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The federal Individuals with Disabilities Education Act (IDEA) requires that a student with a qualified disability be provided with special education or related services so that the student can make effective progress in the general curriculum.
First, someone must raise a concern about the child's progress in the general curriculum and make a referral for a special education evaluation. The school district must then notify the parents that a referral has been made and request the parent's informed consent to the evaluation. The parents must be provided with information about why their permission is sought to evaluate the child and what the possible outcomes of that evaluation could be for the student.
After parental consent has been obtained, the school district must begin the student's evaluation. The evaluations used must be administered by qualified individuals, validated, as free from cultural bias as possible and tailored to assess the specific needs of the student.
Once the evaluations are complete, the school must convene a meeting to determine eligibility. IDEA requires that the following people be present at this meeting: the parents, a representative of the school district who has the authority to commit district resources, a representative of the school district who is qualified to provide special education services and who is knowledgeable about the general curriculum, the child's general education teacher, individuals who can interpret the evaluations, any individuals whom the parents wish to invite and in some cases the student, if one of the purposes of the meeting is to discuss transition services.
This team that is convened to decide eligibility must consider whether the student has a disability, if the student is making effective progress in the general curriculum, if the lack of progress is a result of the student's disability and whether special education or related services are needed in order for the student to make effective progress in the curriculum.
If your child is found eligible for special education and you disagree with that determination you can withhold your consent on the Individualized Education Plan (IEP) that is proposed by the school district. The school district may not begin initial special education services without your consent.
If your child was found not eligible for services and you think that the child should receive services then you may appeal the finding of no eligibility. Alternatively, if your child has a disability and does not need special education instruction but does need accommodations then you can request accommodations or modifications pursuant to a federal civil rights law, Section 504 of the Rehabilitation Act.
If you disagree with the results of an evaluation that was used in determining eligibility then you can request an independent education evaluation be conducted. The results of the evaluation must be considered by the evaluation team.
The special education eligibility process can be a confusing and an emotional time for parents. However, it is an important process that is designed to make sure that students with disabilities who cannot access the general curriculum are given the means to do so. Parents can help in this regard by understanding their legal rights and working collaboratively with school districts.
This article is intended to be helpful and informative. But even common legal matters can become complex and stressful. A qualified education lawyer can address your particular legal needs, explain the law, and represent you in court. Take the first step now and contact a local education attorney to discuss your specific legal situation.