These FAQ’s are an attempt to simplify the law and respond to questions that parents often express or need to know. Parents should be mindful that this publication is intended to provide broad, general information about the law and is not intended to provide legal advice. Before applying this information to a specific legal problem, parents are urged to seek advice from an attorney.
What laws govern special education – state laws or federal laws?
The Individuals with Disabilities Education Act (IDEA) provides federal funding for state special education programs. IDEA sets rules that states must follow in exchange for receiving federal funds. States that receive federal funds under IDEA can provide additional educational rights and benefits to children with disabilities and their parents, but cannot take away anything provided in the federal law and regulations. IDEA can be found at 20 U.S.C. §1400 et seq. The United States Department of Education’s regulations implementing IDEA are at 34 Code of Federal Regulations (CFR) Part 300. In Ohio, the state special education laws can be found at Ohio Revised Code (ORC) Chapter 3323, and the state regulations can be found at Ohio Administrative Code (OAC) Chapter 3301-51-01 et seq. [Top of Page]
What is the purpose of special education?
IDEA says that the primary purpose of special education is “to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living.” This statement appears in IDEA at 20 U.S.C. § 1401 (d)(1)(A). [Top of Page]
What is “special education?”
The key to understanding special education is that it must meet the child’s unique needs for academic, developmental, and functional instruction. It includes instruction in schools, hospitals, institutions and homes, and must be at no cost to parents. [Top of Page]
What is a “related service?”
IDEA defines the term “related service” as “transportation, and such developmental corrective, and other supportive services as may be required to assist a child with a disability to benefit from special education.” See 20 U.S.C. §1402(26) and 34 CFR §300.34. Examples include, in addition to transportation, speech and other therapies, recreation, medical services for diagnostic or evaluation purposes, social work services and parent counseling and training. [Top of Page]
What does FAPE stand for?
FAPE stands for “Free Appropriate Public Education” and is defined as special education and related service, provided at public expense and supervision that meets state standards and is provided in conformity with an Individualized Education Plan, or IEP. [Top of Page]
What are the ages of eligibility for special education?
A child is eligible from age 3 through the child’s 21st year. [Top of Page]
Does having a medical diagnosis automatically qualify a child for special education under IDEA?
No. To qualify, a child must meet one of the 13 disability category definitions in IDEA, and must need special education and related service by reason of that disability. Most disability categories also require a showing that the disability adversely affects the child’s educational performance. The 13 categories are:
- Emotional disturbance
- Hearing impairment
- Intellectual disability
- Multiple disabilities
- Orthopedic impairment
- Other health impairment
- Specific learning disability
- Speech of language impairment
- Traumatic brain injury
- Visual impairment
How do schools determine whether a disability adversely affects the child’s educational performance? Is it just a matter of poor academic performance?
An adverse impact looks at all the areas in which children must acquire skills in order to become an independent, functioning adult. In addition to academics, an adverse effect may be decreased or altered functioning in non-academic areas such as social, behavioral, vocational, motor and communication abilities. For example, a child with Asperger’s Syndrome could be eligible for special education even if he has good grades, if he needs services to teach him social or behavioral skills. A child who is a poor reader could be eligible for special education, even if he has passing grades and a high IQ. [Top of Page]
How do I get my child qualified for special education?
To establish eligibility for special education, the school must perform a multi-factored evaluation of the child that assesses all areas of the child’s disability using a variety of different tests and measures. Parents who wish to have their child tested should make a written request for an evaluation to their superintendent, school principal, special education director, or other responsible administrator. To avoid disputes about whether the request was made, it should be transmitted in a way that permits proof of receipt, such as certified mail, return receipt requested. [Top of Page]
Must the school district evaluate my child if I make a request?
No. The school district must evaluate only if it “suspects” a disability, but they must respond (yes or no) within 30 days of your request. Many school districts will not “suspect” a disability, particularly a specific learning disability, until they first try an “intervention plan,” an informal plan of action that is not linked to an evaluation that diagnoses the child’s problem. An intervention plan may delay the provision of special education services to the child, potentially making the child’s learning issue more difficult to remediate later on. This is because services for many disabilities, such as dyslexia, are more effective the younger the child is when services are provided. Hence, parents whose request for evaluation is refused pending the outcome of an intervention may wish to speak to their superintendent about getting a prompt evaluation and/or present private evaluations supporting special education eligibility to the school district. [Top of Page]
How long does the school district have to complete the evaluation once it agrees to do it?
In Ohio, the school has 30 days to decide whether it suspects a disability, and then 60 days from signed parental consent to do the initial evaluation. Re-evaluations must be conducted a minimum of every three years. Parental request is not equal to parental consent. Schools generally require parents to sign a specific consent form once they agree to do the evaluation, though any written consent by the parent is sufficient. [Top of Page]
What is Response to Intervention, or RTI?
IDEA allows school districts to use RTI as one approach to evaluating a child for a specific learning disability. It requires the school to provide a scientifically validated program, supported by peer-reviewed research, to the child who is exhibiting difficulty in one or more of the following areas: oral expression; listening comprehension; written expression; decoding, spelling and understanding words; reading fluency; reading comprehension; math calculation; math problem solving. The school is to collect the data, review it along with the other information gathered from other tests and assessments of the child, and use it in determining whether the child is eligible for special education. It may take longer than 60 days to determine whether the child is responding appropriately to the intervention, so Ohio allows schools to deny the multi-factored evaluation on the grounds of not suspecting a disability pending completion of the research based intervention. If a school is doing an intervention, however, it knows that the child may be eligible for special education. Speaking to the superintendent, and/or presenting private evaluations supporting disability to the school district may persuade the school to evaluate sooner rather than later. [Top of Page]
Assuming I can get an evaluation, what’s the procedure?
After getting parental consent, the school convenes a planning meeting with the parent and discusses the child’s areas of potential disability and what assessments will be done to evaluate in those areas. All areas of suspected delay – including academics, social skills, behavior, adaptive skills, communication, etc. must be assessed, using a variety of tests and measures. Standardized, or norm-referenced testing is always important. This kind of testing generates scores that tell you how your child compares to his peers; if repeated at every evaluation, standardized testing will tell whether the child is gaining or losing ground relative to his peers. Curriculum or criterion based testing will tell you what the child has learned relative to himself. It is possible for a child to learn new things, but still lose ground relative to his peers, and you will find this out through standardized testing.
An evaluation team report is written up and discussed at a meeting with the parent to discuss the team’s findings. At the end of the meeting the eligibility determination is made, and the entire team is asked to sign the ETR. Oftentimes the parent does not see the evaluation report before walking into the meeting, and should exercise caution in signing something she has not read. It is permissible to take the evaluation report home, read it, discuss with spouse and professional advisers, and respond later. [Top of Page]
If I disagree with the evaluation, can I get an Independent Educational Evaluation?
If you disagree with the evaluation you have the right to an Independent Educational Evaluation (IEE) at school district expense. An IEE is one of the most important procedural safeguards available to parents under the IDEA. You can choose the person to do the evaluation and the district will pay for it.
To get an IEE, you should inform the school district in writing that you disagree with its evaluation (though you are not required to explain why), and request an IEE. If the school does not want to provide you with an IEE, the school must promptly initiate due process proceedings to prove that its own evaluation is appropriate (which rarely occurs). Assuming the school does not initiate and win due process, you are entitled to an IEE. The school is supposed to provide you with its IEE policies and a list of recommended independent evaluators, but you may select your own independent evaluator, whether or not this person is on the school’s list. Some schools have policies that limit IEEs according to the independent evaluator’s location, or they set price limits that are below the going rates. Such policies are valid only if they do not interfere with the child’s right to an appropriate IEE. Only one IEE is permitted per each ETR. [Top of Page]
What is an Individualized Education Program and who creates it?
An Individualized Education Program (IEP) is the document which sets forth the school’s plan for delivering a free appropriate public education to the child. The school district must have an individualized education program (IEP) in effect for your child within thirty days of the completion of the evaluation. An IEP must be drafted by an IEP team, which must include the parent(s), and school district representatives who can fulfill the following roles: a special education teacher or provider, a regular education teacher if the child is or may be participating in regular education, a representative of the school district who is qualified to supervise the provision of special education, is knowledgeable about the general education curriculum, and who can commit agency resources, and someone who can interpret instructional implications of evaluation results. Either party may bring other individuals with knowledge or special expertise regarding the child. Under limited circumstances, and with parental written consent, a required participant can be excused from the meeting. [Top of Page]
Does my child have to attend the IEP meeting?
The child’s presence is required only when the team determines it is appropriate, given her age, disability, etc. The child’s attendance is a parental decision until the child turns 18. At age 18, the age of majority, the parents’ rights transfer to the child unless the child is under guardianship. In other words, starting at age 18, children who are not under guardianship should ordinarily attend the IEP team meeting. A mentally competent 18 year old may execute an educational power of attorney, assigning his educational authority under IDEA to his parent or other trusted adult if he is not prepared to step into the advocacy role previously carried out by someone else. [Top of Page]
What should be included in the IEP?
The IEP must include: present levels of performance; measurable goals, both academic and functional, to meet all educational needs that result from the disability; benchmarks to be achieved on the way to meeting goals; criteria for success in meeting the goals; a statement of how progress will be measured; special education services that will be provided to the child to assist in meeting goals; accommodations and modifications; and placement, which should be in the least restrictive environment. The IEP should address behavior that interferes with learning, either through a behavior intervention plan, or a goal that reduces negative behavior or increases positive behavior. For a child who is 14 or older, the IEP should address transition services. The IEP should also address the child’s eligibility for Extended School Year Services. [Top of Page]
How specific should the IEP be?
The IEP must be very specific. Goals must be measurable, which means there must be clear baselines, or present levels of performance, to measure from. A goal that states that “Student will improve his knowledge of action words” is not appropriate because it is not measurable. The parent needs to know the child’s starting point, and what he is expected to learn, and with what degree of accuracy, to know whether the goal is appropriate for her child. Likewise, it is not appropriate for the IEP to simply state a service, e.g. speech therapy, for a number of minutes per week or month. Frequency, location, and duration of services must be identified. An example of what would be appropriate is: “speech therapy, 90 minutes per week, two thirty minute session 1:1 in speech therapy room, one thirty minute session 4:1 within resource room for generalization of skills.” [Top of Page]
Can a parent discuss teaching methodology at an IEP meeting?
Yes. A discussion of methodology is appropriate, but the district is not required to use the parent-preferred methodologies if the district’s available methodology will also meet the child’s needs. IDEA specifically requires that special education, related services, and supplementary aids and services provided in an IEP be “based on peer-reviewed research to the extent practicable.” IDEA strongly favors using proven methodologies that actually work. [Top of Page]
Are IEP goals limited to academics?
No. Just as the evaluation assesses the child in all areas of disability, the IEP must also address functional needs, as well as academic needs. This can includes skills such as appropriate toileting, appropriate behavior, and life skills such as cooking and washing clothes. With respect to transition planning, the IEP must address the deficit areas that must be remediated to prepare the child for further education, employment, and independent living. This can include instruction in behaviors needed to be successful in the workplace such as appropriate communication with the boss and co-workers, including those of the opposite sex. [Top of Page]
What is the least restrictive environment, and does it mean my child has the right to attend her neighborhood school?
IDEA requires the child to be placed in the least restrictive environment (LRE) appropriate to meet his needs. IDEA has a continuum of placements – with full integration into a regular education setting being the least restrictive, education in a regular education classroom with supports and services being more restrictive, education in a resource room being even more restrictive, and education in a special school being more restrictive still. Your child is to be placed in the least restrictive environment that will be appropriate for your child – so if he or she can be successfully educated in a regular education setting with supports and services, that is where the child should be placed, even if the school prefers to put him or her in a special resource room, such as an MH program for children with cognitive deficits.
Placement comes at the end of the IEP process and should grow out of earlier decisions about the child. If the school proposes a placement at the very beginning of the process, this could be considered a predetermined placement, which is a violation of IDEA. [Top of Page]
How much educational benefit must the IEP confer?
In Endrew F, vs. Douglas City District, decided in 2007, the U.S. Supreme Court stated that a school must offer an IEP which is reasonably calculated to enable a child to make progress appropriate in light of the child’s unique circumstances. [Top of Page]
How can I get Extended School Year Services for my child?
Federal IDEA regulations say that each school district must “ensure that extended school year services are available as necessary to provide FAPE,” as determined by the IEP team. 34 CFR § 300.106. Ohio has inserted some additional requirements for ESY: whether it is needed to prevent “significant regression of skills or knowledge retained by the child so as to seriously impede the child’s progress toward the child’s educational goals;” and whether ESY is needed to avoid something more than “adequately recoupable regression.” ORC 3301-51-02(G). Federal court decisions lend some support to Ohio’s restrictive rules, but it is also the case that FAPE, the standard for determining whether ESY is needed, is more than the absence of regression. The IEP must offer the child the opportunity to make “meaningful educational benefit” in relationship to the child’s ability.
If you want ESY for your child, it is wise to collect data, as well as expert opinions (i.e. from your child’s doctors, therapists, etc.) showing or predicting that your child regresses (or will regress) when educational services are withdrawn, and provide that information to the school. You can request to see your child’s educational records maintained by the school to see if they contain information bearing on the issue of regression in the absence of educational services. You are also free to try to persuade the IEP team that ESY is necessary for your child to receive FAPE for any other appropriate reason. [Top of Page]
What are transition services?
Beginning with the first IEP to be in effect when the child turns 14, the IEP must address the child’s post-high school plans. At age 14, this can be as simple as identifying the child’s course of study in high school, but by age 16, the IEP must include appropriate, measurable postsecondary goals related to training, education, employment, and, where appropriate, independent living skills. Services to assist in reaching these goals must be identified on the IEP, and the persons providing those services (not the parent or the student) must also be identified. The Ohio Department of Education has reorganized its IEP forms to place great emphasis on transition services and goals and require specificity and planning from the school districts. [Top of Page]
Will my child’s eligibility for special education services end before he receives transition services?
It should not. A child’s eligibility for special education ends when an evaluation shows he is no longer disabled, he reaches his 22nd birthday, or he graduates with all IEP goals met, including transition goals. Completing academic requirements does not, of itself, mean that your child’s eligibility for special education ends or that he must graduate. If your child has continuing transition needs, graduation would not be appropriate because it would terminate his eligibility for transition goals and services. [Top of Page]
How do I sign if I don’t agree with the IEP?
If you disagree with something in the IEP, you can indicate your disagreement right on the signature page of the IEP. In the case of initial IEPs and IEPs making a change of placement, parental consent is required before the school district can implement the IEP, so if you state disagreement, you must also indicate whether you consent to implementation of the IEP despite your disagreement. If what you want to write is too long to fit on the signature page, you may add an extra page as an addendum.
Whether you agree or disagree with the IEP, you can always sign to indicate your participation in the IEP meeting. [Top of Page]
What is Prior Written Notice?
Whenever the school district refuses a parental request, such as a request for an evaluation, a determination that your child is not eligible for services, a request for an IEP goal or service that the district refuses, or a request that your child have a particular placement, it must provide prior written notice, also called a PR-01. It must also issue prior written notice when it proposes to initiate or change the identification, evaluation, or educational placement of your child or the provision of FAPE to your child. Prior Written Notice must include:
- a description of the action proposed or refused by the school;
- an explanation of why the school proposes or refuses to take the action;
- a description of each evaluation, assessment, record, or report used as a basis for the proposed or refused action;
- notice of procedural safeguards, i.e. your right to file a complaint, due process, etc. (in Ohio, Whose IDEA Is This?);
- sources for parents to contact to obtain assistance in understanding the requirements of IDEA;
- a description of other options that the IEP Team considered and the reasons why those options were rejected;
- and a description of other factors relevant to the agency’s proposal or refusal.
What is a Unilateral Parental Placement?
If the school district does not provide FAPE, the parent can place the child in an appropriate private school and seek tuition later from the school district, though there is no guarantee of reimbursement. To be eligible for tuition reimbursement, the parent must give the school district notice (preferably written) at the IEP team meeting that occurs just prior to the placement, or ten business days’ written notice. Either way, the notice should inform the school district that the parent is rejecting the placement proposed by the school to provide FAPE to their child, state the parents’ concerns, and state the parents’ intent to enroll their child in a private school at public expense. Parents usually have to file due process to collect the private school tuition, and if they prevail in that due process case up through the level of ODE review, the private school becomes the child’s placement. There are two basic requirements for getting tuition reimbursement: first, the school must have failed to offer or provide your child FAPE; second the special private school must be appropriate for your child. [Top of Page]
I understand that children on IEPs have protection against some discipline. How does this work?
Up until ten days of removal (i.e. suspension) from school, the school can treat the child with a disability like any other child. The rule changes at ten days. If the school removes your child from school for ten days or more (i.e. repeated suspensions, or expulsion) it must convene relevant members of the IEP team and have a manifestation hearing to determine whether the misconduct was either caused by, or had a direct and substantial relationship to the child’s disability, or whether the misconduct was the direct result of the school’s failure to implement the IEP. If the answer to either of these questions is “yes” the school must return your child to his previous placement, unless you agree otherwise. In addition, the school must either review and revise your child’s behavior intervention plan, or, if he doesn’t have one, conduct a functional behavioral assessment and design a new behavior intervention plan.
If the IEP team members determine that your child’s behavior was not a manifestation of his disability, he can be removed from his regular placement for more than ten days, but must continue to receive educational services in an Interim Alternative Education Setting (IAES). A school for children with behavioral issues would be one example of an IAES.
If your child brings drugs or a weapon to school, or gets into a fight with someone and caused serious bodily injury, the school can remove your child for 45 school days, whether or not the behavior was a manifestation of his disability. In these circumstances, the school is responsible to provide the child with services in an IAES so that he or she can continue to make progress toward meeting IEP goals.
Parents who disagree with the school’s decision to remove their child from school have the right to an expedited due process hearing. While their case is being heard, however, the child remains in the Interim Alternative Education Setting. Hearings, even when expedited can take weeks, if not months, to reach final resolution. [Top of Page]
What remedies are available to me when I can’t work things out in an IEP team meeting?
You have many choices, usually beginning with a complaint to an administrative agency. The U. S. Department of Education Office of Civil Rights investigates and resolves complaints concerning deprivation of educational rights. This agency has jurisdiction over Section 504 of the Rehabilitation Act of 1973, and will investigate discrimination and bullying complaints, among other things. Complaints must be made within six months of the occurrence complained of. This is a very strict deadline. They have an on-line complaint form which can be found at http://www.ed.gov/about/offices/list/ocr/complaintintro.html, and can be filled out and submitted electronically.
The Ohio Department of Education offers a variety of formal and informal procedures for resolving complaints against your school district. You can file a complaint with ODE for alleged wrongs committed by your school district within the past year. The agency will investigate, issue findings, and may order the school district to take corrective action. ODE also offers IEP meetings facilitated by mediators, as well as mediation with independent mediators.
Parents can file due process, an administrative proceeding initiated by filing a due process complaint with the superintendent of the school district and the Ohio Department of Education. This is run like a trial and we highly recommend parents retain counsel if they opt to file due process. Filing a due process complaint initiates a 30 day resolution period, during which the parties have a “resolution meeting” or a mediation. If the complaint is resolved during this 30 day period, typically the parties will enter into a settlement agreement and dismiss the due process case. If not resolved, the case proceeds to an administrative hearing before an impartial hearing officer (IHO) appointed by the Ohio Department of Education. After taking testimony from witnesses for the parents and the school district, the IHO issues an opinion. The party who is aggrieved by the IHO opinion has the right of appeal to the State Level Review Officer (SLRO) and after that to state or federal court. If parents prevail in due process, they can collect some of their attorney’s fees against the school district. [Top of Page]