Sped FAQs

You will find the California special education eligibility criteria in regulations adopted by the State Board of Education.  See Title 5 California Code of Regulations (C.C.R.) Sec. 3030.  These regulations went into effect March 2, 1983. This was 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. 300.8.]  Eligibility criteria under state law cannot be narrower than eligibility criteria under federal guidelines.

Together, the federal and state regulations establish eligibility criteria for all students age 3 – 22 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 adversely impacts her educational performance and requires special education.  The qualifying areas of impairment set out in state eligibility regulations are:

1. Hearing impairment;
2. Both hearing and visually impaired;
3. Speech or language impairment;
4. Visually impaired;
5. Severe orthopedic impairment;
6. Limited in strength, vitality, or alertness due to chronic or acute health problems (other health impairment);
7. Autism;
8. Intellectual disability;
9. Serious emotional disturbance;
10. Learning disability;
11. Multiple disabilities; and
12. Traumatic brain injury.

[34 C.F.R. Sec. 300.8; 5 C.C.R. Sec. 3030.]

The IEP team (made up of the parents and qualified professionals) makes the actual determination of eligibility for special education and related services, based upon the assessment reports.  A copy of the report must be given to the parent.  [20 U.S.C. Sec. 1414(b)(4) & (5); 34 C.F.R. Secs. 300.306(a)(1) & 300.322(f).]  The District must ensure that the parents are participants of the IEP team who are allowed to fully participate in making decisions about placement.  [34 C.F.R. Sec 300.327; Cal. Edu. Code Sec. 56342.5.] 

In terms of minimum age, a child may be eligible for special education services, in the form of early intervention services, from birth.  See Chapter 13, Information on Early Intervention Services.  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 with a regular diploma), a student may continue to be eligible for special education past her 18th year [Cal. Ed. Code Sec. 56026(c)(4)].  A student between the ages of 19 and 21 may continue in special education when the following conditions exist:

1. She must have been in special education at the time she turned 19;
2. She has not met her “proficiency standards”
3. She has not completed her “prescribed course of study” or
4. She has not graduated from high school with a regular high school diploma.

[34 C.F.R. Sec. 300.102; Cal. Ed. Code Sec. 56026(c)(4) & 56026.1.]

The “prescribed course of study” is set of standards adopted by the local board of education for granting a diploma or certificate.  [Cal. Ed. Code. Sec. 56026.1.] The course of study could include the school district’s required subjects and credits in English, math, reading, etc. “Proficiency standards” are a measure of student competence in basic skills, such as reading, writing, and mathematics. 

How long a student may continue in special education after her 22nd birthday depends, for the most part, on the month in which she turns 22.  If the student was born between January 1 and June 30, she may only remain in the program for the rest of the fiscal year ending June 30, plus any extended school year program.  If she was born in July, August or September and is on a traditional school-year calendar, she 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, she 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 she turns 22, unless she would otherwise complete her IEP at the end of that current fiscal year.  [Cal. Ed. Code Sec. 56026(c)(4)]

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 and not just an abnormal swallowing pattern;
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 an expressive or receptive language disorder when she meets one of the following criteria:
   1. Scores at least 1.5 standard deviations below the mean, or below the seventh (7th) percentile, for her chronological or developmental level, on two or more standardized tests in one or more of the following areas of language development: morphology, syntax, semantics, or pragmatics; or
   2. Scores at least 1.5 standard deviations below the mean, or below the seventh (7th) percentile, for her chronological or developmental level, on one or more standardized tests in one of the areas listed in subsection (A) and displays inappropriate or inadequate usage of expressive or receptive as measured on a representative spontaneous or elicited language sample of a minimum of fifty (50) utterances.  The language sample must be recorded or transcribed and analyzed, and the results included in the assessment report.  If the student is unable to produce this sample, the language, speech or hearing specialist must document why a 50 utterance sample was not obtainable and the contexts in which attempts were made to elicit the sample.
5. Hearing Loss which results in a language or speech disorder. [34 C.F.R. Sec. 300.8(c)(11); 5 C.C.R. Sec. 3030(b)(11).]

When standardized tests are considered to be invalid for the student, the expected level of performance shall be determined by alternative means.

[C.C.R. Sec. 3030(b)(10)(B)(2).]

An IEP team may determine that a student meets the federal and state eligibility criteria under the category of autism if a child has a developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age three, that adversely affects a child’s educational performance. Other characteristics often associated with autism are engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences. A child who manifests the characteristics of autism after age three could be identified as having autism if these criteria are satisfied. Autism does not apply if a child’s educational performance is adversely affected primarily because the child has an emotional disturbance. [34 C.F.R. Sec. 300.8(c)(1); 5 C.C.R. Sec. 3030(b)(1).]

In order to qualify for special education under this category, your child does not need to meet the medical definition of autism, just the educational definition. Likewise, meeting the medical definition of autism and obtaining a medical diagnosis does not ensure that your child will be eligible for special education services if she does not meet the federal or state eligibility criteria for autism.

No.  In order for a student to be eligible under this category, she must show

1. deficits in adaptive behavior,(which is a child’s ability to function effectively in age-appropriate activities with others), and
2. significantly below average general intellectual functioning. 

Both must have manifested during the developmental period and adversely affect her current educational performance.  [34 C.F.R. Sec. 300.8(c)(6); 5 C.C.R. Sec. 3030(b)(6).]  Adaptive behavior means age-appropriate behavior that enables a student to live independently, function successfully in every day life activities, and interact appropriately with others.

Because of the Larry P. v. Riles case, the California State Department of Education (CDE) has prohibited school districts from using standardized IQ tests to determine special education eligibility for all African-American students. Therefore, school districts should utilize alternative methods of assessment to avoid the use of IQ scores for special education eligibility determination of African/American students.

A student is eligible under emotional disturbance if she 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; and
5. A tendency to develop physical symptoms or fears associated with personal or school problems.

[34 C.F.R. Sec. 300.8(c)(4); 5 C.C.R. Sec. 3030(b)(4).]

Your child does not have to be diagnosed with or meet a clinical mental health definition of emotional disturbance to be eligible for special education under the category of Emotional Disturbance.  The federal and state special education eligibility criteria for emotional disturbance are the only criteria that a student must meet to be eligible for special education services.

The term “emotional disturbance” specifically includes schizophrenia, but excludes students who are “socially maladjusted”. [5 C.C.R. Sec. 3030(b)(4).] The law does not explain what it means by the term “socially maladjusted”, which has caused confusion. Moreover, “emotional disturbance” is not a recognized psychiatric diagnostic condition and a student need not have a psychiatric label or diagnosis in order to be eligible under Emotional Disturbance.

A specific learning disability is a disorder in one or more of the basic psychological processes involved in understanding or using language, spoken or written, that may manifest itself in an imperfect ability to listen, think, speak, read, write, spell, or do math. The basic psychological processes include: attention, visual processing, auditory processing, sensory-motor skills, cognitive abilities such as association, conceptualization, and expression. The disability may include conditions such as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, dyscalculia, dysgraphia, and developmental aphasia. The disability does not include learning problems that are primarily the result of visual, hearing, or motor disabilities, or intellectual disability, or emotional disturbance, or of environmental, cultural, or economic disadvantage. [5 C.C.R. Sec. 3030(b)(10)(A).] However, a specific learning disability does include a disability within the function of vision which results in visual perceptual or visual motor dysfunction. [Cal. Ed. Code Sec. 56338.]

The specific learning disability category of special education eligibility is the largest category of special education students and the most complicated in terms of the factors which must be considered and the evaluation processes school districts may use in making this determination.

In California, school districts often use what is known as the “discrepancy model” to determine whether a student has a specific learning disability.  Under this approach, a student must be found to have a severe discrepancy between her intellectual ability and her achievement in oral expression, listening comprehension, written expression, basic reading skills, reading comprehension, mathematical calculation, or mathematical reasoning. [5 C.C.R. Sec. 3030(b)(10)(B).] Federal special education law allows school districts to use another assessment method known as “response to scientific, research-based intervention model” or “Response to Intervention (RTI) model” to determine if a student qualifies for special education with a learning disability. [34 C.F.R. Sec. 300.309(b).]  Federal law prohibits states from requiring school districts to use only the discrepancy model and requires states to also allow their school districts to use the RTI model. [34 C.F.R. Sec. 300.307(a).] Because of the federal law, California law permits schools to use either the discrepancy model or RTI model in determining whether a student has a specific learning disability. [Cal. Ed. Code Sec. 56337(b)-(c).] Before you consent to a special education evaluation for your child under this category, be sure you know and understand which method of making this determination your school district will use.

In deciding whether a student has a severe discrepancy between her intellectual ability and her achievement in oral expression, listening comprehension, written expression, basic reading skills, reading comprehension, mathematical calculation, or mathematical reasoning, a school district must review all relevant material available on the student.  No single score or product of scores or test or procedure shall be used as the only factor in making this decision. 

Standardized tests of ability and achievement are often used.  If a student’s achievement scores are sufficiently below his ability scores, it indicates that the student has the severe discrepancy required for special education eligibility under this model. 

As part of their assessment, the assessor will convert the raw scores from both the academic and cognitive testing to a scale of 100 and then compare them.  If there is between a 20-22 point difference (1.5 standard deviation), this is a strong indication that the student has a learning disability.  The discrepancy must be corroborated by other evaluation information, such as from other tests, scales, instruments, observations, and work samples.  [5 C.C.R. Sec. 3030(b)(10)(B).]

Sometimes standardized tests cannot be used for particular students (such as IQ tests for African-American students).  In that case, the discrepancy between ability and achievement must be measured by some other method.  The alternative method of assessment must be specified in the assessment plan, which a parent must sign before any testing may be conducted.  [5 C.C.R. Sec. 3030(b)(10)(B)(2).]

If standardized tests do not show a severe discrepancy between ability and achievement, an IEP team can still find that a severe discrepancy exists.  The IEP team must prepare a report on the student describing the basic psychological process in which the discrepancy exists, the degree of  discrepancy, and the basis and method used to determine the discrepancy.  The report must include information from tests, from the parent, from the pupil’s teacher, from observations of the student, and from his classroom performance and work samples.  However, limited school experience or poor school attendance cannot be the primary cause of the severe discrepancy.  [5 C.C.R. Sec. 3030(b)(10)(B)(3) & (4).]

The Response to Intervention (RTI) model is a multi-tier approach to the early identification and support of students with learning and behavior needs. The RTI process begins with high-quality instruction and universal screening of all children in the general education classroom. Ideally, RTI is a school-wide instruction and assessment process used to assist all students.

RTI is also one method of assessing a student to determine if the student qualifies for special education under the specific learning disability category. Federal and state laws allow school districts to use the RTI model to provide instruction and remediation to students struggling in the classroom and to help identify their eligibility for special education under specific learning disability. [34 C.F.R. Sec. 300.309(b); 34 C.F.R. Sec. 300.307; 5 C.C.R Sec. 3030(b)(10)(C)(2)(i).] RTI is not defined in special education law.  But, generally, RTI services can include additional attention and monitoring, small group instruction and individual instruction. The period of RTI assessment/instruction can last for several months. Even if the school district uses the RTI method of assessment, it still must follow all federal and state assessment requirements and timelines.

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.]
In addition, school districts cannot deny assessment for special education eligibility solely on adequate grades. Grades are only one indicator of the educational impact that a student’s disability is having on the student’s school functioning.

Eligibility criteria for preschool children are the same as the criteria for school-age children.  To be eligible for special education, a child must have one of the following disabling conditions:

1. Autism;
2. Deaf-blindness;
3. Deafness;
4. Emotional disturbance;
5. Hearing impairment;
6. Intellectual disability;
7. Multiple disabilities;
8. Orthopedic impairment;
9. Other health impairment (such as attention deficit disorder, attention deficit hyperactivity disorder, Tourette Syndrome, dysphagia, fetal alcohol syndrome, bipolar disorders, or other organic neurological disorders, see Fed. Reg. Vol. 71, No. 156, p. 46550);
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 (a disabling medical condition or congenital syndrome that the IEP team determines has a high predictability of requiring special education and services).

[34 C.F.R. Sec. 300.8; 5 C.C.R. Sec. 3030; Cal. Ed. Code Sec. 56441.11.]

In addition to having one or more of the qualifying conditions, a child must need specially designed instruction or services to qualify for special education, and 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.  [Cal. Ed. Code Secs. 56441.11(b)(2) & (3).]

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.

[Cal. Ed. Code Sec. 56441.11(c); see Chapter 13, Information on Preschool Education Services.]

No, Federal law specifically states that in addition to meeting one of the disability categories, a student must need some degree of special education instruction.  [34 C.F.R. Sec. 300.8(a)(2)(i).] In addition, California regulations state that a child can qualify for special education if the results of the assessment “demonstrate the child’s impairment … requires special education in one of the program options.”  [5 C.C.R. Sec. 3030(a).] Based on these provisions, a child would not be eligible for special education if she only needs some related service. However, in determining a child’s eligibility, District must conduct comprehensive assessments into all areas of suspected disability. A child’s need for a related service such as speech therapy or occupational/physical therapy should trigger the suspicion of an underlying disability which District must evaluate to determine if the child meets one of the qualifying categories. Similarly, before recommending to exit an already eligible child from special education, District must carry out assessments to see the child remains eligible under one of the other categories.

No. Whenever a student transfers into a school district from another California school district not operating under the same local plan within the same academic year, the new school district must ensure that she is immediately provided with services comparable to those provided in the previously approved IEP from the former school district, in consultation with the parents, for a period not to exceed 30 days.

Within 30 days, the new school district must either adopt the previously approved IEP, or develop, adopt, and implement a new IEP. The new school must take reasonable steps to promptly obtain the pupil’s records from her former school to facilitate the student’s transition.  [Cal. Ed. Code Secs. 56325(a)(1) & (b)(1).]

Whenever a student transfers into a school district from another California school district operating under the same local plan within the same academic  year, the new school district shall continue, without delay, to provide the student with services comparable to those provided in the existing approved IEP from the former school district unless the parent and the school district agree to develop, adopt, and implement a new IEP that is consistent with federal and state law. [Cal. Ed. Code Sec. 56325 (a)(2).]

Whenever a student transfers into a school district from another school district located outside California in the same academic year, the new school district shall provide the student with a free, appropriate public education, including services comparable to those described in the previously approved IEP, in consultation with the parents, until the school district conducts an assessment, if determined necessary by the district, develops a new IEP, if appropriate, that is consistent with federal and state law. [Cal. Ed. Code Sec. 56325 (a)(3).]

A child who may have learning problems still 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 needs are not intensive enough to qualify her for special education.  (This may often be the case for children identified as having hyperactivity, dyslexia, Pervasive Developmental Disorder, Tourette Syndrome, Obsessive Compulsive Disorder, Conduct Disorder, Oppositional Defiant Disorder, or ADD/ADHD.   Of these conditions, only ADD/ADHD and Tourette Syndrome are mentioned specifically in the special education eligibility criteria.

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 her 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.C. 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/ADHD 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 and attention);
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).]

If your child is not found to have a disability 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 for Civil Rights (OCR) 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 for Civil Rights at:

San Francisco Office
Office for Civil Rights
U.S. Department of Education
50 United Nations Plaza
San Francisco, CA 94102
Telephone: 415-486-5555
Fax: 415-486-5570; TDD: 800-877-8339

See Chapter 6, Information on Due Process Hearings/Compliance Complaints.

When you are referring your child for special education eligibility, your referral letter can include a request that your child also be assessed under Section 504 of the Rehabilitation Act of 1973 (“Section 504”) to determine whether your child might be eligible for services under that law.  If eligible, the school district may be required to provide reasonable accommodations and/or services, including special education 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/IEP, or if such accommodations and/or services are, for some reason, not provided under special education.  [OCR Memorandum, Letter to Veir, 19 IDELR 876 (April 29, 1993).]

Yes.  As long as the child meets one of the eligibility categories and needs special education, the fact that she has been advancing from grade to grade without special education does not mean she is not entitled to a free appropriate public special education.  [34 C.F.R. Sec. 300.111(c)(1).]

Yes.  Federal law requires the district to assess in all areas related to the student’s disability.  The evaluation must be “sufficiently comprehensive to identify all of the child’s special education and related services needs, whether or not commonly linked to the disability category in which the child has been classified.”  [34 C.F.R. Sec. 300.304 (c)(4), (6); Cal. Ed. Code Section 56320 (f).]  For example, a student may be eligible for special education on the basis of a specific learning disability, but may also have an attention deficit disorder.  The school must also evaluate the child for the nature and extent of the attention challenge and for necessary interventions.  [Corona-Norco Unified School Dist., SN 1137-98, 30 IDELR 179.]  As long as the student is qualified for special education under one of the eligibility categories, the IEP team must take the student’s unique needs (such as behavioral, language or communication needs) into account in designing an IEP.  [34 C.F.R. Sec. 300.39.]

Neither federal nor state law defines the term “adversely affect educational performance.”  Therefore, a review of the court cases interpreting this phrase is necessary to understand how it has been applied.  Courts have interpreted the phrase to mean that education is adversely affected if, without certain services, the child’s condition would prevent her from performing academic and nonacademic tasks and/or from being educated with non-disabled peers.  [Yankton School District v. Schramm, 93 F.3d 1369 (8th Cir. 1996).]  For example, for a child with an orthopedic impairment, the Court in Schramm identified many services (help moving between classes, getting on and off the bus, going up and down stairs, carrying a lunch tray, setting up the child’s saxophone for band, extra sets of books for home and school so that carrying them back and forth was unnecessary, shorter written assignments, instruction in typing with one hand, photocopies of teachers’ notes, and computers in certain classes) that if not provided would have resulted in the orthopedic condition having an adverse effect on educational performance.  The court found this to be true because without these services the student would have had difficulty taking notes, completing assignments, getting to class on time, and getting to class with her books.  The same court found that because the student was college-bound, the absence of these services, as well as special education transition services (driver’s education, self-advocacy, and independent living skills), would have allowed her orthopedic impairment to adversely affect her educational objective of post-secondary education.

In California, the administrative hearing office has found poor grades to be a primary indicator of an adverse effect on educational performance.  [Lodi Unified Sch. Dist., SN 371-00; Capistrano Unified Sch. Dist., SN 686-99, 33 IDELR 51; Ventura Unified Sch. Dist., SN 1943-99A; Murrieta Valley Unified Sch. Dist., SN 180-95, 23 IDELR 997.]  The hearing office has also found that a condition adversely affects educational performance if it causes poor school attendance. [Sequoia Union High School District, SN 1092-95.]  Poor grades and falling behind academically are also examples of adverse effect on educational performance.  [Enterprise Elem. Sch. Dist., SN 1055-89.]  In addition, a student’s condition, which caused declining grades and conduct at school, resulted in an adverse effect on educational performance.  [Sierra Sands Unified Sch. Dist., SN 1367-97, 30 IDELR 306.]

Many schools evaluate whether a child’s condition has an adverse effect on her educational performance strictly on the basis of grades or the child’s scores on standardized tests.  Although grades and, perhaps, standardized test scores may be one measure of educational performance, the law and the courts take a broader view.  When determining whether a child’s educational performance was adversely affected by the child’s emotional condition, the federal appellate court governing California requires that consideration also be given to a student’s need for behavioral and emotional growth.  [County of San Diego v. California Special Education Hearing Office, et al., 93 F.3d 1458, 1467 (9th Cir. 1996).]  Although some students test well when taking standardized tests, the law does not require poor standardized test scores in order to find an adverse effect on educational performance.  The courts have established that a child’s educational needs include academic, social, health, emotional, communicative, physical, and vocational needs.  [Seattle School Dist. No. 1 v. B.S., 82 F.3d 1493, 1500 (9th Cir. 1996).]

Federal special education law also distinguishes between “educational” performance and “academic” performance and establishes that “educational” performance is a broad concept.  For example, children must be assessed by schools in all areas of suspected disability.  [20 U.S.C. Sec. 1414(b)(3)(B).]  Those areas are defined by federal regulations to include: health, vision, hearing, social and emotional status, general intelligence, academic performance, communicative status, and motor abilities.  [34 C.F.R. Sec. 300.304(c)(4).]  Academic performance is only one of the areas in which children must be assessed.  Congress and the California Legislature could have used the narrower term “academic performance” when writing the definitions of conditions which would qualify a child under eligibility categories such as Emotional Disturbance, Other Health Impaired, Orthopedic Impairment, Intellectual Disability, Speech or Language Impairment, Visual Impairment, Hearing Impairment, Deafness.  However, they did not.  Congress and the California Legislature used the broader term “educational performance” in these eligibility definitions.  In addition to grades and standardized tests scores, schools must consider how a child’s emotional, health or other conditions adversely affect her non-academic performance in social, behavioral and other domains as well.

An IEP is a written statement that describes your child’s present levels of performance, learning goals, school placement, and services. [34 Code of Federal Regulations (C.F.R.) Sec. 300.320.] In order to obtain an IEP, your child must first be evaluated. To request an evaluation, write a letter to the district special education director/coordinator, with a copy to your child’s teacher and principal. Tell them 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 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 request for a referral will ensure that assessment and IEP timelines are followed. [California Education Code (Cal. Ed. Code) Secs. 56029, 56302.1, 56321(a); 5 California Code of Regulations (C.C.R.) Sec. 3021(a).] In your referral letter, you should also request that your child be assessed under Section 504 of the Rehabilitation Act of 1973 (“Section 504”) to determine whether your child might be eligible for services under that law. If eligible, the school district may be required to provide reasonable accommodations and/or services, including special education 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, or if such accommodations and/or services are, for some reason, not provided under special education. [ OCR Memorandum, Letter to Veir, 19 IDELR 876 (April 29, 1993).]

Starting from the date the district receives your written consent to assessment, the assessment(s) must be completed, and the IEP developed at a meeting within 60 calendar days, unless you agree to an extension in writing. In counting days, you do not count the days in between regular school sessions or school vacation in excess of five school days. If a referral for assessment has been made 30 days or less before the end of the regular school year, an IEP shall be developed within 30 days after the beginning of the next school year. [Cal. Ed. Code Sec. 56344 (a).]

If your child is already receiving services under an existing IEP, you can request an IEP Review meeting whenever you think one is needed in order to review or change the program. You should make a written request to your child’s teacher, principal or special education administrative office. You should specifically ask for an IEP Review in your written request. [Cal. Ed. Code Secs. 56343(c) & 56343.5.] The IEP Review meeting shall be held within 30 days of receipt of your written request (not counting days in between regular school sessions or school vacation in excess of five school days). [Cal. Ed. Code Sec. 56343.5.]

An IEP meeting must be held at least annually. In addition, an IEP meeting must be held when a student has received an initial assessment, when he demonstrates a lack of anticipated progress, when the district is proposing to revoke special education eligibility, or when a parent or teacher requests a meeting to develop, review or revise a student’s individualized education program. An IEP meeting may also be held each time a student receives a new formal assessment. [Cal. Ed. Code Sec. 56343.]. You should request an IEP team meeting following any new formal assessment in writing either in your request for assessment or after each new assessment to ensure that an IEP meeting is held to discuss the new assessment. Neither federal nor state law limits the number of IEP meetings you may request per year.

Yes. School districts are required by federal and state law to provide copies of assessment reports and other educational records before the IEP meeting. [20 U.S.C. Sec. 1415(b)(1); 34 C.F.R. Sec. 300.501; Cal. Ed. Code Sec. 56504.] You should request in writing that all records be sent to you within a reasonable time before the IEP meeting. There are no specific timelines in federal or state law to tell school districts how many days before the IEP meeting they must provide assessment reports to the parents. However, California law requires that parents be allowed to receive and to examine copies of all school records within five business days from the date the request was made by the parent either in writing or orally. [Cal. Ed. Code Sec. 56504.]

The school district must take steps to ensure that one or both of the parents of the student attend the IEP meeting or have the opportunity to participate. Your attendance and participation are the most important principles of the special education process. Your district must notify you of the IEP meeting early enough to ensure that you have an opportunity to attend. The meeting must be scheduled at a mutually agreed upon time and place. In addition, as part of the notification process, the district must provide you with this information: the purpose, time, and location of the meeting and who will attend the meeting. The district must also inform you about your ability to invite others who have knowledge or special expertise about your child, which may include mental health clinicians or providers of transition services. [34 C.F.R. Secs. 300.321(a)(6) & 300.322; Cal. Ed. Code Sec. 56341.5.]

Parent participation in the development of the IEP is one of the most important principles of special education law. In its efforts to ensure that parents attend IEP meetings, the district may hold a meeting over the telephone or through video conference, as long as the parent agrees. While districts may propose that the IEP meeting be held using alternative methods, this should be done only when changes in the IEP are minor. Parents do not have to agree to use these alternative methods and may schedule the IEP meeting at a mutually agreed-upon time and place.

Before a district can hold a meeting without a parent in attendance, it must document its efforts to arrange a mutually-agreed-upon time and place to meet by keeping:

1. Detailed records or all telephone calls made to the parent and the results of those calls;
2. Copies of correspondence sent to the home and any responses received; and
3. Detailed records of visits made to the home or place of employment of the parent and the results of those visits. [34 C.F.R. Secs. 300.322 and 300.328; Cal. Ed. Code Sec. 56341.5.]

Yes. However, the parent and district may agree not to hold an IEP meeting to change the IEP and instead may develop a written document to amend or modify a student’s IEP. The parent and district must both agree to make a change in the IEP in this way.  If the parent does not agree, the district must hold a meeting to make changes in the IEP. If changes are made by written document, the district must ensure that the IEP team is informed of the changes to the IEP and must give a copy of the amended IEP to the parent upon request. [34 C.F.R. Secs. 300.324(a)(4) and (6); Cal. Ed. Code Sec. 56380.1.]

The team must include the following people:

1. One or both of the child’s parents, a representative selected by the parent, or both.
2. At least one general education teacher if the child is, or may be, in a general education environment. If the child has more than one general education teacher, the school can select which one attends.
3. At least one special education teacher or service provider.
4. A school district representative who is: qualified to provide or supervise the provision of specialized instruction; knowledgeable about the general curriculum; and knowledgeable about the resources of the district. Another district member already on the IEP team may serve in this role.
5. The individual who conducted the assessments of the student, or someone who is knowledgeable about the procedure used and the results, and is qualified to interpret the instructional implications of the results. Another IEP team member may serve in this role.
6. Other people with specific expertise or knowledge of the student, at the parent’s or district’s request. The party who invited the person to the meeting decides whether the additional invited person has sufficient knowledge or expertise.
7. The student, when appropriate. [Cal. Ed. Code Secs. 56341(b) & (e).]

For students with learning disabilities, at least one member of the team must be qualified to do assessments of children with learning disabilities. This might include a school psychologist, speech-language pathologist, or remedial reading teacher. At least one team member, other than the child’s teacher, must have observed the child’s academic performance in a general education classroom, unless the child is preschool age. In that case, the team member must have observed the child in a setting appropriate for the age of that child. [Cal. Ed. Code Sec. 56341(c).]

If the student is transition age (that is, beginning at least at age 16), the school must invite the student to attend the meeting. If the student does not attend, the district must take steps to ensure that it obtains the student’s input regarding his preferences and interests. The school must also invite a representative of an agency that is likely to be providing or paying for a transition service. [Cal. Ed. Code Sec. 56341(d).]

A student who is already placed by a district in a nonpublic (non-religious) school (NPS) may have IEP meetings with only staff present from the NPS, if the school district elects not to send anyone to the meeting and delegates review and revision of the IEP to the nonpublic school staff. However, even if the NPS reviews, revises, and implements the IEP, the district remains responsible for compliance with special education laws with regard to the student’s program. [34 C.F.R. Sec. 300.325; Cal. Ed. Code Sec. 56383.]

Yes. However, federal and state law allow a parent and district to agree in writing that an IEP team member does not need to attend if the member’s area of the curriculum or related services is not being modified or discussed at the meeting. In addition, if the member’s area of the curriculum or related services is being modified or discussed in the meeting, the parent and district may still agree in writing, after conferring with the member, that the member does not need to attend. In that case, the member must submit written input into the development of the IEP to the IEP team before the meeting. The law does not say how long before the meeting the input must be submitted. If the parent or district do not agree that a team member may be excused from attendance at the meeting, that IEP team member must be present at the IEP meeting. [34 C.F.R. Secs. 300.321(e)(1) and (2); Cal. Ed. Code Secs. 56341(f) & (g).]

Coordinating an IEP meeting is sometimes not an easy task for school staff. However, that does not affect the district’s responsibility to convene a valid IEP team with the required members present. Unfortunately, many parents are faced with an IEP meeting where all the required members of the IEP team cannot attend or cannot stay for the full IEP meeting. The ability of the IEP team to develop an appropriate IEP may be severely compromised if IEP team members critical to the development of the IEP are absent. In addition, going forward with your meeting, without the required IEP team members, may affect the validity of your child’s IEP, especially if you and the school district disagree at the IEP and a due process hearing is requested.

Your decision on how to handle this situation must be made on a meeting-by-meeting basis. Here are several options that you should consider:

1. Contact your district special education administrator in writing (with a follow-up telephone call) at least one week before the meeting to let her know you are concerned. Emphasize in your communication with the school district that you want to make sure that appropriate decisions can be made at the meeting and time is not wasted for you or school staff;
2. Attend and go forward with the IEP meeting. Do not agree to those portions of the IEP that need input from missing IEP team member(s). Then, reconvene the meeting at a mutually agreed upon time and place with the needed IEP team members in attendance to finish developing the IEP; or
3. Refuse to continue the IEP meeting if the members of the IEP team not in attendance are necessary for appropriate decision-making. Then, reschedule the IEP meeting for a time when all required team members are able to attend.

[34 C.F.R. Sec.300.322; Cal. Ed. Code Sec. 56341.5.]

Yes. At your discretion, you can bring individuals to the meeting who have knowledge or special expertise regarding your child — including an advocate, friend, regional center case manager (service coordinator) or attorney. The parent or school district that invited the individual to the meeting makes the determination of whether an individual has knowledge or special expertise. [34 C.F.R. Secs. 300.321(a)(6) & (c); Cal. Ed. Code. Secs. 56341(b)(6) & 56341.1(f).]

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 can assist in this process by fully explaining to you the actions or consequences being discussed or considered.

Parents are expected to be equal participants along with school personnel in developing, reviewing, and revising the student’s IEP. In fact, the IEP team must consider your child’s strengths and your concerns for enhancing his education. [34 C.F.R. Secs. 300.324(a)(l)(i) & (ii); Cal. Ed. Code. Secs. 56341.1(a)(2) & (f).]

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. The district must include your input in the IEP.  It must also attach your written summary to the IEP if you request. [34 C.F.R. Secs. 300.322, 300.324(a)(ii) & 300.501; Cal. Ed. Code 56304.]  This summary should include these areas:

• Strengths (outgoing, open, optimistic, articulate, imaginative, friendly, caring). The IEP team must also consider: concerns of the parents for enhancing the student’s education, results of initial and most recent evaluations of the student, and results of the student’s performance on any district-wide and state-wide assessments. [34 C.F.R. Sec. 300.324(a); Cal. Ed. Code Sec.56341.1(a).];
• Weaknesses/Problem Areas (poor self-concept, academic deficits, fighting, disorganization, takes longer than average to complete assignments, discouraged easily);
• Functioning Levels (difficulty with reading, math or spelling, deficits in perceptual skills, responds to individual attention, needs verbal reinforcement for presented material); and
• What the Child Needs to Learn (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.

Yes. If you need a language or ASL (sign) interpreter to participate at the IEP meeting, one must be provided at no expense to you, the parent. [34 C.F.R. Sec. 300.322(e); Cal. Ed. Code Sec. 56341.5(i).]  Although the law does not specifically require that the school hire a certified interpreter, the parent has the right to meaningful participation in the IEP meeting. Therefore, if the interpreter is not skilled and you are unable to understand what is going on in the meeting, ask to reschedule the IEP with a certified interpreter.  You are also entitled to a free copy of the IEP in your primary language. [5 C.C.R. 3040(a).]

You and the school district should develop your child’s IEP as a partnership. IEP meetings should be nonadversarial since their purpose is to make educational decisions for the good of the student with a disability. [Cal. Ed. Code Sec. 56341.1(h).] Both you and the district share the final decisions that are made about your child’s program. Ideally, the IEP meeting should follow this process:

1. Discussion and description of your child’s current level of functioning (includes academic and non-academic functioning; and functioning in the general curriculum);
2. Development of measurable annual goals, that are ambitious in your child’s circumstance and are derived from your child’s current functioning.  Short-term objectives or benchmarks leading toward accomplishment of the annual goals are no longer required. However, short-term objectives or benchmarks are useful for all students, and districts are not prohibited from including them in an IEP);
3. Discussion and description of the support services required by your child and your child’s teaching staff (related services, designated instruction and services, support for school personnel);
4. Discussion and description of the special education and related services, including instruction in the general curriculum, supplementary aids and services, program modifications, and transition services and needs; and
5. Discussion of placement recommendation and significant details of placement (for example, class size, integration and mainstreaming opportunities) that make up your child’s appropriate educational program. [34 C.F.R. Sec. 300.320; Cal. Ed. Code Sec. 56345.]

All required members of the IEP team should attend and participate in the team meeting. IEP team members should not sign the IEP before there is a meaningful discussion of your child’s special education needs and necessary services by the IEP team.

While there is no legal procedure for how to reach agreement in an IEP meeting, the IEP team should work toward consensus. However, if a team cannot reach consensus regarding a service or placement, the district has the ultimate responsibility to offer what it believes is an appropriate program. It is not appropriate to make IEP decisions based upon a majority. Where consensus cannot be reached and a parent disagrees with the district’s proposal, the district must provide parents with “prior written notice” of that proposal, and the parents may file for due process hearing. [34 C.F.R. Part 300.503; Cal. Ed. Code Sec. 56500.4.]

The district is required to give you a PWN “a reasonable time before” it refuses to initiate or change the identification, evaluation, placement or the provision of a free, appropriate public education (FAPE). The term “reasonable time” is not defined in the law. The notice must contain the service or placement refused by the district, an explanation for the refusal, and a description of each evaluation procedure, assessment, record, or report used by the school district to make their decision. The notice must also inform you of your right to challenge that decision. [34 C.F.R. Sec. 300.503; Cal. Ed. Code Sec. 56500.4.]

If you are not given proper notice before the IEP, you may argue that the district not only violated the prior written notice requirement, but also that the absence of a notice prevented you from meaningful participation in your child’s IEP.

Federal regulations require the IEP team to consider special factors when developing an IEP for a student. One of those factors is the communication needs of the student. For a student who is deaf or hard-of-hearing, the IEP team must consider the student’s language and communication needs; opportunities for direct communications with peers and professional personnel in the student’s language and communication mode; academic level; and full range of needs, including opportunities for direct instruction in the student’s language and communication mode. [34 C.F. R. Sec. 300.324(a)(2)(iv); Cal. Ed. Code Sec. 56345(d).]

In addition, in determining what is an appropriate education in the least restrictive environment for deaf or hard-of-hearing students, state law requires the IEP team to specifically discuss the communication needs of the pupil, including:

1. Student’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(d).]

The district is also responsible for insuring that hearing aids worn in school and surgically implanted medical devices (cochlear implants) are “functioning properly.” However, the district is not responsible for post-surgical maintenance, programming or replacement of these devices (or an external component of the devices). [34 C.F.R. Sec. 300.113; Cal. Ed. Code Secs. 56345(d)(5)-(7).]

The IEP for each student must include:

1. The present levels of educational performance, including how the student’s disability affects his involvement and progress in the general curriculum (for preschoolers, present levels must include how the disability affects the child’s participation in appropriate activities);
2. A statement of measurable annual goals related to:
   1. Meeting each of the student’s educational needs that result from the disability, and
   2. Meeting the student’s needs that result from his disability to enable his to be involved in and progress in the general curriculum.

For students who take alternate assessments aligned to alternate achievement standards, a description of measurable benchmarks or short-term objectives must also be included:

1. A description of how the student’s progress toward meeting the annual goals will be measured, and when periodic progress reports will be provided (such as quarterly or at the same time report cards are issued);
2. A statement of specific special education and related services (for example, physical education, vocational education, extended school year, instruction in academic or perceptual areas, teacher qualifications, class size) and supplementary aids and services (instructional aides, note takers, use of the resource room, extra time on tests, etc.) to be provided. Special education and services must be based on peer-reviewed research to the extent practicable. The IEP must also contain a statement of the program modifications or supports for school personnel that will be provided to allow the student:
   1. to advance appropriately toward attaining the annual goals;
   2. to be involved and progress in the general curriculum and to participate in extracurricular and other nonacademic activities; and
   3. to be educated and participate with other students with disabilities and non-disabled students (for example, modifications to the regular class curriculum, use of computer-assisted devices, special education training for the regular teacher, etc.);
3. An explanation of the extent, if any, to which the student will not participate with non-disabled students in regular education classes or in extracurricular and other nonacademic activities;
4. The projected date for when services and modifications will begin and their duration, frequency, and location (for example, occupational therapy two times a week for 45-minute sessions in a room outside the classroom);
5. A statement of any individual modifications or accommodations in the administration of state-wide or district-wide assessments of student achievement that are needed in order for the student to participate in the assessment, including the reason why he cannot participate in the regular assessment and the reason why the alternative assessment selected is appropriate;
6. A description of the type of placement needed to implement the IEP in the least restrictive environment with an aide or other adaptations if necessary (the school district must ensure that a “continuum of alternative placements” is available, including instruction in regular classes, special classes, non-public school, state special schools, residential placement, home instruction, and instruction in hospitals and institutions);
7. A description of activities needed to integrate a student into a regular education class if the student is transferring from a special class or center or a nonpublic school for any part of the school day and the necessary support for that transition. This description shall indicate the nature of the activity, and the time spent on the activity each day or week;
8. In the first IEP after the student turns 16-years-old, if not earlier, the IEP must state appropriate measurable goals for the student’s life after high school. These goals (to be updated annually) should be based on age-appropriate assessments related to training, education, employment, and, where appropriate, independent living skills, and the transition services needed to assist the student in reaching those goals;
9. Extended school year services, when needed; and
10. One year before the student turns 18, include a statement that the student has been informed that special education rights will transfer to the student at age 18.

[20 U.S.C. Sec. 1414(d); 34 C.F.R. Secs. 300.116 & 300.320; 5 C.C.R. Sec. 3042(b); Cal. Ed. Code Sec. 56345.]

It is important to understand that the major components of the IEP must relate to each other. State law requires that each IEP show a direct relationship between the present levels of performance, the goals and objectives, and the specific educational services to be provided. [5 C.C.R. Sec. 3040(b).] In other words, the annual goals should be written based on how the student is presently performing in school and the educational services must be sufficient for the student to make progress toward meeting the annual goals.

Yes. The IEP team must consider, when appropriate:

1. Strategies, including positive behavioral interventions, and supports to address the behavior of a student whose behavior impedes his learning or that of others;
2. Instruction in Braille and the use of Braille, for a student who is blind or visually impaired, unless the IEP team determines after an evaluation of the student’s reading and writing skills, needs, and appropriate reading and writing media, that this is not appropriate;
3. Communication needs, and for a student who is deaf or hard- of-hearing, consider the student’s language and communication needs, opportunities for direct communications with peers and professional personnel in the student’s language and communication mode, academic level, and full range of needs, including opportunities for direct instruction in her language and communication mode;
4. Whether the student requires assistive technology devices and services;
5. Any alternative means and modes necessary for a student in grades 7-12 to complete the district’s course of study and meet proficiency standards for graduation;
6. Linguistically appropriate goals, objectives, programs and services, for a student whose native language is not English (or who is not “proficient” in English);
7. Specialized services, materials, and equipment for a student with low-incidence disabilities.

[20 U.S.C. Sec. 1414(d)(3)(B), 34 C.F.R. Secs. 300.320 & 300.324, Cal. Ed. Code Secs. 56341.1, 56345 & 56345.1.]

The school district must use assessment tools and strategies that provide relevant information that directly assists the IEP team in determining the student’s educational needs. This includes information related to enabling the student to be involved in, and progress in, the general curriculum.

The team must consider the academic, developmental and functional needs of the student. The present levels should reflect your child’s unique needs in any area of education affected by your child’s disability, including the general curriculum, academic areas (reading, math, etc.), non-academic areas (communication, daily life activities, mobility, social/emotional/behavioral issues, etc.), and perceptual functioning (auditory or visual processing, motor abilities, concentration problems).

The team should try to describe your child’s performance in objective, measurable terms. However, this should not prevent you from presenting your view of your child’s needs. In developing the IEP, the team must consider your child’s strengths and any of your concerns for enhancing your child’s education. The results of the initial evaluation (or most recent evaluation) must also be considered, but any such information used should be easily understandable to you and all other members of the team. [20 U.S.C. Sec. 1414(d)(3); 34 C.F.R. Sec. 300.324; Cal. Ed. Code Sec. 56341.1.]

Yes. Even students with “severe” disabilities and those in more restrictive placements must have IEPs which address how they will be involved and progress in the general curriculum. IEPs, therefore, should not be limited to functional life skills and self-help activities, but must also include goals that enable every student to access and progress in the general curriculum. [34 C.F.R. Sec. 300.320(a)(4).]

No. The IEP needs to address only areas of the general curriculum affected by the student’s disability. If your child’s disability affects reading and writing, but not math skills, no general education math goals are required. Functional deficits that impact all or much of the general curriculum can also be addressed by providing appropriate accommodations or modifications to the student in the general education classroom. For instance, a student with attention deficits might be seated in the front of the classroom, or a student with an auditory processing problem might be given a student note-taker. See Chapter 7, Information on Least Restrictive Environment.

Federal law and regulations require that your child’s regular education teacher, as a member of the IEP team, to the extent appropriate, participate in the development of the IEP. This includes the determination of appropriate positive behavioral interventions and strategies; the determination of supplementary aids and services, program modifications, support for school personnel; and the review or revision of the IEP. [34 C.F.R. Secs. 300.324(a)(3) & (b)(3); Cal. Ed. Code Sec. 56341(b)(2).]

A regular education teacher is required to attend the IEP meeting if the child is, or may be, participating in a general education program.  Any member of the IEP team, including the regular education teacher, may be excused from attending if the district and the parent agree in writing. An excused member must still submit input to the team in writing, prior to the meeting, if the meeting is concerned with their area of service or curriculum. [34 C.F.R. Sec. 300.321.]

The law does not address how a school district decides which teacher should attend an IEP meeting. However, the regular education teacher should be someone who has knowledge of the student or a teaching intervention and/or is responsible for implementing a portion of the IEP.

For an IEP meeting at the middle or high school level, where there are multiple regular education teachers for a given student, the law does not require that they all attend. If you are seeking modifications or accommodations in subjects taught by particular teachers, you should request their presence in writing.

No. It is reasonable for you to have a copy made of the proposed IEP to take home to read over more closely and/or to discuss with your spouse, partner or someone else before deciding whether to sign. You may not be able to take the original document home with you. Your child remains eligible for special education services and stays in his current placement while you decide whether to consent. If you do not consent or file for due process in a reasonable period of time, then the district may file for due process.

Yes. You can consent to recommendations of the IEP with which you agree, so that those services or placement can be implemented as soon as possible. If you disagree with certain components of the IEP, those cannot be implemented, and may be issues to be resolved in due process proceedings. You may attach a written dissent to the IEP document to make your position clear. [Cal. Ed. Code Sec. 56346.]

If the district determines that the recommendations of the proposed IEP with which you do not agree are necessary to provide FAPE, it must initiate due process proceedings. While due process is pending, your child shall remain in his then-current placement, unless you and the district agree otherwise. [Cal. Ed. Code Sec. 56346(f).] 

Federal law and regulations presume that a student with a disability will be educated in regular education classes with their “typically developing” peers. Your district must ensure that a student is not removed from the regular education environment unless the nature and severity of the disability is such that education in regular classes with supplementary aids and services cannot be satisfactorily achieved. Supplementary aids and services can range from teaching aids such as computers to additional staff support (e.g. one-to-one paraprofessional assistance, a note-taker or test-giver). These support services can be provided in the regular class, regular education environment or in other education-related settings. Any supplementary aid or service that the IEP team agrees on must be included in the IEP. [34 C.F.R. Secs. 300.42, 300.114-120.]

Federal law requires that the school district must ensure that parents of a student with a disability be members of any group that makes decisions on the educational placement of their child. [34 C.F.R. Sec. 300.327.] This includes decisions on both general placement categories (general education, resource specialist program, special day class, nonpublic school, etc.) AND school site assignments. You may attend any meeting where placement is discussed. You also have the right to obtain as much specific information as possible about the recommended placements during your IEP meeting and to visit/observe the proposed placement if that is possible.

Some school districts tell you which specific school site and/or classroom they are recommending and describe those settings. Other districts recommend general placement categories at the IEP meeting (for example, resource specialists, special day class) and then, the specific classroom assignments follow the meeting. In either situation, you should remind your IEP team of your right to be in any meeting where the educational placement of your child is determined. [20 U.S.C. Sec. 1414(e), 34 C.F.R. Secs. 300.327 & 300.501(c); Cal. Ed. Code Secs. 56304 & 56342.5.]

The IEP must be implemented “as soon as possible” following the IEP meeting. There should be no undue delay in providing special education and related services, and the IEP must specify projected dates for the initiation of services. [34 C.F.R. Secs. 300.320(a)(7) & 300.323; Cal. Ed. Code Sec. 56344(b).] The law requires that an IEP be in effect for each student at the beginning of the school year. [20 U.S.C. Sec. 1414(d)(2); 34 C.F.R. Sec. 300.323(a); Cal. Ed. Code Sec. 56344(c).]

Yes.  State law requires that an IEP team review a student’s IEP at least annually. Also, the district must convene an IEP meeting if:

A student has received an initial evaluation or a subsequent re-evaluation;
The student demonstrates a lack of anticipated progress toward annual goals and in the general curriculum, if appropriate; or
The parent or teacher requests a meeting to develop, review, or revise the IEP. Cal. Ed. Code Sec. 56343.]
In addition, federal law requires that an IEP be reviewed at least annually, and be revised if there is additional information provided to or by the parents; anticipated needs are not met; or other matters need to be resolved. [20 U.S.C. Sec.1414(d)(4); 34 C.F.R. Sec. 300.324(b).]

No.  If you choose to enroll your child in a private or parochial school on your own, federal law gives students with disabilities and their parents only limited rights to special education services in these circumstances. A student with a disability who is “parentally-placed” in a private school, including a religious school (that is, voluntarily and “unilaterally” enrolled without the agreement of an IEP team) has no right to receive some or all of the special education and related services that she would receive if enrolled in a public school. [20 U.S.C. Secs. 1412(a)(10)(B) & (C); 34 C.F.R. Sec. 300.137.]

The district must nevertheless provide for the participation of your child in its special education programs. [34 C.F.R. Sec. 300.132.] It must spend a certain amount of the federal funding it receives for special education students on children with special needs educated in private schools.  The school district alone determines what services will be provided – for example, speech services for preschoolers or itinerant reading instruction, etc.  With input from parents and private schools but unlike the special education process, the district is responsible for making the final decision with respect to the educational services to be provided to these students. [34 C.F.R. Secs. 300.137(b)(1) & (2).]

Districts must be inclusive and thoughtful in determining how to spend this portion of money on parentally-placed, private-school students with disabilities. The district must engage in a timely and meaningful consultation with representatives from private schools and representatives of parents of parentally-placed students. Private school officials may file a complaint with the U.S. Secretary of Education if they believe the district did not engage in timely and meaningful consultation or did not give due consideration to their views. [20 U.S.C. Secs. 1412(a)(10)(A)(1)((I)-(V); 34 C.F.R. Secs. 300.134 – 300.136.]

The district must spend a proportionate share of federal dollars received by the district (based on the number of parentally-placed students compared to the total district population of students with disabilities). [34 C.F.R. Sec. 300.133.] However, federal law does not prohibit a district from spending additional state funds for this purpose [34 C.F.R. Sec. 300.133(d).] Services may be provided on the premises of private schools,

even religious schools “to the extent consistent with law.” Local education agencies are not required to provide transportation from the child’s home to private school.  [34 C.F.R. Sec. 300.139.]

Once a student with a disability is enrolled in a religious or other private school by the student’s parents and will receive educational services, the district must conduct meetings to develop, review and revise a services plan that describes the special education and related services that the district will provide to the student in light of the services that the district has determined it will make available. The services plan must be developed, reviewed, and revised using the same procedures required in the development of an IEP. [34 C.F.R. Secs. 300.137(c) & (b).]

Special education and related services, including materials and equipment, must be secular, neutral, and non-ideological. [34 C.F.R. Sec. 300.138(c)(2).] If transportation is necessary for students to benefit from the services, the district must provide transportation from the student’s school or home to a site other than the private school and from the service site to the private school. The district is not required to provide transportation from the student’s home to the private school. The cost of the transportation may be included in calculating whether the district has met its financial burden in the provision of services to parentally-placed private school students. [34 C.F.R. Sec. 300.139.]

The school district has educational responsibility for all children, including children with disabilities, living within their geographic jurisdiction.  If you have placed your child in a private or parochial school without involvement of your school district, the district where the school is located continues to be responsible for assessing your child for special education eligibility and offering appropriate special education services if your child is eligible for special education. As long as the school district has made FAPE available at its public schools, it is not required to pay for special education and related services for any parentally-placed student in a private school. [34 C.F.R. Sec. 300.148.] However, if your child is placed in a private school by the district in order to receive FAPE (although it is unlikely a district would place a student in a private religious school for this purpose), the district is financially responsible for all necessary instructional, related, and supplementary services. [34 C.F.R. Secs. 300.145 – 300.147.]

If you enroll your child in a private school unilaterally (that is, without the agreement of the rest of the IEP team) there is a possibility that you may be reimbursed for the money you have spent. However, you will probably have to prove at a due process hearing that the district’s program was not appropriate and that the private school you selected is appropriate. You may be entitled to reimbursement even if the private school in which you “parentally-placed” your child in is not certified by the state. [Florence County School District v. Carter, 510 U.S. 7 (1993); Union School District v. Smith, 15 F.3d 1519 (9th Cir. 1994); 34 C.F.R. Sec. 300.148(c); Cal. Ed. Code Sec. 56175.]

You should inform the IEP team at the most recent IEP meeting that you intend to reject the public-school placement offer before removing your child from the public school. At that same meeting, you should also state your concerns and your intent to enroll your child in a private school at public expense. Otherwise, you may be denied full or partial reimbursement. However, if you do not give notice at the meeting, you must give written notice to the district at least 10 business days before you remove your child. [34 C.F.R. Sec. 300.148(d)(1); Cal. Ed. Code Sec. 56176.]

Reimbursement may also be denied or reduced if before you remove your child, the district notifies you of its desire to reassess him, and you fail to make your child available for that reassessment. [Cal. Ed. Code Sec. 56176(c); 34 C.F.R. Sec. 300.148(d)(2).]

If you do not give the required notice described above, either at the most recent IEP meeting or in writing at least 10 business days before removal, reimbursement must not be reduced or denied if you failed to give the necessary notice because:

1. it would likely have resulted in physical harm to the child,
2. the school prevented you from giving notice, or
3. you had not received your parents-rights notice which would have informed you of your responsibilities in this situation.

Also, if you cannot read or write English, or you do not give notice because it would likely result in serious emotional harm to your child, the due process hearing officer or judge may also decide to reimburse you fully or in part. [34 C.F.R. Sec. 300.148(e); Cal. Ed. Code Sec. 56177.]

Regardless, reimbursement may be denied or reduced if a judicial officer finds that your actions were unreasonable. [34 C.F.R. 300.148(d)(3); Cal. Ed. Code Sec. 56176(d).]

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 impairments). Schools are also required to purchase equipment needed to provide related services such as occupational and physical therapy equipment. [Cal. Gov. Code Sec. 7575(d); Cal. Ed. Code Secs. 56363.1 & 56836.22.]

In addition, 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:

1. Their special education and/or related services; or
2. The supplemental aids and services used to assist students in being placed in the least restrictive environment. [34 C.F.R. Sec. 300.105.]

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.]

Yes. A school district must permit a child with a disability to use school- purchased assistive technology at home or in other settings, if the IEP team determines that the child needs access to those devices in non-school settings in order to receive an appropriate education (for example, to complete homework).

Assistive technology devices must be provided to parents at no cost. Parents cannot be charged for normal use or wear and tear. [34 C.F.R. Sec. 300.105.]

Yes. Parents may use an audiotape recorder to record an IEP meeting, even without the school district’s permission, as long as the parents give the school district 24 hours’ notice of their intention to do so. Similarly, a school district may tape record a meeting with 24 hours’ notice to the parent. However, the district cannot tape record the meeting if the parent objects. If the parent objects to the district tape recording, then there can be no tape recording of the meeting by either the district or the parent. [Cal. Ed. Code Sec. 56341.1(g)(1).]

Under federal and state law, audio tape recordings made by the school district are subject to the confidentiality provisions of the Family Educational

Rights and Privacy Act of 1974. [20 U.S.C. Secs. 1232g(a)(4) & (b)(2); 34 C.F.R. Secs. 300.610 – 300.626; Cal. Ed. Code Sec. 56341.1(g)(2).] 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. Secs. 99.10 – 99.22; Cal Ed. Code Sec. 56341.1(g)(2)(A) & (B).]

California law delegates to local school districts 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 their students. [Cal. Ed. Code Sec. 56360.] Under federal law, the California Department of Education (CDE) is ultimately responsible for ensuring that required procedures are followed and that students receive needed education services in accordance with their IEPs. [34 C.F.R. Sec. 300.600.] If a school district refuses, or wrongfully neglects, to provide FAPE to a student with disabilities, CDE is responsible for directly providing the needed services. [20 U.S.C. Secs. 1412(a)(11) & 1413(g); 34 C.F.R. Sec. 300.227.]

If your child is enrolled in a nonpublic school, the district, at its discretion, may delegate to the nonpublic school the responsibility of conducting the IEP meetings and implementing the IEP. However, even if the district delegates these tasks, responsibility for compliance with special education law remains with the school district. [Cal. Ed. Code Sec. 56383.]

No. IEPs do not expire. A new IEP must be written annually, or more frequently if necessary, or at parent or teacher request to replace the current IEP. If you and the school disagree on placement or services, the last agreed-upon and implemented IEP remains in effect. The disagreements may become the basis for a request for due process.

Once you file for due process, your child must remain in his current educational placement until the disagreement is resolved. [34 C.F.R. Secs. 300.324(b) & 300.518; Cal. Ed. Code Sec. 56505(d).]

Yes. A foster parent may act as a parent for special education purposes for a child in their care if these conditions exist:

The biological or adoptive parent’s authority to make educational decisions for the child have been taken away by a court; and
The foster parent has no interest that would conflict with the interests of the child.
If acting as a parent, a foster parent has all the rights a biological or adoptive parent would have in the special education process, including the ability to initiate a referral for special education eligibility of their foster child and sign the IEP for a student. [34 C.F.R. Sec. 300.30(a)(2); Cal. Ed. Code Secs. 56028(a)(2), 56055 & 56029(c).]

Foster parents may also be appointed by a school district or court to be a “surrogate parent” to exercise educational rights for a child within their care. When selecting a surrogate parent, school districts must give first preference to the foster parent, a relative caretaker, or court-appointed special advocate (CASA). [Cal. Gov. Code Secs. 7579.5(b).]

Yes. A foster parent may act as a parent for special education purposes for a child in their care if these conditions exist:

1. The biological or adoptive parent’s authority to make educational decisions for the child have been taken away by a court; and
2. The foster parent has no interest that would conflict with the interests of the child.

If acting as a parent, a foster parent has all the rights a biological or adoptive parent would have in the special education process, including the ability to initiate a referral for special education eligibility of their foster child and sign the IEP for a student. [34 C.F.R. Sec. 300.30(a)(2); Cal. Ed. Code Secs. 56028(a)(2), 56055 & 56029(c).]

Foster parents may also be appointed by a school district or court to be a “surrogate parent” to exercise educational rights for a child within their care. When selecting a surrogate parent, school districts must give first preference to the foster parent, a relative caretaker, or court-appointed special advocate (CASA). [Cal. Gov. Code Secs. 7579.5(b).]

Once a surrogate parent is chosen by the school district to act on behalf of a child with a disability in the special education process, he serves as the child’s parent and has all rights available to a parent. The surrogate may represent the child in matters related to the identification, assessment, instructional planning and development, educational placement, reviewing and revising the IEP, and in all other matters related to the provision of FAPE. A surrogate parent can give written consent to the IEP, including non-emergency medical services, mental health treatment services, and occupational or physical therapy services. In short, the surrogate may give or withhold any consent related to a student’s IEP. [34 C.F.R. Secs. 300.30 & 300.519; Cal. Gov. Code Sec. 7579.5(d).]

Federal regulations define extended school year (ESY) services as “special education and related services … that are provided to a child with a disability … beyond the normal school year of the public agency … in accordance with the child’s IEP…” These must be provided at no cost to the parent and must meet state standards. [34 C.F.R. Sec. 300.106(b).] Under state law, a student must meet certain eligibility requirements for ESY services under California law. To qualify, a student must show:

1. His disabilities “are likely to continue indefinitely or for a prolonged period;
2. Interruption of his educational program may cause regression;
3. Limited recoupment capacity; and
4. The above factors make it “impossible or unlikely” that he will attain self-sufficiency and independence without ESY services.

However, the “lack of clear evidence” of the above factors may not be used to deny a student ESY if the IEP team determines the need for such a program and it is written into the IEP. [5 C.C.R. Sec. 3043.]

When writing the IEP, it is important to understand that the special education and related services provided to your child during the extended school year must be “comparable in standards, scope, and quality to the special education program offered during the regular academic year.” [5 C.C.R. Sec. 3043(f)(2).] In addition, federal regulations state that the school district may not “[l]imit extended school year services to particular categories of disability; or … unilaterally limit the type, amount, or duration of those services.” [34 C.F.R. Sec. 300.106(a)(3).]

Yes. Children with disabilities who attend public charter schools have all special education rights available under federal and state law. Charter schools, which must comply with all federal and state special education procedures and requirements, may be organized in these ways:

1. if the charter school is part of a local district, the district is responsible for providing special education and related services to all eligible students;
2. if the charter school is its own district, the charter school is responsible for providing special education and must follow all federal and state procedures and statutes;
3. if it is its own district, the charter school may contract with school districts or service providers to obtain and provide services designated in the IEP; or
4. if it is neither a public school nor its own district, the State is responsible for ensuring that the charter school meets all special education requirements. [34 C.F.R. Sec. 300.209; Cal. Ed. Code Sec. 47646.]

(a) The public agency must ensure that the IEP Team for each child with a disability includes--

1. The parents of the child;
2. Not less than one regular education teacher of the child (if the child is, or may be, participating in the regular education environment);
3. Not less than one special education teacher of the child, or where appropriate, not less than one special education provider of the child;
4. A representative of the public agency who:
   1. Is qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of children with disabilities;
   2. Is knowledgeable about the general education curriculum; and
   3. Is knowledgeable about the availability of resources of the public agency.
5. An individual who can interpret the instructional implications of evaluation results, who may be a member of the team;
6. At the discretion of the parent or the agency, other individuals who have knowledge or special expertise regarding the child, including related services personnel as appropriate; and
7. Whenever appropriate, the child with a disability.

(b) Transition services participants.

1. In accordance with paragraph (a)(7), of this section, the public agency must invite a child with a disability to attend the child's IEP Team meeting if a purpose of the meeting will be the consideration of the postsecondary goals for the child and the transition services needed to assist the child in reaching those goals under section 300.320(b).
2. If the child does not attend the IEP Team meeting, the public agency must take other steps to ensure that the child's preferences and interests are considered.
3. To the extent appropriate, with the consent of the parents or a child who has reached the age of majority, in implementing the requirements of paragraph (b)(1) of this section, the public agency must invite a representative of any participating agency that is likely to be responsible for providing or paying for transition services.

See California Education Code Section 56341(a)

A child with a disability can be disciplined (suspended or expelled) for the same reasons and to the same extent as a child without a disability. However, there are additional rules and safeguards that the school must follow. These rules are primarily intended to ensure the school takes your child’s disability into account at various stages of a disciplinary action. These rules include:

1. Manifestation Determination:  a special review that looks into whether your child’s disability or the school’s failure to follow her IEP led to the misconduct that your child has allegedly committed;
2. Special circumstances for offenses involving weapons, drugs,and serious bodily injury;
3. Discipline of a child who has a disability but has not yet been determined eligible for an IEP; and

Discipline of a child with a disability who is eligible for a Section 504 plan.
These special safeguards, when they apply and how they protect your child with a disability under both the IDEA and Section 504 are explained in this chapter below. See questions 7 through 20.

Students with disabilities may be suspended for any one of the misbehaviors on the list below that applies to all students, even if the misbehavior is a manifestation of the child’s disability. 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(s).] The permissible grounds for taking disciplinary action under California Education Code Section 48900 are:

1. Causing or threatening physical injury to another;
2. Willfully using force or violence against someone, except in self-defense;
3. Possessing a knife, gun, explosive, or other dangerous object without school authorities’ permission, or furnishing such an object;
4. Unlawfully possessing, using, selling, or furnishing a controlled substance, alcoholic beverage, or intoxicant of any kind, or being under the influence of such a substance, beverage, or intoxicant;
5. Offering or furnishing a substance misrepresented to be a controlled substance, alcoholic beverage, or intoxicant;
6. Committing or attempting to commit robbery or extortion;
7. Damaging or attempting to damage school or private property;
8. Stealing or attempting to steal school or private property;
9. Possessing or using tobacco in an unauthorized manner;
10. Committing an obscene act or engaging in habitual profanity or vulgarity;
11. Dealing in drug paraphernalia;
12. Disrupting school activities or otherwise willfully defying school authorities. Students in kindergarten through grade 3 cannot be suspended for this act, and students in kindergarten through grade 12 cannot be recommended for expulsion. [Cal. Ed. Code Sec. 48900(k)(2)] Starting on July 1, 2020, the ban to suspend for willful defiance will extend to students in grade four and five, and for five years, it will also apply to students in grades six through eight. [Cal Ed. Code Sec. 48900(k).];
13. Knowingly receiving stolen school or private property;
14. Possession of an imitation firearm that appears to be real;
15. Commission or attempt to commit a sexual assault, commission of a sexual battery;
16. Harassment, threat, or intimidation of a student who is a witness in a school disciplinary proceeding;
17. Engaging in hazing, or attempted hazing. (Hazing includes rituals that can cause serious bodily harm or personal degradation or disgrace);
18. Engaging in bullying, whether in person or electronically (for example, by email, text message or on social media);
19. 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 [Cal. Ed. Code Sec. 48900.2];
20. Causing, attempting to cause, threatening to cause, or participating in acts of hate violence, which is defined as injuring or interfering with a person’s exercise of any constitutional or other legal rights because of the person’s or a perception of the person’s, race, color, religion, ancestry, national origin, disability, gender, or sexual orientation [Cal. Ed. Code Sec. 48900.3, Cal. Penal Code Secs. 422.6 & 422.55];
21. Intentionally engaging in harassment, threats, or intimidation, directed against school district personnel or pupils that is sufficiently severe to disrupt classwork, create substantial disorder, and invade the rights of the student or group by creating an intimidating or hostile educational environment [Cal. Ed. Code Sec. 48900.4]; and
22. Making terrorist threats against school officials or school property. This includes any oral or written statement threatening to commit a crime which will result in death, great bodily injury, or property damage in excess of $1000 [Cal. Ed. Code Sec. 48900.7.]

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(s).]

Yes. Suspension is appropriate only after other means of correction fail to bring about proper conduct.  Other means of correction include, but are not limited to: a conference between school personnel and the parent, a referral for special education assessments, and a positive behavior support approach with tiered interventions.  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(w).]

It is within the superintendent’s discretion to use alternative methods, such as anger-management classes, instead of suspension or expulsion. [Cal. Ed. Code Sec. 48900(v).] A school district may also adopt a policy authorizing teachers to require the parent or guardian of a pupil who has been suspended to attend a portion of a school day in the classroom of his or her child or ward. [Cal. Ed. Code Sec. 48900.1.]

The California Education Code at Section 48915(a) requires that a principal or superintendent recommend expulsion if the student commits any of the following acts (unless he finds that expulsion is inappropriate due to the particular circumstance):

1.  Causing serious physical injury to another, except in self-defense;
2. Possession of any knife, explosive, or other dangerous object of no reasonable use;
3. Unlawful possession of a controlled substance;
4. Robbery or extortion; or
5. Assault or battery upon any school employee.

The governing school board may order the pupil expelled upon finding that the pupil committed one of the acts listed above and a finding that:

 Other means of correction are not feasible or have failed repeatedly; or
 The student’s presence causes a continuing danger to the physical safety of the student or others. [Cal. Ed. Code Sec. 48915(b).]
In addition, the California Education Code at Section 48915(c) requires a principal or superintendent of schools to immediately suspend and recommend for expulsion a pupil who commits any of the following acts:

1. Possessing, selling or furnishing a firearm;
2. Brandishing a knife at another person;
3. Selling a controlled substance;
4. Committing or attempting a sexual assault or committing a sexual battery; or
5. Possessing an explosive.

The governing school board must order the pupil expelled upon a finding that the pupil committed one of these acts. [Cal. Educ. Code Sec. 48915(d).] However, this mandatory expulsion provision is not enforceable against a special education student unless the student has been afforded all of the procedural and substantive safeguards set forth in this chapter and, after application of those safeguards, has been found eligible for expulsion.

Students with disabilities are subject to the same suspension rules as nondisabled students.  However, before a school district can recommend that a student with a disability be expelled, a “manifestation determination” meeting must be held to discuss whether the student’s behavior was related to his disability or his IEP was implemented. [34 C.F.R. Sec. 300.530(e).]

If the behavior was related to the student’s disability or his IEP was not implemented, the student cannot be expelled and appropriate services need to be determined and provided to the student.  The determination of placement is an IEP team decision and expulsion from school is a “change of placement”.  A change of placement such as expulsion cannot be made without holding a “manifestation determination” meeting. The IEP team must hold a “manifestation determination” meeting upon a “change of placement.”

A “change of placement” also occurs when the student is suspended for more than 10 consecutive school days or when a student has more than 10 cumulative suspensions that constitute a pattern of removals due to proximity of suspensions and/or similarity of the incidents. [34 C.F.R. Sec. 300.536.] In this situation, the school district must also hold a manifestation determination meeting to determine the student’s educational, behavioral and placement needs and services.  The school district cannot change your child’s placement without your consent, or without a manifestation determination meeting, except for certain serious behaviors. (See Question 11 below.)

State law defers to federal law for most of the rules governing suspension and expulsion of special education students. [Cal. Ed. Code Sec. 48915.5.] Federal and state law allow for up to 10 consecutive days of suspension of special education students without any requirement of a manifestation determination, but for suspensions in excess of 10 days, there must be a special meeting. [20 U.S.C. Sec. 1415(k)(1)(B).] Principals, therefore, sometimes extend students’ five-day suspensions by an additional five days. A student may be suspended on a first offense only for reasons (1) through (5) in the list in question 2 below, or because his presence causes a danger to persons. [Cal. Ed. Code Sec. 48900.5.]

The manifestation determination meeting is an IEP meeting to determine whether a student with a disability may be expelled from school or have his placement changed for more than 10 school days for misconduct. It must be held within 10 school days of the school’s decision to expel the student or change his placement. At the meeting, the IEP team reviews the relevant information from the student’s file, including the IEP and any information from teachers and the parents, and then decides two things:

Was the behavior caused by, or did it have “a direct and substantial relationship” to the student’s disability; and
Was the behavior the direct result of the district’s failure to implement the IEP?
[34 C.F.R. Sec. 300.530(e).]
If the IEP team answers “YES” to either question, the student cannot be expelled.  Also, any placement change requires either the consent of the parent or an ALJ’s order. If the IEP team determines that the behavior is a manifestation of the student’s disability, the student has the right to go back to his original placement unless the IEP team decides that a change of placement is appropriate. The school must also do a functional behavioral assessment (FBA) for the student or modify the student’s existing behavioral intervention plan (BIP) to address the behavior. [20 U.S.C. Sec. 1415(k)(1)(F); 34 C.F.R. Sec. 300.530(f).]

If the team answers “NO” to both questions, the student can be referred for expulsion.

You should be prepared to discuss each of the questions that must be answered before the district can recommend that your child be expelled from school. The manifestation determination IEP team must agree that your child’s behavior was not directly related to his disability and that the IEP was properly implemented before a district can change a special education student’s placement.  You can use school district staff (if they agree with your position) or school documents, independent experts and service providers, and your input to support your viewpoint.  Therefore, if you have not done so, you should consider obtaining an independent psychological or counseling professional’s opinion as to the two questions that the team must answer. You should bring that professional (or their report) to the meeting. You should also consider bringing an advocate or attorney to your manifestation determination meeting, if possible.

As a part of your advocacy at the manifestation determination IEP meeting, you should consider whether all of the components of the IEP were implemented. Were the services written into the IEP actually being provided at the time of the behavior in question? If a BIP was in place, was it being implemented as required by the IEP at the time of the behavior? If the IEP included a BIP or goals that addressed significant behaviors, it is more likely that the manifestation determination team will find that the behaviors were related to your child’s disability.

In addition, you should also consider whether the district addressed all of your child’s behavioral needs. Were behavioral problems evident before the misconduct that led to the manifestation determination meeting? If so, was an FBA ever done? Was a behavior plan in place? Did the IEP specify a certain class size or type; a kind of classroom environment; or particular curriculum or other modifications? If so, were those IEP components being provided at the time of the misconduct in question? If ongoing behavioral issues were not addressed by staff appropriately, you may be able to convince the district that the student should not be referred for expulsion.

Yes. If you disagree with the team recommendation, you can file for due process to dispute the recommendation of the manifestation determination team. [20 U.S.C. Sec. 1415(k)(3); 34 C.F.R. Secs. 300.530 – 300.532.] In most cases, until the due process proceedings have been completed, your child must remain in his current classroom placement and continue to receive the special education services required in his IEP.

Yes. Under certain circumstances, a district can immediately place your child in a different placement, and keep him there for up to 45 school days, even if the behavior is found to be a manifestation of his disability. In this situation, the different placement is called an “interim alternative educational setting”.

Your child may be placed in an “interim alternative educational setting” if the district claims he has done any of the following:

1. Carried a weapon to school or possessed a weapon at school or on school grounds or at a school function;
2. Knowingly possessed or used illegal drugs, or sold or solicited the sale of such a drug while at school, on school grounds, or at a school function;
3. Inflicted serious bodily injury upon another person while at school, on school grounds, or at a school function. “Serious bodily injury” means: substantial risk of death, or extreme physical pain, or protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty.

[20 U.S.C. Secs. 1415(k)(1)(G) & (7)(d)); 34 C.F.R. Sec. 300.530(g).]
Even if the school district attempts to remove your child to an interim alternative educational setting, it must still meet with you within 10 school days to have a manifestation determination meeting.

You may file for due process to disagree with the manifestation determination IEP meeting decision on expulsion, including moving your child to an interim alternative educational setting. If you file for due process to challenge the placement of your child in an interim setting, or the rest of the IEP team’s decision regarding whether the behavior was a manifestation of disability, an ALJ will decide—in an expedited hearing— whether to return your child to his original placement or leave him in (or order him into) a 45-day alternative placement. [20 U.S.C. Sec. 1415(k)(3)(B); 34 C.F.R. Sec. 300.532(b).]

During the challenge to either the interim setting or the district’s determination that the behavior was not a manifestation of your child’s disability, your child will stay in whatever setting the district has placed him. [20 U.S.C. Sec. 1415(k)(4)(A).] The hearing must be held within 20 school days from the date of your request and the ALJ must issue a decision within 10 school days after that. There must also be a “resolution session” or mediation held within seven days of the request. [20 U.S.C. Sec. 1415(k)(4)(B); 34 C.F.R. Sec. 300.532(c).] See Chapter 6, Information Due Process/Compliance Complaints.

The district can also request a due process hearing to ask an ALJ to order a change of placement if the district “believes that maintaining the current placement of the child is substantially likely to result in injury to the child or to others. [34 C.F.R. Sec. 300.532(a).] If the ALJ determines that maintaining the current placement of the student is substantially likely to result in injury to the student or to others, he may order a change in placement to an appropriate interim alternative educational setting for not more than 45 school days. [20 U.S.C. Sec. 1415(k)(3)(B)(ii)(II); 34 C.F.R. Sec. 300.532(b)(2)(ii).]

While in an interim alternative educational setting, during a long-term suspension (or expulsion), a student is still entitled to a free appropriate public education which enables the student to appropriately progress in the general curriculum and appropriately advance toward achieving the goals set out in the child’s IEP. This includes behavioral intervention services and modifications so that the behavior for which the student has been placed in the interim alternative educational setting does not recur. [34 C.F.R. Sec. 300.530(d).]

Yes. Unlike general education students, students with disabilities must continue to receive a free appropriate public education (FAPE) during any period of suspension beyond 10 days, during any period of interim placement and during any period of expulsion. [20 U.S.C. Secs. 1412(a)(1) & 1415(k)(1)(D); 34 C.F.R. Sec. 300.530(d).] The services your child receives under these circumstances must enable him to continue to participate in the general curriculum and to continue to progress toward meeting his IEP goals and to receive needed behavioral assessments and services. [20 U.S.C. Sec. 1415(k)(1)(D); 34 C.F.R. Secs. 300.530(d)(1)(i) & (ii).]

The special education disciplinary rules apply if, before the behavior incident,  the district “has knowledge” that your child has or may have a disability. If your child is not already identified as a special education student, there are three situations in which a district will be “deemed” to have this knowledge:

1. When a parent had expressed concern in writing (before the student’s misbehavior) to a school administrator or the student’s teacher that he needs special education and related services;
2. When a parent had requested (before the misbehavior) that the student be evaluated for special education; and
3. When, before the misbehavior,  a teacher or other school personnel had expressed specific concerns about a pattern of behavior directly to the special education director, or other supervisory personnel.

[20 U.S.C. Sec. 1415(k)(5); 34 C.F.R. Sec. 300.534(b).]
There are three situations in which the district will not be deemed to have knowledge:

1. When the district has already assessed a student and determined he is not eligible for special education;
2. When the parent has not allowed an evaluation; or
3. The parent has refused special education services.

[34 C.F.R. Sec. 300.534(c).]
In these situations, a student is not protected under the special education discipline rules.

Yes. However, if your child is excluded from school bus transportation, and transportation is a part of his IEP, he is still entitled to an alternative form of transportation at no cost to you. [Cal. Ed. Code Sec. 48915.5(c).] An IEP meeting must be held before excluding your child from the bus, because this is a change in IEP service.

The district Board of Education must adopt local rules and regulations that establish a procedure for processing requests for readmitting expelled students. However, readmission is not automatic. Your school district must determine that your child can be readmitted to the school district. [Cal. Ed. Code Sec. 48916.]

The Board, after voting to expel your child, may suspend enforcement of the expulsion for a period up to one year. During this period, he is “on probation”. Probation may be revoked, and the expulsion enforced, if your child commits any act for which he could have been suspended or expelled or for any violation of the district’s student conduct code. After one year of successful probation, he must be reinstated. The district may, but is not required to, expunge your child’s records of all information related to the suspended expulsion. [Cal. Ed. Code Sec. 48917.]

The order expelling your child must specify the date when he may apply for readmission. That date cannot be later than the last day of the semester following the semester in which the expulsion occurred, but can be earlier. The order can include a plan of rehabilitation that your child 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 improved academic performance, tutoring, special education assessment, job training, counseling, employment, community service or other rehabilitative programs. [Cal. Ed. Code Sec. 48916.] If any of the reasons for expulsion related to controlled substances or alcohol exists, the district may require, as a condition of readmission and with your consent, that your child enroll in a county-supported drug rehabilitation program. [Cal. Ed. Code Sec. 48916.5.]

Your child may be admitted to school in another district only if:

1. He establishes legal residence in the jurisdiction of the new district; or
2. His current district grants him an inter-district transfer.

[Cal. Ed. Code Secs. 46600(c) (transfer for expelled students), 46601 (appeals) & 46603 (provisional admission).]

The new district may request information and/or a recommendation from the former district and will then hold a hearing to determine whether your child poses a continuing danger to the students or employees of the new district. [Cal. Ed. Code Secs. 48915.1(a)-(b).] The hearing is conducted under the same rules and procedures as regular expulsion hearings. [Cal. Ed. Code Sec. 48918.] If, after the hearing, the district determines that your child does pose a continuing danger, it may condition enrollment on attendance in a specified program or may deny the request for admission. [Cal. Ed. Code Secs. 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 for the remainder of the expulsion period, provided he has established residence in the new district or has obtained an inter-district transfer. [Cal. Ed. Code Sec. 48915.1(e).] If you have not informed the new district of the expulsion from the former district and the new district finds out, the fact of nondisclosure must be recorded and may be discussed at the readmission hearing described above.

However, if your child was expelled for any of the following reasons, he cannot enroll in any other California district during the period of his expulsion, unless it is a county community school or juvenile court school:

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 him at school or at a school activity off campus;
3. Possession of a controlled substance;
4. Engaging in robbery or extortion;
5. Assault or battery;
6. Possession or sale of a firearm;
7. Brandishing a knife;
8. Sale of a controlled substance; or
9. Sexual assault.

[Cal Ed. Code Secs. 48915.1, 48915(a) & (c), 48915.2(a).]

After the period of expulsion (for any of the above reasons) is over, your child may be admitted to the new district if he meets the residence or inter-district transfer requirements. The admission would only be considered if, after a hearing, the new district determines that he does not pose a continuing danger.

If your child is expelled and is re-enrolled in a new school district, the new school district must continue to provide special education and related services to your child comparable to your student’s current IEP.

If the IEP team recommends a referral for expulsion, the district must then hold an expulsion hearing. The hearing must be scheduled to be held within thirty days after the decision to expel the student is made. [Cal. Ed. Code Sec. 48918.] Once scheduled, you have the right to automatically postpone the expulsion hearing for up to 30 days to adequately prepare. [Cal. Ed. Code Sec. 48918(a).] You should attend the hearing, with experts and supporters, to provide arguments against expulsion (usually the same arguments that were presented at the manifestation determination meeting).

A full discussion of the procedures governing expulsion hearings and for any appeals of the results of those hearings is beyond the scope of this manual. You should consult California Education Code Sections 48918 – 48926 for more information, as well as your district policies for expulsion hearings.

Yes. However, any home instruction program must be individually designed to assure that progress toward goals and objectives continues, even if the program is being provided at the student’s home. The law also requires that students have access to (and make progress in) the general education curriculum. [20 U.S.C. Sec. 1414(d)(1)(A)(i).] All the same procedures must be followed by the IEP team in developing an IEP for a student to be instructed at home as are followed for any other special education student. [U.S. Department of Education, Office of Special Education Programs, Letter to Boney (1991) 18 IDELR 537.] State law has additional rules for providing home instruction to students with disabilities. The rules include the requirement that the IEP team have a report from a physician or psychologist that includes a projected date for the student’s return to school. [5 C.C.R. Sec. 3051.4.]

Home instruction is also available to general education students with temporary disabilities, and provides them with one hour of instruction per day. [Cal. Ed. Code Sec. 48206.3.] This service is different from individualized in-home placement and instruction under the IDEA for purposes of providing a FAPE to a child with disabilities. Both services are commonly referred to as “home/hospital instruction,” but home instruction for a student with an IEP must continue to provide a FAPE. [See Student v. Tehachapi Unified School District, OAH Case No. 2015060035.]

Home instruction, one of the most restrictive placements, is an educational program option available to students with disabilities who cannot be educated in a public school setting. Typically, students in this placement have significant health needs, a temporary illness or disability or significant behavioral challenges. This placement should not be used as a substitute for providing behavioral supports in a classroom setting. In recent guidance, OSERS stated that placement on home instruction may suggest that the child’s placement in the least restrictive environment may not be appropriate. [OSERS, Dear Colleague Letter on the Inclusion of Behavioral Supports in Individualized Education Plans, available at: https://www2.ed.gov/policy/gen/guid/school-discipline/files/dcl-on-pbis-in-ieps–08-01-2016.pdf.]

Public Law (PL) 99-457, passed in 1986, is a federal law that expands services for children younger than 5-years-old who need special education.  This law is now part of the Individuals with Disabilities Education Act (IDEA) and makes grants available to states to provide special education and related services to children with disabilities ages 3-5.  [20 United States Code (U.S.C.) Sec.1419.]  In California, early educational opportunities are also made available to children younger than three years of age.  [California Education Code (Cal. Ed. Code) Sec. 56425 and following; Government Code (Cal. Govt. Code) Sec. 95000 and following.]

The California Legislature states that these are some of the benefits of preschool education programs provided in a “typical environment” appropriate for young children and with active parent involvement:

1. Significantly reduce the potential impact of any disabling conditions and help prevent the development of secondary disabling conditions;
2. Produce substantial gains in the following areas of development: physical, cognitive, speech and language, psychosocial and self-help; and
3. Reduce family stress, societal dependency and institutionalization, and the need for special day class placement once a child reaches school age.

[Cal. Ed. Code Sec. 56441.]

Yes.  Under California law, all school districts have a mandate to provide special education and services for all eligible children between the ages of three to five years, inclusive.  [Cal. Ed. Code Secs. 56001(b) & 56440(c).]

If a child is already receiving “early intervention” or “Early Start” services from the district, the district must ensure that she experiences a smooth and effective transition to preschool programs.  [20 U.S.C. Sec. 1437(a)(9); Cal. Ed. Code Sec. 56426.9(a).]  It must also ensure than an individual education program [IEP] has been developed and is being implemented by the time of the child’s 3rd birthday. [Cal. Ed. Code Sec. 56426.9(b); 34 Code of Federal Regulations (C.F.R.) Sec. 300.124(b).]  If a child turns three during the summer months, the IEP team must determine the date when IEP services will begin.  [Cal. Ed. Code Sec. 56426.9(d).] The district must participate in transition planning conferences arranged by the regional center.  [20 U.S.C. Sec. 1437(a)(9); Cal. Ed. Code Sec. 56426.9(c).]

Eligibility criteria for preschool children are the same as the criteria for school-age children, except there is the additional category of 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. Emotional disturbance;
5. Hearing impairment;
6. Mental Retardation;
7. Multiple disabilities;
8. Orthopedic impairment;
9. Other health impairment (includes attention deficit disorder or attention deficit hyperactivity disorder);
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.

[Cal. Ed. Code Sec. 56441.11(c).]

Conditions A through M are defined in the Code of Federal Regulations, Chapter 34, Sec. 300.8(c) and California Code of Regulations, Chapter 5, Sec. 3030(b).

An “established medical disability” is defined in as “a disabling medical condition or congenital syndrome that the IEP team determines has a high predictability of requiring special education and services.”  [Cal. Ed. Code Sec. 56441.11(d).]

In addition to meeting the criteria of one or more of the disabling conditions, a child must need “specially designed instruction or services” to qualify for special education.  Also, the child must have needs that cannot be met by modifying the home or school (or both), without ongoing monitoring or support.  [Cal. Ed. Code Secs. 56441.11(b)(2) & (3).]

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.

[Cal. Ed. Code Sec. 56441.11(c).]

Many districts use this label when students transition into the school district at age three.  In fact, there is no special education eligibility category in federal or state law called “speech only”.  A child may be eligible for special education solely to receive speech and language services.  However, the child must be eligible for special education by meeting the eligibility criteria for speech and language impairment or any of the other special education eligibility categories.  [34 C.F.R. Sec. 300.8(c)(11); 5 C.C.R. Sec. 3030(b)(11).]

When determining eligibility for special education services, the school district is required by law to assess a child in all areas related to that child’s suspected disability.  Use of the label “speech only” may result in the denial of a “free appropriate public education” because your child will not be assessed in all areas of suspected disability.  [34 C.F.R. Sec. 300.304(c)(4); Cal. Ed. Code Sec. 56320(f).]  When the district asks for your consent for an initial assessment, be sure that the assessment plan will evaluate all of your child’s needs — not just speech and language. Otherwise, you should not sign the assessment plan.  Instead, ask the district in writing to conduct a comprehensive assessment.  If the district refuses to do so, you may file a compliance complaint with the California Department of Education.

You should write a letter to your local school district administrator (for example, the principal or special education director) to request an assessment or evaluation for your child.  [5 C.C.R. Sec. 3021; Cal. Ed. Code Secs. 56029, 56300 – 56329.]  Under state law, your district must give you an assessment plan within 15 days of receiving your written request for special education services, unless the district disagrees with the need for assessment.  If the request is made 10 days or less before the end of the school year, the plan must be developed within 10 days of the start of the next school year.  [Cal. Ed. Code Sec. 56321(a).]

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 in writing.  [Cal. Ed. Code Sec. 56321(c).]  See Chapter 2, Information on Evaluations and Assessments.

If a standardized test is considered invalid for children between the ages three and five years, evaluators should use alternative testing methods.  Alternatives might include scales, instruments, observations, and interviews, as specified in the assessment plan.  [Cal. Ed. Code Sec. 56441.11(e).]

An IEP must be developed as a result of the assessment within 60 days from the date the district receives your written consent for assessment (not counting days between school sessions, terms or vacations that are longer than five days). However, if the request was made 30 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.  [Cal. Ed. Code Sec. 56344(a).]

If a child is already receiving “early intervention” or “Early Start” services, the district must ensure that she experiences a smooth and effective transition to preschool programs [20 U.S.C. Sec. 1437(a)(9); Cal Ed. Code Sec. 56426.9(a).] It must also ensure that an individual education program (IEP) has been developed and is being implemented by the time of the child’s 3rd birthday. [Cal. Ed. Code Sec. 56426.9(b); 34 C.F.R. Secs. 300.124(a) & (b).] 

Six months before the child’s third birthday, the service coordinator must:

Notify the parent of a child who may be eligible for special education preschool services that transition planning will occur within the next 3 to 6 months; and
Notify the local school district that there will be an Individual Family Service Plan [IFSP] meeting at least three months before the child turns three. Everyone must agree on a date for this meeting at least 30 days after the service coordinator’s notice.
[17 C.C.R. Sec. 52112 (a) & (b).]

If a child turns three during the summer months, the IEP team must determine the date when IEP services will begin. [Cal. Ed. Code Sec. 56426.9(d).

Federal law requires that the parent, school district and regional center (if the district is not the lead agency for early intervention services) discuss possible preschool special education services, as well as the transition steps, including:

1. Future placements and parent regarding these placements;
2. Procedures to prepare the child for changes in service delivery and adjustments to new settings; and
3. Transmission of information and records to the school district.

[34 C.F.R. Sec. 303.344(h).] 

In addition, state law requires that:

1. Parents are provided information about community resources;
2. Information about the child is sent to the school district, including IFSPs (with the parent’s consent), and any necessary assessments by the district and regional center to determine eligibility and the timelines for completing assessments;
3. A projected date for conducting a final review of the IFSP is determined;
4. Steps are taken to ensure that the referral to the district is received in enough time so that assessments are completed, and an IEP implemented, by the child’s third birthday;
5. Referral to the district occurs no later than the time a child reaches age 2 years, 9 months, or before the district’s break in services if the child will turn three during that break; and,
6. The people responsible for convening an IEP and final IFSP meeting are identified.

[17 C.C.R. Secs. 52112(c) & (d).]

To avoid gaps in services and delays in developing and implementing an IEP, parents should know and keep track of the steps leading up to the transition so that the necessary steps are taken in a timely fashion.

Services must meet the unique needs of your child in accordance with federal law.  Your child’s IEP must include these services and a statement of areas of need.  An instructional program and/or related services may be provided to address those unique needs. The rights and services for three to five-year-old children under IDEA are the same as those for children aged 5 to 22.  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 self-esteem
6. Access to developmentally appropriate equipment and specialized materials.

[Cal. Ed. Code Sec. 56441.3(a).]  

Yes.  Your child is entitled to any of the related services included in IDEA, if needed.  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).]

Your child may receive services at a public or private non-religious preschool, a child development center, family day care home, your own home, preschool program for children with and without disabilities located near each other, or “a public school setting which provides an age-appropriate environment, materials and services…”  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 & 56443(a).]

Yes.  The IDEA requirements regarding the education of children in the “least restrictive environment” (LRE) apply to preschool children with disabilities.  [34 C.F.R. Sec. 300.116(a)(2).]  The district must provide a program with non-disabled peers if a child’s IEP team determines that this is appropriate.  However, if the district has no preschool program for children without disabilities, there is no federal requirement to establish district-wide preschool programs.  Courts have not made a distinction between school-age and preschool age when addressing the requirement that children with disabilities be educated in the company of children without disabilities.  [L.B. and J.B. v. Nebo School District (10th Cir. 2004) 379 F.3d 966.]

Where there are no established programs for preschoolers without disabilities, the LRE requirement could be met by alternative means.  For example, your child may attend (full- or part-time) a preschool program serving children without disabilities (such as Head Start).  Your child may instead attend a preschool program for children with disabilities located on a school site serving nondisabled, school-aged children.  Lastly, the district may pay for placement in a private preschool and provide supplemental services.  [Cal. Ed. Code Secs. 56441.4 & 56443(a); see OSEP Letter, January 9, 2017; https://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/preschool-lre-dcl-1-10-17.pdf.]]

Your child’s need for an integrated preschool program or inclusion in a regular preschool must be established in her IEP.

No.  Under federal and state law, waiting lists are not allowed.  The IEP must be implemented as soon as possible following the IEP meeting.  There can be no undue delay in providing special education and related services.  The IEP should specify projected dates to begin services.  [34 C.F.R. Secs. 300.320(a)(7) & 300.323(c)(2); 5 C.C.R. Sec. 3040.]

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. Beginning no later than the first Individualized Education Program (IEP) held after a student turns 16 (or younger if determined appropriate by the IEP team) and updated annually, the IEP must contain a statement of appropriate measurable postsecondary goals. The goals must be based on age appropriate transition assessments related to training, education, employment and independent living skills where appropriate. The IEP must also contain a statement of needed transition services for the student that focus on the student’s courses of study (such as participation in advanced- placement courses or a vocational education program). In addition, the IEP must contain, when appropriate, a statement of the interagency responsibilities. [20 United States Code (U.S.C.) Sec. 1414(d)(1)(A); 34 Code of Federal Regulations (C.F.R.) Secs. 300.320(b) & 300.321(b)(3).]

The purpose of the transition plan is to ensure that the student continues 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 or employment possible. The plan should also address residential, social and recreational goals.

A coordinated transition-planning meeting (conducted as part of an IEP team meeting) should include representatives of agencies that would serve the student once the student graduates, or if they have not graduated, reaches the age of 22, various agencies provide continued educational support for students with disabilities since the school district is no longer responsible for their education. These include the Department of Rehabilitation (DR), the Regional Center, college disability service programs, as well as 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 as she reaches adulthood and independence.

The transition plan or statement of needed transition services in each IEP must include, where applicable, a statement of the responsibilities of other participating agencies. However, remember that the district remains ultimately responsible for ensuring that these services are provided. Therefore, if a participating agency stops providing an agreed upon service, the district must fulfill that obligation or responsibility, either directly or through contract or other arrangement. [20 U.S.C. Sec. 1412(a)(12)(B).] The district must also have another IEP meeting to find a different way to meet the transition objectives in the IEP. [34 C.F.R. Sec. 300.324(c).]

Transition services for students in special education are services that help students move from school to adult life. They should reflect the student’s own goals for his future.

Federal special education law defines transition services as a coordinated set of activities for a student with a disability that –

1. Is designed within an result-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;
2. Is based upon the individual student’s needs, taking into account the student’s preferences, strengths and interests; and
3. Includes instruction, related services, community experiences, the development or employment and other post-school adult living objectives, and, when appropriate, acquisition of daily living skills and functional vocational evaluation.

[20 U.S.C. Sec. 1401(34); 34 C.F.R. Sec. 300.43(a).]

One court has found that a student’s services may include driver’s education, self- advocacy, and independent living skills such as cooking and cleaning. [Yankton School District v. Schramm, 93 F.3d 1369,1374 (8th Cir. 1996).]

California law is quite ambitious and specific in its descriptions of transition services and state and local education agencies’ responsibilities to provide them.

The California Legislature has found and declared that improvements in special education have not resulted in paid employment or maximum integration of special education students into the community. The Legislature states that there is no formalized process that bridges the gap between school and post-school services and resources.  It also declared that there is insufficient coordination between educators, adult services providers, employers, and families which would lead to paid employment and social independence. Because of this, the majority of options available to adults with disabilities foster dependence rather than independence. The Legislature’s goal for transition services is a planned movement from school to adult life that provides opportunities which maximize economic and social independence in the least restrictive environment. [Cal. Ed. Code Sec. 56460.]

State law requires that the superintendent establish capacity to provide transition services to a broad range of students with exceptional needs such as employment and academic training, strategic planning, interagency coordination, and parent training. [Cal.Ed. Code Sec. 56461.]

Transition services include but not limited to:

1. In-service training programs, resource materials, and handbooks that   identify the following:

• The definition of “transition,” including the major components of an effective school-based transitional program;
• Relevant laws and regulations;
• The roles of other agencies in the transition process including, but not limited to, the scope of their services, eligibility criteria, and funding;
• The components of effective transition planning;
• The role of families in the individualized transition process;
• Resources and model programs currently available in this state.

1. Development of the role and responsibilities of special education in the transition process, including the following:

• The provision of work skills training, including those skills that are necessary in order to exhibit competence on the job;
• The provision of multiple employment options and facilitating job or career choice by providing a variety of vocational experiences;
• The collection and analysis of data on what happens to students once they leave the school system and enter the adult world;
• The coordination of the transition planning process, including    development of necessary interagency agreements and procedures at both state and local levels;
• The provision of instructional learning strategies that will assist students who find learning difficult in acquiring skills that will enable them to  obtain diplomas, promote a positive attitude toward secondary and post- secondary life.

1. The development and implementation of systematic and longitudinal vocational education curriculum including the following:

• Instructional strategies that will prepare students with significant disabilities to make a successful transition to supported employment and the community;
• The introduction of vocational and career education curriculum in the elementary grades for those students who can benefit from it.

1. Materials, resource manuals, and in-service training programs to support the active participation of families in the planning and implementation of transition-related goals and activities;
2. The development of resources and in-service training that will support the implementation of individualized transition planning for all special education students.
3. The development of a network of model demonstration sites that illustrate a wide variety of transition models and implementation strategies;
4. Coordination with other specialized programs that serve students who face barriers to successful transition;
5. A research, evaluation, and dissemination program that will support the major programmatic aspects of transition services.

Through a variety of competitive grants, bids, contracts, and other awards specific content areas will be developed in cooperation with a variety of field-based agencies, including local education agencies, special education local plan areas, county offices, institutions of higher education, and in-service training agencies. [Cal. Ed. Code Sec. 56462.]

The Individual Transition Plan (ITP) is a term that is not in federal and state law. However, ITP has emerged to mean a written document designed to help prepare students for passage from school to post-school life. [20 U.S.C. Sec. 1401(34); 34 C.F.R. SEC. 300.320(b), Cal. Ed. Code Secs. 56462 & 56345.1.] It is important to understand that transition assessment, planning and development of the ITP are part of the IEP process. The ITP must be based on the student’s needs, preferences and interests and reflect the student’s own goals. Objectives, timeliness, and people responsible for meeting the objectives should be written into the ITP and made part of the IEP. The ITP is a component of your child’s IEP.

Transition planning must begin by the first IEP held after the student reaches age 16 or earlier if appropriate for the student. [20 U.S.C. Sec. 1414(d)(1)(A)(i)(VII); 34 C.F.R. Sec. 300.320(b).] It is important to begin the transition process when students are younger than 16 to ensure enough time to plan for and receive effective services. It is particularly important for students with significant disabilities and those at risk of dropping out of school.

Transition planning can occur at a combined IEP and ITP meeting or it can occur in a separate meeting. When a combined ITP/IEP meeting is held, transition planning should occur first and discussed as a component of the IEP. A separate transition planning IEP meeting can be beneficial because it allows more time to focus on the student’s desires and preferences. The ITP can be incorporated into the student’s existing IEP at that meeting.

No matter which method of planning is used, transition objectives, goals and activities should be identified and included in a student’s IEP. All assessment and IEP procedural requirements must be followed by the school district in the development of an ITP.

You can initiate a transition planning meeting by making a written request to your child’s teacher, the principal or special education administrative office. The letter should clearly say that the purpose of the meeting is transition planning.

Whether you or the district have initiated the transition planning process, the district must send out a meeting notice that:

1. Indicates that the purpose of the meeting will be the consideration of postsecondary goals and transition services;
2. Indicates that the student will be invited; and
3. Identifies any other agency that will be invited to send a representative. [34 C.F.R. Sec. 300.322(b).]

As with other parts of the IEP, the transition requirements are not just mere technicalities. One court found that a school that only provided for the vocational needs of the student failed to meet its transition obligations to him. It did not develop a plan to help the student “survive an adult life.” The court noted that the school:

1. Did not identify any goals for the student after he left school;
2. Did not perform any transition evaluations, other than a vocational evaluation;
3. Did not provide “the full panoply of services that transition planning envisions” to prepare him for life outside of school in such areas as personal needs, getting around the community and recreation; and
4. Failed to meet his individual, unique needs and instead placed him in an existing generic program with minor adaptations.

[East Penn School District v. Scott B., 1999 WL 178363 (E.D. Pa. 1999).]

The transition IEP should be “outcome oriented.” This means that the coordinated set of transition activities developed by the IEP team includes goals that prepare your child for as independent a life as possible. For example, the outcome for a student might be employment in a retail store. The services for that student should focus on seeking and maintaining a position with the necessary supports, solidifying basic work habits, punctuality and grooming, and developing supported and/or independent living skills.

The five main components of transition are: instruction, related services, community experience, the development of employment and other post-school adult living objectives, and if appropriate, acquisition of daily living skills and provision of functional vocational evaluation. [34 C.F.R. Sec. 300.43.]

The district must conduct appropriate assessments in the above areas to determine your child’s transition needs and the services that address those needs. The assessment process should be followed as it is for any other area of need. [34 C.F.R. Secs. 300.301, 300.304(b); Cal. Ed. Code Sec. 56320(f).] See Chapter 2, Information on Evaluations/Assessments.

In addition, the district must also consider student and parent input in developing the ITP. Students do not need to fit into a set, one-size-fits-all program option. Rather, it is important to plan creatively and to focus on your child’s individual abilities, needs, interests and post-secondary school goals.

The statement of “postsecondary” goals and transition services should relate directly to the student’s goals beyond secondary education.  It must also show how planned studies are linked to these goals. For example, a student interested in exploring a career in computer science may have a statement of transition services needs connected to technology course work.  Another student’s statement of transition services needs could describe why public bus transportation training is important for future independence in the community. The goal is to select courses of study that will be meaningful to the student’s future and motivate the student to complete her education.

Like other special education services, transition services and activities must be provided in the least restrictive environment.  Students should participate in high school education programs similar to their nondisabled, same-aged peers. For example, a student may participate part-time or full-time in regular education classes at the high school with support from an “inclusion program.”  Special education teachers, paraprofessional aides and service providers collaborate with the general education teachers to adapt curriculum and give individualized instruction within these integrated settings to allow the student to meet IEP goals. Additionally, the student can begin to take part in individualized, functional and integrated work experience such as on-site training for one period, one or two days per week.  Skills training can occur both on and off the high school campus.

Ideally, these programs should lead students to outcomes which maximize independence. For some students, the goal will be to move toward post-secondary education. For others, the goal may involve community-based programs such as adult integrated work programs. In that case, school staff supports the student to obtain and maintain an integrated job near her home so that she can be integrated in the community. In that case, the student should be hired directly by the employer.  The individual is on the employer’s payroll, not paid through a subcontract with the school. Additionally, if a student works part-time, transition staff can assist her to take integrated, regular college or adult education classes; join fitness centers; and participate in everyday community activities, such as shopping, public transportation, movies, library, adult sports, etc.

Transition planning must be active on the part of the district. In one case, a  hearing officer found a clear failure on the part of the district to provide  appropriate transition services when the IEP contained only two informal activities (the student was to investigate college catalogs and write to colleges for more information). In addition, the hearing officer found that such a transition plan could not have been based on the student’s individual needs because the student tested significantly below grade level in all areas and would need far more extensive services than simply being told to investigate colleges on her own. [Student v. San Francisco Unified Sch. Dist., Case No. SN 476-98 (Special Education Hearing Office) (1998), available at www.oah.dgs.ca.gov.]

Districts have responsibilities under the Individuals with Disabilities Education Act (IDEA) in the area of transition planning and services which must be fulfilled prior to exiting a student from high school. The IDEA’s transition planning and services provisions create a separate substantive entitlement for special education students. The components of transition are: instruction, related services, community experience and the development of employment and other post-school adult living objectives, and if appropriate, acquisition of daily living skills and provision of a functional vocational evaluation. [Student v. Novato Unified School Dist., Case No. SN 886-94 (1995); 34 C.F.R. Sec. 300.43.] Vocational and social instruction should take place in the community as much as possible.

A student may have completed the district’s prescribed course of study and passed the necessary proficiency tests. Even under these circumstances, if the school has not provided appropriate and individualized transition services, she may continue to be eligible for special education services. [See Student v. Bellflower Unified School Dist., Case No. SN 575-01.]

Students must be invited to attend any ITP meeting. The meeting should be person-centered so that its focus is the student’s needs and desires for the future. Goals and objectives in the student’s ITP should emphasize the student’s preferences and include all life areas, such as home, work, community, social, etc. During the meeting, it may be useful to list the strengths, needs, dreams, fears, and wishes of an individual student and family.

The meeting should be conducted in a manner that enables the student to understand the planning process and to participate fully. [34 C.F.R. Sec. 300.321(b)(1).] If the student does not attend the IEP meeting, the school district must take other steps to ensure that the student’s preferences and interests are considered. [34 C.F.R. Sec. 300.321(b)(2).]

In addition to the required IEP participants and with the consent of the parents or a student who has reached the age of 18, the district is required to invite a representative of any agency that is likely to provide transition services to the IEP meeting. This should include representatives from the vocational rehabilitation agency, the regional center, community mental health, community college, and traditional private rehabilitation agencies, as appropriate. [34 C.F.R. Secs. 300.321(b)(3) & 300.324(c).] If a representative does not attend, the district should take steps to obtain the agency’s participation in the planning of any transition services.

The IEP team should discuss any disagreements and attempt to resolve them informally. If either the family or the district disagrees with the proposed IEP, either may participate in an alternative dispute resolution process or request due process.

If a participating agency agrees to provide transition services and then fails to do so, the school district must hold a meeting of the IEP team as soon as possible to identify alternative strategies for meeting the ITP goals. The district is ultimately responsible for ensuring that transition services are provided. However, this does not relieve any participating agency (including a state vocational rehabilitation agency) of the responsibility to provide or pay for any services the agency would otherwise provide to students with disabilities who meet that agency’s eligibility criteria. [20 U.S.C. Sec. 1412(a)(12)(B); 34 C.F.R. Sec. 300.324(c); Cal. Ed. Code Sec. 56345.1(c).]

When the school district fails to provide transition services which are written in the student’s IEP, a parent, individual, public agency or organization can file a complaint with the California Department of Education. [5 C.C.R. Sec. 3201.]

Yes. If a special education student has not met the requirements for graduation (including the objectives of the statement of transition services), the district must continue to provide transition services to the student until she turns 22 years of age.

You should ensure that your child’s IEP includes a transition plan beginning at age 16, or younger, focusing on transition services. [Cal. Ed. Code Sec. 56345(a)(8).] You should also discuss with the IEP team how your child’s IEP goals addressing transition will be completed before all services from the school district have ended.

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.

Among the related services listed in federal law are rehabilitation counseling services. [20 U.S.C. Sec. 1401(26); 34 C.F.R. Sec. 300.34(a).] These are services provided by qualified personnel to students with a disability in individual or group sessions that focus specifically on career development, employment preparation, achieving independence, and integration in the workplace and community. The term also includes vocational rehabilitation services provided to students with disabilities by vocational rehabilitation programs funded under the Rehabilitation Act of 1973. [34 C.F.R. Sec. 300.34(c)(12).] This related service should be requested for every special education student who has needs in the areas of career development, employment preparation, achieving independence, or community and workplace integration.

The following factors should be considered in determining your child’s vocational program:

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);Results of experiences in vocationally-oriented programs;
5. Descriptions of previous work experiences;
6. Student’s physical and mental capacity for work;
7. Student’s employment-related behaviors (for example, attendance, social and interpersonal skills, attention span, communication skills, personal hygiene, dependability, and productivity);
8. Course objectives and curriculum requirements;
9. Prerequisite skills;
10. Modifications necessary to make classrooms, shop, and work sites accessible;
11. Alternative instructional materials;
12. Staff/student ratio;
13. Methods for evaluating and grading student performance;
14. Opportunities for work experience;
15. Employment opportunities for a person trained in the specific skill, both locally and nationally; and
16. Local availability of jobs.

Vocational education and training in integrated settings (including supported employment) provides students with opportunities to learn appropriate ways of interacting with others in school and work settings. To encourage greater use of integrated programs, Congress did not allocate funds for vocational courses designed solely for students with disabilities. Rather, the federal statute provides funds for supportive services and modifications in regular vocational programs to permit the participation of special populations. [20 U.S.C. Secs. 2301 & following.]

“Supported employment” is a vocational placement option that has been primarily used for persons with developmental disabilities. Under state law (the “Lanterman Act”) this means paid work in an integrated setting in the community in which persons with and without disabilities interact. The employee can be hired by an employer in the community, directly or through a (Regional Center or Department of Rehabilitation) contract with a supported employment agency. Typically, ongoing support services are provided to the employee so that she may keep the job. [Cal. Welf. & Inst. Code Secs. 4851(n)-(p).] This vocational placement option should also be available to persons with other disabilities.