temporarily Placed in Juvenile Hall (or a Children's Service or Mental Health Facility) While We Wait for Court Placement. Can I Do Anything to Avoid or Minimize the Consequences of a Court Placement? ----------------------------------------------------------------- S P E C I A L E D U C A T I O N R I G H T S A N D R E S P O N S I B I L I T I E S Chapter 9 Information on Inter-agency Responsibility for Related Services (AB 3632/882) Introduction Assembly Bill (AB) 3632/882, codified as California Government Code (Cal. Gov. Code) Secs. 7570-7588, is legislation that moves responsibility for providing certain related services from local education agencies to other state agencies, including California Children's Services (CCS), and the Departments of Mental Health (DMH), Social Services (DSS), and Rehabilitation (DR). Such services include occupational and physical therapy, nursing services during the time the child is in school or traveling between school and home, psychotherapy or other mental health services, and residential services for children classified as seriously emotionally disturbed. The local education agency (LEA) and the California Department of Education (CDE) retain the responsibility to ensure that these services are provided. The LEA is still responsible for actually providing these services in certain circumstances. Although AB 3632/882 became effective July 1, 1986, the implementing regulations are not yet final. There is no real schedule for issuing final regulations. This chapter covering AB 3632/882 is based on the law itself and the emergency regulations that came into effect on January 1, 1986. The regulations are set forth in Title 2, California Code of Regulations (Cal. Code Regs.) Sections 60000 through 60610. There is a dispute over whether the emergency regulations have lapsed and become invalid. However, since many school districts still follow the emergency regulations, we include specific citations to those emergency regulations in these materials. Parents and advocates may have grounds to dispute the continued effect of the emergency regulations in a particular case if the effect is contrary to a child's best interest. Abbreviations Abbreviations and acronyms used in this chapter include: AB Assembly Bill CCS California Children's Services CDE California Department of Education (state education agency) CMH Community Mental Health DSS Department of Social Services IDEA Individuals with Disabilities in Education Act IEP Individual Education Program LEA Local Education Agency (local school district) OT/PT Occupational Therapy/Physical Therapy PL Public Law 1. Q. What Is Assembly Bill 3632/882 and Why Was Such Legislation Necessary? A. Assembly Bill (AB) 3632/882 is a law that requires a number of state agencies, such as the California State Departments of Education, Health Services, Social Services, and Rehabilitation to provide various services to children with disabilities. It requires that these agencies coordinate and share the resources (human and fiscal) necessary to provide such children with a free appropriate public education. This "inter-agency cooperation" legislation was needed because, over the years, it has been difficult for the various state agencies to coordinate their services in order to focus on students with disabilities. 2. Q. Which Students Does AB 3632/882 Affect? A. AB 3632/882 affects all students with disabilities who (1) may be referred to state and local public agencies for their education, and (2) may need related services such as physical therapy, occupational therapy, mental health counseling, residential placement, a home health aide, and/or rehabilitation services. 3. Q. When Did this Bill Take Effect? A. AB 3632/882 took effect on July 1, 1986. However, its current implementing regulations are emergency regulations. Their ongoing validity has been questioned. The proposed final regulations are being developed and will be distributed throughout the state for public input. There is no current schedule for such distribution, however. 4. Q. How Is this Bill Implemented? A. The emergency regulations were intended to establish a working relationship between school districts and non-educational agencies, such as CCS, State and County Mental Health, and state/local services departments. The final regulations should establish standards and criteria for referral and eligibility determinations of students who may need the applicable related services. There has actually been a great deal of debate between the various agencies at the state and local level as to the nature and degree of their responsibility to provide services to special education students. In many instances, this has resulted in gaps in the services children should be receiving. The state education agency (California Department of Education, CDE) and the local education agency (LEA) remain responsible for ensuring that students with disabilities receive appropriate educational services. See Questions 9 and 20. In the event of inter-agency disputes that result in a child not receiving services, parents and advocates should request that the LEA provide services pending resolution through the hearing or complaint process. See Chapter 6, Information on Due Process Hearings/Compliance Complaints. 5. Q. What Is the Relationship Between Public Law 94-142 (Federal Law) and AB 3632/882 (State Law)? A. Public Law (PL) 94-142 is the federal Individuals with Disabilities Education Act (IDEA), which Congress passed in 1975. AB 3632/882 is a state law. State law must be consistent with federal law. If there is any conflict between state and federal law, the federal law must be followed, rather than the state law. AB 3632/882 cannot reduce or narrow the rights of children with disabilities or their parents as they currently exist under PL 94-142. 6. Q. Who Is Ultimately Responsible for Providing Services under this Bill? A. Federal regulations under PL 94-142 specifically provide that the state education agency, which is CDE, is responsible for ensuring that programs administered by other public agencies, such as CCS or Community Mental Health (CMH), comply with PL 94-142. [34 Code of Federal Regulations (34 C.F.R.) Sec. 300.341.] Further, federal law requires that there be a single line of authority to the CDE so that failure to deliver services or violations of a child's rights are squarely the responsibility of one agency. [20 United States Code (20 U.S.C.) Sec. 1412(6); 34 C.F.R. Sec. 300.600.] Therefore, the CDE, through your LEA, is ultimately responsible for ensuring that services are provided, even if another agency, such as CCS or CMH, actually delivers the service. If another agency fails or refuses to provide the specified services, the LEA must do so. 7. Q. Who Is Responsible for Monitoring AB 3632/882? A. AB 3632/882 states "the Superintendent of Public Instruction shall ensure this chapter is carried out through Monitoring and Supervision." Generally, however, it will be the responsibility of parents and advocates to identify problems through the complaint and due process hearing procedures. 8. Q. Who Is Responsible for Coordinating These Related Services Once The IEP Team Writes Them in an Individual Education Plan (IEP)? A. The LEA is responsible for coordinating occupational and physical therapy (OT/PT) and mental health services. When a child labeled as seriously emotionally disturbed is placed in out-of-home care, the local mental health department shall provide case management services. These services include: (1) Locating an appropriate placement; (2) Completing all the paper work required to place the child; (3) Helping the family and student in the transition from home to placement and the subsequent return home; (4) Facilitating the child's enrollment; (5) Conducting quarterly face-to-face contacts with the student at the residential facility; (6) Monitoring the student's progress; and (7) Coordinating the six-month individual education plan (IEP) team meeting. Although these services have been delegated to the local mental health department, the ultimate responsibility still rests with the LEA. 9. Q. What Services Are School Districts Responsible for? A. AB 3632/882 delegates responsibility for providing mental health and OT/PT services for special education students to CMH and CCS when consistent with their statutory obligations. Therefore, the LEA has the responsibility to provide or contract directly for all needed services, as specified in the IEP, that fall outside the scope of services available through CMH or CCS, or those that are for students who are not eligible for CMH or CCS services. AB 3632/882 provides that the LEA is responsible for related services determined necessary by an IEP team when the child is not eligible for CCS services or when CCS deems the services are not "medically necessary." CMH need only provide psychotherapy or other mental health services as defined in their regulations. Therefore, services not covered by CMH regulations are still the responsibility of the LEA. However, the emergency regulations as currently written have caused concern in this area. They appear to limit mental health and OT/PT services available under special education to only those services available through CMH or CCS. Further, it appears that only CMH or CCS personnel are considered qualified to do assessments. Therefore, the regulations appear to limit the LEA's responsibility for those services. It is hoped that the final regulations will address this problem and clarify LEA responsibility to serve students who are not eligible for, or who need services not available through, CCS or CMH. Until final regulations are issued, however, the LEA's ultimate responsibility has been reaffirmed and clarified, at least with respect to CCS and OT/PT, as a result of a Program Advisory published by the CDE. To obtain a copy of this Program Advisory, contact the Special Education Division at CDE, or any CASE or PAI office. The subject of the Program Advisory is: Revisions of California Code of Regulations, Title 5, Governing Special Education Occupational Therapy and Physical Therapy. Be sure to ask for the September 6, 1991, Program Advisory. Despite the Program Advisory, you should be sure your child's IEP specifically reflects that whatever OT and/or PT services CCS is to provide are "educationally necessary" related services. One problem with the Program Advisory is that it seems to indicate CCS could provide OT and/or PT services under the IEP without any acknowledgment that the services are educational. The Program Advisory states: When an LEA is notified that [OT or PT] services provided by CCS have been terminated, or will be interrupted for more than a brief period ..., the IEP team should immediately convene to make a determination of whether the services are educationally necessary, if this determination has not been made previously as part of the IEP process. If it is determined that the services are educationally necessary, the LEA must provide the services as soon as possible following the IEP meeting. The position of the authors of this manual is that services listed in an IEP are, by definition, services related to the student's education, and that they should not be part of the IEP if they are not. However, to avoid the delays of a new IEP meeting and the potential for a change in opinion by the rest of the IEP team as to the need for OT and/or PT, it is recommended that the IEP reflect the fact that the team has determined the therapy is necessary to the student's education, even though the IEP team anticipates that CCS will provide the therapy. With respect to mental health related services, see Question 30. 10. Q. Under this Bill, Who Advocates for a Student Who Is a Ward of the Court or a Student in Foster Care? A. Federal and state law require that the public educational agency (school district, LEA) appoint a surrogate parent for a special education student when: (1) no parent can be identified; (2) the public agency, after reasonable efforts, cannot locate the parent; or (3) the child is a dependent or ward of the state. [34 C.F.R. Sec. 300.514(a); Cal. Gov. Code Sec. 7579.5(b).] The surrogate parent serves as the student's parent and has the same educational rights guaranteed to parents under federal and state laws. The surrogate parent may represent the child in matters relating to identification, assessment, instructional planning and development, educational placement, reviewing and revising the individualized education program, and in all other matters relating to the provision of a free and appropriate public education of the child. [Cal. Gov. Code Sec. 7579(c).] The surrogate parent and the LEA that appoints the surrogate are held harmless by the State of California when acting in their official capacity except for acts or omissions which are found to be wanton, reckless, or malicious. [Cal. Gov. Code Sec. 7579.5(g).] The surrogate parent must have no interest that conflicts with the interest of the child, and must have knowledge and skills that insure adequate representation of the child. In addition, the surrogate may not be an employee of a public agency which is involved in the education or care of the child. [34 C.F.R. Sec. 300.514(d), Cal. Gov. Code Sec. 7579(e).] 11. Q. When the LEA Appoints a Surrogate Parent, Does It Give Preference to Certain People in the Appointment Process? A. Yes. State Assembly Bill 1399 requires that: ... when appointing a surrogate parent, the local educational agency shall, as a first preference, select a relative caretaker, foster parent, or court appointed special advocate, if any of these individuals exist and is willing and able to serve. [Cal. Gov. Code 7759(c).] 12. Q. What Are the Eligibility Requirements and Specific Services Available from Community Mental Heath? A. AB 3632/882 states that CMH agencies shall be responsible for providing psychotherapy or other mental health services. These services are to be provided directly or by CMH contracting with other public agencies, qualified individuals, or certified non-public schools. [Cal. Gov. Code Sec. 7576.] AB 3632/882 does not set out any eligibility requirements, but the emergency regulations do list the criteria when a referral by the LEA to CMH would be appropriate. These criteria include the following: (1) The behavioral characteristics of the student adversely affect the student's educational performance; (2) The behavioral characteristics of the student cannot be defined solely as a behavior disorder or a temporary adjustment problem, or cannot be resolved with short-term counseling; (3) The age of onset was from 30 months to 21 years and has been observed for at least six months; (4) The behavioral characteristics of the student are present in several settings, including the school, the community, and the home; and (5) The adverse behavioral characteristics of the student are severe, as indicated by their rate of occurrence and intensity. [2 Cal. Code Regs. Sec. 60040(b).] There has been some concern that these criteria are very narrow. What the permanent regulations will include remains unknown. However, in accordance with federal law, the LEA continues to be responsible for providing those services that a student needs in order to benefit from an education. Mental health services as defined by Sections 542 and 543 of Title 9 of the California Code of Regulations include the following day services: (1) Day care intensive services which provide a multi-disciplinary treatment program of less than 24 hours per day as an alternative to hospitalization for patients who need active psychiatric treatment for acute mental, emotional, or behavioral disorders; (2) Day care habilitative services which provide counseling and rehabilitation to maintain or restore personal independence at the best possible functional level for the patient with chronic psychiatric impairments; (3) Vocational services which are designed to encourage and facilitate individual motivation and focus upon realistic and obtainable vocational goals; and (4) Socialization services which provide life enrichment and social skill development for individuals who would otherwise remain withdrawn and isolated. Also included are the following outpatient services: (1) Sessions with significant persons in the life of the patient; (2) Assessment; (3) Individual therapy; (4) Group therapy; (5) Medication; and (6) Crisis intervention. These services are often oriented more to adult patients than to children. 13. Q. My Child May Need Mental Health Services or a Residential Setting in Order to Be Educated Appropriately. Under AB 3632/882, How Will this Process Work? A. Special education students must be assessed in all areas related to their suspected disability, including social and emotional status. [California Education Code (Cal. Ed. Code) Sec. 56320(f).] Under certain circumstances, a child's emotional needs may require services that exceed the counseling, guidance, and psychological services which school districts are required to provide. An IEP team may refer a student to CMH for assessment where all of the following are true: (1) The child has emotional or behavioral problems that cannot be solved with short-term counseling and that are not merely social maladjustment or temporary adjustment problems; (2) These problems are significant, as judged by their intensity and frequency; (3) These problems are observed by school personnel and educational and other settings; (4) The child has sufficient intelligence to benefit from mental health services; and (5) The district has provided counseling, guidance, and psychological services without success or such services are obviously inappropriate. [Cal. Gov. Code Sec. 7576)b).] The LEA must refer a child who has been identified as Seriously Emotionally Disturbed to CMH for assessment of whether a child requires residential placement in order to benefit from education if any member of the IEP team, including the child's parent, requests that such assessments be performed. [Cal. Gov. Code Sec. 7572.5(a).] Before any assessment can be performed, CMH or the LEA must develop a written assessment plan and obtain written informed consent from the parent. [Cal. Gov. Code Sec. 7572(a); Cal. Ed. Code Sec. 56321.] Absent the parent's consent to an extension of time, assessments must be completed and an IEP team meeting held to discuss the results within 50 days of receipt of the parent's written consent. [2 Cal. Code Regs. Sec. 60040(d); Cal. Ed. Code Sec. 56344.] Whenever an assessment has been conducted by CMH, the recommendation must be reviewed and discussed with the parent and with appropriate members of the IEP team prior to the IEP team meeting. After discussing the proposed recommendation with the parent, if there is disagreement on the recommendation concerning a related service, the parent may require that the person who conducted the assessment attend the IEP meeting to discuss the recommendation. If CMH does not attend, the LEA must have a qualified person present to discuss the recommendations. The final recommendation of the CMH personnel shall be the recommendation of the IEP team members who are attending on behalf of the LEA. [Cal. Gov. Code Sec. 7572(d)(1).] Many parents and advocates believe this undermines the authority of the IEP team to decide on necessary services, possibly in violation of federal law. See Question 21. If the parent obtains an independent assessment that relates to CMH services, CMH personnel must review it. Again, the recommendation of CMH personnel who reviewed the independent assessment shall be discussed with the parent and appropriate members of the IEP team prior to the IEP meeting. The parent can require that CMH personnel attend the IEP meeting. [Cal. Gov. Code Sec. 7572(d)(2).] The AB 3632/882 procedure for obtaining residential placement applies only to children who are seriously emotionally disturbed. The provision of necessary residential care for all other children is the responsibility of the LEA. If your child is seriously emotionally disturbed and any member of the IEP team (including the parent) recommends residential placement based on relevant assessment data, the IEP team shall be expanded to include a representative of the CMH. If CMH has not completed an assessment prior to this time, the IEP team will probably postpone the IEP meeting until this assessment is completed. If the CMH representative is not initially present, the meeting shall adjourn and reconvene within 15 calendar days with the CMH representative in attendance. After reviewing all the alternatives, this expanded IEP team shall then determine whether or not the child requires residential care in order to benefit from educational services. CMH will be responsible for case management of any seriously emotionally disturbed child who is placed in out-of-home care by an IEP team. At least every six months, the full IEP team will review the case to determine whether or not the child still needs out-of-home placement. [Cal. Gov. Code Sec. 7572.5; 2 Cal. Code Regs. Secs. 60100, 60110, 60200.] If your child is not seriously emotionally disturbed, or CMH cannot provide services, but the child still needs residential care in order to benefit from an education, the LEA is still fully responsible for these services. 14. Q. My Child Is Temporarily Placed in a Psychiatric Hospital That Is Located in Another County and May Need a Residential Treatment Setting. Who Is Responsible for Conducting a Special Education Assessment And/or an Assessment for Mental Health Services? A. Individuals with exceptional needs who are placed in a public hospital, state licensed children's hospital, psychiatric hospital, proprietary hospital or a health facility for medical purposes are the educational responsibility of the district, special education local plan area, or county office of education in which the hospital or facility is located. [Cal. Ed. Code Sec. 56167.] Therefore, the community mental health agency of the county in which the facility is located is responsible for conducting an AB 3632 service evaluation. If your child is placed in a hospital (as described above), this section indicates that the LEA does not have to assess or re-evaluate your child until she returns to her home district. Unfortunately, this could result in delays or postponement of the assessment/re-evaluation process. The position of the authors of this manual is that your local school district has responsibility for assessment during this temporary or short-term hospitalization. A temporary or short-term stay in a hospital should not preclude or delay assessment by your school. Contact your local district to request an assessment of your child and indicate that the stay in the hospital is temporary. 15. Q. If My Child Needs Residential Treatment to Benefit from Education, must I Make Him a Ward of the Court? Do I Have to Pay for Part of the Cost of Residential Treatment? A. It is a violation of federal law to require that your child be made a ward or dependent of the court if he needs residential care in order to benefit from educational services. Further, you cannot be required to pay for any part of the cost of residential treatment if your child has been placed pursuant to an IEP. [20 U.S.C. Sec. 1415(a)(4)(B); 34 C.F.R. Sec. 300.401.] 16. Q. What Is the Role of the Department of Social Services in the AB 3632/882 Process? A. The Department of Social Services (DSS) is responsible for establishing the rates to be paid to residential facilities that accept seriously emotionally disturbed children who are placed pursuant to an IEP. [2 Cal. Code Regs. Sec. 60200(d).] The County Welfare Department will issue the actual payments upon receiving an authorization from the County Mental Health Department. DSS will then reimburse the County Welfare Department. Payments will only be made for children who are placed in facilities licensed by DSS. This restriction can cause problems if residential placement is agreed to but an appropriate placement in a DSS licensed facility is not available. Federal law has been interpreted to require that IEPs be implemented without delay. [Comments to 34 C.F.R. Sec. 300.342.] If an appropriate residential facility is certified as a non-public school by the CDE but not licensed by DSS, you should request that the LEA pay for the cost of the placement. If this does not resolve the dispute, you should file a complaint pursuant to the process outlined in Cal. Gov. Code Sec. 7585. See Question 28. 17. Q. What Are the Eligibility Requirements and Specific Services Available from California Children's Services? A. AB 3632/882 [Cal. Gov. Code Sec. 7575(a)(1)] states that CCS shall be responsible for the provision of "medically necessary occupational therapy and physical therapy, as specified by Section 250 et seq., of the Health and Safety Code, by reason of medical diagnosis and when contained in the child's [IEP]." AB 3632/882 does not change the eligibility criteria or services available from CCS. Section 250 of the Health & Safety Code states that CCS shall provide "necessary medical services" to "physically handicapped children." Section 250.5 further provides that the director of CCS shall establish the conditions which are included in the definition of physically handicapped. Although CCS does not have regulations which specify eligible conditions, CCS internal guidelines do. CCS will serve only those children with physical disabilities who CCS determines will benefit from CCS services. Eligible conditions listed include: cerebral palsy; neuromuscular diseases; chronic musculoskeletal diseases; deformities or injuries; muscular dystrophy, spina bifida and rheumatoid arthritis; and infants (under two years of age) with a significant gross or fine motor delay. Conditions that are not eligible include: learning disabilities; single orthopedic conditions; orthopedic manifestations of severe mental retardation for which no medical or therapy intervention will effect measurable change; and developmental delay due to chromosomal defect such as Down's syndrome, Trisomy 13, etc. Whether CCS should provide "medically necessary" OT/PT is determined by the CCS Medical Therapy Conference Team, which includes the child, parent or guardian, a CCS physician, and a therapist. The emergency regulations define "medically necessary therapy" as "therapy which has as its purpose the improvement or amelioration of a neuromuscular or musculoskeletal condition and shall include standard habilitation and rehabilitation procedures." [2 Cal. Code Regs. Sec. 60300(h).] This definition is different from and narrower than the federal definition of related services. Federal law states that OT/PT shall be provided when required to help a student "benefit from special education." OT is defined as therapy designed to "improve ability to perform tasks for independent functioning" and "to prevent further impairment." [34 C.F.R. 300-13.] While such educationally related services may not actually effect a total or partial cure, "improve or ameliorate the physical condition" of the student, as required by the emergency regulations, they must still be available as required by federal law. Again, federal law must be followed whenever there is a conflict between federal and state law. If needed services are not within the scope of available CCS services or are needed for a non-CCS-eligible child to benefit from special education, your LEA is responsible for providing those services. 18. Q. If My Child Is Not Receiving OT/PT Services, but Needs Them, Who Makes the Initial Referral and Does the Assessment? A. A parent, teacher, or another service provider may refer a child to the LEA for special education and related services. Students must be assessed in all areas related to their suspected disability. AB 3632/882 requires that "qualified medical personnel" conduct OT/PT assessments. Under the emergency regulations, this means a licensed or registered physical or occupational therapist after a referral from a physician. [2 Cal. Code Regs. Sec. 60300(g).] The LEA may refer the student to CCS for an initial assessment. Before any assessment can be performed, CCS or the LEA must develop a written assessment plan and obtain written informed consent from the parent. If CCS does not find the student eligible or in need of "medically necessary" services under AB 3632/882, the LEA must assess the student to determine if the student needs these services in order to benefit from special education. In addition, the parent may obtain an independent assessment which must be considered by the IEP team. The LEA must pay for the independent assessment unless the LEA takes the parents to fair hearing and demonstrates that its assessment was appropriate. If problems arise during the assessment process, such as consent and time-line violations, parents can file a compliance complaint with the CDE if informal resolution is not possible. See Chapter 2, Information on Assessments/Evaluations, and Chapter 6, Information on Due Process Hearings/Compliance Complaints. 19. Q. Can a Private Physician Write a Prescription for OT/PT Services? Will CCS Accept this Prescription? How Will this Process Work? A. Yes. A parent can obtain a private physician's prescription. CCS will have the opportunity to review the prescription to determine whether the student "needs medically necessary occupational or physical therapy." If CCS finds that the student is not eligible for CCS services or does not require "medically necessary" services, the law requires that the LEA provide services the IEP team determines to be necessary for the student to benefit from special education. If there is a disagreement between your private physician's recommendation and CCS or LEA, you can use your physician's prescription as evidence in a fair hearing if that becomes necessary. AB 3632/882, California Government Code Section 7575(b), requires that all physicians who recommend OT/PT services complete a written report. The written report shall include the following: (1) The diagnosed neuromuscular, musculoskeletal, or physical handicapping condition prompting the referral. (2) The referring physician's treatment goals and objectives. (3) The basis for determining the recommended treatment goals and objectives, including how these will ameliorate or improve the student's condition. (4) The relationship of the medical disability to the student's need for special education and related services. AB 3663/882 does not require a report from a physical or occupational therapist documenting the child's need for therapy. However, such a report can be helpful in the IEP process and can be submitted as evidence at a due process hearing should one be necessary. 20. Q. What Services Is Medi-Cal Responsible for under AB 3632/882? A. Medi-Cal can be responsible for providing life-supporting medical services through a home health agency while the child is in school or traveling between school and home. The child must be otherwise eligible for one of the Medi-Cal programs through which medical nursing or health aid services are normally provided in the home. Children who are not Medi-Cal eligible may still be entitled to receive nursing services in the school provided by the LEA if the services are necessary for the child to receive an appropriate educational program in the least restrictive environment. [Cal. Gov. Code Sec. 7575(e); 2 Cal. Code Regs. Sec. 60400.] 21. Q. What Happens If My Child Does Not Meet Eligibility Requirements of California Children's Services (CCS), Community Mental Health (CMH) or Medi-Cal but Still Needs the Services? A. CDE is responsible for ensuring that services are provided as required by Public Law 94-142 and state law. Federal law provides that if your child needs services, and those services are contained in his IEP, the services must be provided. The LEA can secure services through CCS, CMH, by employing personnel, or by contracting for services. If services are not in the student's IEP, and CCS or CMH state that your child is not eligible, then you must go to the LEA for assessment and provision of any services your child needs in order to benefit from special education. If there is a problem, you can obtain an outside independent assessment, request a fair hearing, or file a compliance complaint, depending on the situation. See Chapter 4, Information on IEP Process, Chapter 2, Information on Assessments/Evaluations, and Chapter 6, Information on Due Process Hearings/Compliance Complaints. 22. Q. How Does AB 3632/882 Affect the IEP Process? Will CCS or CMH Representatives Attend the IEP Meeting? A. Section 7572 of AB 3632/882 sets forth the process which should be followed when OT, PT, or mental health services are to be considered for inclusion in the IEP. First, the LEA shall invite CCS or CMH to attend the IEP meeting if CCS or CMH might be responsible for providing the service. They can either participate by attending the meeting or by sending a written recommendation and participating through a conference call. If CCS or CMH is not available to participate at the IEP meeting, the LEA shall ensure that a qualified substitute is available to explain and interpret the evaluation to the student's parent or guardian. A unique aspect of this law is contained in Sec. 7572(d)(1), which provides that when an assessment for OT, PT or mental health services has been completed, the person who conducted the assessment shall review and discuss the recommendation for services with the parent and appropriate members of the IEP team before the IEP meeting. If you disagree with the recommendation, you can require the person who conducted the assessment to attend the IEP meeting, and that person must attend. The final decision of CCS or CMH assessment personnel is binding on the IEP members who attend on behalf of the LEA. Many parents and advocates think that this provision undermines the power of the IEP team to decide on appropriate and necessary services. The LEA is bound to go along with the assessment personnel's recommendation, even if they disagree with the recommendation or instead agree with an independent assessment. The emergency regulations further complicate this process by providing that only CCS or CMH personnel are "qualified" to conduct assessments. This would mean that CCS and CMH recommendations would be binding on the LEA. Since CCS and CMH eligibility criteria may be more restrictive than federal special education law, this has caused concern among parents, teachers, therapists, and advocates. Parents and advocates should still insist that the LEA independently consider whether or not the requested services are educationally necessary. As a practical matter, it may be necessary to pursue a due process hearing in order to obtain a resolution of the issue. 23. Q. Should Services Be Written in the IEP? A. Current law requires that all needed services (including frequency and duration of related services) be written in the IEP. See Chapter 5, Information on Related Services, for more information on how to write services into the IEP. Emergency regulations provide that the CCS treatment plan may be used to meet this requirement and simply attached to the IEP. The emergency regulations also provide that the starting date, frequency and duration of all mental health services provided by CMH must be included in the IEP as well. 24. Q. Can CCS or CMH Refuse to Write the Frequency and Duration of Related Services in the IEP? A. No. CMH and CCS are bound by all federal and state special education laws under AB 3632/882. Therefore, the agencies must include frequency and duration of services in the IEP if related services are necessary for the student to benefit from special education instruction. [34 C.F.R. 300.346; 5 Cal. Code Regs. Sec. 3051(a)(s).] Specifically writing these related services, including frequency and duration, in the IEP may be a critical protection for those students who are wards of the court and are placed in an out-of-county residential facility by DSS, those students placed in a residential facility under AB 3632/882, and those students receiving occupational or physical therapy from CCS. This legal protection ensures that special education and related services to be provided for a student are based upon the unique needs of that student and not on the availability of services from an agency or residential facility. 25. Q. Can CCS or CMH Modify or Change a Service Written in an IEP Without Calling for an IEP Meeting? A. No. Public Law 94-142 requires that the public agency (including the LEA, CCS, and CMH) must give reasonable notice before it proposes to initiate or change the identification, evaluation, or educational placement of the child or the provision of a free appropriate public education to the child (which includes related services). Any change is then subject to the IEP process and due process procedures if necessary. During the pendency of any due process procedure, the student must continue to receive the services that were currently being provided. [20 U.S.C. Sec. 1415(e)(3); 34 C.F.R. Sec. 300-513; Cal. Ed. Code Sec. 56505(d).] 26. Q. Does this Law Affect State Assessment and IEP Time Lines? A. No. Section 7572(a) specifically states that all assessments required or conducted under AB 3632/822 shall comply with all special education assessment procedures. This includes assessment and IEP time lines. Again, however, the emergency regulations seem to compromise this legal requirement. Title 2, California Code of Regulations, Section 60320 states: (3) CCS shall notify the LEA or the State Special School if the evaluations cannot be completed in time for the individualized education program team meeting. This notice shall include the date when the evaluations are expected to be completed and any request for extension of the 50-day time line in Section 56344 of the Education Code. (4) The individualized education program team administrator or designee shall seek the parent's written agreement to the time extension. A parent does not have to agree to an extension of the assessment time lines. However, the emergency regulations are unclear as to whether parental consent to the time-line extension is required before the extension can be granted. Again, state laws, including AB 3632/882, require adherence to the time-line requirements and do not provide for any extensions. These laws should control. Disputes in this area can be resolved through the compliance complaint process. See Chapter 6, Information on Due Process Hearings/Compliance Complaints. 27. Q. If I Get an Independent Assessment for OT/PT or Mental Health Services, How Will it Be Considered? A. An independent assessment for provision of mental health or OT/PT services must be reviewed by either the designated mental health professional in the case of mental health services or the designated qualified medical personnel in the case of OT/PT. The recommendation of the person who reviewed the independent assessment must then be discussed with the appropriate IEP team members and the parent prior to the IEP meeting. If the parent requests the presence of the person who reviewed the independent assessment at the IEP meeting, that person must attend the meeting to discuss his recommendation. Following this review and discussion, the recommendation of the person who reviews the independent assessment shall be the recommendation of the team members who are attending on behalf of the LEA. [Cal. Gov. Code Sec. 7575(d)(2).] 28. Q. How Does AB 3632/882 Affect Due Process Hearing Rights? AB 3632/882 does not change Public Law 94-142 due process hearing rights. If the dispute concerns several services, provided by more than one agency, then one hearing shall be conducted to address all issues. [Cal. Gov. Code Sec. 7586; 2 Cal. Code Regs. Sec. 60550.] 29. Q. What Can I Do If the LEA and CCS or CMH Cannot Agree on Which Agency Is Responsible to Provide Specific Services Already Included in My Child's IEP? A. If any agency responsible for providing related services under AB 3632/882 fails to comply with the procedures established under state or federal law, you can file a compliance complaint using the procedures described in Chapter 6, Information on Due Process Hearings/Compliance Complaints. The inter-agency dispute resolution procedures apply if your child is not receiving OT/PT or mental health services as specified in the IEP. In that situation, you can file a notice of failure to provide related services with the Superintendent of Public Instruction or the Secretary of Health and Welfare. [Cal. Gov. Code Sec. 7585(a).] This procedure is a way for the agencies involved to decide who will provide the service as specified in the IEP. It is not intended to be used by parents if there is a dispute about the service itself. Send your written complaint to: Secretary of Health & Welfare Superintendent of Public Instruction, 1600 Ninth Street, 4th Floor, 721 Capitol Mall, Room 524, Sacramento, CA 95814. Before reviewing your complaint, the agencies involved will want to see a copy of your child's IEP. Send a copy of the IEP with your complaint. The Superintendent and the Secretary shall meet to resolve the issue within 15 calendar days of receipt of the notification. A written copy of the meeting resolution shall be mailed to the parent, the LEA, and the affected departments, within 10 days of the meeting. [Cal. Gov. Code Sec. 7585(b).] If the issue cannot be resolved within 15 days to the satisfaction of the departments involved, it can be appealed to the Office of Administrative Hearings. The Office of Administrative Hearings shall review the issue and submit findings within 30 days of receipt of the case. This decision is binding on all parties to the dispute. [Cal. Gov. Code Secs. 7585(c),(d),(e).] When you file a complaint pursuant to Section 7585(a), the State Superintendent of Public Instruction must ensure that your child receives the service pending resolution of the dispute. [Cal. Gov. Code Sec. 7585(f); 2 Cal. Code Regs. Secs. 60600, 60610.] 30. Q. CMH and the LEA Have Told Me That My Child Will Be on a Waiting List for Services. They Say That Services May Be Delayed Because My Child's Emotional Disturbance Is Not as Acute as Others'. Can They Do this? A. No. Under federal law all services specified in a student's IEP must be provided. School districts and other agencies cannot maintain waiting lists for services. Advocates for children with disabilities challenged the existence of waiting lists for mental health assessments and services in Butterfield v. Honig. The court-approved consent decree in that case prohibits waiting lists. If mental health services are specified in your child's IEP, and CMH refuses to provide the services, state and federal law require that the LEA provide the services. Disputes between CMH and the LEA regarding responsibility for providing the service will be resolved through the procedures specified in Government Code Sec. 7585. See Question 28. [Cal. Gov. Code 7585.] It also is not permissible to delay providing services based on the acuteness of the student's disabilities. Although when DMH provides services under the Short-Doyle program, it may make decisions to delay services based on the acuteness of the disability, such a delay is not legal under AB 3632-882. All children whose IEP specifies that they are to receive mental health services are entitled to receive those services without delay under AB 3632/882. 31. Q. I Believe My Child Needs Residential Placement, but the AB 3632 Process Seems Too Slow. I Heard That a Quicker Response Is Available Through a Court-ordered Placement under Juvenile Court or Mental Health Laws. Will a Court-ordered Placement Differ in Any Substantial Way from an AB 3632 Placement? A. The placement may be identical -- but the court, not you, will make the decision about where to place your child. Your child will become a ward of the court. As part of the dependency process, you may lose your parental rights for the duration of the placement. The court, at its discretion, may allow you to retain educational rights so that you may participate in the IEP at the residential site if your child is in special education. If your child is placed in residential treatment through AB 3632, all student and parental rights and protections guaranteed by law will be available to you, and no placement or services can be provided to your child without your approval and written consent. Responsibility for implementing the IEP of a court-placed child is with the LEA where the child is placed. The responsibility for an AB 3632-placed child is with the LEA and CMH that made the placement. There is a critical difference in the financial responsibility for the cost of the placement. A placement under AB 3632 is at no cost to the parent. A court placement is at the cost of the court, but the court must seek reimbursement from the parents in the form of a support order based upon the court's determination of the parents' ability to pay. This will result in a substantial financial burden to any parent, unless the family income is minimal. A court placement has serious disadvantages to a parent when compared to an AB 3632 placement. Therefore, you should not seek court intervention unless absolutely necessary to avoid an immediate crisis. 32. Q. My Child's Case Is Already Pending Before the Court, and She Is Temporarily Placed in Juvenile Hall (or a Children's Service or Mental Health Facility) While We Wait for Court Placement. Can I Do Anything to Avoid or Minimize the Consequences of a Court Placement? A. You may be able to convince the court to defer placement pending the AB 3632 process. Point out to the court that an AB 3632 placement will not only be in your interest, but will be in the court's interest as well -- enabling the court to avoid financial and legal responsibility for the child. You should tell the court that court placement will preclude any further AB 3632 placement procedure until the court placement is terminated. If you take this approach with the court, it is helpful to have already made the appropriate referral for residential placement to the LEA and CMH. Since your child is currently involved in the court system, this argument is best made by a private attorney or public defender who is knowledgeable about the AB 3632 process or who has help from a special education advocate. If the court insists on placing the child, you can at least try to convince the court to allow you to retain educational rights. In this way, you can continue to participate in the educational planning for your child. ----------------------------------------------------------------- Protection & Advocacy, Inc. - 1-800-776-5746 - legal@pai-ca.org ---------- Chapter 10 Information on Vocational Education TABLE OF CONTENTS Question 1. Q. What Is Vocational Education? 2. Q. Who Is Eligible for Vocational Education? 3. Q. When Should Vocational Services Start? 4. Q. What Is a Student Enrolled in a Vocational Education Program Entitled to Receive? 5. Q. When Should a Vocational Assessment Occur and What Should it Include? 6. Q. How Can I Work with My Child's Teacher to Promote the Skills Necessary for My Child to Enter a Vocational Education Program? 7. Q. When I Develop My Child's IEP, How Can I Include Vocational Education Services? 8. Q. How Can I Decide in Which Vocational Education Program My Child Should Participate? 9. Q. Can My Child Enroll in a Regular Vocational Program? 10. Q. What If My Child Needs an Accommodation to Be in a Regular Vocational Program? 11. Q. If a My Child Is to Participate in a Vocational Education Program, must His IEP Describe or Refer to the Program? 12. Q. Does the School District Have to Help Students with Disabilities Make the Transition from School to Work? 13. Q. What Does Transition Mean? 14. Q. What Kind of Services Does the Transition Process Include? 15. Q. What Can I Do If the School District Refuses to Write Vocational Education Services Goals and Objectives in My Child's IEP? 16. Q. Is There a Point at Which the IEP must Contain a Statement About Transition Services? 17. Q. What If an Agency or Entity, Other than the Responsible Education Agency, Doesn't Provide the Vocational Services it Is Supposed to Provide? 18. Q. How Can I Help to Develop Vocational Education Programming Within The School District? 19. Q. What Are "Project WorkAbility" and the "Transition Partnership Project"? How Do They Work? WorkAbility and Transition Transition ----------------------------------------------------------------- S P E C I A L E D U C A T I O N R I G H T S A N D R E S P O N S I B I L I T I E S Chapter 10 Information on Vocational Education 1. Q. What Is Vocational Education? A. The California Code of Regulations, in accordance with Public Law 94-142 and Section 504 of the Rehabilitation Act of 1973 (Public Law 93-112), defines Vocational Education for Special Education students as follows: Specifically designed Vocational Education and Career Development for individuals with disabilities, which may include: (a) Providing prevocational programs and assessing work-related skills, interests, aptitudes and attitudes. (b) Coordinating and modifying the regular educational program. (c) Assisting individuals in developing attitudes, self-confidence, and vocational competencies to locate, secure, and retain employment in the community or sheltered environment, and to enable such individuals to become participating members of the community. (d) Establishing work training programs within the school and community. (e) Assisting in job placement. (f) Instructing job trainers and employers as to the unique needs of individuals. (g) Maintaining regularly scheduled contact with all work stations and job site trainers. (h) Coordinating services with the Department of Rehabilitation, the Employment Development Department, and other agencies as designated in the individual educational program. [5 California Code of Regulations (Cal. Code Regs.) Sec. 3051.14.] 2. Q. Who Is Eligible for Vocational Education? A. All special education students "regardless of severity of disability" [5 Cal. Code Regs. Sec. 3051.14] may receive career development or vocational education services. This would include, as described in California Education Code (Cal. Ed. Code) Section 56345(b): (1) Prevocational career education for pupils in kindergarten and grades 1 to 6, or pupils of comparable chronological age. (2) Vocational education, career education or work experience education in preparation for remunerative employment, including independent living skills training for pupils in grades 7 to 12 or comparable chronological age. 3. Q. When Should Vocational Services Start? A. Vocational services should be viewed as a long-range process and should begin as early as possible. Career awareness and the development of work attitudes may begin within the elementary years. Career exploration of specific vocational areas and behaviors often occurs at the junior high level, and continues throughout the four years of high school. Structured training experiences such as community classrooms and work experience generally begin between the ages of 13 to 16. Career placement should begin to be addressed during the two years prior to leaving school. 4. Q. What Is a Student Enrolled in a Vocational Education Program Entitled to Receive? A. Each student who enrolls in vocational education programs is entitled to receive: (1) Assessment of the student's interests, abilities, and special needs with respect to completing successfully the vocational education program; (2) Special services, including adaptation of curriculum, instruction, equipment, and facilities, designed to meet the student's needs as described in (1); (3) Guidance, counseling, and career development activities conducted by professionally trained counselors; and (4) Counseling services designed to facilitate the transition from school to post-school employment and career opportunities. [20 United States Code (U.S.C.) Sec. 2334(c).] Note: Vocational education programs and activities for individuals with disabilities must be provided in the least restrictive environment. [20 U.S.C. Sec. 2334(a)(3).] See Questions 8, 9 and 10; see also Chapter 7, Information on Least Restrictive Environment. 5. Q. When Should a Vocational Assessment Occur and What Should it Include? A. Comprehensive vocational assessment should be undertaken prior to a student's enrollment in vocational education. The assessment process should determine vocational interests, aptitudes, achievement, and potential. A variety of assessment procedures have been developed to measure the student's level of performance in relation to selected careers and occupations such as work samples, on-the-job observation, simulated work stations, manual dexterity tests, career interest inventories, and paper and pencil aptitude tests. Vocational interests can be determined through the use of career interest inventories and interviews with students, parents, and previous teachers. Prior experiences, hobbies, and career exploration activities are helpful in developing an assessment of the student's interest in particular career fields. For students with more severe disabilities, for whom traditional vocational tests are not valid or who are unable to communicate, on-the-job work samples may be more appropriate. Vocational aptitudes (such as manual dexterity, eye/hand coordination, fine motor skills, general intelligence) are examined in order to blend a student's career interest and vocational strengths and limitations. The results of vocational assessments describe the skills the student possesses so that appropriate courses and programs can be selected. 6. Q. How Can I Work with My Child's Teacher to Promote the Skills Necessary for My Child to Enter a Vocational Education Program? A. It is essential for you to realize the importance of vocational education during the child's education. One look at the employment status of adults with a disability will tell you that vocational education must receive greater emphasis. You can see to it that vocational training begins early in school by ensuring that vocational objectives are written into your child's Individual Education Plan (IEP) and by communicating to the teacher your expectation that the child will work as an adult. It is never too early to begin. Make sure that grooming, physical fitness, mobility, communication and social skills are emphasized and mastered. The sooner basic skills are developed, the sooner emphasis can shift to specific vocational skills. You can assign household responsibilities from an early age and pay an allowance. You can also make sure that your child receives frequent experiences in the community, especially for leisure activities. Again, the important point is that you recognize the critical nature of vocational education and take an active role in obtaining vocational activities tempered with a realistic assessment of what jobs potentially will be successful for your child. 7. Q. When I Develop My Child's IEP, How Can I Include Vocational Education Services? A. Vocational education services can be included within the IEP in several ways. Depending upon the age and ability level of your child, goals for instruction can be included in the areas of grooming skills, social skills training and general work behaviors. As your child moves toward secondary school age, vocational education services should be included in the IEP through training experiences in the classroom and in the community. For example, experiences may include travel training on routes within a student's daily schedule (pedestrian and public transportation), training on specific work tasks in the classroom and at sites throughout the community such as local businesses or industries. Transition services (which include, among other things, a coordinated set of activities which promote movement from school to post-school life) must be included in the IEP for every student 16 years old and older, and, where appropriate, in the IEPs of students 14 years old and older. See Question 13. 8. Q. How Can I Decide in Which Vocational Education Program My Child Should Participate? A. The following points should be considered in deciding which program is best for your child: (1) Student's goal; (2) Your expectations; (3) Results of vocational assessments; (4) Results of work samples (can include classroom samples, commercially produced samples and those prepared by and for local programs); (5) Results of experiences in vocationally oriented programs; (6) Descriptions of previous work experiences; (7) Student's physical and mental capacity for work; (8) Student's employment-related behaviors (for example, attendance, social and interpersonal skills, attention span, communication skills, personal hygiene, dependability, and productivity); (9) Course objectives and curriculum requirements; (10) Prerequisite skills; (11) Modifications necessary to make classrooms, shop and work sites accessible; (12) Alternative instructional materials; (13) Staff/student ratio; (14) Methods for evaluating and grading student performance; (15) Opportunities for work experience; (16) Employment outlook for a person trained in the specific skill, both locally and nationally; and, (17) Local availability of jobs. By matching the information about the student with information about the vocational program, the IEP team will be better able to make appropriate placement decisions. Vocational education and training in integrated settings provides students with opportunities to learn appropriate ways of interacting with others in school and work settings. As a means of encouraging greater use of integrated programs, Congress, when passing the Carl Perkins Act for vocational education [20 U.S.C. Secs. 2301 and following], did not allocate funds for vocational courses designed solely for students with disabilities. Rather, the law provides funds for supportive services and modifications in regular vocational programs to permit the participation of special populations. See Questions 9 and 10. 9. Q. Can My Child Enroll in a Regular Vocational Program? A. In thinking about a your child's vocational education program, you should be aware that Section 504 of the Rehabilitation Act of 1973, Title 29, United States Code, Section 794, requires that students with disabilities not be denied access to vocational programs because of their need for aides or because of architectural barriers. Regular, mainstream programs usually include both classroom and lab instruction focusing on an occupational area (for example, business) or a specific occupation (for example, clerical). Mainstream programs offer the student with a disability the advantage of regular interaction with non-disabled students. Such programs more closely resemble the social setting that students with disabilities will encounter when they leave school and go to work. It is important for parents to be sure that placement in a regular program with appropriate support services is thoroughly examined before consenting to a special or separate vocational education program placement. 10. Q. What If My Child Needs an Accommodation to Be in a Regular Vocational Program? A. As stated in Questions 8 and 9, educators have a legal obligation to make necessary modifications to accommodate the needs of students with disabilities. [29 U.S.C. Sec. 794; 34 Code of Federal Regulations (C.F.R.) Sec. 104.12; 20 U.S.C. Sec. 2334(a)(I)&(2).] Most modifications are based on common sense and involve using safety or teaching practices that benefit all students. The use of curriculum modifications, specific instructional strategies, and adaptations of equipment or facilities (such as ramps, accessible desks, Braille manuals, talking terminals, sign language courses, and sensory devices) are the most common forms of modification. Recent breakthroughs in rehabilitation engineering will increasingly benefit students with severe disabilities. The improved design and use of artificial limbs, communication devices, orthopedic braces, and mobility aids will assist in the integration process. Specific modifications used to facilitate placement in regular vocational programs will depend on a careful analysis of your child's needs and the vocational program. A sample of commonly used techniques includes the following: (1) Structured orientation period (which could involve parents); (2) Peer tutoring; (3) Vocational resource teachers; (4) Small-group instruction; (5) Readers/interpreters; (6) Specialized instructional materials; (7) Task analysis (breaking down skills to be learned into small parts); (8) Large print materials; (9) Sound or light signals on equipment; (10) Counseling; and (11) Adaptation of teaching techniques to the student's learning style. 11. Q. If a My Child Is to Participate in a Vocational Education Program, must His IEP Describe or Refer to the Program? A. Federal regulations state: If a student with a disability is able to participate in the regular vocational education program without any modifications to compensate for the student's handicap, it would not be necessary to include vocational education in the student's IEP. On the other hand, if modifications to the regular vocational education program are necessary in order for the student to participate in that program, the IEP must include those modifications. Also, if the student needs a specially designed vocational education program, then the student's IEP must describe the necessary vocational education in all applicable areas (for example, present levels of educational performance, goals and objectives, and specific services to be provided). (Emphasis added.) [34 C.F.R. Part 300, App. C, No. 50.] 12. Q. Does the School District Have to Help Students with Disabilities Make the Transition from School to Work? A. Yes. Federal special education law requires that there be transitional planning services for students with disabilities regardless of which agencies provide support or educational services to the student. An IEP must include "a statement of the needed transition services for students beginning no later than age 16 and annually thereafter (and, when determined appropriate for the individual beginning at age 14 or younger) ..." The statement shall include, when appropriate, "... the interagency responsibilities or linkages (or both) before a student leaves the school setting." [20 U.S.C. Secs. 1401(a)(19), (20).] A coordinated transition planning meeting (conducted as part of an IEP team meeting) should include representatives of agencies which would serve the student after graduation. The purpose of the plan is to ensure that the student continue to receive the support needed, from the appropriate public and private agency/agencies, to continue vocational training, education services, or find and maintain the most independent level of employment possible. Various agencies provide continued educational support for students with disabilities after graduation. These include: the Department of Rehabilitation (DR), the Regional Center System, College Enabler programs, and other private agencies. Transitional planning will give you a greater opportunity to become familiar with these community resources. Do not take a passive role in the planning process. Work with your school district to identify and work with the agencies that will assist your child after graduation. The statement of needed transition services in each IEP must include, where applicable, a statement of the responsibilities of other participating agencies. Remember, however, that the school district remains ultimately responsible for ensuring that these services are provided. Therefore, if a participating agency ceases to provide an agreed upon service, the school district must reconvene the IEP as soon as possible to identify alternatives strategies of meeting the relevant transition objective. [See Decision of U.S. Dept. of Education, Office of Special Education and Rehabilitative Services, Vol. 20 Individuals With Disabilities Law Report page 536.] 13. Q. What Does Transition Mean? A. State law provides that: The goal of transition services is planned movement from secondary education to adult life that provides opportunities which maximize economic and social independence in the least restrictive environment. [Cal. Ed. Code Sec. 56460(e).] Both state and federal law require that IEPs for students 16 and older (and, where appropriate for younger students) contain a statement of needed transition services for the transition to post school life. "Transition services" means a coordinated set of activities for a student, designed within an outcome-oriented process, which promotes movement from school to post-school activities, including post-secondary education, vocational training, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation. The coordinated set of activities shall be based upon the individual student's needs, taking into account the student's preferences and interests, and shall include instruction, community experiences, the development of employment and other post-school adult living objectives, and when appropriate, acquisition of daily living skills and functional vocational evaluation. The statement of needed transition services must include, where appropriate, a statement of the interagency responsibilities or linkages, or both, before the student leaves the school setting. [Cal. Ed. Code Sec. 56345.1; 20 U.S.C. Sec. 1401(a)(19).] The California State Department of Education (CDE) has established an Educational Transition Center (ETC) to develop mechanisms to meet this goal. ETC has developed guidelines which define transition and set forth the components of successful transition services. These guidelines are attached at the end of this section. See also Question 19. 14. Q. What Kind of Services Does the Transition Process Include? A. Transition requires that local education agencies develop and implement certain services, including: (1) In-service training programs and resource materials that will support the implementation of individualized transition planning for all students with exceptional needs; (2) Work skills training; (3) Multiple employment options and a variety of vocational experiences; (4) The development of inter-agency agreements; (5) The development of instructional strategies that will prepare students with severe disabilities to make a successful transition to supported employment and the community; (6) Vocational and career education curriculum in the elementary grades for those students who can benefit from it; and (7) Coordination with other programs that serve students with disabilities.(1) [Cal. Ed. Code Sec. 56462.] Parents should be aware that these services are part of the transition process. You can ask to see the inter-agency agreements and ask what employment and vocational options are available in your district. 15. Q. What Can I Do If the School District Refuses to Write Vocational Education Services Goals and Objectives in My Child's IEP? A. Informal methods should be used to communicate the importance and rationale for the inclusion of vocational education services whenever possible. Goals and objectives can be included under current curriculum areas, as a part of daily course work, without receiving a specific vocational label. Instruction on skills which are functional and community related can be included in academic areas. Vocational educators should be involved either directly or indirectly in the development of the vocational component of the IEP. Cooperative efforts and dialogue between parents, educators and administrators is an effective method for including increased vocational focus into the presently adapted curriculum. Should the use of informal methods become exhausted without resulting in the provision of vocational services, however, the procedures for due process are available for securing appropriate education services. See Chapter 6, Information on Due Process Hearings/Compliance Complaints. 16. Q. Is There a Point at Which the IEP must Contain a Statement About Transition Services? A. Yes. Beginning no later than age 16 (or earlier when appropriate), a student's IEP must contain a statement of the needed transition services. This statement must be reviewed and updated annually, if necessary. 17. Q. What If an Agency or Entity, Other than the Responsible Education Agency, Doesn't Provide the Vocational Services it Is Supposed to Provide? A. In cases where agencies other than the local education agency are participating in the provision of transition services, and the other agencies fail to provide the agreed-upon services, the local education agency must convene an IEP team meeting to identify alternative strategies to meet the transition objectives. The local education agency remains ultimately responsible for the implementation of IEP objectives. Where there is no dispute about the content of the IEP/Transition Services Statement, but rather the services are not being implemented, the affected student should file a Compliance Complaint with the CDE. See Chapter 6, Information on Due Process Hearings and Complaints. 18. Q. How Can I Help to Develop Vocational Education Programming Within The School District? A. Schools depend directly upon their local community in particular and upon society in general for the content of vocational education. Schools must respond to employment opportunities in the local community as well as anticipate future developments. Parents are members of the community, and they are essential to the process of developing opportunities to engage in meaningful and productive work for individuals with disabilities. You can work within your Special Education Community Advisory Committee/Council and school PTA to develop awareness, training and employment opportunities at school. You can also promote understanding and opportunities in the community through your church, membership in civic organizations such as the Kiwanis and Lions Clubs, and within your own work place and labor unions. Spread the word that special education students can perform. 19. Q. What Are "Project WorkAbility" and the "Transition Partnership Project"? How Do They Work? A. The California WorkAbility and Transition programs, described more fully below, provide comprehensive individual transition planning, pre-employment, employment and work-site training, and participant follow-up for people with disabilities who are making the transition from school to work. The focus of the programs is on paid, off-campus work experience, vocational training and job placement. All secondary-level students, whether they have learning disabilities or severe disabilities, whether they are in or out of school, may be served by these programs. The programs are sponsored and funded by the CDE (Special Education Division) and the DR. The California WorkAbility programs, which encompass four program models -- WorkAbility I, II, III, and IV -- and the Transition Partnership Project are each described below. The WorkAbility and Transition programs model interdisciplinary approaches and interagency management; interagency agreements exist for each. The goal of the programs is to provide a comprehensive employment preparation program which enables special needs students to secure and maintain unsubsidized employment in the private or public sectors. The primary focus of the models is to actively involve employers, parents, educators, and community and agency support personnel in the training and placement of these students in order to promote and improve their community integration and vocational and personal independence. WorkAbility I began as a program in 1981 to test the concept of work experience with special education students. Currently, WorkAbility I has 154 individual projects throughout the state serving 983 school sites, eight Regional Occupational Centers/Programs, seven private schools, and one State School for the Deaf and has projects in all but one California County. During the school years from 1982-83 to 1991-92, WorkAbility I has served over 180,000 special needs secondary students. WorkAbility I is funded by both state and federal funds. WorkAbility II, enacted in the fall of 1985, was designed to enhance collaboration between the State Departments of Rehabilitation and Education and is established as the first official cooperative program between these two agencies. The program operates from Adult Schools and Regional Occupational Centers/Programs in conjunction with local offices of the DR to provide a blending of vocational services to adults and out-of-school youth who meet acceptance requirements. There are currently 37 projects operating statewide from a combined funding base provided through the DR and Local Education Agencies. WorkAbility III is the result of an interagency agreement initiated in 1985 between the California Community Colleges and the DR. WorkAbility III serves people with disabilities who are both community college students and DR clients desiring and in need of employment. WorkAbility III offers direct job placement, transition assistance into employment and support services. WorkAbility III is funded jointly by the DR and the local community colleges. WorkAbility IV began operation in the 1992-93 year. WorkAbility IV sites are cooperative interagency programs between the DR and California State University (CSU) campuses. There were four program sites in operation at the start of the 1993-94 year, with additional program sites under development. University of California campuses may join WorkAbility IV in the future. The purpose of the program is to assist persons with disabilities who are both CSU students and DR clients in their transition from school to work. Transition Partnership Project (TPP) was established in 1987 through the Transition Partnership Project which is a joint project of the DR and CDE. There are currently 87 programs in operation statewide, with additional sites under development. These programs serve disabled secondary students who have also become DR clients. The purpose of the project is to promote DR/CDE collaboration through local programs which assist the students/clients to prepare for and transition into competitive employment and/or post-secondary education. Students, parents, and/or advocates should inquire about the availability of these programs in their particular area. A chart summarizing these vocational training and placement programs, and listing the names, addresses and phone numbers of the coordinators for each follows. WorkAbility and Transition +-------------+---------------+---------------+----------+--------------+-----------------------+------------+-----------+ Student Source of DR Purpose/ Pre-placement Service Place-ment Wages Popula-tions Funding Client Goal Follow Up +-------------+---------------+---------------+----------+--------------+-----------------------+------------+-----------+ Work Secondary State Dept. Not Pre- Varies among WA I Continuous Varies (Special of Education Required employment sites; may include: until among WA Ability Education) Skills assessment, career graduation I sites; Training, guidance, work from high wages I Work experience/vocational school may be experience training, job (while paid and search, skills enrolled from WA employment training, mobility in WA I I funds placement training program (or by employer when direct hire) +-------------+---------------+---------------+----------+--------------+-----------------------+------------+-----------+ Work ROC/Ps or State Dept. Required Unsubsidized Varies among WA II 60 days Wages Adult of Rehab. employment- sites; may include: are paid Ability Schools; (Federal 60 days or assessment, career by serving funds) plus more guidance, job skills employer. II primarily 1/3 training, job (WA II adults and educational club/employment does not out-of-school match preparation, cover youth (non-Federal) personal counseling. wages, (dropouts) except for DR eligible OJTs.) +-------------+---------------+---------------+----------+--------------+-----------------------+------------+-----------+ Work Community State Dept. Required Unsubsidized Varies with 60 days When College of Rehab. employment- programs; may wages Ability (Federal 60 days or include: assessment, are DR eligible funds) plus more career guidance, covered, III 1/3 work experience, job they may educational search, skills come match training, personal from (non-Federal) counseling. work site, employer or other local sponsor. (WA III does not cover wages.) +-------------+---------------+---------------+----------+--------------+-----------------------+------------+-----------+ Transition Secondary State Dept. Required Unsubsidized Varies among TPP 60 days Wages of Rehab. employment- sites; may include: are paid Partnership DR Clients plus 1/4 60 days or assessment, career by cash or more guidance, job skills employer. in-kind training, job (TPP Project match club/employment does not (non-Federal) preparation, cover personal counseling wages, except for OJTs.) +-------------+---------------+---------------+----------+--------------+-----------------------+------------+-----------+ +----------------+---------------+---------------+--------------+ WorkAbility I WorkAbility WorkAbility Transition Program II Program III Program Partnership Project +----------------+---------------+---------------+--------------+ Lisa Hartman M. L. Susan Linda Stie and Oxford, Sargent, Gamble, Robert Coordinator Disabled Supervisor Snowden, Students Coordinators Michael Programs and Transition Shimek, Services Partnership WorkAbility I Program Specialist Project Program Specialist 1107 - 9th 1116 - 9th 1116 - 9th 1116 - 9th St., Second St., Lower St., Lower St., Lower Floor Level Level Level Sacramento Sacramento Sacramento CA Sacramento CA 95814 CA 95814 95814 CA 95814 (916) (916) (916) 442-1395 (916) 445-1013 442-0514 442-1395 +----------------+---------------+---------------+--------------+ ----------------------------------------------------------------- Transition Transition is a purposeful, organized and outcome-oriented process designated to help "at risk" students move from school to employment and a quality adult life. Expected student outcomes of a successful transition include meaningful employment, a further education, and participation in the community (for example, living arrangements, social activities, recreational activities, on-going educational opportunities, etc.). The California educational system is responsible for providing quality educational opportunities and for coordinating with other service delivery systems to provide a broad array of services and activities to help the student move to a successful adult life. "At risk" students are those who experience barriers to successful completion of school, including individuals with exceptional needs. Successful transition has several components: Transition Foundation: The foundation provides the opportunity for students to gain the skills necessary for successful involvement in employment and adult life. The foundation is laid as soon as special needs are identified and continues until the student completes movement from school to work and adult life. This could occur as early as one or two months of age and continue through age 21. Transition Process: The transition process begins by age 14 or the ninth grade. It involves the student, the family, key education, adult service, and other providers working together to assess needs, plan and implement education, training and other activities. Planning is a critical part of the transition process. A written plan is developed and implemented for each student no later than age 14 or the ninth grade. Planning is a joint effort involving the student, the family, education personnel, adult service and other providers. Transition Culmination: The transition culmination refers to the span of time encompassing: (a) the last two years of secondary school, (b) the point of separation from school , and (c) the two years following separation. During this time, responsibility for transition management shifts from the educational system to the student, the family and/or the adult service delivery system. During this period the student engages in activities related to life in the community. Transition Follow-up: The California educational system will be responsible for evaluating outcomes for "at risk" students for two years after movement into employment, further education and community life. Specific responsibilities include: monitoring and evaluating student outcomes; analyzing the implications of this evaluation for transition programs; and referring students and/or their families to other service providers if necessary. ----------------------------------------------------------------- 1. See also the California Dept. of Education definition of "transition" at the end of this chapter. ---------- Chapter 11 Information on The Rights of Multicultural Children in Special Education TABLE OF CONTENTS Question 1. Q. What Rights Do I Have If English Is Not My First Language Or I Do Not Speak Any English? 2. Q. What Rights Do I Have If English Is Not My Child's First Language Or If She Does Not Speak Any English? 3. Q. Are My Child's Rights To A Free, Appropriate Education Affected If He Is Undocumented? 4. Q. What Are the Federal Requirements That Ensure Appropriate and Accurate Special Education Assessment for Multicultural Students? 5. Q. Does State Special Education Law Have Such Requirements? 6. Q. What Is the Larry P. v. Riles Case? How Did it Originate? 7. Q. Does the Larry P. Case Affect All Children Who May Need Special Education Assessments? 8. Q. Has the CDE Taken Specific Action to Implement Larry P.? 9. Q. What Was the Diana v. State Board of Education Case? What Impact Does the Diana Case Have on Spanish-speaking Students? 10. Q. What Is the Effect of Diana and Larry P. on Special Education Assessments for Asian-American Students? 11. Q. Has Larry P. Resulted in a Review of How Intelligence Is Defined and Assessed? Is There a Difference Between Intelligence and Ability? 12. Q. What Is the Effect of Larry P. On the Special Education Eligibility Criteria? 13. Q. What Tests Can Districts Use to Assess the Intellectual Abilities of African-American Students Referred for Special Education Services? 14. Q. What Are Some Commonly Used Tests for Spanish-speaking Students Who May Need Special Education Services? 15. Q. Are There Assessment Tools Specially Designed to Assess Asian-American Students Who May Need Special Education Services? 16. Q. Why Is It Important to Know about Bilingual Education Programs If My Child Is in Special Education Programs? 17. Q. How Can I Ensure That My Child Has an Appropriate Assessment? ----------------------------------------------------------------- S P E C I A L E D U C A T I O N R I G H T S A N D R E S P O N S I B I L I T I E S Chapter 11 Information on The Rights of Multicultural Children in Special Education 1. Q. What Rights Do I Have If English Is Not My First Language Or I Do Not Speak Any English? A. Families who do not speak or write English as their primary language have the right to participate fully in special education proceedings. These rights include: (1) Receive written notice in your native language of the time, location, and participants in the IEP meeting and have an interpreter present to enable you to participate fully in the IEP meeting. [34 C.F.R. Sec. 300.345.] (2) Obtain copies of assessment plans, notices of parents' rights explaining the procedural rights of special education students, and copies of the IEP, upon request, translated into your native language. [34 C.F.R. Sec. 300.345(f); Cal. Ed. Code Sec. 56321(a).] (3) The right to obtain an independent evaluation at public expense when the assessment conducted by the school district is incomplete or inappropriate (such as an assessment completed without an interpreter). [34 C.F.R. Sec. 300.503, Cal. Ed. Code Sec. 56329(b).] (4) The right to have an interpreter present at mediation and a fair hearing. [5 Cal. Code Regs. Sec. 3082(d).] (5) Upon request, receive written information in your native language regarding the procedures for filing a complaint with local child protective agencies against a school employee or other person that commits an act of child abuse against your child at his school site. If oral information is to be given, an interpreter must be provided. [Cal. Ed. Code Sec. 48987.] 2. Q. What Rights Do I Have If English Is Not My Child's First Language Or If She Does Not Speak Any English? A. Your rights include: (1) Assessments of your child's abilities and needs must be in her native language. If this is not possible, an interpreter must be provided. The need for an interpreter does not mean completion of the assessments can be delayed. [34 C.F.R. Sec. 300.532(a)(1); Cal. Ed. Code Sec. 56320(b)(1); 5 Cal. Code Regs. Sec.3023.] (2) Testing and evaluation materials must be selected and administered so as not to be racially, culturally or sexually discriminatory. [34 C.F.R. Sec. 300.530; Cal. Ed. Code Sec. 56320(a).] (3) For students whose primary language is other than English, the IEP must include linguistically appropriate goals, objectives, programs and services. The school district must provide special help through a trained teacher to assist your child to learn English to the extent appropriate given her disability and must provide special assistance to help your child meet her IEP goals even if she does not speak sufficient English to understand everything her classmates do. This help must continue until your child no longer has a barrier due to her English language skills. [5 Cal. Code Regs. Sec. 2001(p); Cal. Ed. Code Sec. 56345(b)(4); 20 U.S.C. Sec. 703(f).] (4) For students whose primary language is other than English, linguistically appropriate services includes bilingual instruction. Bilingual instructional services can be provided by both special education and bilingual education staff, as appropriate. The coordination of bilingual instructional services should be described specifically and included in the students IEP. 3. Q. Are My Child's Rights To A Free, Appropriate Education Affected If He Is Undocumented? A. No. All children in the United States have the right to a free public school education in the school district in which they live. If your child has a disability as discussed in these materials, then he is entitled to special education services. Immigrant children do not need a green card, visa, passport, social security number or any other proof of citizenship or immigration status in order to register for school. You do not have to and should not check with INS before sending your child to school. It is illegal for a school to require you to do so. It is also important that only those children who are in need of special education receive it. Categorizing children whose English in incomplete or who have a different culture as "retarded" or "mentally disabled" has been a common problem in the United States. As discussed above, there are laws that require testing for a disability to take language and culture into consideration. 4. Q. What Are the Federal Requirements That Ensure Appropriate and Accurate Special Education Assessment for Multicultural Students? A. Federal law requires: (1) Tests must be selected and administered so as not to be racially, culturally, or sexually discriminatory; (2) Tests must be administered in the student's primary language or other mode of communication; (3) Tests must be validated for the specific purpose for which they are used; (4) Testing must assess specific areas of educational need and not merely produce a single general intelligence quotient. No single procedure can be used as the sole criterion for determining an appropriate educational program for a student; (5) When a student with impaired sensory, manual, or speaking skills is being tested, the testing must ensure that the results accurately reflect the student's aptitude or achievement level, and not the student's impaired skills, unless those skills are to be measured by the testing; and (6) A student must be assessed in all areas related to a suspected disability, including, where appropriate, health and development, vision (including low vision), hearing, motor abilities, general ability, academic performance, self-help, orientation and mobility skills, career and vocational abilities and interests, and social and emotional status. In addition, Public Law 94-142 requires that parents give informed consent for student evaluation procedures and student placement. Informed consent means that you, as a parent, have been fully informed of all information relevant to the activity for which consent is sought, in your native language or other mode of communication. [20 United States Code (U.S.C.) Sec. 1412(5)(C); 34 Code of Federal Regulations (C.F.R.) Sec. 300.500(a), Secs. 300.530 and following.] 5. Q. Does State Special Education Law Have Such Requirements? A. Yes. State law requires the same protections that are included in federal law. In addition, state law requires: (1) That the Assessment Plan be provided in the primary language of the parent unless to do so is clearly not feasible; (2) That any psychological assessment of students be conducted by a credentialed school psychologist who is trained and prepared to assess cultural and ethnic factors appropriate to the student being assessed; and (3) That for students whose primary language is other than English, linguistically appropriate goals, objectives, programs and services be included in a student's Individualized Education Program (IEP). [California Education Code (Cal. Ed. Code) Secs. 56320 and following, and Secs. 56321(b)(2), 56324(a) and 56345(b)(4).] 6. Q. What Is the Larry P. v. Riles Case? How Did it Originate? A. The Larry P. v. Riles (Larry P.) case began when in 1971 five African-American children who had been placed in special education classes for the educable mentally retarded (EMR) in the San Francisco Unified School District (SFUSD) filed suit in the Federal District Court of Northern California. The students claimed that they had been wrongly placed in the EMR classes based on their performance on intelligence tests that were racially biased and discriminatory. The suit also claimed that a disproportionate number of African-American students were placed in EMR classes compared to the number of African-American students in the school system. At the time, 28.5% of all SFUSD students were African-American, while 66% of the students in the EMR classes were African-American. The case also involved the policies and procedures of the California Department of Education (CDE) since about 10% of all California school students were African-American, while 25% of the students in the EMR classes were African-American. The Court decided in favor of the students in 1979. SFUSD was prohibited from using IQ tests to identify or place African-American students in EMR-type classes. The decision was upheld on appeal in 1984. Recently, the Court expanded its ruling in the case by banning the use of IQ testing for all African-American students who have been referred for special education services. The ruling applies to all states within the jurisdiction of the Federal District Court. [Prasse, Reschly, 1986.] 7. Q. Does the Larry P. Case Affect All Children Who May Need Special Education Assessments? A. No. The ruling applies only to African-American students who may need special education services. However, some local districts have, on their own, expanded the ruling to include all children. 8. Q. Has the CDE Taken Specific Action to Implement Larry P.? A. On December 3, 1986, the CDE issued a statewide directive to all state special educators to clarify the use of IQ tests in the assessment of African-American students for special education services. The key components of the directive are: (1) School districts are not to use intelligence tests in the assessment of African-American students who have been referred for special education services; (2) In lieu of IQ tests, districts should use alternative means of assessment to determine identification and placement; (3) An IQ test may not be given to an African-American student even with parental consent; (4) When a school district receives records containing test protocols from other agencies ... or independent assessors, these records shall be forwarded to the parent. IQ scores contained in the records shall not become a part of the student's current school records; (5) There are no special education related purposes for which IQ tests shall be administered to African-American students; (6) IQ tests shall not be used to determine whether an African-American student is learning disabled, because it is possible that the resulting score could subsequently result in the student's being identified as mentally retarded; (7) The prohibition on IQ testing applies even though students are no longer placed in special day classes designated EMR; (8) This directive supersedes all previous notices as to the meaning and effect of the Court's decision in Larry P. v. Riles. [CDE, Larry P. Directive, 1986.] 9. Q. What Was the Diana v. State Board of Education Case? What Impact Does the Diana Case Have on Spanish-speaking Students? A. The Diana v. State Board of Education (Diana) case originated when a group of Spanish-speaking students were inappropriately assigned to EMR classes based on an assessment by an unqualified assessor. The case, filed in 1969, was settled out of court in 1970. The stipulated settlement agreement required that the CDE: (1) monitor schools for racial imbalance, (2) correct any imbalance, (3) collect data annually, and (4) use representatives of the Hispanic community when audits are performed in school districts. At the time of the order, California had not passed the Master Plan for Special Education and did not have bilingual education legislation. Consequently, many Spanish-speaking children in need of educational assistance were placed into special education classes because other programs did not exist. Hispanics were over-represented in EMR classes, constituting 26% of the total statewide EMR population but only 14% of the statewide school-age population in 1967. Today, the CDE must still comply with the 1971 court order to monitor the representation of special education to ensure proportionate representation for Spanish-speaking students. Because of Diana, state law now contains provisions for testing in the child's native language so that no child will be placed into special education only because of a limited ability to speak English. [CDE Survey, 1967.] 10. Q. What Is the Effect of Diana and Larry P. on Special Education Assessments for Asian-American Students? A. Although neither Diana nor Larry P. was initiated specifically on behalf of Asian-American students, both cases have direct impact on the education of Asian-American students. As in Diana, no Asian-American student being assessed for special education eligibility and services should be discriminated against or assigned to special education classes based on his limited ability to speak English. As in Larry P., the tests administered to an Asian-American student must be non-biased and culturally valid. Therefore, the rulings in Diana and Larry P., coupled with federal and state assessment protections, reinforce the obligation of school districts to meet the linguistic and cultural needs of Asian-American students in the assessment process, as well as in the provision of special education services. 11. Q. Has Larry P. Resulted in a Review of How Intelligence Is Defined and Assessed? Is There a Difference Between Intelligence and Ability? A. Yes. Larry P. has resulted in a statewide review of special education assessment procedures by state agencies, local education agencies, and psychological associations. They are examining dependency on and validity of IQ scores. Larry P. has fostered an emphasis on learning processes rather than "intelligence." This emphasis provides more specific educational information that can be used to remediate a student's learning problems. In psychology, practitioners and theoreticians alike often use a number of different words and phrases to refer to similar concepts. Therefore, intelligence, ability, learning potential, cognitive skills, etc., are all terms that might refer to the same thing. However, the concept called "intelligence" has itself never been clearly defined, nor is it used in a consistent manner. For many, it is the sum total of a number of processes that have been mastered by an individual both as a result of his experience (environment) and from his natural growth and development (innate potential). Researchers indicate that intelligence as measured on tests is clearly related to achievement, since most intelligence tests were developed to predict school success. It is also highly correlated with linguistic ability and perceptual skills. It has been suggested that there are three different meanings associated with intelligence: (1) The individual's innate capacity (which cannot be measured directly); (2) The individual's ability to learn, think, and problem solve (resulting from the interaction between potential and environment); and (3) The individual's performance on a test that samples a variety of specialized abilities. Others have viewed intelligence more broadly -- to include learning styles, specialized talents and child development. If there is a distinction to be made between ability and intelligence, this distinction must be based upon clear definitions for the two terms. For example, the term "intelligence" could be defined as the end result of performance on a test that samples a variety of special abilities; and the term "ability" could be defined as any one of those special abilities seen separately. In this case, "intelligence" is seen as a single product that combines results from performance on several different tasks and "ability" is seen as one of those indicators. Then, a list of single abilities or a cluster of closely related abilities could be designated for consideration (for example, linguistic abilities, memory, perceptual abilities, attention, problem solving abilities, number skills, etc.). In this manner, a more varied and interesting view of an individual's competencies might be examined. What is critical to consider, in any case, is the experience and background of the individual in the ability area being examined. Lacking the opportunity to learn specific skills, performance in those skill areas will usually be depressed, whether we call it ability or intelligence. [Salvia and Ysseldyke, 1985; Settler, 1982; Sternberg, 1979; Gardner, 1983; Piaget, 1952.] 12. Q. What Is the Effect of Larry P. On the Special Education Eligibility Criteria? A. The criteria for special education eligibility are established by federal law and state mandate and regulation. These in turn are influenced (sometimes differentially) by court rulings. Federal eligibility criteria under Public Law 94-142 have not been affected by the Larry P. court ruling and have remained the same. Likewise, state eligibility criteria have not changed. However, Larry P. has affected which testing instruments school districts can use to assess a student to determine if the eligibility criteria have been met. The latest court ruling in Larry P. was to extend the prohibition of IQ tests to ALL categories of special education for African-American children. Previously, the IQ testing prohibition applied only to African-American students in mildly retarded (EMR) programs. This extension has meant that the single eligibility area affected most by the Larry P. decision is the specific learning disability. The state eligibility criteria for a student with learning disabilities require that there be a severe discrepancy between intellectual ability and achievement in academic areas. This implied requirement for a measure of intellectual ability was previously interpreted generally as being results from an IQ test. Now, the court prohibits the use of such a general measure of intelligence for African-American children. Therefore, according to state regulations, "when standardized tests are considered invalid for a specific student, the discrepancy shall be measured by alternative means as specified on the assessment plan." State guidelines explain: If it is determined that the use of standardized tests would be or is an invalid assessment tool, the assessment personnel staff will have to use professional judgment, based on such data as the results of informal or criterion-referenced assessments, analysis of student work samples, classroom performance and observations to determine the evidence of a severe discrepancy. The need for professional judgment will apply to the areas of written expression and listening comprehension since there are few, if any, standardized tests which measure these skill areas. Special attention should be given in the assessment of students whose primary language is other than English, or whose cultural background might mitigate against the use of a certain standardized test. The latest court decision has had greatest impact on district policies in urban areas. In several districts, the prohibition of IQ tests has been extended to ALL students in the district rather than to only African-American students as called for by the Larry P. court order. This means that even those students who most closely resemble the normed samples of IQ tests cannot be given an IQ test. As a result, "alternative means" are utilized for all students within those particular districts. Traditionally, intelligence was a prominent feature in most definitions of mental retardation. With the prohibition of IQ testing, adaptive behavior scales have become important assessment tools for African-American students who may be mentally retarded. [Oakland, 1981; 20 U.S.C. Secs. 1401(1), (15); 34 C.F.R. Sec. 300.5; 5 California Code of Regulations (Cal. Code Regs.) Sec. 3030(j)(5); CDE, Information Concerning Eligibility Criteria.] 13. Q. What Tests Can Districts Use to Assess the Intellectual Abilities of African-American Students Referred for Special Education Services? A. The CDE has stated: In lieu of IQ tests, districts should use alternative means of assessment to determine identification and placement. Such techniques should include, and would not be limited to, assessment of the student's personal history and development, adaptive behavior, classroom performance, academic achievement, and evaluative instruments designed to point out specific information relative to a student's abilities and inabilities in specific skill areas. [CDE, Larry P. Directive, 1986.] 14. Q. What Are Some Commonly Used Tests for Spanish-speaking Students Who May Need Special Education Services? A. What is most important in identifying Spanish-speaking students is the ASSESSOR, not the test. This is what makes Diana different from Larry P. Diana occurred because a monolingual psychologist tested Spanish speakers in English and used this data to place students. The tests themselves were found to be discriminatory in Larry P. Any parent or community person who works with Spanish-speaking students should examine carefully the bilingual training, assessment training, and cultural sensitivity of the person doing special education testing. Test translation should be avoided at all cost, as translation invalidates the results. Listed below are general areas of assessment and tests that are commonly used with Spanish speakers. The tests are not valid for every student in all situations. Remember -- each assessment plan should be tailored to meet each student's individual educational assessment needs. +---------------+-----------------------------------------------+ Reading: Cornejo's Word List in Spanish Brigance Diagnostic Assessment Criterion referenced tests tied to curriculum CTBS Espanol +---------------+-----------------------------------------------+ Written Brigance Diagnostic Assessment Language: Woodcock Johnson Psycho Educational Battery +---------------+-----------------------------------------------+ Language Language Assessment Scales Proficiency: Bilingual Syntax Measure Idea Oral Language Proficiency Test +---------------+-----------------------------------------------+ Intellectual Kaufman Assessment Battery for Children Development: Wechsler Intelligence Scale for Children -- Revised Espanol Leiter International Performance Scales Learning Potential Assessment Device System of Multicultural Pluralistic Assessment Wechsler Preschool and Primary Scale of Intelligence -- Non-Verbal Cognition +---------------+-----------------------------------------------+ General InterAmerican Series Achievement: Orange Brigance +---------------+-----------------------------------------------+ For more comprehensive resources on bilingual assessments, contact Resources in Special Education, (916) 641-5925. 15. Q. Are There Assessment Tools Specially Designed to Assess Asian-American Students Who May Need Special Education Services? A. Currently, there are no specially designed special education assessments for Asian-American students. Special education assessment is usually conducted with the common tests that most students are administered. However, for the limited-English-speaking Asian-American student, it is essential that the assessor be proficient in the student's native or primary language. 16. Q. Why Is It Important to Know about Bilingual Education Programs If My Child Is in Special Education Programs? A. Bilingual programs should be coordinated with special education services. Bilingual services should not stop after the student qualifies for special education. Many students need both bilingual and special education services. Here are some points to remember: (1) Children must be tested in English upon enrollment. Then, the student is identified as either Limited English Proficient (LEP) or Fluent in English Proficiency (FEP). (2) LEP children are entitled to bilingual instruction which teaches in the native language and also teaches English as a second language. (3) Instructional services can be provided by both special education staff and bilingual education staff as appropriate. These services should be described specifically and included in the student's IEP. (4) No bilingual student should be placed in special education solely because the student does not speak English. However, LEP students should receive appropriate special education services if needed. For more information, contact the CDE, Office of Bilingual Education at (916) 657-2566. 17. Q. How Can I Ensure That My Child Has an Appropriate Assessment? A. Parents of children with special education needs are too often intimidated by the language used by assessment staff who administer assessments to their child. Tests are not as complex as they may first appear. A competent psychologist, speech clinician, learning specialist, or other assessment staff in the public schools and can easily explain the tests to you. You have the right to ask about tests, how they are put together, and what the results of a test battery mean in clear and plain language. Never hesitate to exercise this right; your child's future may be decided on the results of such assessments. Here are some questions you can ask, especially if you are or your child is a member of a multicultural population: (1) How reliable and valid is the test? That is, if given again, is it likely that the results will be about the same (reliability)? Does this test measure adequately the ability it is supposed to measure (validity)? (2) Are the norms for this test based on a representative sample of the population of which the child is a part? That is, if the child is Asian-American, are Asian-Americans included in the normative sample? (3) Is the response format of the test appropriate to the child? That is, if the child is non-verbal, can he respond without giving a verbal response? If your child is visually impaired, can the test be given without visual material? If your child speaks only Spanish ... is physically handicapped ... is hearing impaired ... etc., can he take the test without interference from physical or linguistic limitations? (4) Is the examiner skilled in administrating the test, knowledgeable about normal and abnormal patterns of development, capable of observing qualitative features of test performance, and proficient in interpreting results? Your child has the right to receive assessment services from a competent, qualified examiner. (5) Has the examiner provided a setting and developed a procedure that will assure the student's maximum performance so that results will not be skewed by extraneous circumstances? Such circumstances might include, for example, illness, anxiety, hunger, trauma, motivation, confidence, temperature, lighting, etc. A good assessment must acknowledge the influence of such variables and estimate their impact on assessment results. Overall, first and foremost, tests must be selected on the basis of the referral problem and according to the specific needs of the individual child. You should always question the practice of assessing all children on the same test (or same test battery) since each student is a special and unique individual. [Oakland, 1981; 34 C.F.R. Sec. 300.500; Cal. Ed. Code Sec. 56321.] * * * NOTE: The pending federal case of Crawford v. Honig is causing a reexamination of the rights of multicultural children in Special Education. This case has challenged the Larry P. ruling banning the use of IQ tests for African-American children and has, preliminarily, resulted in three African-American children being allowed to take IQ tests because their parents wish to have them do so. Specifically, in the 1979 Larry P. decision, the Court ruled that standardized IQ tests could not be used in identifying African-American students for placement in Educably Mentally Retarded (EMR) classrooms or their "substantial" equivalent. Between 1979 and 1986, the term "EMR class" had been completely eliminated. In 1986, the same Court expanded the ban on the use of standardized IQ tests for placement of African-American students in any special education program. In the 1992 Crawford case, the same Court vacated its 1986 expansion of the ban, reaffirmed its 1979 ban on using IQ tests for placing black students in EMR classes or their substantial equivalent, and indicated that it would hold further hearings on the issue of what is a class that is "substantially equivalent" to the former EMR designation. Crawford was appealed to the Ninth Circuit Court by both CDE and the original plaintiffs in Larry P. The Ninth Circuit Court affirmed the decision of the lower court in an opinion rendered on September 30, 1994. To date, the Court has not provided any further definition of the term "substantially equivalent to EMR." The effect of the case has been to cause the CDE to accelerate its review of special education assessment practices. On September 10, 1992, after the Crawford opinion was published by the Federal District Court and while the appeal to the Circuit Court was pending, CDE issued a Legal Advisory which discouraged the use of IQ testing for any African-American children, regardless of the suspected disability. Nevertheless, several school districts, relying on Crawford, gave IQ tests to African-American children, upon the request of their parents. At least one district took a more proactive approach and actively sought the "informed consent" of African-American parents to IQ testing for their children. This practice resulted in the filing of a Compliance Complaint and the issuance of a Compliance Report by CDE on January 28, 1993. This report produced a definitive ruling by CDE that the IQ testing of African-American children is discriminatory and in violation of Larry P., IDEA, and 504 -- as well as the Civil Rights Act of 1964 and both the U.S. and California Constitutions. This Compliance Report was widely distributed by CDE and appears to have resulted in the complete cessation of IQ testing of African-American children in our public schools. After the Circuit Court affirmed Crawford, CDE issued a new Legal Advisory on October 11, 1994. The Legal Advisory stated that, regardless of whether the Circuit Court's opinion is construed as partially lifting the District Court's prohibition on IQ testing of African-American children, CDE is exercising its statutory authority to continue to ban such testing. In its 9/10/92 Legal Advisory, CDE noted that it was in the process of restructuring the assessment process in order to "eliminate the current diagnostic model" in favor of "curriculum based" assessments that will focus on a child's school performance, rather than standardized tests. If adopted, this could eliminate or vastly reduce the utility of IQ testing for special education assessments of all children. The authors of this manual will continue to monitor the litigation and any subsequent CDE action. ---------- Chapter 12 Information on Preschool Education Services TABLE OF CONTENTS Question 1. Q. What Is the Federal Law that Requires Preschool Education Services? 2. Q. What Is the Purpose of Preschool Education Services? 3. Q. Are All School Districts Responsible for Full Implementation of Services for Three- to Five-year-old Children? 4. Q. What Are the Eligibility Criteria for Children with Disabilities Who Are Three to Five Years Old? 5. Q. If I Think My Three- to Five-year-old Child Needs Services, Who Should I Contact? 6. Q. What Instructional Services Are Available to My Preschool-aged Child? 7. Q. Is My Three- to Five-year-old Child Entitled to Related Services? 8. Q. If My Child Is Eligible for Special Education Services, Where Will She Receive Them? 9. Q. How Do the Least Restrictive Environment Provisions of Federal Law Relate to Preschool Children with Disabilities? 10. Q. How Many Hours a Day May My Child Receive Group Services? 11. Q. I Want My Disabled Child to Attend Preschool with Non-Disabled Peers. Do School Districts Ever Pay Tuition at Private Preschools? 12. Q. What If I Am Told There Is a "Waiting List" for Services for My Three- to Five-year-old? ----------------------------------------------------------------- S P E C I A L E D U C A T I O N R I G H T S A N D R E S P O N S I B I L I T I E S Chapter 12 Information on Preschool Education Services 1. Q. What Is the Federal Law that Requires Preschool Education Services? A. Public Law (PL) 99-457, passed in October 1986, is a federal law that expands services for children from birth to five years old who need special education. PL 99-457 amends and becomes a part of PL 94-142 -- the Individuals with Disabilities Education Act (IDEA). Title II of PL 99-457 makes grants available to states to extend the protections and services of PL 94-142 to all three- to five-year-old children who need special education. [20 United States Code (U.S.C.) Secs. 1400, 1411-1420 and 1471-1485.] 2. Q. What Is the Purpose of Preschool Education Services? A. Congress defined the purpose of PL 99-457 as follows: (1) To enhance the development of infants and toddlers with disabilities and to minimize their potential for delay; (2) To reduce educational costs by minimizing the need for special education and related services after handicapped infants and toddlers reach school age; (3) To minimize the likelihood of institutionalization of handicapped individuals; and (4) To enhance the capacity of families to meet the special needs of infants and toddlers. [20 U.S.C. Sec. 1471.] 3. Q. Are All School Districts Responsible for Full Implementation of Services for Three- to Five-year-old Children? A. Yes. Under current California law, all school districts have a mandate to provide special education and services for all eligible children with exceptional needs between the ages of three and five years, inclusive. [Cal. Ed. Code Secs. 56001(b) and 56440(c).] 4. Q. What Are the Eligibility Criteria for Children with Disabilities Who Are Three to Five Years Old? A. Assembly Bill (AB) 369, passed in 1993, amended Section 56441 of the California Education Code so that eligibility criteria for preschool children are linked to the criteria for school-age children. AB 369 adds one new category called "Established Medical Disability." To be eligible for special education, a child must have one of the following disabling conditions: (1) Autism; (2) Deaf-blindness; (3) Deafness; (4) Hearing impairment; (5) Mental retardation; (6) Multiple disabilities; (7) Orthopedic impairment; (8) Other health impairment; (9) Serious emotional disturbance; (10) Specific learning disability; (11) Speech or language impairment in one or more of voice, fluency, language, and articulation; (12) Traumatic brain injury; (13) Visual impairment; or (14) Established medical disability. All of these conditions except (14) are defined in 34 Code of Federal Regulations (C.F.R.) Section 300.7, and discussed in 5 California Code of Regulations (Cal. Code Regs.) Section 3030. An "established medical disability" is defined in California Education Code (Cal. Ed. Code) Section 46441.11(c) as a disabling medical condition or congenital syndrome that the individual education program (IEP) team determines has a high predictability of requiring special education and services. The Special Education Division has clarified this definition of "established medical disability" to include (but it is not limited to) the following: (1) Chromosomal abnormalities; (2) Environmentally caused skeletal and muscular system malformations; (3) Neurological disorders; (4) Metabolic disorders; and (5) Postnatal handicapping conditions such as anoxic deprivation, poisoning, cerebral palsy, physical trauma and limb deficiency. To qualify for special education, a child must need specially designed instruction or services as defined in Sections 56441.2 and 56441.3 of the California Education Code. The child must also have needs that cannot be met with modification of a regular environment in the home or school, or both, without ongoing monitoring or support as determined by an IEP team pursuant to Section 56431. A child is not eligible for special education and services if she does not otherwise meet the eligibility criteria and her educational needs are due primarily to: (1) Unfamiliarity with the English language; (2) Temporary physical disabilities; (3) Social maladjustment; or (4) Environmental, cultural, or economic factors. 5. Q. If I Think My Three- to Five-year-old Child Needs Services, Who Should I Contact? A. You should write a letter to your local school administrator (for example, the principal or special education program consultant) to request an assessment for your child. Your district must assess your child. [Cal. Ed. Code Secs. 56029, 56300-56329; Cal. Code Regs. Sec. 3021.] By state law, your school district must give you an assessment plan within 15 days of receipt of your written request for special education services. You then have 15 days to respond to or approve the assessment plan. During that time, you can request assessment in additional areas. No one can assess your child unless you give consent for the assessment in writing. See Chapter 2, Information on Evaluations and Assessments. When standardized tests are considered invalid for children between the ages of three and five years, assessors should use alternative testing methods. Alternatives might include, for example, scales, instruments, observations, and interviews, as specified in the assessment plan. [Cal. Ed. Code Sec. 46441.11(d).] An IEP must be developed as a result of the assessment within 50 days from the date the district receives your written consent for assessment (not counting days between school sessions or terms). If the request was made 20 days or less before the end of the regular school year, the assessments and IEP must be completed within 30 days after the next school year begins. 6. Q. What Instructional Services Are Available to My Preschool-aged Child? A. Services available to three- to five-year-old children must meet the unique needs of your child in accordance with PL 94-142. The child's IEP must include these services and a statement of areas of need. See Chapter 4, Information on IEP Process. The rights and services for three- to five-year-old children under PL 94-142 and PL 99-457 are the same as those for children aged five to 21. Under California law, services for three- to five-year-old children may be provided individually or in small groups. Services may include: (1) Observation and monitoring of the child; (2) Activities developed to conform with the child's IEP and to enhance the child's development; (3) Consultation with family, preschool teachers and other service providers; (4) Assistance to parents in coordinating services; (5) Opportunities for the child to develop play and pre-academic skills; and (6) Access to developmentally appropriate equipment and specialized materials. [Cal. Ed. Code Sec. 56441.3(a)(1)-(6).] 7. Q. Is My Three- to Five-year-old Child Entitled to Related Services? A. Yes. Your child is entitled to all the related services provided by PL 94-142. Related services include parent counseling and training to help you understand your child's special needs and development. [Cal. Ed. Code Sec. 56441.3(a)(7). See Chapter 5, Information on Related Services. 8. Q. If My Child Is Eligible for Special Education Services, Where Will She Receive Them? A. Your child, if eligible, may receive services at a public or private non-sectarian preschool, a child development center, family day care home, your own home, or a special preschool where both children with disabilities and children without disabilities attend. In California, the state can contract with Head Start programs to provide special education services to children between three and five years old. [Cal. Ed. Code Secs. 56441.4(a)-(f) and 56443(a).] 9. Q. How Do the Least Restrictive Environment Provisions of Federal Law Relate to Preschool Children with Disabilities? A. The federal Office of Special Education Programs (OSEP) has stated that the IDEA (PL 94-142) requirements regarding the education of children in the least restrictive environment (LRE) apply to preschool children with disabilities who have an IEP and are receiving a free appropriate public education under the provisions of the IDEA. [34 C.F.R. Secs. 300.550-300.556.] However, if the local education agency (LEA) has no preschool program for children without disabilities, there is no federal requirement to establish programs for children without disabilities for the sole purpose of implementing the IDEA's LRE requirements. Similarly, there is no federal requirement for an LEA to establish extensive contract programs with private schools which serve both children with disabilities and children without disabilities solely to implement the LRE requirements. Placement decisions must be made on an individual basis in accordance with each child's IEP. Generally, the use of facilities which are separate or otherwise solely devoted to children with disabilities is permissible only when necessary to meet an individual preschool child's specific needs. [OSEP Programs Memorandum, 1987.] In jurisdictions where there are no LEA programs for preschoolers without disabilities, the LRE requirement must be met by an alternative means. Several alternatives are possible: preschool programs serving children without disabilities (Head Start, for example) to which the program for children with disabilities may be linked on even a part-time basis; special needs preschool program may be located on a regular school site serving school-aged children without disabilities; or LEA may pay for placement in a private preschool and provide supplemental site. In order for a school district to be reimbursed by State Special Education funding for sending a child with a disability to a private preschool program, the program must be certified by the state as a non-public school. Although this provision has always existed, two new pieces of legislation (AB 2355 and AB 3783) make certification requirements more stringent. Any private preschool applying for certification as a non-public school must have at least one full-time staff member with a special education credential. In addition, anyone who provides related services must hold a credential for the service being provided. However, current law does not prohibit the LEA from paying for private preschool placement out of its general funds if there is no appropriate preschool program available. Your child's need for an integrated preschool program or full-inclusion in a regular preschool must be established in his IEP. See Chapter 7, Information on Least Restrictive Environment. 10. Q. How Many Hours a Day May My Child Receive Group Services? A. The IEP team determines the number of hours per day of group services. State law limits group-service time to four hours per day, unless the IEP team determines otherwise. As part of the IEP team, you may request group services in excess of four hours per day if you feel your child requires it. The IEP must be designed to meet the unique needs of the child. This includes group services in excess of four hours per day if the child needs those additional hours in order to receive a free, appropriate public education. [Cal. Ed. Code Sec. 56441.3(b).] 11. Q. I Want My Disabled Child to Attend Preschool with Non-Disabled Peers. Do School Districts Even Pay Tuition at Private Preschools? A. Generally not, because most preschools are not certified as nonpublic schools. It may be necessary to use the fair hearing process to show that a private preschool is the appropriate, least-restrictive educational program for your child. If you prevailed at hearing, the district would have to pay for the noncertified preschool program out of its general fund rather than use special education funds. 12. Q. What If I Am Told There Is a "Waiting List" for Services for My Three- to Five-year-old? A. Under federal and state law, waiting lists are not allowed. The IEP must be implemented as soon as possible following the IEP meeting. This means immediately following except when IEP meetings occur during a vacation period or if circumstances require a short delay (to work out transportation, for example). While there can be no undue delay in providing special education and related services, the IEP may specify projected dates to begin services. [34 C.F.R. Sec. 300.342 and comment, and Sec. 300.346(d), and Part 300, App. C, No. 4; 5 Cal. Code Regs. Sec. 3040.] ---------- Chapter 13 Information on Early Intervention Services TABLE OF CONTENTS Question 1. Q. What Is Part H of the Individuals with Disabilities Education Act (IDEA)? 2. Q. What Is the Purpose of Part H of IDEA? 3. Q. What Is the California Legislation Affecting Infants and Toddlers? 4. Q. What Is the Definition of an Infant or Toddler with Disabilities under Part H? 5. Q. What Are the Eligibility Criteria for Early Intervention Services in California? 6. Q. My Infant or Toddler May Be Eligible for Both School District and Regional Center Services. Which Agency Is Responsible for Ensuring That Early Intervention Services Are Provided? 7. Q. If My Infant or Toddler Needs Services, Who Will Provide Them? 8. Q. How Is a Referral for Early Intervention Services Made and Who Can Make the Referral? 9. Q. How Will Eligibility for Early Intervention Service Be Determined? 10. Q. Once a Referral Has Been Made, When Will a Meeting Be Held to Determine Eligibility and Develop an Individual Family Service Plan (IFSP)? 11. Q. How Is the IFSP Developed? 12. Q. What Services Are Included under Part H for Children from Birth Through Two Years Old? 13. Q. What Services Can My Child Receive in My Home? 14. Q. What Group Services Can My Child Receive? 15. Q. Who May Provide Services under Part H? 16. Q. Who Is Responsible for Implementing the IFSP? 17. Q. What Are My Due Process Rights? 18. Q. If Parents Disagree with the Regional Center or School District about Placement or Services, Who Conducts the Fair Hearing? How Do They Initiate Mediation or Fair Hearing? 19. Q. The Education Code Seems to Limit the Frequency of Home-based and Group Services. Is this the Case? Appendix I Appendix II ----------------------------------------------------------------- S P E C I A L E D U C A T I O N R I G H T S A N D R E S P O N S I B I L I T I E S Chapter 13 Information on Early Intervention Services Note Early intervention services are outlined in Senate Bill 1085, Chapter 945, Statutes of 1993 - Title 14, Government Code Sections 95000 and following. This legislation is called the California Early Intervention Services Act or California Early Start Program. Early education services for children younger than three years old with exceptional needs are outlined in Chapter 4.4 of Part 30 of the California Education Code. As this edition of Special Education Rights and Responsibilities goes to print, there are no implementing regulations in force that clarify the many questions that have arisen regarding joint implementation of the California statutes that govern early intervention services for children with disabilities younger than three years of age. Currently, the California State Department of Developmental Services (DDS) and the California State Department of Education (CDE) are jointly developing emergency regulations. Final regulations must be developed, approved and implemented by these same state departments on or before October 1, 1995. [Cal. Gov. Code Sec. 95028.] To address questions that have arisen, DDS and CDE have prepared series of joint letters that attempt to answer those questions. Appendix I of this chapter provides selected questions and answers on key topics covered in the joint letters. Appendix II is a compilation of parent rights. The authors of Special Education Rights and Responsibilities will continue to monitor the development of the regulations and revise future editions accordingly. To order a full set of the questions and answers developed by DDS and CDE, write or call: Julie Ann Jackson, Dept. of Developmental Services, 1600 Ninth Street, Sacramento, CA 95814, (916) 654-2777 Constance Bourne, Dept. of Education, 721 Capitol Mall, Sacramento, CA 94244, (916) 445-4623 1. Q. What Is Part H of the Individuals with Disabilities Education Act (IDEA)? A. The former Education of All Handicapped Children Act (EHA) was amended by PL 99-457 to establish important rights and essential services for young children with disabilities ages birth through five years and their families. The name of the Act was later changed to Individuals with Disabilities Education Act (IDEA). Part H of IDEA governs the early intervention program for infants and toddlers, ages birth through two years. Part H went into effect in California October, 1993, but regulations to implement the law have not been finalized. [20 United States Code (U.S.C.) Secs. 1400, 1411-1420, and 1471-1485.] 2. Q. What Is the Purpose of Part H of IDEA? A. The purpose of Part H as defined by Congress is: (1) To enhance the development of infants and toddlers with disabilities and to minimize their potential for delay. (2) To reduce educational costs by minimizing the need for special education and related services after infants and toddlers with disabilities reach school age. (3) To minimize the likelihood of institutionalization of individuals with disabilities. (4) To enhance the capacity of families to meet the special needs of infants and toddlers. [20 U.S.C. Sec. 1471.] (5) To enhance the capacity of State and local agencies and service providers to identify, evaluate, and meet the needs of historically under represented populations, particularly minority, low-income, inner-city, and rural populations. [20 U.S.C. Sec. 1471(a)(1-5)] In order to accomplish this purpose, the federal government provides financial assistance to the states: "to develop and implement a statewide, comprehensive, coordinated, multidisciplinary, interagency program of early intervention services for infants and toddlers with disabilities and their families." [20 U.S.C. Sec. 1471(b)(1)] 3. Q. What Is the California Legislation Affecting Infants and Toddlers? A. Early intervention services for California are outlined in Senate Bill 1085, Chapter 945, Statutes of 1993 - Title 14, Government Code Sections 95000 and following. The California Early Intervention Services Act is designed "to provide a statewide system of coordinated, comprehensive, family-centered, multidisciplinary, interagency programs, responsible for providing appropriate early intervention services and support to still eligible infants and toddlers and their families." [California Government Code (Cal. Gov. Code) Sec. 95002.] This bill became effective on September 30, 1993. Early education services for children younger than three years old with exceptional needs are outlined in Chapter 4.4 of Part 30 of the California Education Code. [California Education Code (Cal. Ed. Code) Secs. 56425-56431.] 4. Q. What Is the Definition of an Infant or Toddler with Disabilities under Part H? A. The term "infants and toddlers with disabilities" means individuals younger than three years old who need early intervention services because they are experiencing developmental delays in the areas of cognitive development, physical development, language and speech development, psychosocial development, or self-help skills. In addition, those infants and toddlers who have a diagnosed mental or physical condition that typically results in a delay, or who are at risk of substantial delay, are included in the definition (at the state's discretion). The criteria for these definitions are to be determined by each state. [20 U.S.C. Sec. 2472.] 5. Q. What Are the Eligibility Criteria for Early Intervention Services in California? A. An eligible infant or toddler means an infant or toddler younger than three years old, who has a need for early intervention services, as specified in IDEA, that is documented through assessment and evaluation and who meets one of the following criteria: Infants and toddlers with a developmental delay in one or more of the following five areas: cognitive development; physical and motor development, including vision and hearing; communication development; social or emotional development; or adaptive development. Developmentally delayed infants and toddlers are those who are determined to have a significant difference between the expected level of development for their age and their current level of functioning. This determination shall be made by qualified personnel who are recognized by, or part of, a multidisciplinary team, including the parents. Infants and toddlers with established risk conditions, who are infants and toddlers with conditions of known etiology or conditions with established harmful developmental consequences. The conditions shall be diagnosed by a qualified personnel recognized by, or part of, a multidisciplinary team, including the parents. The condition shall be certified as having a high probability of leading to developmental delay if the delay is not evident at the time of diagnosis. Infants and toddlers who are at high risk of having substantial developmental disability due to a combination of biomedical risk factors, the presence of which is diagnosed by qualified clinicians recognized by, or part of, a multidisciplinary team, including the parents. [Cal. Gov. Code Sec. 95014(a)(1)-(3).] This statutory language is broad. Many eligibility issues remain to be addressed. Emergency regulations will be developed jointly by DDS and CDE. These regulations will more specifically define the eligibility criteria for early intervention services. Final regulations must be developed and approved by October 1, 1995. 6. Q. My Infant or Toddler May Be Eligible for Both School District and Regional Center Services. Which Agency Is Responsible for Ensuring That Early Intervention Services Are Provided? A. The regional center is the "payor of last resort" and, therefore, is ultimately responsible for providing and/or paying for services to infants and toddlers who may be eligible for services from both the regional center and school district. [Cal. Gov. Code Sec. 95014(c).] School districts are obligated to serve only children with low incidence disabilities. See Question 4. They are required to continue to operate programs for infants and toddlers that were in operation during the 1980-81 fiscal year. And, they must serve at least the number of infants and toddlers served in 1980-81. [Cal. Ed. Code Sec. 56425; Cal. Gov. Code Sec. 95014(c).] The school district must develop written agreements with the regional center that clarify service responsibilities for infants and toddlers who are eligible for services from both agencies. [Cal. Ed. Code Sec. 56220.] 7. Q. If My Infant or Toddler Needs Services, Who Will Provide Them? A. As of September 30, 1993, all school districts and regional centers in California are responsible for providing early intervention and education services to eligible infants and toddlers younger than three. While the program will be jointly administered by the Secretary of the Health and Welfare Agency and the Superintendent of Public Instruction, the State Department of Developmental Services (DDS) has been designated as lead agency responsible for the administration and coordination of the statewide service delivery system. [Cal. Gov. Code 95006 and 95007.] Your local school district or Special Education Local Planning Area (SELPA), or county office is responsible for administering services and providing educational programs for infants who meet the following criteria: (1) Have low incidence disabilities, defined as conditions which are solely visual, hearing, and severe orthopedic impairments, and any combination thereof; (2) Are eligible for special education; and (3) Are not eligible for services from the regional center. Your local regional center is responsible for the provision of early intervention services to all other eligible infants, including children who have developmental delays or are at risk of delay. [Cal. Ed. Code Secs. 56026, 56026.5 and Cal. Gov. Code Sec. 95007, 95008.] A district, SELPA or county office that operated a special education program for individuals younger than three, and that received state aid for these special education programs in the 1980-81 school year, will continue to operate these programs. Students currently enrolled in these programs, regardless of new early intervention mandates, will continue to receive education and early intervention services from the local school district, SELPA, or county office until the student turns 3 years of age. [Interagency Agreement-Part H/IDEA, California Departments of Developmental Services and Education, September 9, 1993; Cal. Ed. Code Sec. 56425.] 8. Q. How Is a Referral for Early Intervention Services Made and Who Can Make the Referral? A. A referral for early intervention services must be made in writing to the regional center or school district. The referral may be made by the parent or any other service provider. A brief letter describing the child's needs and making your request for early intervention services is sufficient to initiate the assessment process. Federal regulations define primary referral sources as hospitals, including prenatal and postnatal care facilities; physicians; parents; daycare programs; local education agencies; public health facilities, other social service agencies; and other health care providers. Federal regulations also require that referrals are made "no more than two working days after a child has been identified." Implementation of this provision will be extremely difficult to enforce. [34 C.F.R. Sec. 303.321 (d), Cal. Gov. Code Sec. 95020 (b).] 9. Q. How Will Eligibility for Early Intervention Service Be Determined? A. Each child referred for determination of eligibility for early intervention services must be provided with a "timely, comprehensive, multidisciplinary evaluation" of needs and level of functioning. If the child is eligible for services, "... an assessment shall be conducted to identify the child's unique strengths and needs and the services appropriate to meet those needs; the resources, priorities, and concerns of the family and the supports necessary to enhance the family's capacity to meet the developmental needs of their infant or toddler." Family assessments should be family directed and voluntary on the part of the family. [Cal. Gov. Code Sec. 95016(a).] Regional Centers and school districts are responsible for ensuring implementation of this evaluation process. [Cal. Gov. Code Sec. 95016(b).] 10. Q. Once a Referral Has Been Made, When Will a Meeting Be Held to Determine Eligibility and Develop an Individual Family Service Plan (IFSP)? A. The regional center or school district must complete the evaluation and assessment activities, hold a meeting to determine eligibility, and develop an Individual Family Service Plan (IFSP) within 45 calendar days of receipt of the written referral for early intervention services. [Cal. Gov. Code Sec. 95020(b).] Services may begin prior to completion of the assessment. [20 U.S.C. Sec. 1477.] 11. Q. How Is the IFSP Developed? A. A multi-disciplinary team, including the parent or guardian, develops the IFSP from a multi-disciplinary assessment of the unique needs of the infant or toddler. The assessment also identifies the services appropriate to meet such needs. The IFSP is evaluated at least once a year, and the family is provided a review of the plan at six-month intervals or more often when needed. The IFSP shall be in writing and shall include the following: (1) A statement of the infant or toddler's present levels of development; (2) A statement of the family's concerns, priorities and resources (3) A statement of the major outcomes to be expected, and the criteria, procedures and time lines used to evaluate these outcomes; (4) A statement of specific services including how often, how much, and the method of delivery and ways of providing services in natural environments (5) Dates for initiation of services (6) Name of agency responsible for providing identified services. (7) Name of the service coordinator from a profession most relevant to the infant or toddler's need. (8) Transition plan to other appropriate services. [20 U.S.C. Sec. 1477.] As of September 30, 1994, existing Individual Education Plans (IEP - school district) and Individual Program Plans (IPP - regional center) for children younger than three currently served by local school districts and regional centers are considered to be the child's IFSP. By March 30, 1994, all these documents were to be reviewed by the responsible agency to assure that they are consistent with IFSP requirements. 12. Q. What Services Are Included under Part H for Children from Birth Through Two Years Old? A. In California, services under Part H are provided under public supervision and at no cost to families in California. Services must be designed to meet the infant's or toddler's developmental needs. They may include special education, speech and language pathology and audiology, occupational therapy, physical therapy, psychological services, parent and family training and counseling services, transition services, medical services for diagnostic purposes, and health services necessary to enable the child to benefit from other early intervention services. Case management services must be provided for every eligible child and the child's parents. Early Intervention Services, as stated in the 1992 Final Regulations C.F.R. 303.12(d) and 303.13, may include: (1) Assistive technology devices; (2) Audiology; (3) Family training; (4) Counseling and home visits; (5) Some health services; (6) Medical services only for diagnostic or evaluation purposes; (7) Nursing services; (8) Nutrition services; (9) Occupational and physical therapy; (10) Psychological services; (11) Social work services; (12) Service coordination services; (13) Special instruction; (14) Speech and language services; (15) Transportation and related costs; and (16) Vision services. 13. Q. What Services Can My Child Receive in My Home? A. Under California law, home-based services may be provided one or two times per week, depending on the infant's or family's need. Part H services include, but are not limited to, the following: (1) Observing the infant's behavior and development in his or her natural environment; (2) Activities that are developmentally appropriate for the infant and are specially designed, based on the infant's exceptional needs, to enhance the infant's development. Those activities shall be developed to conform with the infant's individualized family service plan and to ensure that they do not conflict with his or her medical needs; (3) Demonstrating developmentally appropriate activities for the infant to the parents, siblings, and other care givers, as designated by the parent; (4) Interacting with the family members and other care givers, as designated by the parent, to reinforce their development of skills necessary to promote the infant's development; (5) Discussing parental concerns related to the infant and the family, and supporting parents in coping with their infant's needs; (6) Assisting parents to solve problems, to seek other services in their community, and to coordinate the services provided by various agencies. [Cal. Ed. Code Sec. 56426.1.] See Question 19 for more information on limitations. 14. Q. What Group Services Can My Child Receive? A. Your child may receive the following services: (1) All services identified in the section defining home-based services. (2) Group and individual activities that are developmentally appropriate and specially designed, based on the Infant's exceptional needs, to enhance the Infant's development. Those activities shall be developed to conform with the Infant's individualized family service plan and to ensure that they do not conflict with his or her medical needs. (3) Opportunities for infants to socialize and participate in play and exploration activities. (4) Services by therapists, psychologist, and other specialists and appropriate. (5) Access to various developmentally appropriate equipment and specialized materials. (6) Opportunities for family involvement activities, including parent education and parent support groups. There are some service limits, including: (1) Services provided in a center shall not include child care or respite care. (You may still obtain respite through a regional center if your child is eligible.) (2) Frequency of group services shall not exceed three hours a day for up to, and including, three days a week, and shall be determined on the basis of the needs of the Infant and the family. (3) Frequency of home visits provided in conjunction with group services shall range from one to eight visits per month, depending on the needs of the infant and the family. (4) Group services shall be provided on a ratio of no more than four infants to one adult. (5) Parent participation in group services shall be encouraged. [Cal. Ed. Code Secs. 56426.2] See Question 19 for more information on limitations. 15. Q. Who May Provide Services under Part H? A. Early intervention services are to be provided by qualified personnel including: (1) Special Educators; (2) Speech and language pathologists; (3) Audiologists; (4) Occupational therapists; (5) Physical therapists; (6) Psychologists; (7) Social workers; (8) Nurses; and (9) Nutritionists. [20 U.S.C. Sec. 1472.] 16. Q. Who Is Responsible for Implementing the IFSP? A. Under Part H, a service coordinator designated by the IFSP team is responsible for direct implementation of the plan, as well as for coordination with other agencies or persons providing services. [20 U.S.C. Sec. 1477.] SB 1085 requires that each eligible infant or toddler and family be provided a service coordinator who will be responsible for facilitating the implementation of the IFSP and for coordinating with other agencies and persons providing services to the family. [Cal. Gov. Code 95018.] Under California education law, a school district, SELPA, or county office shall be responsible for the provision of services through a trans-disciplinary team. The team may consist of professionals from various disciplines, including persons from special education, speech and language, nursing, social work or mental health, as well as parents. A person on the multidisciplinary is designated to coordinate and provide services and act as a consultant to other team members. [Cal. Ed. Code Secs. 56426.6(a), (b), (c).] 17. Q. What Are My Due Process Rights? A. Under Part H, the state shall provide, at a minimum, the following: (1) A timely administrative resolution of parents' complaints; (2) The right to confidentiality of information; (3) The right to examine records; (4) Assignment of a surrogate parent when the infant or toddler is a ward of the court and the parent or guardian is not known; (5) Written notice of any change in services, in the parent's native language; and (6) The right to continue in the current placement while complaint proceedings are pending. [20 U.S.C. Sec. 1480.] Additionally, the interagency agreement between DDS and CDE specifically prohibits regional centers and local education agencies from either switching the responsible agency or dropping any child who was being served prior to the implementation of SB 1085. For more information on parents' rights and responsibilities, see Appendix II, by DDS and CDE. 18. Q. If Parents Disagree with the Regional Center or School District about Placement or Services, Who Conducts the Fair Hearing? How Do They Initiate Mediation or Fair Hearing? A. In their December 1993 Joint Memorandum, DDS and CDE state: ... Part H requires appointment of an impartial person to resolve individual child complaints. DDS and CDE have agreed to use the same party to resolve complaints that originate in either regional centers or local education agencies (LEA). The State Office of Administrative Hearings (OAH) which has provided services to regional centers, will expand its service to include children served through local education agencies. OAH will meet the requirements under federal regulations and provide both mediation conferences and due process fair hearings ... To initiate a mediation conference or hearing, an individual must mail a written request to: State Office of Administrative Hearings 501 "J" Street, Suite 201 Sacramento, CA 95814 Attn: Early Intervention Section Note: Mediation and due process fair hearings must be held within 30 days of request unless parents waive time lines. 19. Q. The Education Code Seems to Limit the Frequency of Home-based and Group Services. Is this the Case? A. NO. California Education Code Section 56426.25 makes clear that the maximum service levels outlined for home-based and group services "apply only for purposes of the allocation of funds for early education programs" by the State of California. School districts may exceed those maximum services levels in accordance with the individual needs and services included in the student's IFSP. The maximum service levels are not meant to limit student services, but the State's fiscal responsibility for those student services. [Cal. Ed. Code Sec. 56426.25.] Appendix I Answers to Questions on Part H Implementation ELIGIBILITY ASSESSMENT/INDIVIDUALIZED FAMILY SERVICE PLAN ASSESSMENT/INDIVIDUALIZED FAMILY SERVICE PLAN REFERRAL SERVICES OTHER TOPICS OTHER TOPICS Prepared Jointly by the Department of Developmental Services (DDS) and California Department of Education (CDE) ELIGIBILITY - #94-2 - February 23, 1994 7. What safeguards are there to assure that the at risk population will be served. Currently, our regional center doesn't take children at risk unless they are showing delay already. Regional centers must serve a child who is at high risk if the child is evaluated and meets the eligibility criteria listed in the appendix. However, the actual services provided are based upon assessed need as determined by a multidiscplinary team. It is common for infants at risk to receive only close developmental follow-along by a qualified clinician. Families who do not agree with an eligibility decision may appeal the decision by exercising their right to a due process hearing. Also, the federal regulations mandate state supervision and monitoring of local programs, which will assist us in assuming compliance. 8. How are the Part H eligibility areas for regional centers different from Lanterman eligibility areas? For infants and toddlers birth to age three, regional centers utilize the eligibility criteria delineated in SB 1085; children with developmental delays, established risk conditions, or high risk conditions. State regulations will provide further clarity. The most significant difference is the inclusion of children with significant delays in speech, or communication. Although some regional centers have been serving children with speech delays under "high risk" criteria, many have not. ... 14. Will regional centers be responsible for all children under the Lanterman act? Does this include children with autism, children with cerebral palsy? Part H eligibility replaces the eligibility criteria of the Lanterman Act for birth to three-year-olds. Children with autism and cerebral palsy may be found eligible under one of the three areas of eligibility described above: developmentally delayed, established risk, and high risk. ... 20. Please clarify difference between "established risk" and "at risk". Under the definition of eligibility in SB 1085, there are two "risk" categories: (1) Infants and toddlers with established risk conditions. These are infants and toddlers with conditions of known etiology or conditions with established harmful developmental consequences. The condition must be diagnosed by a qualified clinician recognized, by or part of, a multidisciplinary team, including the parents. The condition must be certified as having ah high probability of leading to developmental delay if the delay is not evident at the time of diagnosis, and, (2) Infants and toddlers who are at high risk of having substantial developmental disability due to a combination of biomedical risk factors, the presence of which is diagnosed by qualified clinicians recognized by, or part of, a multidisciplinary team, including the parents. 21. Eligibility establishes "at risk" as a child who is eligible for Part H. Are drug exposed children in or out? Children prenatally exposed to drugs may be eligible for regional center services. However, according to the Prevention program high risk criteria included in the appendix: The presence of a single risk factor, in and or itself, may not establish a child's eligibility. The regional center assessment team will determine eligibility with consideration of the combination and severity of ... clinical factors." ... 23. Are children who qualify as Part H eligible by meeting the California Department of Education eligibility (not low incidence) but who are not regional center clients, eligible for respite services? In other words, are all Part H eligible children eligible for respite? All children eligible for Part H services may be eligible for respite, if it is determined to be a need identified by the IFSP team. LEA's are responsible for providing respite to families with children who have solely low incidence conditions who are not regional center eligible. Regional centers are responsible for ensuring the provision of respite for all other eligible families. These families would have to, however, be referred to regional center for eligibility determination and provision of services. ... 25. Please clarify regional center eligibility regarding children with language delays. This is new for regional centers? Will local education agencies continue to serve? Regional centers must serve children, birth to three, who have significant developmental delays, including communication delays. In general, LEA's will no longer serve such children, unless they have a 1980-81 mandate to serve a certain number of children with speech delays, or the LEA has not reached its funded capacity. Regional centers may contract with or vendorize school programs with resources and expertise in serving this population of children, or they may use or develop other resources. ... 27. Children who meet LEA eligibility under "other health impaired" and are not eligible for regional center. Who is payor of last resort? The term "other health impaired" is utilized in Education Code, but is not used to describe Part H eligibility. If a birth to three year old child meets the criteria in SB 1085, he or she must be served. Unless the child has a solely low incidence condition, regional centers are the payor of last resort. ASSESSMENT/INDIVIDUALIZED FAMILY SERVICE PLAN - #94-3 - March 4, 1994 1. Is there still a requirement for a signed permission to assess? Yes, informed written consent from the Parent(s) must be obtained prior to beginning the assessment process. In addition, Section 303.403 of Part H legislation requires that prior written notice be given to the parents of the intent to provide assessment or evaluation. 2. How does parental delay in signing for the assessment affect the requirement to develop an IFSP within 45 days? If a parent does not consent to assessment, he or she must understand that no further action can be taken and the child may not receive services. Section 303.322(e)2 of Part H states that in exceptional circumstances where it is impossible to complete the evaluation and assessment within 45 days, public agencies shall document those circumstances and develop and implement an "interim" Individualized Family Service Plan (IFSP). In this plan, the agreed upon time of assessment and the reason for delay may be specified. ... 6. Are agencies mandated to exchange medical information if a parent signs an interagency exchange of information form? May they (must they) release all medical records that they have, including records that they did not generate such as evaluations by other doctors? Agencies may be allowed to exchange information if appropriate written consent from the parent or guardian is given. Service agencies, based on their legal counsel, have differing requirements for specific designations of providers and types of records. Even with parental consent for interagency exchange of information, not all medical information may be shared, e.g. HIV status. Other sensitive information regarding family members, for which individual client consent does not cover, needs to be protected. As an example, some regional centers will release only the medical summary or information generated by their staff, informing the requesting party that a specific medical record must be requested from the health provider in question. 7. If a parent only wants two areas of development assessed and the requirement is for all five areas, do the family needs predominate? Since the family must agree and consent to assessment as well as the IFSP, it would be reasonable to formally test only the areas in which the family thought delay was present. The other areas might be reviewed by means of the developmental history or skilled observation. If the assessment process can be presented as an opportunity to identify strengths as well as delay, most parents would appreciate a complete evaluation. Additionally, if an infant appears to have reached normal milestones on appropriate screening tests, assessment would not be necessary. ... 9. Does an assessment have to be conducted in all five development areas if eligibility has already been determined in one area, which is the family's primary concern, e.g. "communication development"? Even though a child has been determined to be eligible for Part H services due to the presence of delay, each area must be reviewed for purposes of program planning and intervention services. A delay in communication may, unknown to the parent, be affecting social, emotional, or adaptive areas of development. The depth of the assessment may range from observation and use of checklists to utilization of standardized tests. Parental consent must be obtained for any assessments. ... 14. Is there an "Assessment Plan" requirement? If so, how does this impact the 45-day mandate? There is no federal requirement for a written plan of assessment. If specialists' consultations or appointments cannot be obtained within the 45-day limit, an interim IFSP specifying the barriers and timing of anticipated services may be written. There is a requirement, however, for written prior notice and signed consent signifying that a written description has been given, that a parent is fully informed and consents to the activities. This can satisfy the State Education Code requirement for an assessment "plan." ... 16. How do you propose to coordinate the assessments required by LEAs and regional centers so that the information is useful to both agency mandates and conducted within the 45-day time line? Within a given service area, regional centers and LEAs should develop procedures in the interagency agreements which will: (1) Assure collaborative planning of evaluation and assessment (2) Avoid scheduling duplicative assessments (3) Permit acceptance and exchange of assessment data from participating agencies (4) Arrange for interagency staffing of complex cases 17. Must the evaluations be conducted by regional centers, even if generic agencies have already provided enough evaluation or assessment to determine regional center eligibility? If the reports of previous assessments performed by qualified professionals are available on a given child and reflect current levels of function, there should be no need to repeat those assessments. The regional center staff would, however, still need to meet with the child and family in order to review the results of the previous tests and to discuss the concerns of the parents. The multidisciplinary team may wish to do more definitive tests if additional information is necessary to complete the IFSP. ASSESSMENT/INDIVIDUALIZED FAMILY SERVICE PLAN - #94-3 - March 10, 1994. 2. Can parents control the time lines? If they don't want an IHSP for two to three months, what is the agency's responsibility? Yes, parents can control the time lines. If 45 days is too rapid a process for the parents and there are no critical service needs, the agency's responsibility is to document the parents' wishes and adjust the time lines accordingly. 3. Does the IFSP need to be written in the parents' native language? The federal regulations require that the IFSP meeting be conducted in the native language of the family or other mode of communication used by the family, unless it is clearly not feasible to do so. The federal regulations are silent on whether the plan must be written in the parents' native language. However, the regulations do state that the contents of the IFSP must be fully explained to the parents and informed written consent must be obtained prior to the provision of early intervention services described in the plan. 4. After the IFSP, when do services need to start? The initiation dates of services is a decision made by the IFSP team and must be documented in the plan. The federal regulations state that services should begin "as soon as possible after the IFSP meeting." Any delay must therefore not be unreasonable and the reason should be communicated to the family. 5. Does each IFSP need to include a transition plan? Do we need to include a transition plan for infants under 18 months? No, each IFSP does not have to include a transition plan. The federal regulations require that a meeting to develop a transition plan must be convened at least 90 days before a child's third birthday. ... 9. What is required on an interim IFSP at a minimum? For example, you haven't completed the assessment, the child is eligible and regional center and the family want to start physical therapy services? An interim IFSP is intended to be utilized when a child has obvious and immediately identified needs. The interim IFSP must include the following: the name of the service coordinator; and the early intervention services to be provided immediately The 45-day requirement for evaluation and assessment may not be circumvented by the implementation of an interim IFSP. 10. What are specific examples of "intensity" of services? The federal regulations define "frequency and intensity" as "the number of days or sessions that a service will be provided, the length of time the service is provided during each session, and whether the service is provided on an individual or group basis ..." One example of the intensity of a service described on an IFSP form would be "Barbara will attend a center-based group infant program for three hours a day, three days weekly, through June 2, 1994." ... 12. Previously, regional centers were required to fund everything on the IPP. Will that change in the IFSP, so that regional centers will not be required to fund a non-required service as it would have been if it appeared on the IPP? Yes, there is a change from the Individual Program Plan (IPP). There are three categories of services that may be listed on an IFSP: required early intervention services, other services, and referral to non-required services. Regional centers or LEA's are ultimately responsible for services under category one, and may be responsible for services under category two (only if they are non-early intervention services mandated under state law, e.g., residential services provided by a regional center). ... REFERRAL - #94-4 - March 21, 1994 7. Does "receipt of referral" begin when a parent contacts the regional center or when a doctor, hospital, or other provider contacts the regional center? Shouldn't the family agree with referral? "Receipt of referral" means the date when the referral is received by either a regional center or local education agency, regardless of who originates it, and regardless of which of the two agencies receives the referral. Although Part H does not require parental agreement or consent for referral, the family must provide written consent in order for assessment and evaluation to be conducted. The IFSP is a family-focused, family-driven process. If a family declines to consent to evaluation and assessment, the agency should document the referral and the refusal of the family. 8. What constitutes receipt of referral? Parent signatures? A call from the hospital? It seems to be undefined in final regulations and SB 1085. Receipt of referral means that any agent of the receiving agency (regional center or local education agency) has received a referral, either oral or written, about a specific child who appears to be in need of early intervention services. Parental signatures may not be received until later in the process, but the 45-calendar-day time line begins with receipt of the referral. SERVICES - #94-5 - March 22, 1994 1. Where is the authority on respite, SB 1085 or the Part H regulations? Respite is included in the federal Part H regulations in a note to Section 303.12, which contains a listing of early intervention services. ... 4. Elaborate on regional center funding and services for SED children; speech and language; and services. The term "seriously emotionally disturbed" is a Part B federal eligibility category. It is not a category of eligibility under SB 1085. Some children may be eligible for regional center services if they have significant social or emotional delays or established risk conditions or meet high risk eligibility criteria per SB 1085. 5. Do "at risk" children get residential services under Early Start or does Lanterman still have discretion not to serve? Residential services are not early intervention services, and will continue to be provided under the auspices of the Lanterman Act for all children who are eligible for regional center services. ... 9. What other services besides OT, PT, nutrition, and respite would education potentially be required to provide for infants/toddlers with solely low incidence conditions? CDE is potentially required to provide any services listed in the Part H regulations, if identified as a need by the IFSP team if no other agency is required to provide the service. Early intervention services are: assistive technology; audiology; family training, counseling and home visits; health services; medical services for diagnostic or evaluation purposes; nursing services; nutrition services; OT; PT; psychological services; service coordination; social work; special instruction; speech/language pathology; transportation and related costs; and vision services. This group of services includes respite, which is listed in a note to the early intervention services in the federal regulations. OTHER TOPICS - #94-7 - May 10, 1994 2. What can be done to hold education and regional centers accountable to have completed and signed interagency agreements (IAs) or memorandums of understanding (MOUs)? It is the intent of DDS and CDE that each special education local plan area (SELPA) and regional center enter into an IA/MOU, stating how Part H services will be coordinated and provided to Part H-eligible families and children in their area. The IA/MOU shall include the following: 1. Dispute resolution; 2. Financial responsibility; 3. Referral, evaluation and assessment; 4. Service coordination, and 5. Payor of last resort. Regional centers are required by contract language to maintain an interagency agreement with the SELPA's in their area. SELPA's are likewise required to maintain such agreements to fulfill requirements of Education Code Section 56429. OTHER TOPICS - #94-7 - May 12, 1994 10. Do the requirements of P.L. 99-457 (now 102-119) supersede the Lanterman Act and the Title 17 regulations? (There are terminology and provisions in each that are different.) Which one do we follow? For the birth to three-year old population, regional centers should follow the provisions of SB 1085 and the federal Part H regulations where there is a conflict with the Lanterman Act. DDS and CDE are in the process of promulgating regulations that will provide direction and clarity in areas of the law and regulations which need reconciliation. In the interim, technical assistance is available from both departments as well as informational materials such as these questions and answers, joint letters, etc. ... 12. Does Part H supersede Assembly Bill 3632 (Chapter 1274, Statutes of 1985) (Seriously Emotionally Disturbed Children: Out-of-Home Care), Welfare and Institutions Code Sections 18350-18356, for mental health services? There is no age limitation in AB 3632, only a requirement that a child be handicapped (disabled). Mental health services should therefore be available under local mental health treatment programs and occupational/physical therapy from California Children's Services. ... 20. Please elaborate on the "information" materials being designed for parents to introduce and explain what Part H means to them. A video entitled "Early Start: Dreaming New Dreams" has been developed and has been disseminated to local communities. A list of parent's rights and responsibilities under the Early Start Program was included in the December 27, 1993, joint letter sent by DDS and CDE to regional centers and SELPA's. A Spanish translation has also been distributed. In addition, DDS is developing the following print materials: A "family friendly" brochure for families describing their legal rights. An Early Start referral brochure for health care providers. A booklet for families explaining Part H and the Early Start Program. These will receive wide distribution when completed. SERVICE COORDINATION - #94-7 1. Define the role and function of the service coordinator. The role of the service coordinator is to assist and enable an eligible child and the child's family to obtain appropriate early intervention services. Service coordinators serve as "system advocates" for families and function in a facilitating role, as needed. Service coordination is not a static function nor is it expected to be the same at every stage of a child's development or for every family. Effective service coordination must be responsive to individual difference and family needs. ... 11. When both regional center and education have responsibility for services, who does the service coordination? For children who are dually served by regional center and the LEA, the assignment of the service coordinator must be made by the representatives of both agencies and the parents. The local interagency agreement or memorandum of understanding between the regional center and LEA's must address the issue of assignment of service coordinators. ... 13. Can a parent or family member be their own child's service coordinator under Part H? This same question was directed to the Secretary of Education during finalization of the federal Part H regulations. The following discussion is included in the final regulations: "The Secretary acknowledges that parents of children with disabilities have primary responsibility for coordinating their children's affairs. At the same time, the Part H statute requires that the IFSP identify the person who will be responsible for implementing the IFSP and coordinating with other agencies and persons. The Secretary believes this responsibility is properly the State's and that the Part H program functions best when parents work with a service coordinator provided by the State." The California Early Start Program is predicated on the concept of a partnership between parents and the service coordinator, who is selected in collaboration with the parents. Although parents may not be named as service coordinators, it is recognized that they (1) must be actively involved in making sure that their children receive all of the services and protection to which they are entitled, and (2) are major decision-makers in deciding the extent to which they will participate in and receive services. NEW - 94-8 1. Are procedural safeguards being written up for local interagency coordination area (LICA) use? Procedural Safeguards are outlined in the federal regulations (34 CFR Sections 303.400 through 303.460). In addition, the California Part H Application further describes procedural safeguards. Until regulations are developed for California, the Department of Developmental Services (DDS) and the California Department of Education (CDE) are implementing various elements of the state level procedural safeguards such as the mediation and due process procedures that were included in the joint letter dated December 27, 1993. The same procedural safeguards will apply to local education agencies (LEA's) and regional centers. Local Interagency Coordination Areas (LICA's) may distribute them. ... 3. How and when are parents notified of due process rights? Upon referral? After IFSP is written? How do families with children denied eligibility access due process? A state level due process hearing may be used to resolve disagreements between parents and regional centers or LEA's over a child's eligibility or some element regarding the provision of Part H services. The regional center or LEA must inform parents of their rights under Part H, including state level due process procedures; a. upon initial referral prior to consent for evaluation and assessment; b. at the time of prior notice for the initial IFSP; c. at the initial IFSP; d. at the time of prior notice for the semiannual and subsequent IFSP's; e. at subsequent IFSP; f. anytime, upon request of the parent. Parents should also be notified of any local procedures that may be available for resolving disagreements. Local resolution procedures may take place prior to filing for a due process hearing. Service coordinators have the responsibility to inform parents of their procedural safeguards at the IFSP and to assist the family in filing a request for a due process hearing. 4. Who is responsible to be involved at the informal due process level? There is no informal due process procedure. A due process hearing is a formal state level proceeding to resolve individual disagreement regarding provision of early intervention services. Persons requesting a due process hearing must file with the state Office of Administrative Hearings (OAH). However, regional centers and LEA's are encouraged to develop local procedures to attempt to resolve service disagreements with families before families file for state level resolution. Local procedures should clearly state that the complainant has the right to appeal a local decision or bypass local means for formal state proceedings at any time. 5. Who will be the contractor for due process for Part H? Will McGeorge School of Law be doing the due process hearings and mediations? Do parents need to apply in writing, if so, to whom? DDS has contracted with the state Office of Administrative Hearings (OAH) for both state level mediation conferences and due process hearing under Part H. OAH will be used for due process hearings that originate from issues concerning LEA's or regional centers. OAH currently provides hearings for all regional center programs. Although McGeorge School of Law currently provides due process hearings for education programs, McGeorge is not the contractor for Part H and will not accept Part H requests. CDE and LEA's must inform Part H participants in LEA programs not to file due process hearing request with McGeorge School of Law. Request for a state level mediation conference or due process hearing must be filed in writing with: State Office of Administrative Hearings, 501 "J" Street, Suite 230, Sacramento, CA 95814, Attn: Early Intervention Section ... 7. Which agency is responsible for parent's attorney fees in a due process hearing? Representation by counsel at due process hearings is not required under Part H. Rather, Part H provides that parents have the right to be "accompanied and advised" by counsel, as well as other designated individuals, at such hearings (34 CFR Section 303.422(b)(1)). No provision is made under Part H for reimbursing parents for fees they may incur in retaining counsel. In general, attorney fees may not be awarded in the absence of a statute or contract allowing such recovery. 8. Is due process binding to other agencies or only education and regional centers? A decision in a due process hearing is only binding on the agencies that are a party to the hearing. As the implementing agencies and payers of last resort, LEA's and regional centers are responsible for implementation of early intervention services. Therefore, they are most commonly the subject of formal due process proceedings. A regional center or LEA may implement interagency agreement if another agency is not meeting its responsibility to provide services. 9. Will CCS services be subject to due process? A disagreement regarding California Children Services (CCS) services may be filed by a parent through the CCS appeals process. However, the regional center or LEA, as the payor of last resort, must ensure that required early intervention services listed on an IFSP are provided whether the service is funded through CCS or the payor's own resources. Therefore, a family may also file against the payor of last resort using Part H due process procedures if required early intervention services are not being provided pursuant to an IFSP. If the dispute is over which agency should provide a required service, the LEA or regional center should provide the service and commence interagency dispute resolution procedures pursuant to the interagency agreement to determine who should provide and pay for the required early intervention services in question. 10. If the due process time lines are 30 days, what are the mediation time lines? Under Part H, mediation is not required and the federal regulations do not specify time lines for a mediation process. However, since mediation is encouraged as a less adversarial approach to resolving disagreements between a parent and any public agency involved in the Early Start Program, DDS has contracted with the Office of Administrative Hearings (OAH) to hold a state level mediation conference within 30 days of the receipt of a request for mediation. Individuals seeking state level mediation should use the same filing process with OAH as used for requesting due process hearings, but specify "mediation" on the request form. In addition, regional centers and LEA's should encourage, but not require, parents to pursue local solutions prior to requesting a state level mediation conference or due process hearing. In any case, swift resolution of the disagreement is the goal. ----------------------------------------------------------------- Appendix II Parents Rights and Responsibilities in the Early Start Program Prepared Jointly by the Department of Developmental Services (DDS) and California Department of Education (CDE) Evaluation and Initial Assessment Individualized Family Services Plan (IFSP) Administrative Proceedings Evaluation and Initial Assessment Developing an individualized family services plan (IFSP) includes the performance of a timely, comprehensive, multidisciplinary evaluation and assessment of every child under age 3 who is referred for suspected developmental delay. If your child is determined to be eligible, you have the right to appropriate early intervention services. You have the right to provide information throughout the process and are encouraged to make decisions about your child's early intervention services. Procedural safeguards make certain that children and their parents or guardians are provided their rights under the law. As a parent or guardian, you have the right to: 1. Be given the opportunity to begin the evaluation and initial assessment process. 2. Within 45 days after the referral of your child to a regional center or a local education agency, the evaluation and assessment activities must be completed and an IFSP meeting must take place develop the IFSP. 3. Review the procedures and tests used in the assessment and evaluation. 4. Provide written permission before any evaluations or assessments are administered and refuse any evaluations, assessments, and early intervention services. 5. Be fully informed of the results of evaluations and assessments. 6. Have access to records, including the right to examine and obtain copies of records relating to your child and the right to request an amendment of records of any participating agency relating to your child. 7. Have an advocate assist you in dealings with the early intervention system, including regional center and local education agencies. 8. Obtain independent assessments and evaluations. 9. Have personally identifiable information maintained in a confidential manner. 10. Request a due process hearing to challenge the findings of any evaluations or assessments. 11. Attend a meeting to develop an IFSP within 45 days from referral. Evaluation means the procedures used by appropriate, qualified personnel to determine your child's initial and continuing eligibility for early intervention services under the Early Start Program. These procedures require that: 1. Evaluation and assessment materials are administered in the native language of a child's parent/family or other mode of communication, unless it is clearly not feasible to do so. 2. Evaluation and assessment procedures and materials are selected and administered so as not to be discriminatory by race, sex, culture, or disabling condition. 3. Evaluation and assessment materials shall be appropriate for the specific purposes for which they are being used. 4. Evaluation and assessments are conducted by qualified personnel. 5. Evaluations or assessments administered to individuals with known visual, hearing, or communication impairments shall be selected to accurately reflect the individual's aptitude or achievement level whichever factor is the subject of measurement. 6. Evaluation and assessment materials shall be designed to assess the specific areas of developmental and/or educational needs and not be designed to provide solely intelligence quotient measurement. 7. Assessments and evaluations are administered in the five developmental areas, including, where appropriate, health and development, vision, hearing, motor abilities, language functions, and social and emotional status. Individualized Family Services Plan (IFSP) If your child is determined to be eligible for early intervention, a meeting to develop your IFSP must take place within 45 days of your referral to one of those two agencies. You have the following rights in developing and implementing the IFSP. The right to: 1. Attend the meeting and participate in determining eligibility and developing the IFSP. 2. Request the attendance of other family members. 3. Request the attendance and participation of an advocate at the IFSP meeting. 4. Have the contents of the IFSP fully explained in your native language. 5. Give specific consent to each service listed on the IFSP. If you do not give consent to a service, it will not be provided. You may withdraw consent after initially receiving a service. 6. Provide concurrence to an assessment of your resources, priorities, and concerns regarding enhancing the development of your child. 7. Be notified in your native language and in advance, before an agency or service provider proposes or refuses to initiate or change the identification, evaluation, assessment, or educational placement of your child, or the provision of appropriate early intervention services to your child or your family. 8. Consent to the transmission of information about your child to the local education agency during transition to services under Part B of IDEA. Administrative Proceedings Parents may file written complaints regarding evaluation, assessment, placement, or service provision issues described above. Any parents involved in an administrative resolution of a complaint have the right to: 1. Be accompanied and advised by counsel and by individuals with special training with respect to early intervention services for children under age three. 2. Present evidence and confront, cross-examine, and compel the attendance of witnesses. 3. Prohibit the introduction of any evidence at the proceeding that has not been disclosed to you at least five days before the proceeding begins. 4. Obtain a written or electronic verbatim transcription of the proceeding. 5. Obtain written findings of fact and decisions within 30 days from the date the complaint is filed. 6. Have all personally identifiable information maintained in a confidential manner. 7. Require that the proceeding is carried out at a time and in a location which is reasonably convenient for you. 8. Bring civil action upon the other party in the complaint following completion of the proceeding. ---------- NOTICE OF CHANGES TO FEDERAL SPECIAL EDUCATION LAWS On June 4, 1997, the Individuals with Disabilities Education Act (IDEA) was amended by Congress and signed into law by the President. Most of the new Act (except as noted below) became effective on that date. Community Alliance For Special Education (CASE) and Protection & Advocacy, Inc. (PAI) have developed this supplement to our Special Education Rights and Responsibilities (SERR) manual so that you will be aware of the federal law changes that have been made. CASE and PAI will incorporate these changes into the next edition of SERR. We anticipate that the next edition will be available in the fall of 1997. It is also important to note that new federal regulations must now be developed to implement the new federal statutes. This process may take as long as two years. CASE and PAI will monitor the development of these regulations and incorporate them into SERR as they are issued. Because special education is funded in part with federal money, these changes take precedence over any prior inconsistent federal law or current state law, except where state law provides more protections or at least the same level of protections. References to section numbers following each amendment are not to the federal legislation but are to the sections where these amendments will appear in federal law at Title 20 of the United States Code. A list of acronyms appears below which may assist the reader throughout the document. References to chapter numbers after each item are to the SERR chapters in which we anticipate the item should be discussed. Acronyms: LEA - local education agency (school district or County Office of Education or SELPA - Special Education Local Plan Area). USDOE - U.S. Department of Education. LRE - Least Restrictive Environment. IEP - Individualized Education Program. IFSP - Individualized Family Service Plan. OSEP/OSERS - U.S. Department of Education's Office of Special Education Programs and Office of Special Education and Rehabilitative Services. FAPE - Free Appropriate Public Education. IDEA/EAHCA - Individuals with Disabilities Education Act, formerly known as the Education for All Handicapped Children Act. SERR - CASE's/PAI's Special Education Rights and Responsibilities manual. CFR - Code of Federal Regulations. CCR - California Code of Regulations. USC - United States Code ----------------------------------------------------------------- 1. Legislative Purpose. The Congressional Findings and stated purpose of the IDEA now focus more on accountability for results for special education students. 1401(c)(4),(5)(E),(6),(d)(1)-(4). [Chapter 1.] 2. Role of Parents. The Congressional Findings also strengthen the role of parents. 1401(c)(5)(B), (d)(1)(B), (d)(3). [Chapters 1 and 4.] 3. New Related Service. Congress has added a new Related Service: "Orientation and Mobility Services." 1402(22). [Chapter 5.] 4. Definition of Supplemental Aids and Services. The term "Supplementary Aids and Services" means aids, services, and other supports that are provided in regular education classes or other education-related settings to enable children with disabilities to be educated with nondisabled children to the maximum extent appropriate." 1402(29) [Chapter 7.] 5. Suspension/Expulsion. Congress now requires that school districts must continue providing a free appropriate public education to special education pupils who are either suspended or expelled. The services may not take place in the same environment as before the suspension or expulsion but must be continued in some fashion during the period of expulsion or suspension. 1412(a)(1)(A). [Chapter 8.] 6. Incarcerated Students with Disabilities. Congress now requires services for 18- to 21-year-olds incarcerated in adult penal facilities but only if they had IEPs immediately prior to incarceration. 1412(a)(1)(B)(ii). The FAPE these students are entitled to does not have to include: participation in general assessments or in transition planning for students whose eligibility will end before release from prison. Also the IEP team can modify the IEP in terms of content and in terms of LRE if the State has a bona fide security or other compelling penological interest. 1414(d)(6). [Chapter 1.] 7. Least Restrictive Environment. Under the category of Least Restrictive Environment (placement of special education students in regular classes and schools, unless with supplementary aids and services, they cannot be satisfactorily educated there), Congress now requires that states' funding systems do not encourage segregated placements. 1412(a)(5) [Chapter 7.] 8. Infant and Toddler Services. The section of the federal laws previously known as Part H (the program for infants and toddlers ages 0 to 3) is now called Part C. States must assure a "smooth and effective transition" from Part C to Part B (the program for pupils ages 3 to 21). An IEP (for those eligible for Part B) must be developed and being implemented by the child's third birthday. The LEA must participate in the transition plan. 1412(a)(9). Another change to Part H (C) is the strengthening of the natural environments mandate. The IFSP must contain a statement of the natural environments in which early intervention services shall appropriately be provided, including a justification of the extent, if any, to which the services will not be provided in a natural environment. 1436(d)(5). [Chapter 13.] 9. Children placed in Private Schools unilaterally by parents. Congress has given limited rights to children placed in private schools unilaterally by their parents. The school district must provide for the participation of these pupils in the district's special education programs. However, the amount of money spent on these pupils may be limited to only a proportionate share (based on the number of these pupils there are in the district) of the federal dollars received by the district. Currently, only about 8% of the dollars required to provide special education are federal dollars. In a district with 1,000 children, 10 of whom are children with disabilities enrolled in private schools unilaterally by their parents, a district would only have to spend 1% of the 8% of its special education revenue on making provision for the participation of these 10 students in its special education programs. Services may be provided on the premises of private schools, even parochial schools "to the extent consistent with law." 1412(a)(10)(A)(i). [Chapter 1.] 10. Child Find. Districts must find all the children with disabilities in their districts, including finding those in parochial schools. 1412(a)(10)(A)(ii). [Chapter 1.] 11. Reimbursement for private school placements. Parents cannot get reimbursement if the district timely offered a FAPE. AND PARENTS MAY BE DENIED REIMBURSEMENT OR HAVE THE AMOUNT REDUCED IF: * at the most recent IEP meeting the parents did not inform the district that they were rejecting the district's placement and give the reasons and also inform the district of their intent to enroll their child in a private school and seek public reimbursement, or * 10 business days prior to removing the child, the parents did not provide all the information above. But the exceptions to this notice requirement (and potential consequent reduction or denial of reimbursement) are: if the parent was illiterate and could not write in English, giving the necessary notice would likely have resulted in physical or serious emotional harm to the child, the school prevented the parent from giving the notice, or the school failed to give the parents notice of this notice requirement. Reimbursement may also be denied if: * prior to the parents removing the child, the district made a reasonable request to assess the child, including a statement of the purpose, and the parents did not make the child available for assessment, or * a judge finds the parents otherwise acted unreasonably. 1412(a)(10)(C). [Chapter 1.] 12. Medi-Cal payor of first resort. If under federal or state law or state policy another public agency, other than an education agency, is assigned responsibility for services that are considered special education or related services or assistive technology or supplementary aids and services or transition services, such public agency must fulfill that responsibility. The law now says that the financial responsibility of Medi-Cal, where it is one of those agencies described in the previous sentence, precedes the financial responsibility of the LEA. 1412(a)(12). [Chapter 1.] 13. Performance Assessments. Special education pupils must be included in regular assessments with accommodations where necessary. Also, the state must develop guidelines for determining when students have to use alternative assessments altogether. 1412(a)(17). [Chapter 2.] 14. Permissive Use Of Special Education Dollars. Special education dollars spent on supplementary aids and services in regular classes may benefit nondisabled children. 1413(a)(4). [Chapter 7.] 15. Charter Schools. Children in Public Charter Schools have all the special education rights and entitlements as children in other public schools. 1413(a)(5). [Chapter 1.] 16. Evaluations. Evaluations must now determine not only eligibility but also proposed content of the IEP and information related to enabling the child to be involved and progress in the general curriculum, or, for preschoolers, appropriate activities. 1414(b)(2). [Chapter 2.] 17. Eligibility. The special education eligibility determination must be made by a team of qualified persons and the parent. A copy of the report must be given to the parent. 1414(b)(4). The determination of continuing eligibility can be made based on existing data without reevaluating, unless the parent requests reevaluation. However, no determination of ineligibility can be made without assessment. 1414(c)(4). [Chapter 3.] 18. Reevaluations. Parent consent is now needed for any re-evaluation of the child, not just the initial one. 1414(c)(3). [This is already California law, see Cal. Ed. Code Sec. 56321(a)&(c).] [Chapter 2.] 19. Ultimate School District Responsibility. Congress has clarified that local school districts are ultimately responsible for services needed by pupils even when another public agency, other than an educational agency, is otherwise obligated to provide or pay for services that are considered special education, related services, assistive technology, transition services, or supplementary aids and services in regular classes. If that other agency fails to provide or pay for these services, the local school district must fulfill that obligation either directly or through contract or through some other arrangement. 1412(a)(12)(B)(i)&(ii). [Chapters 1 and 9.] 20. Procedural Safeguards. [See Chapter 6 for items A through H below.] A. Notice. The notice requirements for districts (when they change or refuse to change an IEP) were not changed (1415(b)&(c)), except that Congress took out the requirement that if the family's means of communication is other than written language, the district had to translate the notice orally to them. Congress added a provision requiring the LEA to give parents a list of sources to contact to obtain assistance in understanding their procedural rights. 1415(c). [Chapter 6.] B. Notice of procedural rights. This notice has to be given at initial referral to special education, whenever an IEP meeting is noticed [therefore, it cannot be handed out at the outset of the meeting anymore], whenever the child is reevaluated, and whenever parents file for due process. This notice must also be in native language unless unfeasible, must be understandable, and must describe rights to: independent assessment, notice, consent, access to records, complaints, stay-put, interim alternative placement rights (see below), unilateral private school placement and reimbursement rights, mediation, due process, appeals, and attorneys' fees. 1415(d). [Chapter 6.] C. Mediation. California's mediation should meet all the requirements of the now federally mandated mediation option. However, Congress believes so strongly in people using mediation that it said this: "A LEA or State agency may establish procedures to require parents who choose not to use the mediation process to meet...with a disinterested party who is under contract with a parent training and information center, or Alternative Dispute Resolution entity, etc., to encourage the use and explain the benefits of mediation." 1415(e). [Chapter 6.] D. Fair Hearing. Like in California, five days before the hearing each party must disclose records to the other party(ies) under the new federal law. The federal law is somewhat narrower and requires disclosure of "all evaluations completed by that date and recommendations based [thereon] that the party intends to use at the hearing." Because California law (Cal. Ed. Code Sec. 56505(e)(7)) permits the exclusion of any evidence (whether or not it was "completed" five days before the hearing) not disclosed 5 days before the hearing, the better practice will be to have completed and disclosed, 5 days before the hearing, all evidence proposed to be used at the hearing. 1415(f). [Chapter 6.] E. Attorneys' Fees. Attorneys' fees are no longer available for work done by attorneys at IEP meetings, unless the IEP meeting was convened as a result of administrative or judicial action. No attorneys fees are available for any mediation that took place before the parents filed for due process. [In California this should not be a problem because attorneys are barred from the pre-due process mediations.] [Chapter 6.] F. NEW ATTORNEYS' FEES REQUIREMENT: ATTORNEYS' FEES MAY BE REDUCED IF THE PARENT OR ATTORNEY REPRESENTING THE PARENT DID NOT PROVIDE THE DISTRICT WITH CERTAIN WRITTEN INFORMATION IN THE LETTER FILING FOR DUE PROCESS. THE INFORMATION IS: CHILD'S NAME, ADDRESS, NAME OF SCHOOL CHILD IS ATTENDING, A DESCRIPTION OF THE NATURE OF THE PROBLEM RELATING TO SUCH PROPOSED INITIATION OR CHANGE, INCLUDING FACTS RELATING TO SUCH PROBLEM, AND A PROPOSED RESOLUTION OF THE PROBLEM TO THE EXTENT KNOWN AND AVAILABLE TO THE PARENTS AT THE TIME. ["Proposed initiation or change" means: a proposal or refusal to initiate or change the identification, evaluation or placement or the provision of FAPE.] Attached to this supplement, please find a new sample letter requesting a due process. This new sample letter should be used in place of the same letter which appears at the end of Chapter 6 of SERR. The state must develop a model form to assist parents in filing for due process. [Note: If this model form does not include a section which assists parents in giving the proper notice (regarding the new information required at the time of filing so as to avoid an attorney fee reduction later on), arguably, there should be no attorney fee reduction later on. If the form was not developed and given to the parent, arguably a judge should not reduce fees for a parent who had not given the right information when he/she filed for due process and subsequently hired an attorney. Arguably, the Notice of Procedural Safeguards (see 1415(d)), which must be provided to parents when they file for due process, must contain a section on attorneys' fees and should describe this new requirement.] 1415(i)(3)(F) and 1415(b)(3)(7)(8). [Chapter 6.] G. Stay-Put Rule. Under previous law, a pupil had the right to remain in his current educational placement, even during a due process hearing procedure, unless a federal or state judge ordered that the child not return to school. Now, either school officials alone or due process hearing officers (not judges) may remove students from their current educational placements under certain circumstances and for certain periods of time described below. This is the so-called "stay-put" rule. 1. School officials may now put special education pupils in appropriate alternative educational settings for up to: (a) 10 days for any behavior for which non-special education students could be so disciplined, or (b) 45 days if the child: * carries a weapon to school or a school function (weapon now means more than firearm; it means: "weapon, device, instrument, material, or substance, animate or inanimate, that is used for, or is readily capable of, causing death or serious bodily injury, except that such term does not include a pocket knife with a blade of less than 2 inches in length); or * knowingly possesses or uses illegal drugs or sells or solicits for sale a controlled substance while at school or a school function. Illegal drugs are any controlled substance except those legally possessed or used under the supervision of a health care professional or that is otherwise legally possessed. Controlled substance means anything on five very long lists of drugs found in federal law at Title 21 U.S.C. 812(c). 1415(k)(1)(A). The alternative educational setting is determined by the IEP team. 1415(k)(3). Either before or within 10 days of doing either (a) or (b) above, if the LEA did not do a functional behavioral assessment and implement a behavior plan before the behavior at issue, the LEA must hold an IEP meeting to develop an assessment plan to address that behavior, or, if the child already has such a plan, the IEP team must review it and modify it to address that behavior. 1415(k)(1)(B). 2. A Hearing Officer may order a child into an appropriate interim alternative educational setting for not more than 45 days if the hearing officer: * finds by substantial evidence (beyond a preponderance) that the current placement is substantially likely to result in injury to the child or others; * considers the appropriateness of the current placement; * considers whether the LEA has made reasonable efforts to minimize that risk, including using supplementary aids and services; and * finds that the alternative placement: enables the child to continue to participate in the general curriculum, but in another setting, continues to provide the services and modifications listed in the IEP enabling the child to meet IEP goals, and includes services and modifications designed to address the behaviors so they do not reoccur. 1415(k)(2). Whenever the LEA tries to make an alternative placement or a hearing officer orders an interim alternative placement (and whenever a district is trying to make a permanent placement change as a disciplinary measure), there has to be immediate notice to parents of their rights and, immediately or within 10 days, a review, by the IEP team, of the relationship between the disability and the behavior. 1415(k)(4). The IEP team can only find the behavior is not related to the disability if: * they have reviewed all evaluations, diagnostic results and input from parents, and they have observed the child, his/her placement, and his/her IEP and found that the IEP and placement were appropriate, and that the services (including supplementary aids and services) were being provided; * the disability did not impair the ability of the child to understand the impact and consequences of the behavior; and * the disability did not impair the ability of the child to control the behavior. 1415(k)(4)(C). If the behavior is found not related to the disability, the regular education disciplinary procedures may apply to the child subject to the section 1412(a)(1) requirement of no complete termination of services to any special education pupil. 1415(k)(5). If the parent disagrees with the IEP team finding that the disability was not related to the behavior or disagrees with the alternative placement decision made by school officials under number 1 above, the parent can request a hearing and it shall be an expedited hearing if the parent chooses. The hearing officer uses the same process and factors described above regarding relationship between disability and behavior to review the determination of the IEP team. To review an alternative setting placement by school officials under number 1 above, the hearing officers uses the same procedures and factors he/she would have analyzed if he/she was making an interim alternative placement under number 2 above. 1415(k)(6). If the parent appeals either a 45-day placement made by a district under number 1, or a hearing officer's interim alternative 45-day placement under number 2, or a relationship-to-disability determination made by an IEP team, the stay-put placement is that 45-day alternative placement "pending the decision of the hearing officer" or for 45 days, whichever comes first. 1415(k)(7)(A)(B). [The second situation is confusing. It is an appeal of a hearing officer's decision to make a 45-day interim alternative placement. But in describing what the stay-put placement is during that appeal the statute says "pending the decision of the hearing officer." It appears the intent was that this appeal of that hearing officer's decision would go before another hearing officer and not to court, which is where appeals of hearing officer's decisions usually go in California.] If a child is in one of the two 45-day alternative settings and the district plans to change the child's placement again, after the 45-days, then during any proceedings to challenge the proposed change, stay-put is the placement the child was in before the 45-day interim alternative setting, except that if the school says it would be dangerous, it can request an expedited hearing. 1415(k)(7)(C). H. Procedural Safeguards For Pupils Not Yet Eligible for Special Education. These pupils may assert special education protections in the discipline process if: the LEA had knowledge, before the behavior occurred, that the child was eligible. The LEA is deemed to have knowledge if: * parent expressed concerns in writing, unless illiterate, to personnel of the appropriate LEA that the child needed special education; * behavior or performance of the child demonstrated the need for special education; * parent requested special education assessment; or * a teacher or other personnel of the LEA expressed concern about the behavior or performance of the pupil to the director of special education of the LEA or to other personnel. If a parent (of a not-yet-identified-as-eligible pupil) requests special education assessment during the discipline process, that assessment shall be expedited. If the child is eligible, the LEA must begin serving him. Pending results of the assessments, the child remains in the educational placement chosen by school authorities. 1415(k)(8). 21. IEP. [See Chapter 4 after July 1998 for the changes described below.] The following italicized provisions concerning IEPs are not effective until 7/1/98: The statement of present levels of educational performance section of the IEP must include how the child's disability affects her involvement and progress in the general curriculum, or, for preschoolers, appropriate activities. "Goals and objectives" is now "a statement of measurable annual goals, including benchmarks or short-term objectives," related to enabling the child to be involved and progress in the general curriculum. The statement of special education and related services now includes: the supplementary aids and services that will be provided, and a statement of the program modifications or supports for school personnel that will be provided for the child in order for the child to be involved and progress in the regular curriculum and participate in extracurricular and other nonacademic activities and be educated with other disabled and nondisabled children. The service statement must include a statement of the extent to which the child will not participate in regular class [but not the reasons; however, this is California Law (5 CCR 3042(b))], a statement of any individual modifications for district assessment participation, or why district assessment is not appropriate and how the child will be assessed. Frequency, location, and duration of those services and modifications must be specified. Beginning at age 14, there must be a statement of the transition service needs under the applicable components of the IEP that focus on courses of study, such as advanced-placement or vocational education courses. Then, as in previous law, Beginning at age 16, there must be a statement of the needed transition services, including any inter-agency responsibilities and linkages. One year before the child turns 18, there must be a statement that the child has been informed of his rights and that these rights will transfer to him at age 18. There must be a statement of how progress toward annual goals will be measured, how the parents will be regularly informed by, e.g., report cards, at least as often as parents of nondisabled children are, of progress toward goals, and the extent to which that progress is sufficient to enable the child to achieve the goals by year's end. See 1414(d)(1)(A). The IEP team includes the same people as before (parent, special education teacher, district official qualified to supervise and provide services) plus a regular education teacher if the child is or may participate in a regular education environment. The district official must be knowledgeable about the general curriculum and about the availability of resources of the LEA. The team must also include someone who can interpret instructional implications of evaluation results (this may be one of the people already mentioned). 1414(d)(1)(B). In developing the IEP, the team must now consider: strengths of the child and concerns of the parents. Now, the team must also consider the potential need for positive behavior interventions and strategies and supports for a child "whose behavior impedes his or her learning or that of others." [Maybe this goes beyond California's use of positive behavior interventions only when the child's behaviors are self-injurious, assaultive, property destroying or otherwise severe, pervasive, maladaptive behaviors.] For students with limited English, the team must consider language needs. For blind children, they must consider Braille. For deaf children, the team must consider the child's communication mode. 1414(d)(3)(A)(B) A regular education teacher shall participate in the development of the IEP, including behavior interventions and supplementary aids and services, program modifications, and support for school personnel. The regular education teacher also participates in the review of the IEP (still at least annually) to determine progress toward goals, etc. 1414(d)(3)(C)&(4). If a noneducation agency fails to provide transition services as per the IEP, the LEA must call an IEP meeting to identify an alternative strategy to meet those objectives. 1414(d)(5). Performance Goals and Indicators. Effective 7/1/98, districts must set performance goals and indicators for special education students and they must, to the maximum extent appropriate, be consistent with those set for all other students. Data must be kept on drop-out rates, graduation rates, and the performance of special education pupils on regular assessments. 1412(a)(16). ----------------------------------------------------------------- Ms. Bev Blue Address City, State, Zip Telephone Number Date Special Education Hearing Office Institute For Administrative Justice McGeorge School of Law 3200 Fifth Avenue Sacramento, CA 95817 Re: Due Process Hearing Dear Sir/Madam: I am writing to request a due process fair hearing for my son, John Blue. John Blue's address is [address]. His date of birth is [date]. He is in the ____________ grade. He is attending [name of school attending] which is in the [name of school district] district. John Blue resides in the [name of the school district in which the child resides] school district. I am the parent [or guardian] of John Blue and my residence address and telephone number are as noted above. Besides the [name] school district, the [name of other public agency involved in the assessment or provision of special education or related services to the pupil] is involved in John's IEP. I am requesting this due process proceeding because [explanation of disputed issues involved]. I believe these disputed issues could be resolved if [explanation of parent's/guardian's proposed resolutions to each disputed issue described above]. As noted below, I have sent a copy of this letter to [name of applicable school district special education official]. Please send me a copy of the Special Education Hearing Office Notice of Procedural Safeguards and any amendments or subsequent revisions of the Notice. Please contact me as soon as possible to advise me of the dates of the due process hearing and name and telephone number of the proposed mediator. Sincerely, Bev Blue cc: [name of the applicable school district special education official to whom copy of this letter has been sent.] ----------------------------------------------------------------- Protection & Advocacy, Inc. - Toll free: 1-800-776-5746 - E-mail: legal@pai-ca.org ---------- End of Document