Special Education Rights for Children and Families

Read this section if you are a parent, foster parent, or guardian, or if you take care of a child who is not doing well in school. You will learn about special educational services that may help your child.

A child can have trouble in school, or not want to go to school, for many different reasons. It can be because of behavior problems, emotional problems, language problems, medical problems, or learning problems or disabilities.

Here are some signs that your child may need special education. Your child:

  • Has problems reading, writing, or doing math;
  • Has trouble sitting still, concentrating, or following directions;
  • Has problems with talking or pronouncing words;
  • Forgets where things are;
  • Does not know how to tell time or cannot keep track of time;
  • Does not understand ideas like up and down, left and right, or front and back;
  • Has problems with motor skills like holding a pencil;
  • Has trouble with personal routines like brushing teeth; or
  • Is in his or her own world or has trouble making friends.

It is not always easy to see a disability. Learning and other disabilities can be really hard to spot. As a parent you usually know your child best and know if he or she has problems learning or behaviors that stop him or her from learning.

Your child can be smart and still have a disability. It just means that your child’s mind works differently. Children with learning and other disabilities can get frustrated and skip school or even drop out if they do not get the help they need to learn and stay in school.

Children who have problems in school may have the same problems later in life. For example:

  • Students with learning disabilities drop out of high school at a significantly higher rate than students without learning disabilities.
  • A high percentage of the delinquent children tested had learning disabilities they did not know about.
  • Up to one-third of teens with learning disabilities will be arrested within 3 to 5 years after high school.

Benefits of Special Education

The help that students with disabilities need in order to learn in school is called “special education.” Special education is specially designed instruction; it is free; and it is unique to your child’s needs. “Unique educational needs” include academic, social, health, emotional, physical, and vocational needs. The law says that children with disabilities have the right to have a free, appropriate public education (also called "FAPE").

Children who are at least 3 years old, and up to age 22, and are having trouble learning may be able to get special education or "related services."   Related services are other services that the child needs to be able to learn. These related services can be transportation and other supportive services like speech therapy, psychological services, physical therapy, social work services, and counseling services.

Types of Special Education Settings

Children with disabilities must get their education in the least restrictive environment (also called "LRE"). This means that, as much as possible, thee have to be with students who do not have disabilities in the most integrated class.

But if the child cannot be in a regular classroom all day because of his or her disability, he or she will be placed in a more limited classroom or school. The local educational agency (also called "LEA"), which is usually the school district, has to give the child the chance to learn in different settings, like:

  • Teaching the child in a regular classroom (with special aids and services called “pull-in”);
  • Giving the child other services, like resource specialist services (called "pull-out" services because children are taken out of the classroom to get them);
  • Teaching the child in special day classes either part or all day, and centers;
  • Teaching the child in special state schools;
  • Teaching the child at home;
  • Placing the child outside the home and teaching him or her in a hospital, group home or other institution; and
  • Placing the child in a private school for students with disabilities, also called a “non-public” school.

Figuring Out If Your Child Needs Special Education

The law says that a student can get special education if he or she has certain disabilities and needs the special instruction. The disabilities are:

  • Intellectual disability;
  • Hearing problems or deafness;
  • Speech or language problems;
  • Problems seeing or blindness;
  • Serious emotional problems;
  • Serious orthopedic problems;
  • Other health problems;
  • Learning disabilities;
  • Autism; and
  • Traumatic brain injury (TBI).

Your child's public school must spot children that need special education, which is called “child find.” But they may not notice that your child needs help. If you think your child has a disability and needs special education and other services, ask for an assessment in writing.

The Assessment Process

An assessment is when special evaluators such as school psychologists evaluate your child to see if he or she needs special education and what kind of help he or she needs.

The teachers and professionals doing the assessment do tests, have interviews, and watch your child at school. No matter what kind of disability your child may have, part of the assessment will be psychological and educational and part of it medical, usually by sending forms to your doctor. The assessment will test the specific things that your child has problems with to figure out areas of weaknesses and strengths.  You can ask for an assessment in all areas that you think your child is having troubles, such as learning difficulties, social or emotional issues, or speech and language problems.

Certain people can ask for an assessment (called "referral for an assessment"), like a:

  • Parent or foster parent,
  • Teacher,
  • School psychologist, or
  • Your family doctor.

To ask for an assessment, send a letter in writing to your local educational agency (LEA), which is usually the school district. The letter should have this information:

  • The date of the letter;
  • The child's full name and date of birth;
  • If the child is in school, and the name of the school;
  • If the child has had special education services in the past;
  • Your name, address, and phone number;
  • That the child has problems in school and the kinds of problems; and
  • That you want an assessment because you think the child needs special education or other services.

Send the letter to the LEA. Keep a copy of your letter. Give a copy of your letter to your child's school principal and get it date stamped or signed for in the office when it is delivered. You may want to give a copy to the teacher. If your child is not in school, send the letter to your school district's director of special education.

Make sure you get a notice of delivery from the post office or deliver the letter in person and have it date stamped by the office staff so you have a record that the request for an assessment was received and the date it was received.

After the assessment request is received
The LEA, usually through the school, has 15 days to give the parent an assessment plan. The plan has to be in the parent’s main language. It must use words that are easy to understand. The plan says what kind of tests the LEA will do.

The LEA has to give the parent a copy of the notice of parents’ rights along with the plan. The parent has 15 days to decide to agree or disagree to the assessment plan. The plan must be signed by the parent before the assessment will be done.

The LEA has to complete the assessments and hold an “IEP” meeting (see below) within 50 calendar days from the time it received a written request for assessment. The student should be assessed in ALL areas where the parent and school think the child has problems.

Note: The child will not get assessed (or get special education services) unless the parent agrees in writing.

After the assessment is done
The LEA must meet with the parents, school, and people who did the assessments to see if the student is eligible for special education and related services within 60 days. This meeting is called the “initial individualized education program” meeting.

If the LEA’s assessment determines that your child DOES NOT NEED special education and you do not agree with the LEA’s decision, you can get another assessment by an evaluator of your choice, called an “Independent Educational Evaluation” or IEE. You must request this assessment in writing to the LEA and request that the LEA pay for the evaluation.

  • If the LEA agrees to the independent assessment (IEE), you will not have to pay.
  • If the LEA does not agree to pay for the IEE, the school district must request a due process hearing and prove to a hearing officer that the school evaluation was fine. If a hearing officer orders an IEE during a due process hearing, it will be conducted at public expense.

If the assessment says your child NEEDS special education and you agree, you have to give the LEA permission to make an individualized education program (IEP) for your child. The LEA has 60 days to make this IEP.

After your child starts to get special education, the LEA has to assess your child every 3 years. This is called a “triennial review.” If your child needs it, a teacher, parent, or foster parent can ask to have an assessment sooner.

Individualized Education Program (IEP) Basics

If an assessment says your child needs special education, and your child is eligible for special education services, you will have an IEP or “individualized education program” meeting at least once a year. You and the rest of the IEP team will write an IEP document that says what your child needs and what services will meet those needs.

The IEP document should say:

  • What level your child is at in school;
  • What the long- and short-term goals are for your child;
  • What special education and related services your child needs;
  • How much your child can be with children who do not have disabilities;
  • When services should start;
  • How often services will be given; and
  • Who will provide the services.

Read Assessment and Individualized Education Program (IEP) Timeline to get an overview of the timeline for IEPs.

Writing the IEP

You are a big part of this process. You must be part of the IEP team that meets to review the assessments, records, and observations and decides the program for the student, that is, what services are in the IEP.

The people on the IEP team are:

  • The child's parents;
  • At least 1 regular education teacher, if the child can be in a regular classroom;
  • At least 1 special education teacher;
  • Someone from the LEA (usually the school);
  • Someone who can read the assessment and say what it means for the child's schooling;
  • If the parents or the LEA wants, other people who know about the child; and
  • The student (if appropriate).

The LEA must tell you about any IEP meeting ahead of time. You have to agree to the time and place, and it should be at a convenient location. When the meeting is set, ask the school or LEA to send you a copy of any assessments.

  • You have the right to have an interpreter present at the IEP meeting if English is not your main language. Ask for an interpreter in writing before the IEP meeting.

At the meeting, when your child’s needs are discussed, the school administrator will ask you if you agree to the IEP written for your child. If you want more time to think about it or to have someone else look at it with you, ask them to continue the meeting to a later date.

You can also agree to some parts of the IEP and disagree with other parts of the IEP.

After you give permission in writing, the IEP has to start as soon as possible.

Note: If you do not agree to the entire IEP, your child will not get special education. But you may be able to get special education services for the parts of the IEP that you do agree with.

IEP Review

There will be an IEP meeting every year. But if there are problems with the IEP, or your child has new problems, you can ask for a review at any time. This is called an “IEP addendum meeting.” After the LEA gets your letter asking for a review, you will have a meeting within 30 days. An IEP can be held over the telephone or by videoconferencing if you give your written permission before the meeting.

Rights of Parents in the Special Education of Their Children

The law says that parents and children have certain rights:

  • You can look at all of your child’s education records within 5 days of your request for an assessment.
  • The parents alone have the right to consent to evaluations and services.
  • You can be part of any meeting about your child’s evaluation, placement, or program.
  • You have the right to obtain an independent evaluation if you disagree with what the district finds in its evaluation.
  • A child’s rights will be protected when the parents cannot be found, before surrogate parents are chosen.
  • You must be told in writing in your main language if the LEA wants to make a change in your child’s placement or program, including related services.
  • You can have mediation if you do not agree with the LEA’s actions.
  • You can file a complaint about your child’s identification, evaluation, placement (including expulsion), or services or about changes to your child’s IEP without a parent’s approval.
     

Options if Parents and School Districts Cannot Agree

Parents can always request an IEP meeting to try to make progress on issues where they do not agree with their child’s school district. Parents can also request additional testing and independent testing.

If you have a complaint, you can file a state compliance complaint with the California Department of Education. You must write a letter that describes the school’s failure to provide records, services in the IEP, or an appropriate IEP team. A parent can file a compliance complaint and pursue an IEP at the same time.

For more information about complaints contact:

Procedural Safeguards Referral Service
Special Education Division
California State Department of Education
1430 N Street, Suite 2401
Sacramento, California 95814
1-916-445-4613; 1-800-926-0648
Fax 1-916-327-3740

There is also a Request for Complaint Investigation form you can use, instead of a letter, to file a complaint. Or you can look at this form to learn what information you should include in your letter.

If you have a complaint, you also can start an administrative due process hearing. The state holds this hearing, called a “due process hearing” (or “fair hearing”). Parents and children (if appropriate) can go to the hearing. You can also ask for mediation at any time.

Parents, surrogate parents, and the LEA have these rights during a hearing:

  • The right to a lawyer or other advocate;
  • The right to have a witness, disagree with a witness, cross-examine a witness, or force any wtnesses to come to the hearing;
  • The right to a get a record of the hearing;
  • The right to keep evidence out of the hearing if you were not told about this evidence at least 5 days before the hearing;
  • The right to a decision within 45 days after the LEA gets a letter asking for a due process hearing (or fair hearing); and
  • If you win, the right to have the other side pay for your lawyer.

Write or fax your due process request to the Office of Administrative Hearings at:

Office of Administrative Hearings
Special Education Unit
2349 Gateway Oaks Drive, Suite 200
Sacramento, CA 95833-4231
Telephone 1-916-263-0880
Fax: 1-916-376-6319

This starts the many timelines that are part of “due process.”  Your request must include specific information about how the LEA (school district) violated its FAPE obligations to the student, including contact information about the parent and school.

Read the user guide Understanding Special Education Due Process Hearings provided by the Office of Administrative Hearings.

Children With Behavioral Issues


If your child hurts himself or herself, hurts others, or is destructive, this behavior can get in the way of your child’s learning and IEP goals. The LEA will make a “behavior intervention plan” to help children who hurt themselves or other people, break things, or act out in class.

The plan is supposed to help the student change the behavior. It must be added to your child’s IEP. After your child has a behavior intervention plan, problem behavior will be considered part of the disability and must be addressed by the behavior intervention plan. If that does not work, a new IEP meeting should be called to write new goals, obtain new assessments, or discuss alternative placement.

Deciding if your child will be suspended
The principal of your child's school will follow the California Education Code to decide if a student should be suspended. (A teacher is able to send a student out of the class, but only the principal can send the student home.)

Special education students can be suspended just like regular students. But they cannot be suspended for more than 10 days, no matter what the reason for suspension is, without holding an IEP meeting or being referred for expulsion. The 10 days can be 10 days in a row (consecutive) or a few days at a time adding up to 10 days during the school year. After 10 days, FAPE must be provided to the student.

Deciding if your child will be expelled
California Education Code section 48915 says what things your child can be expelled for doing, such as bringing a weapon or drugs to school. Your child can be expelled or suspended for some of the same things. A school principal may refer a student for expulsion, but does not have the authority to expel, only to suspend the student. Only a school board may expel a student.

A special education student cannot be recommended for expulsion until the student has a pre-expulsion assessment, which is called a “manifestation determination” IEP. For the manifestation determination IEP (pre-expulsion assessment), the IEP team has an IEP meeting. The team decides if the student should be expelled. Parents are also part of the pre-expulsion assessment meeting.

At the manifestation determination IEP (pre-expulsion assessment meeting), the IEP team reviews the goals, services, and placement to decide if the child has had the right services, such as a behavior intervention plan, and whether the placement was right when the student misbehaved. They will also look at how the child’s actions are connected to his or her disability. The team has to decide if the behavior was caused by the disability. This is called a “manifestation determination.”

  • If you disagree with the team's decision about placement, the manifestation determination, or with certain information that the team based its decision on, you can ask for an "administrative due process hearing." If your child is being referred for expulsion for behavior that you believe is related to the disability, then you may also request an expedited due process hearing. Write or fax your due process request to the Office of Administrative Hearings at:
    Office of Administrative Hearings
    Special Education Unit
    2349 Gateway Oaks Drive, Suite 200
    Sacramento, Calfornia 95833-4231
    Tel. 1-916-263-0880
    Fax: 1-916-376-6319

Read the user guide Understanding Special Education Due Process Hearings provided by the Office of Administrative Hearings.

  • If the team decides that your child's disability did NOT cause the bad behavior and that your child had the right educational placement, your child will be disciplined like any other student, including suspension. Your child can be referred for expulsion and can even be expelled if the local school board decides to expel him or her.
  • If the team decides that your child's disability caused the bad behavior, your child cannot be expelled if his or her disability caused the bad behavior or if he or she did not have the right educational placement when he or she misbehaved. The IEP team should meet to change the IEP and may have new assessments, provide different services and change the placement.

If your child misbehaves but is not eligible for special education yet
You may still be able to get special protection if your child misbehaves.  If the LEA knew about your child's disability before he or she misbehaved, you can get protection for your child from them.

The LEA knew about the disability if:

  • A parent asked for an assessment or wrote a letter saying he o she was worried about a disability;
  • The behavior proves that the child needs special education; or
  • The child's teacher or someone who works for LEA told the director of special education or other personnel that he or she was worried about the child's behavior.

Getting Help With Special Education Issues

Write or visit the website for:
National Dissemination Center for Children With Disabilities (NICHCY)
1825 Connecticut Avenue NW, Suite 700
Washington, DC 20009

You can also call them at: 1-800-695-0285.
Or email them at: nichcy@aed.org

Ask them where you can go for help.

Finding the Law on Special Education

The information in this section is based on the laws in effect in December 2010. The laws can change at any time. Make sure you research these laws to find any recent changes.

Federal Laws and Regulations

Individuals With Disabilities Education Act (IDEA) (Title 20 United States Code section 1400 and those that follow).

Federal regulations relating to the IDEA, Title 34 Code of Federal Regulations section 300.1 and those that follow.

State Laws

California Education Code sections 56000 and those that follow (on special education) and sections 48900 and those that follow (on school discipline). Click to find these sections.

California Government Code section 7579.5 (on surrogate parents).

California Special Education laws and regulations

More Information on Special Education

American With Disabilities Act: ADA Home Page
This site was created by the U.S. Department of Justice.

Bazelon Center for Mental Health Law
This organization's website provides advocacy resources on many topics related to disability.

California Department of Education/Special Education Division
This is the official website of the California Department of Education, Special Education Division.

California Department of Rehabilitation website

Community Alliance for Special Education (CASE)
This website has information on special education rights and responsibilities.

Disability Rights California (DRC)
DRC helps people with physical, developmental, or psychiatric disabilities. DRC employees work with students with disabilities and their families to enforce students' rights to be educated in integrated settings. Other services include referral to other resources, advocacy training, and representation in administrative and judicial proceedings, investigation of abuse and neglect, and legislative advocacy.

Disability Rights Education and Defense Fund (DREDF)
DREDF offers specialized support for youth in foster care with disabilities via technical assistance, training, webinars, etc. Services are free.

Every Child, Every Hearing. A booklet that provides information on how to ensure the daily well-being of children in foster care by enforcing their rights. Published by the Judicial Council of California.

LawHelpCalifornia Special Education
Links to information on getting quality special education for your child, the legal rights of students with disabilities and more. (Select your county or enter your zip code for information specific to the area that you live in.)

National Center on Education, Disability, and Juvenile Justice: Parent Support
This site discusses issues related to youth with disabilities who are referred to the juvenile justice system.

The National Dissemination Center for Children With Disabilities (NICHCY)
NICHCY is a national information and referral center with information on disabilities and related issues for families, educators, and other professionals. NICHCY focuses on children and youth (from birth to age 22).

Office of Special Education and Rehabilitative Services
This web page is posted by the U.S. Department of Education.

A Parent's Guide to Special Education/Special Needs
This site has practical information for nonlawyers. It was created by the Council for Disability Rights.

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