Last Updated on July 26, 2022 by Michelle Ball
By Michelle Ball, Sacramento California Expulsion, Special Education, sports/CIF, College, Education and School Attorney/Lawyer for Students since 1995
Student special education services, such as resource support, 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 a student requires to make adequate yearly progress, based on unavailability or lack of providers, is not legal.
Special Education Services Depend On the Student
Special education services and 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 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 the student, can 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 services are not provided in this school/district,” to support a lack of special education services being provided.
Parents 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 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, and they are in the student’s IEP, provision of such services CANNOT BE DENIED or ignored based on unavailability of service providers.
If a school or district does not have a qualified provider available, 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.
The school should also make up any services which were missed while looking for the student’s providers.
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.
IEP team meetings are often very friendly, almost like social events, and parents tend to trust the school representatives as they may seem like trustworthy “friends.” Parents also trust school people as “authorities” and as “having more experience” than the parents.
However, blindly trusting the IEP 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 just accept denials.
Lack of Qualified Personnel Does Not Excuse Lack of Assessment
Another related wrinkle here is that schools may try use the lack of personnel to avoid assessing the student’s needs in the first place, and thus including needed services in a student IEP altogether.
However, if a school or district lacks personnel to assess, they again must hire qualified outside help to assess for all areas of potential need.
Don’t be fooled. If a student is entitled to services, they need to be delivered.
Special education student lawyer Michelle Ball helps families across California, in locations such as Davis, Fairfield, Vacaville, Fresno, Auburn, Chico, Hanford and many other places.