Advocacy Manual

Special Education
Q. What is the Individuals with Disabilities Education Act (IDEA)?
A. IDEA is the main federal law guiding special education. Special education is specially-designed instruction to meet the needs of individual students. IDEA also allows for related services, which include transportation, speech or language therapy, physical therapy, psychological services, counseling, medical services, recreation, and other needed services. Schools must provide these services to those students who need them to benefit from a special education program.
Q. Which students are covered by IDEA?
A. IDEA protects all students who need special education and related services because of a disability, including those who are homeless. Children suspected of having a disability also are protected. In order to benefit from special education, students must be between the ages of 3 and 21. However, IDEA does fund special services for some children beginning at birth.
Q. What disabilities are covered under IDEA?
A. IDEA provides rights to students with various disabilities, including (but not limited to) the following: Mental retardation; Hearing and vision impairments; Speech and language problems; Learning disabilities (e.g., dyslexia); Emotional problems; and Autism.
Q. How might a possible disability come to a school's attention?
A. Schools and districts must follow IDEA's "child find" rule. This rule requires states to locate and evaluate all students with disabilities. In order to do so, schools should pay attention to all children, including those who are homeless, and look for problems with classroom performance and behavior that may suggest a disability. If there is a problem, schools should then reach out to a parent and suggest that the student be tested for a disability.
Q. Who makes special education decisions?
A. Under IDEA, a "parent" must agree to have a student tested for a disability, and parent agreement is required for participation in special education services. However, the law says the following people can be considered parents: Biological or adoptive parent; foster parent (unless prohibited by state law); guardian; a person acting as a parent and has the student living in his or her home; a person legally responsible for the child. However, the school district must always start by making and documenting efforts to contact the biological or adoptive parent. That parent has the presumptive right to make special education decisions, as long as they are attempting to act as a parent.
Q. What if no adult meeting the definition of "parent" is available?
A. If no "parent" is available, the student is a ward of the court (without a qualifying foster parent), or the student is a McKinney-Vento unaccompanied youth, the school district must assign a surrogate parent. The surrogate parent must be trained in special education procedures and cannot be a school district employee or other person involved in the education and care of the youth. School districts should appoint a surrogate within 30 days. For McKinney-Vento unaccompanied youth, school districts should immediately appoint a temporary surrogate parent. This is only an option for unaccompanied youth. Temporary surrogate parents are an immediate way to initiate evaluations and/or services for unaccompanied youth, while the district proceeds with the steps to appoint a regular surrogate parent. Unlike regular surrogates, temporary surrogate parents can be school district employees, shelter staff, or other people involved in the education and care of the youth.
Q. How can a parent refer a child for evaluations?
A. A parent can ask the school to do special education evaluations. In doing so, a parent should do the following: Put the request in writing; Put a date on the request; Give a copy of the request to the school principal or guidance counselor. IDEA requires schools to provide all necessary tests. Schools will have to finish testing within 60 days unless the state has another rule in place.
Q. What if a student moves while the evaluations are in process?
A. Once a school has begun testing for special education, the new school must finish the job within the timeline. New schools may ask parents for permission to extend the deadline, but parents must agree to any extensions. Schools also must make sufficient progress toward completing the testing promptly. Parents, other helpful adults, and youth can help in this process by immediately informing new schools that the student was being considered for special education in the old school. Finally, parents should avoid extending a deadline if the student has been waiting a long time for services.
Q. What happens when the evaluations are completed?
A. When evaluations are completed, the school will hold a meeting to review the results and determine whether the student has a disability and is eligible for special education. The parent has the right to attend this meeting, along with advocates, doctors, attorneys, or other support. If the evaluations show that the student is eligible for special education, the team will develop an Individualized Education Program (IEP). The IEP includes information about the class or classes in which the student will be placed. IEPs should ensure that students spend as much time as possible in classes and activities with regular education students. The IEP also may list other necessary services, such as transportation and specific therapy. Finally, the IEP must include educational goals and a list of ways to show that those goals are being reached.
Q. What if a student moves after an IEP is completed?
A. The McKinney-Vento Act applies to students who are homeless and who receive special education. When a homeless student with a current IEP changes school districts, the new district must enroll the student in school immediately and provide services comparable to those in the IEP, in consultation with the parent. In effect, the new school must implement the IEP to the greatest extent possible, considering the services available in the new district. Youth, parents, and other helpful adults can help in this process by immediately informing new schools that the student was enrolled in special education at their old school. The new district may then hold a new IEP to reconsider the IEP, with the parent's participation.
Q. How can a school determine what services to provide a student receiving special education, if there are no school records?
A. The enrolling school must immediately admit the student and must contact the previous school for records. 42 U.S.C. §§11432(g)(3)(C), (D). The local liaison should work with special education staff to ensure that a child's special needs can be identified and addressed quickly. The district should establish procedures for obtaining a child's school records expeditiously. If the records cannot be transmitted immediately, the enrolling school can speak with staff from the previous school to get basic information about the student. Former teachers, counselors and administrators should be able to provide this information. Even if records are delayed, the student must be enrolled in school and provided the most appropriate services possible immediately. 20 U.S.C. §§1412(a)(1)(A), 1412(a)(4), 1414(d)(2)(A); 34 C.F.R. §§300.341, 300.300. State laws and regulations implementing IDEA may also contain procedures for providing interim IEPs and interim services.
Q. Do students receiving special education who are homeless have the right to remain in their school of origin?
A. Yes. The McKinney-Vento Act applies to students receiving special education services the same way it applies to other students. Therefore, a student receiving special education who is homeless must remain in the school of origin, unless it is not feasible or against the parent's/guardian's wishes. More often than not, the feasibility equation will weigh in favor of keeping a special education student in the same school, because changing schools and educational programs can be particularly detrimental to students with special needs. Of course, if the distance is such that the commute would be more detrimental than changing schools would be, then the student may have to change schools. There are additional legal requirements under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§1400 et seq., that might come into play. However, IDEA does not supersede the McKinney-Vento Act; a special education student retains all McKinney-Vento rights.
Q. If a student receiving special education services becomes homeless and elects to remain in the school of origin, who pays for transportation?
A. School districts must provide transportation to the school of origin upon request. 42 U.S.C. §11432(g)(1)(J)(iii). This is true regardless of the services the student receives, including special education and related services. Transportation can be included as a related service in a student's Individualized Education Program (IEP). 20 U.S.C. §1402(22). If transportation is listed as a related service in a student's IEP, the student's transportation should be funded from the special education budget. If transportation is not an appropriate related service, the student's transportation should be funded in the same manner as that of other students experiencing homelessness.
Q. If a student misses a lot of school due to homelessness, does IDEA offer any services to help the student catch up?
A. The extended school year rule gives students the right to attend summer school if they need such services due to a disability and have it listed in their IEPs. Students in homeless situations often fall behind in school when they miss days due to their homelessness. An extended school year can help students with disabilities make up days they may have missed.
Q. What are the consequences if a school does not comply with IDEA?
A. If a school does not evaluate a student, does not complete an IEP, does not provide appropriate services, or does not follow any other part of IDEA, parents should make the school aware of their concerns and potentially ask for a mediator (or outside person) to help them work out their problems with the school. If possible, parents should talk to an attorney or other advocate before asking for a mediator. If parents continue to be concerned, they can ask for a special education hearing. Schools and districts must provide parents with information about how to get started with this process.