By Michelle Ball, California Education Attorney for Students since 1995
Special education services, such as speech and language, occupational therapy, or behavior support cannot be denied solely based on “unavailability.”
I have met parents who have been denied special education services for a student solely based on a school supposedly “not having” services available at their site or in their school district. This is illegal. Denial of special education services based on unavailability or lack of providers is not legal.
Special Education Services Depend On the Student
Special education support services (also called “related services“) are based on the “unique needs” of each special education student. How an IEP (Individualized Education Program) team meets these student needs varies with every student. Services must be tailored to the specific student.
Improper Denial of Related Services
If a student requires special education services to meet their unique educational needs, and they are in a student’s IEP plan, they must be provided by the school or school district.
It is completely irrelevant to the student and the parent that the school is inadequately staffed to provide the required services or that the service providers allegedly “don’t exist.” If the school does not have a speech and language therapist available, they need to seek out and contract with a speech and language therapist available in the community.
Special Needs Parents Tend to Believe the IEP Team
Parents, being unaware of their rights and/or believing that a school IEP team is acting in the best interests of their child, mistakenly believe statements of denial. IEP team members may say things like: “We don’t have any speech services in the school district.” Or, “There are no occupational therapists available here.” Or, “Those kind of speech services are not provided in this school/district,” to support a lack of special education services being provided. Parent’s unknowing agreement with such false statements means the special needs student will not receive the services he or she needs to be educated.
Special Needs Services Must Be Provided
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.
Don’t Believe the IEP Team’s Illegal Denials of 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. I wish they would.
IEP team meetings are also often very friendly, almost like social events, and parents tend to trust the school representatives as “authorities” and as “having more experience” than the parents. However, trusting the team to act on the special needs student’s behalf and do what is necessary 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.
Lack of Qualified Personnel Does Not Excuse Lack of Assessment
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.
Please see my disclaimer. This is legal information, not legal advice and no attorney-client relationship is formed by this posting. This blog may not be reproduced without permission from the author and proper attribution of authorship. This blog may not reflect the current state of the law.