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FAQs

Frequently Asked Questions

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  1. How much does it cost to be represented?
  2. Are you taking new clients at this time and what paperwork do I have to fill out?
  3. What types of law do you practice?
  4. Who else offers help to parents in Southern California?
  5. How do I sign up with you?
  6. What form of payments do you accept?
  7. Should I bring my child to your office?
  8. How soon can you go to a meeting for me?
  9. Can I meet you at my home or must I come to your office?
  10. If you answer “yes” to any of the following questions, you should consider obtaining legal assistance:
  11. Will the Special Education Law Firm send someone with me to each Individualized Education Plan (IEP) meeting if I hire the firm?
  12. What if I cannot attend a meeting with the school district?
  13. What is the definition of special education?
  14. What happens if the school district does delay in implementing my child’s Individualized Education Plan (IEP)?
  15. What if I think my child with a disability is being harassed at school?
  16. 16.What should I do if my child with a disability is having behavior problems in school?
  17. How do I get Extended School Year (ESY) services for my child?
  18. How do I get related services for my child?
  19. Does the Individuals with Disabilities Improvement Act (IDEA) address the use of private insurance and/or Medicaid to pay for special education services?
  20. May a school district compel a parent to use Medicaid or private insurance when it is available to the family?
  21. What if the school district offers to pay the parents’ costs associated with using private insurance?
  22. What if the district offers to pay the parents’ costs associated with using Medicaid?
  23. What happens if parents refuse to consent to the use of Medicaid/private insurance?
  24. If the parents agree to use private insurance, when must a district obtain consent?
  25. Can a district require parents to sign up for public insurance?
  26. Is parental permission needed prior to disclosing information to the Medicaid agency or to private insurers?
  27. What does the word “functional” mean, as used in “functional performance” and “functional goals”?
  28. What are academic goals?
  29. What are research-based teaching methods?
  30. Should the Parent sign and consent to the IEP at the IEP meeting?
  31. Can I collect attorney’s fees if I prevail against the district at a due process hearing?
  32. Does my child have the right to the same services she receives during the regular school year during the extended school year?
  33. How does the school district determine whether my child has a learning disability?
  34. Who is eligible for specialized services or educational program modifications under Section 504 of the Rehabilitation Act of 1973?

1. How much does it cost to be represented?

a.  See the Fees page.

2. Are you taking new clients at this time?

a. Yes, we are accepting clients at this time and you do not have to fill out any paperwork.  You answer our questions at the intake meeting and we fill out all of the paperwork for you..

3. What types of law do you practice?

a.  Only Special Education related matters.

4. Who else offers help to parents in Southern California?

a. Click here for Special Education Yellow Pages.

5. How do I sign up with you?

a. Call us between 9 am and 4 pm at 562-735-4111 and we can give you information or set up an appointment.

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b. Bring us whatever you have. Do not worry if you do not have everything. Examples of what to bring, if you have them, are:

    1. IEP’S/ 504 PLAN
    2. Assessments
    3. Letters
    4. Grades & progress reports (report cards, quarterly reports, etc.)
    5. Standardized test results (Stanford 9, star tests, etc.)
    6. Discipline records
    7. Decisions or settlements in any prior due process hearings
    8. Letters and notes (from professionals, service providers, etc.)
    9. Medical records and reports
    10. Notes from meetings about your child
    11. Therapists’ reports
    12. Your child’s developmental history, including personal notes or diaries on your child’s development
    13. Records of shots and vaccinations
    14. Family medical histories

6. What form of payments do you accept?

a. Cash, checks and credit cards are accepted.

7. Should I bring my child to your office?

a. Generally, we prefer that children be brought to our office so that we may know our clients well.

8. How soon can you go to a meeting for me?

a. Normally, we inform the School District that you are being represented by counsel and any meetings that can be postponed are postponed until the School District has complied with our initial requests for all pertinent records.

9. Can I meet you at my home or must I come to your office?

a. Typically we meet at our home office in Lakewood. Special arrangements can be made when necessary.

10. If you answer “yes” to any of the following questions, you should consider obtaining legal assistance:

  1. Has the school district refused to provide specific services for your child?
  2. Is your child significantly delayed in reading?
  3. Does your child have behaviors that interfere with educational progress?
  4. Has your child made minimal progress despite special education services?
  5. Has the school district suspended or expelled your child?
  6. Is it taking too long to determine whether your child is eligible for special education?
  7. Has the school district failed in properly assessing your child?
  8. Do you want the school district fund an independent assessment of your child?
  9. Are your child’s “goals and objectives” the same from year to year?
  10. Has the school district failed to implement your child’s IEP?
  11. Do you feel overwhelmed or ignored at Individualized Education Plan (IEP) meetings with teachers and school officials?

11. Will the Special Education Law Firm send someone with me to each Individualized Education Plan (IEP) meeting if I hire the firm?

a. Yes, an attorney and/or IEP Advocate will attend with you.

12. What if I cannot attend a meeting with the school district?

a. Unless your attendance is required by law, the Special Education Law Firm’s personnel can represent you without your attendance.  The Special Education Law Firm can always reschedule the meeting for you.

13. What is the definition of special education?

a. Special education means specially designed instruction, at no cost to the parent, to meet the unique needs of a child with disabilities. This instruction can include classroom instruction, home instruction, instruction in hospitals and institutions, instruction in other settings, and instruction in physical education. Special education also includes speech-language pathology or any other related service if the service is considered special education under the State’s standard, travel training, and vocational education. California law adds to the federal definition of special education by requiring that special education be provided to those students with disabilities whose educational needs cannot be met with modification of the regular instructional program. Federal regulations specifically define several key terms included in this definition:

i. At no cost means “that all specially-designed instruction is provided without charge, but does not preclude incidental fees that are normally charged to nondisabled students or their parents as a part of the regular education program.”

ii. Physical education means “the development of physical and motor fitness; fundamental motor skills and pattern; and skills in aquatics, dance, and individual and group games and sports (including intramural and lifetime sports). The term also includes special physical education, adapted physical education, movement education, and motor development.”

iii. Specially-designed instruction means “adapting, as appropriate to the needs of an eligible child…the content, methodology, or delivery of instruction to address the unique needs of the child that result from the child’s disability and to ensure access of the child to the general curriculum, so that he or she can meet the educational standards within the jurisdiction of the public agency that apply to all children.”

iv. Travel training means “providing instruction, as appropriate, to children with significant cognitive disabilities, and any other children with disabilities who require this instruction, to enable them to develop an awareness of the environment in which they live and learn the skills necessary to move effectively and safely from place to place within that environment (e.g. in school, in the home, at work, and in the community).”

v. Vocational training means “organized educational programs that are directly related to the preparation of individuals for paid or unpaid employment, or additional preparation for a career requiring other than a baccalaureate or advanced degree.”

14. What happens if the school district does delay in implementing my child’s Individualized Education Plan (IEP)?

a. The Special Education Law Firm will pursue your legal remedies.

b. A delay in implementation of an Individualized Education Plan (IEP) can constitute a denial of free appropriate public education (FAPE). In one case, the district failed to provide a child with autism the services of an inclusion specialist that were necessary for him to benefit from mainstreaming. The hearing officer found that the district breached its FAPE obligation to the child by:

1. failing to provide the child with appropriate mainstreaming, and

2. failing to offer a school based placement in a timely manner following the development of the IEP.

15. What if I think my child with a disability is being harassed at school?

a. Your child is entitled to an education that provides reasonable progress in a school environment in which learning can occur. This is called a free appropriate public education or FAPE. Your school is required to prevent disability harassment that prevents your child from receiving a FAPE. Harassment can include name-calling, physical abuse, or inappropriate written comments about your child.

b. Disability harassment can violate different laws, including Section 504 of the Rehabilitation Act of 1973, Title II of the Americans with Disabilities Act of 1990 (ADA), and the Individuals with Disabilities Education Improvement Act of 2004 (IDEA). These laws can be violated when the harassment is sufficiently severe, persistent, or pervasive that it creates a hostile environment. This does not include minor bullying or teasing.

c. Examples of harassment that could create a hostile environment include:

i. Students continually state out loud in class that a student with a disability is “retarded” or “deaf and dumb” and does not belong in the class; as a result, the student with a disability has difficulty doing work in class and her grades go down.

ii. A student repeatedly places classroom furniture in the doorway of a classroom so that a student in a wheelchair cannot get into class.

iii. Students continually taunt or belittle a student with a mental health disability by mocking and intimidating him so that he does not participate in class and does not want to attend school.

iv. A teacher repeatedly belittles and criticizes a student with a disability for using accommodations in class, with the result that the student is so discouraged that she has a great difficulty performing in class and learning.

d. The Special Education Law Firm can help by giving written notice, filing a complaint under the mandatory harassment grievance procedure of the school, asking for an Individualized Education Plan (IEP) meeting, filing a State compliance complaint, and initiating a due process hearing before an administrative judge.

16. What should I do if my child with a disability is having behavior problems in school?

a. If your child has an Individualized Educational Program (IEP), your child’s school is required to address your child’s behavior in school if the behavior impedes your child’s learning or the learning of other children.

b. Request an IEP meeting.

c. Ask the school to conduct a functional behavioral assessment (FBA).

i. Document the behavior and interventions. In order to decide how to address your child’s behavior, the school must document the behavior. The school should document the type of behavior, where the behavior is occurring, what and how responses to the behavior have worked, and why the behavior is occurring. With this information, your child’s IEP team can determine ways to address the behavior.

ii. Determine how to assess the behavior. Your child’s IEP team should determine how best to assess your child’s behavior. Behaviors can be assessed by observation and by formal evaluation tools. Observation can confirm the accuracy of the information collected through documentation and can provide insight into why the behaviors are happening. It is important for your child’s behavior to be observed and assessed in the environment where the behavior happens. Your child can be assessed by a variety of people, including teachers, special education personnel, and behavior specialists.

iii. Determine who is qualified to assess the behavior. The IEP team should determine who is qualified to assess your child’s behavior. It is simple to document where and when behavior happens, but more difficult to assess the reasons for behavior. Your child’s IEP team may be capable of determining why your child is having behaviors or the team may require the assistance of a specialist in behavior. Your child’s IEP team should discuss what qualifications are required to assess your child. This discussion should include the required level of behavioral expertise and knowledge about your child’s disability. A person capable of assessing your child’s behavior might be a “behavior specialist,” a psychologist, or a Ph.D. in education or a related field.

iv. Determine if independent assessments are available. Information on your child’s behavior from sources independent of the school can help your child’s IEP team determine how to address the behavior. This information can include psychological or psychiatric evaluations, information about medications, and information from your child’s physician. You should decide whether to share this information with your child’s IEP team. Generally, the IEP team will be able to better address your child’s behaviors if the team has more information about your child and the behaviors.

v. If your school has conducted an evaluation of your child’s behavior and you disagree with the evaluation, you may be able to pursue an independent educational evaluation (IEE) at the school’s expense.

vi. Once your child’s behavior has been assessed, the IEP team should consider the results of the assessment. The individual(s) who collected data about your child’s behavior should attend the meeting. You should request that the individual(s) who conducted assessment or evaluation of your child’s behavior also attend the meeting. The data collector and assessor should explain the results of their assessment and their recommendations to address the behavior.

1. The positive behavior intervention plan. If needed, a positive behavior intervention plan (BIP) should be written to address your child’s behaviors. This plan can be written as goals and objectives on your child’s IEP, or can be a separate plan that is attached to your child’s IEP. The BIP should include positive ways to reduce your child’s behaviors. This can include goals that teach your child more appropriate behaviors or modifications to your child’s environment that decrease the likelihood that inappropriate behaviors will occur. In addition, the plan should include recommendations to school staff about appropriate ways to respond to your child’s behaviors.

2. Training for school personnel. Training or in-service opportunities for staff may be included in your child’s BIP. The IEP team should determine whether staff working with your child have the necessary information and training to effectively implement your child’s BIP.

3. Support from a behavior specialist. It can be helpful to have the on-going support of a behavior specialist, especially from the behavior specialist who assessed your child. This on-going support is helpful to determine if the BIP is working and if not, to help your child’s IEP team to modify the BIP. You should ask your child’s school to agree to on-going involvement from the behavior specialist until your child’s BIP is successfully implemented.

vii. Discipline. The goal of your child’s BIP should be to reduce or eliminate the inappropriate behavior so that your child can learn in school. Another goal should be to reduce or eliminate any discipline of your child. However, even with a BIP, your child may be suspended from school for inappropriate behavior for short periods of time. Your school is required to follow specific procedures in disciplining a child with an IEP for more than short periods of time. If school discipline is a problem for your child, you should learn the discipline procedures.

viii. Least Restrictive Environment. Your child is entitled to receive an education in the least restrictive environment (LRE). This usually means in the school setting with the most opportunity possible to be with students who do not have a disability. Your child’s IEP is required to address your child’s behavior so that your child can receive an education in the LRE with access to and progress in the general education curriculum. Your school should not change your child’s LRE because of behavior if your school has not appropriately addressed your child’s behavioral needs. If your school wants to place your child in a more restrictive environment, you should request an IEP meeting and ask the school to follow the steps outlined in this section.

ix. If your school has suspended your child for more than 10 school days without providing services, or is planning to change your child’s placement in school to a more restrictive setting and you disagree with the proposed change, you can request an impartial due process hearing which should maintain services for your child in the current educational placement until the hearing is resolved.

d. The Special Education Law Firm is prepared to assist you with all the legal and procedural aspects of dealing with a behavioral problem.

17. How do I get Extended School Year (ESY) services for my child?

a. Extended school year (ESY) services are special education and related services that are provided by the school district beyond the traditional school year, usually during the summer. Your school district should provide ESY services to a child with disabilities if the services are necessary for the child to receive a free appropriate public education (FAPE). Your child does not have to lose skills in order to qualify for ESY services.

b. The school district can provide ESY in a variety of ways but the services must be provided at no cost to parents. The decision about ESY eligibility is made by your child’s IEP team. A child who has received ESY services in a previous year is not automatically entitled to those services the following year. Although ESY services may be difficult to get, the suggestions below can help you.

i. Ask for a copy of your school’s ESY policy

ii. Your school’s policy on ESY should describe the procedures for determining whether your child is eligible for ESY services. It is important for you to have a copy of this policy so that you know the procedures the school will use.

iii. There is no single criterion for deciding eligibility for ESY. One factor is the regression/recoupment standard. Schools are required to consider regression and recoupment when deciding whether a child is eligible for ESY. Regression/recoupment looks at whether your child will lose skills due to a break in school (e.g., summer and spring break), and how long it takes for your child to regain the skills when school starts again. If your child loses skills during breaks, and does not regain those skills in a reasonable time, your child may be eligible for ESY.

iv. Other criteria include considering the nature and severity of your child’s disability and “emerging skills” and “breakthrough opportunities” such as when your child is at the point of being ready to read. Thus, your child may be entitled to ESY simply because your child needs ESY to benefit from his or her education and to receive a FAPE. One way to show that a child is receiving a FAPE is to show that the child is making reasonable educational progress. A way to measure reasonable progress is to look at whether your child is meeting the goals and objectives on the IEP. If your child needs additional instruction beyond a regular school year to make reasonable yearly progress, your child may be eligible for ESY services.

v. Written, measurable objectives on your child’s IEP are necessary for you to be able to show whether your child is meeting his or her short-term instructional objectives. Whether your child is making progress is an important part of showing whether he or she will be denied a FAPE if extended school year services are not provided.

vi. If the objectives on your child’s IEP are not measurable, ask for an IEP meeting to re-write them. An example of a measurable goal is “Daphne will decrease her negative behavior by 75 percent.” This goal would not be measurable if it read, “Daphne will decrease her behavior.” A measurable objective might be “Daphne will decrease her incidence of pinching from an average of 20 times per day to an average of 5 times per day.” Measurable goals and objectives should include a measure of how much the child is expected to improve.

c. Send a letter to your school. Refer your child to the district for consideration for ESY. Send a letter to your school requesting that your child be considered for ESY services. The letter should be sent in a way that you would have proof of its receipt by the district, for example, sending it by certified mail. Keep a copy of the letter and receipt.

d. Early referral is better. Generally, it is best to refer a child several months before the summer break to allow time to schedule and conduct an IEP meeting. If the school denies a request for ESY services, you have the right to request an impartial due process hearing to settle disagreements. If you must file for a due process hearing on the issue, early referral insures that the hearing officer’s decision will be made before the summer arrives.

e. Ask your school district to collect and maintain data, including the levels of educational performance at the beginning and end of the school year and whether your child is progressing toward the IEP goals. You can set up regular times to talk with your child’s teacher regarding performance. When the teacher sends progress reports, make sure that the reports address the IEP objectives and criteria for achieving the objectives. You should keep a written record of these conversations for your home file.

f. Gather information that supports your child’s need for ESY

i. Look for facts and data that support your request for ESY under California’s rules. This information usually comes from school records such as teacher progress notes and reports.

ii. Does the information show that your child loses skills over breaks in school and does not regain the skills within a reasonable period of time?

iii. Does the information show that your child is not making adequate educational progress and will not achieve the objectives of the IEP over the course of the regular school year?

iv. You can gather information about your child’s eligibility for ESY by doing these things:

g. Talk with people who know your child’s needs. Talking with your child’s teacher and other knowledgeable district personnel may help you get the information necessary to show the need for ESY. You can also gather your own data. For example, you can document what skills are lost during school breaks (spring break, winter break) and how long it takes to get the skill back after your child returns to school. Document what is done at home to help your child meet IEP goals. If you spend time at home reinforcing what is done at school, or tutor your child, and your child still does not meet set goals, an argument can be made that ESY is necessary for your child to maintain learned material.

h. Seek an independent educational evaluation. You may need to pursue an independent assessment of your child’s need for ESY. This may be necessary if your school does not have data that support your child’s need for ESY. If you have an independent evaluation that supports ESY eligibility, bring the report to the IEP meeting. Your school is required to consider the evaluation. If possible, have the person who performed the evaluation come to the IEP meeting to explain the results.

i. If you do not have data that show regression/recoupment, a professional can provide an opinion about whether it is likely that your child needs ESY. Your child does not have to fail to be eligible for ESY. An expert or the IEP team can make a recommendation about whether ESY is necessary to prevent failure without evidence of actual harm or failure to your child.

j. You should specifically request that ESY be discussed at an IEP meeting. This can be done in a separate letter to the district or in the same letter used to refer your child for ESY. This letter should request a response by a certain date to help the scheduling process.

k. If your child’s IEP team determines that your child is eligible for ESY, the team must determine what services and supports will be provided. Your child’s unique needs should drive the discussion. If your child has not made progress on specific goals in the IEP, the ESY services should address those goals. If you have an independent evaluation that recommends ESY, discuss the specific recommendations made by the evaluator. If your child loses certain skills during breaks in school and does not regain them within a reasonable time, the ESY should address those lost skills.

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l. If the IEP team decides your child is eligible for ESY, write the ESY services on the IEP, including the specific goals to be achieved. If you have ideas about ESY goals and objectives, share them with the IEP team. You can take a written outline to the IEP meeting to help you organize your thoughts and feel less intimidated during the IEP process.

m. What if I cannot get this issue resolved?

i. Seek the assistance of the Special Education Law Firm to help you resolve the issue.

18. How do I get related services for my child?

a. Your school district must provide related services to your child if they are necessary to assist your child to benefit from special education. Related services include, but are not limited to:

i. transportation

ii. attendants for personal health care needs

iii. interpreters for children with hearing impairments

iv. occupational therapy

v. physical therapy

vi. speech therapy

vii. readers for children with visual impairments

viii. nursing services

ix. psychology services

x. aide

b. Ask that the school assess whether a specific related service is necessary. Your school district is required to determine your child’s need for special education services. If your school has not already assessed your child for the related service you want, ask for an assessment of your child.

c. Determine if a more detailed assessment is necessary. You may have information from your child’s physician or other sources that your child’s assessment needs to include- information not usually assessed by the school. For example, a child with autism may have sensory issues related to noise in the classroom. A sensory assessment can be provided by an occupational therapist with special expertise. However, a sensory assessment is not a routine part of an occupational therapy evaluation. In this case, a parent can make a request for a sensory integration assessment to determine whether occupational therapy services are required to address a sensory issue.

d. Provide information to the school from independent evaluators. Your school should consider any information you can provide which supports your request for a related service. Examples of this type of information can include an evaluation from a private speech therapist who recommends school speech therapy, or a prescription from a physician who orders physical therapy services in school.

i. You should discuss with your independent evaluator that school-related services have to be provided only if they are necessary for your child to benefit from his education. The evaluator should consider this when making recommendations for related services in the school setting. It might be necessary for an independent evaluator to observe your child in school in order to make a recommendation for services. You should contact your special education coordinator if you want to schedule an observation.

e. Ask your private therapist/evaluator to communicate with your school. Ask your child’s private therapist or evaluator to contact your school to discuss any recommendations. It can be more persuasive for the person making the recommendation to talk with your school than to simply mail the evaluation recommendations to your school.

f. The decision about the provision of related services should be made by your child’s IEP team during an IEP meeting. You should ask the school personnel responsible for the provision of the specific related service you are requesting to participate in the meeting.

g. Ask your private therapist/evaluator to participate in the IEP meeting. It is helpful to the IEP team if your child’s therapist/evaluator can participate in your child’s IEP meeting. This participation allows a full exchange of information and time for questions and answers. Sometimes therapists/evaluators cannot travel to a meeting due to scheduling issues. If your therapist/evaluator cannot participate at the meeting ask him or her to participate in the meeting by speaker or conference telephone. This participation should be scheduled well in advance and arrangements for a conference telephone should be made. Your special education coordinator can help you and make the necessary arrangements.

h. Write agreed upon services on the IEP. If the team reaches agreement about the need for a related service, the services should be written on the IEP. The IEP should clearly specify the type of service provided, how much will be provided (hours per week/month), and intensity of the service (service provided one-on-one, in group settings, or consultation). For example, if Kristin’s IEP team determines that she needs speech therapy services, her IEP might read: “60 minutes of individual speech therapy per week, and 20 minutes per month consultation.” This means that Kristin will meet individually with her speech therapist for a minimum of one hour per week, and the speech therapist will have 20 minutes per month to provide consultation services to staff working with Kristin.

i. Frequently asked related services questions:

i. How do I get an aide for my child?

1. In addition to seeking support from experts/evaluators outside of your school, you should discuss your request for an aide with the classroom teacher. Because the classroom teacher knows how your child functions daily in school, the teacher may support your request for an aide if it is really necessary for your child. If the teacher supports your request, ask the teacher to explain the need for an aide to the IEP team.

2. For more information on getting an aide for your child, refer the Related Services section of the Wrightslaw Web site.

ii. How do I get transportation for my child?

1. Transportation should be provided to your child as a related service if it is necessary because of your child’s disability. Examples of children who would need transportation include children with physical disabilities that prevent them from walking, or children with mental disabilities, which prevent them from getting to school safely without transportation. Your child’s physician, psychologist or physical therapist can provide information to your school about your child’s need for transportation. If your child needs transportation, it must be written on your child’s IEP. Transportation can be provided in different ways. Your child can ride a regular school bus or a specialized school bus with support services such as a bus aide. Your child may be transported by a school van, or by a private transportation company. Your school may ask you to transport your child if transportation is difficult for the school. You may agree to transport your child but you do not have to provide transportation. If you do transport your child, the school district must reimburse you for mileage expenses. Any agreement for parental transportation must be written on the IEP.

iii. How do I get school health services for my child?

1. Ask your child’s physician to determine the health services your child needs for school. Most commonly, school health services are provided by a nurse. If you are having difficulty getting necessary nursing services in school, ask your child’s doctor to contact your school. If they are necessary, nursing services must be provided to your child at no cost to you. If your child needs nursing services, a nursing plan of care should be developed which should be referenced in your child’s IEP. The nursing plan should clearly identify what nursing services are provided to your child, who will provide them, and who is paying for the service.

2. Unless you agree otherwise, your school is obligated to provide necessary school health services without cost to you. Your school can ask you to pay for all or part of the school health service your child needs. You can agree to use Medicaid, private insurance, or other available sources of funding but only if using this funding will not reduce your benefits or create a cost to you. It is your decision whether to use these resources.

19. Does the Individuals with Disabilities Improvement Act (IDEA) address the use of private insurance and/or Medicaid to pay for special education services?

a. Yes.

b. The IDEA specifically authorizes the use of Medicaid. The regulations also authorize the use of a parent’s private insurance.

20. May a school district compel a parent to use Medicaid or private insurance when it is available to the family?

a. No.

b. The U.S. Department of Education has stated that this use must be voluntary. A school district cannot deny services if parents refuse to authorize the use of Medicaid or private insurance. Moreover, such use must not result in any cost to the parents, such as: co-payment, deductible, or reduction of an annual or lifetime cap on coverage.

21. What if the school district offers to pay the parents’ costs associated with using private insurance?

a. The school district can eliminate the possibility of cost to the parents by paying for the deductible or co-payment. Nevertheless, there may be circumstances where parents will still not want to use the private insurance policy or Medicaid. For some students with significant needs, even a very substantial lifetime cap could be quickly used up, requiring the family to be very careful about when the insurance policy is used. Both Medicaid and private insurance companies may limit how frequently they will pay for an item. Therefore, a parent’s use of insurance or Medicaid to pay for special education and related services is voluntary.

22. What if the district offers to pay the parents’ costs associated with using Medicaid?

a. A school district may pay the costs of accessing the private or public insurance. However, the school district cannot require the parents to use public insurance where there is “financial cost.” Financial cost includes:

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i. out-of-pocket expenses such as deductibles or co-payments;

ii. a decrease in available lifetime coverage or any other benefit, including the family paying for services that would otherwise have been covered;

iii. risk of loss of eligibility for home and community-based waiver programs; and

iv. an increase in premiums or the discontinuation of the insurance.

b. Furthermore, if the Medicaid-enrolled child also has private insurance coverage, Medicaid would require the use of the private insurance. The IDEA regulations do not affect the requirement under Medicaid that the State Medicaid agency pursue liable third party payers such as private insurance providers. Under IDEA, parents may not be required to assume costs incurred through use of private insurance so that the school can get reimbursement from the public insurer for services in the child’s IEP. Under IDEA, if a Medicaid-enrolled child also is covered by private insurance, the public agency must either obtain the parent’s consent to use the private insurance, or not use Medicaid to provide the service.

c. As with private insurance, a child’s right to a Free Appropriate Public Education (FAPE) is not dependent upon whether parents consent to the use of public insurance, such as Medicaid. If the parents refuse to give consent to using Medicaid, the school district is still responsible for providing the recommended services.

23. What happens if parents refuse to consent to the use of Medicaid/private insurance?

a. If the parent refuses to consent to their use, special education services cannot be denied.

24. If the parents agree to use private insurance, when must a district obtain consent?

a. A school may use parents’ private insurance only with the parents’ informed consent, each time the school seeks to use their insurance. The school must tell parents that their refusal to consent to the use of their private insurance does not relieve the school of its obligation to provide services. The comments to the federal regulations under the IDEA add that parents may not be aware of potential future consequences resulting from the use of their insurance. Accordingly, schools should inform parents of potential consequences, such as exceeding a cap on benefits, and encourage parents to check with their insurance provider before giving consent.

25. Can a district require parents to sign up for public insurance?

a. No.

b. School districts cannot require parents to sign up for Medicaid or other public benefits programs. However, the school district can request that parents apply for benefits.

26. Is parental permission needed prior to disclosing information to the Medicaid agency or to private insurers?

a. Yes.

b. The Family Educational Rights and Privacy Act (FERPA) states that a parent must provide a signed and dated written consent before an educational agency or institution discloses personally identifiable information from the student’s education records. Therefore, schools may not disclose information about students, including students who are receiving services under the IDEA, to the State’s Medicaid agency in order to determine which of the students are Medicaid eligible, or to seek reimbursement, without the prior consent of the students’ parents. School districts are also required to obtain parental consent prior to releasing personally identifiable information about students to public insurance agencies.

27. What does the word “functional” mean, as used in “functional performance” and “functional goals”?

a. Functional means nonacademic, as in “routine activities of everyday living.” This clarification should help IEP teams understand that the purpose of the IEP is to prepare children with disabilities for life after school. This should also help the school understand that teaching children how to “function” in the world is just as important as teaching academic skills.

b. It is not necessary to include a definition of “functional” in these regulations because we believe it is a term that is generally understood to refer to skills or activities that are not considered academic or related to a child’s academic achievement. Instead, “functional” is often used in the context of routine activities of everyday living.

28. What are academic goals?

a. IDEA 2004 requires your child’s IEP to include:

i. “a statement of the child’s present levels of academic achievement and functional performance, including how the child’s disability affects the child’s involvement and progress in the general education curriculum . . . [and]”

ii. “a statement of measurable annual goals, including academic and functional goals, designed to meet the child’s needs that result from the child’s disability to enable the child to be involved in and make progress in the general education curriculum; and … meet each of the child’s other educational needs that result from the child’s disability.”

29. What are research-based teaching methods?

a. IDEA 2004 increased the focus on accountability and improved outcomes by bringing the IDEA into conformity with the No Child Left Behind Act, and adding requirements for early intervening services, research-based instruction, and highly qualified special education teachers.

b. IDEA 2004 addresses poor educational outcomes for children with disabilities by requiring “proven methods of teaching and learning” based on “replicable research.” These terms are important. Many school districts continue to use educational methods that are not research-based.

30. Should the Parent sign and consent to the IEP at the IEP meeting?

a. We always advise our clients, no matter how well the IEP meeting went, to take the IEP home and to review it with us. We like to make sure you are comfortable with everything that has been said. You have a right to supplement the IEP.

b. It is important to read the narrative and make sure what was discussed at the IEP meeting was included.

31. Can I collect attorney’s fees if I prevail against the district at a due process hearing?

a. Yes, as long as you file a claim for attorneys fees within two years. The award of attorneys’ fees, however, applies only to attorneys. Fees paid for advocates or expert witnesses are not reimbursable under a recent Supreme Court decision.

b. The amount of attorneys fees awarded depends on the “degree of success” obtained at hearing; however, even when a parent brings a number of claims and only prevails on a few, that does not eliminate the potential for attorneys’ fees. A recent case in the Ninth Circuit involved a parent that brought twenty-seven claims and prevailed on only four. Justice Pregerson, concurring, stated that the few claims on which the parent prevailed might be the most substantial and thus the most deserving of reimbursement. Moreover, unsuccessful claims might be related or inseparable from successful claims and also require reimbursement.

32. Does my child have the right to the same services she receives during the regular school year during the extended school year?

a. Not necessarily.

b. In a recent fourth circuit case, the parents filed for due process because their child’s extended school year IEP did not contain the same level of speech/language and occupational therapy services as were provided during the regular school year. The court found that the district had provided the student with a free and appropriate public education (FAPE). This means that a district can provide fewer services during the extended school year than during the regular school year, as long as the benefits the student gained during the school year are not significantly jeopardized.

33. How does the school district determine whether my child has a learning disability?

a. The school district will ask your permission to assess your child’s eligibility for special education services.

b. You may ask the school district to assess your child’s eligibility for special education services.

c. It is important that the assessment include all necessary tests and conditions to determine what special education services you child may require. The Special Education Law Firm’s personnel review and advise on proposed assessments.

34. Who is eligible for specialized services or educational program modifications under Section 504 of the Rehabilitation Act of 1973?

a. A child who may have problems in learning may not be found eligible for special education services because she does not fit into one of the special education eligibility categories and/or because her learning problems are not severe enough for the student to qualify for special education. Such a child, however, may be eligible for special services and program modifications under a federal antidiscrimination law designed to ensure provision of regular or special education and related aids and services that are necessary to meet the needs of a student with a Section 504 disability as adequately as the needs of students without disabilities are met.

b. The law is commonly known as Section 504 of the Rehabilitation Act of 1973 [29 U.S.C. Sec. 794] and its implementing regulations are at 34 C.F.R. Sec. 104.1 and following. Section 504 eligibility is not based on a categorical analysis of disabilities. Rather, Section 504 protections are available to students who can be regarded in a functional sense as “handicapped,” i.e., students who have a physical or mental impairment which substantially limits a major life activity (such as learning), have a record of such impairments, or are regarded as having such impairments. Whenever you make a referral for special education assessment, you should also request that your child be assessed for eligibility under Section 504. This way, if your child is not found eligible for special education, she may still be able to obtain necessary services or modifications under Section 504. You should also request that the district’s Section 504 Coordinator be present at the initial IEP meeting to discuss the results of the Section 504 assessment. If your child is not found to be “handicapped” for purposes of Section 504 services, that determination can be appealed. The local education agency is responsible for arranging the Section 504 hearing process. The hearing officer selected by the local education agency must be independent of the local agency but can be, for example, a special education administrator from another school district, county office of education, or special education local plan area as long as there is no conflict of interest.

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