Tuesday, November 17, 2015

Special Education Basics: "We Don't Have Those Here" Is Not A Legal Reason To Deny Special Education Services

By Michelle Ball, California Education Attorney for Students since 1995

So many times I have met with parents who are beside themselves, unable to obtain services for their child based on a school "not having" services available at their site or in their school district.  Parents are often unaware that denial of special education services based on unavailability or lack of providers is not legal.

Special education is based on the "unique needs" of each special education child and meeting those needs with educational services tailored to that specific student. Parents, being unaware of their rights and/or believing that a school IEP (Individualized Education Program) team is acting in the best interests of their child, mistakenly believe statements such as "We don't have any speech services in the school district;" or "There are no occupational therapists available here;" or "Those services are not provided in this school/district," to support a lack of service provision.  Agreeing with these misstatements means the child does not get the services he or she needs.

If a special education student is qualified (e.g. services in the child's IEP) for educational or related services, such as speech and language therapy, behavioral therapy, occupational therapy, one-on-one instruction, vision therapy, aide services, transportation and a myriad of other services, provision of such services CANNOT BE DENIED based on unavailability of service providers.  If a school or district does not have a qualified provider available and/or in that district, they are obligated to pay for services outside the district and to pay for transportation costs to and from those services.  For example, if there is no occupational therapist (OT) available to provide the 2 hours a week a student is entitled to, the district must pay a private OT provider to deliver services.

Why do parents believe IEP teams when they say they don't have to deliver services as they don't have the personnel?  My theory is that parents are often too busy to know their rights and rely on the school to do their job.  IEP team meetings are often very friendly, almost like social events, and parents tend to trust the school representatives as "authorities" and "having more experience" than the parents.  However, trusting the team to act on the student's behalf and do what is needed to help the student advance adequately year-to-year can be a mistake. Parents' first lesson is that they need to educate themselves and not blindly listen to denials.  

Another related wrinkle here is that schools try use the lack of personnel to avoid assessment (and thus potential qualification) altogether.  However, if a school or district lacks personnel to assess, they must hire qualified outside help to assess for all areas of potential need.  

Don't be fooled.  If your child is entitled to services, they need to be delivered.

Michelle Ball
Education Law Attorney 

717 K Street, Suite 228 
Sacramento, CA 95814 
Phone: 916-444-9064 
Fax: 916-444-1209

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