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Special Needs and Elder Law Update


Brief Overview of Special Education Law & the IEP Process
by Peter Nolan

Parents of children with disabilities between the ages of 3 and 21 have important educational rights protected under the law. The Federal Individuals with Disabilities Education Act (IDEA) provides for procedural safeguards with regard to the processes involved. Specifically, families with special education children have the right to:

  • Have their child assessed to determine eligibility and needs;
  • Access, inspect, review and obtain copies of school records pertaining to their child
  • Attend an annual “individualized education program” (IEP) meeting and develop an IEP plan with their school district; and
  • Resolve disputes with the school district through both administrative and legal process.

Most importantly, parents must be given the opportunity to participate in the decision-making process regarding their child’s special education program. Parents have the right to participate in IEP meetings about their child’s eligibility, assessment, educational placement and other matters relating to their child’s free appropriate public education (FAPE).

To effectively protect their educational rights, parents need to be informed of the basic special education process under IDEA.

Step 1 – Child must be identified as possibly needing special education and related services. Schools engage in “Child Find” activities to assist in identification, but parents  may also ask to have their child evaluated.

Step 2 – Child is evaluated.

Step 3 – Eligibility is determined.

Step 4 – IEP process takes place. The process includes notification of parents, scheduling of meetings, and the development of the child’s IEP. During this process, the parents may express their concerns or disagreements directly with the IEP team.

Step 5 – Services are provided. The program laid out in the child’s written IEP is then implemented.

Along the way, the child’s progress is measured and reported to the parents. At least once a year, the IEP is reviewed and modified as necessary. Each child is reevaluated at least every three years.

Although forms will vary from one school district to another, every IEP should include the same information. That is:

  • Current educational status
  • Goals and objectives
  • Instructional setting or placement
  • Transition services (if the child is 16 or older)
  • Due process

As a parent of a special education child, you have the right to take any dispute you have with your child’s school district to a neutral third party for resolution.

For more information on the IDEA, the IEP process and your rights, contact your local school district, California Department of Education Special Education Division, U.S. Department of Education’s Office of Special Education and Rehabilitative Services, or contact us at SBEMP to discuss your child’s individual situation and see how we can protect your family’s rights.


Disability Law Center of Alaska v. Davidson 

Summary: In March, 2018, the Disability Law Center of Alaska and minors R.S. and J.S., represented through their parent Kikona Savo, sued Commissioner of the Alaska Department of Health and Social Services, Valerie Davidson, and the State of Alaska, Department of Health and Social Services. The defendant’s motion for summary judgment was denied on grounds that plantiff, Davidson, did not inform the defendant on how to apply for applied behavioral analysis (ABA), did not reimburse ABA under the program, or provide ABA services in reasonable time. This case is yet another example of the importance of ABA programs and knowing the rights of special needs minors. Click here to learn more.

Green v. Green

Summary: Molly Green, after the death of her husband, filed a restraining order against stepson, Holden Green, in 2014. The Superior Court issued a one year protective order to Molly Green. Once the one year period had passed, Molly renewed the restraining order for another five year period in 2015. Holden then filed three separate appeals, claiming the initial restraining order was unqualified, and that the extension of the order and awarding of Molly’s attorney fees and costs were both unnecessary. The California Court of Appeal for the Sixth Appellate District ruled in Molly Green’s favor, affirming the renewal order. Click here to learn more.

Did You Know?

Families with 529 accounts can now transfer, at a rate of $15,000 annually, to an ABLE Act account for their child with special needs. Before doing so, families are encouraged to consult with their tax professional to fully understand the associated tax consequences.

ABLE Act beneficiaries who work are able to contribute part of their income (i.e., up to the Federal Poverty Level, $12,490.00) on top of the annual funding of $15,000.00.

It is permissible for a SNT Trustee, where the language contained therein supports the same, to fund an ABLE Act account for the SNT beneficiary up to the annual $15,000.00 allowance.

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