Special Education

Last Updated On: 4/23/2015 6:09:23 PM

I have a child who may qualify for special educations services, where do I begin?

A parent must submit a written request to the school district for his or her child to be evaluated.

What happens after the school district receives my written request?

If the school district agrees to evaluate the child an evaluation must be completed within 80 days of parental consent. If the school district does not agree to evaluate the child, the district must provide the parent with written notification of their refusal to evaluate and the parent may then file a complaint.

We have an evaluation conducted by the school. Now what?

The Eligibility Committee (EC) will meet and determine whether a student is eligible for special education services.

What factors will the Eligibility Committee consider for eligibility?

In West Virginia there is a 3 prong eligibility test. 1) The student must have a designated exceptionality as listed in WV Policy 2419. 2) The student must experience an adverse effect on educational performance. 3) The student needs special education. All three must be met for a student to be found eligible for special education.

If the Eligibility Committee determines that my child qualifies for special education, what are the next steps?

An IEP meeting must be held and a written IEP must be developed within 30 days of the eligibility determination.

What does educating a student in the “least restrictive environment” mean?

Schools are required to education children with disabilities along with children who are not disabled “to the maximum extent appropriate.” The regular classroom in the school the student would attend if not disabled is the first placement option considered before a more restrictive placement is considered. This is the student’s least restrictive environment. A child may only be placed in a more restrictive educational environment, such as homebound, alternative school, or special education classroom, if the nature or severity of the disability is such that the child cannot be educated in regular classes, even with the use of supplementary aids and services.

What if I disagree with the initial evaluations considered by the Eligibility Committee when they determined that my child was ineligible special education services?

Parents can request an Independent Educational Evaluation (IEE). An IEE is an evaluation at the school district’s expense completed by a qualified examiner not employed by the school district.

What if the Eligibility Committee determines that my child still does not qualify for special education services after the IEE is completed?

The parent may file a State Complaint, a Due Process Complaint, or request mediation.

Can the school suspend my child if he/she has an IEP?

School personnel may remove any student, including a student with a disability, for up to 10 consecutive school days if the student violates the school’s code of conduct. During those initial 10 days, services need not be provided unless services are provided to students without disabilities.

What happens once my child has been removed from class from more than 10 days in the same school year?

A manifestation determination meeting is required for removing a student with a disability beyond 10 school days. At this meeting, the team must answer two questions:

1) if the conduct was caused by, or did it have a direct and substantial relationship to the student’s disabilities; and

2) was the conduct a direct result of the district’s failure to implement the IEP? If the answer to either one of those questions is yes then the behavior is determined to be a manifestation of the student’s disability.

What happens if the team determines that my child’s behavior is a manifestation of his/her disability?

The school district must conduct a Functional Behavior Assessment (FBA) on the student and develop a Behavior Intervention Plan for the student. If there is already a behavior plan, the IEP team must review the existing plan and revise as needed. The school district must also return the student to the placement from which he/she was removed, unless the parent and district agree to an alternate placement.

What happens if the team determines that my child’s behavior is NOT a manifestation of his/her disability?

The team will then determine appropriate disciplinary action. The student can be treated and disciplined like students without disabilities. An IEP meeting must be held to develop an IEP that enables the student to continue to participate in the general curriculum, although in another setting. The district should also provide the student with an FBA and a behavior plan designed to address the behavior violation so that it does not recur.

What if my child is caught with a gun or drugs at school?

When behavior involves weapons, drugs, or serious bodily injury (regardless of whether the behavior is a manifestation of the student’s disability) the district may remove a student from his/her educational placement and place the student at an alternative educational setting selected by the IEP team for up to 45 school days.

What are my options if I disagree with the discipline procedures taken by the school or I disagree with my child’s special education plan?

The parent/adult student may file a written State Complaint, request mediation, or request a Due Process Hearing.

What is a State Complaint?

A State Complaint is filed with the WV Department of Education (WVDE) for violations of WV Policy 2419. The complaint must be filed within 1 year of the violation, or of learning of the violation. The complaint must be in writing and include details of the violation(s). The WVDE shall investigate and resolve the written complaint within sixty (60) calendar days from the date the complaint is received unless exceptional circumstances exist justify an extension.e an

What is mediation?

Mediation is available through the WVDE to resolve disputes relating to the identification, evaluation, or educational placement of an exceptional student. Mediation is voluntary and is conducted by a qualified and impartial mediator. If an agreement is reached it will be put in writing and signed by both parties. This agreement is enforceable by the courts.

What is a Due Process Hearing?

A parent/adult student may submit a written request for a Due Process Hearing on violations of WV Policy 2419. The request must be submitted within 2 years of when the party knew or should have known of the violation. A Due Process Hearing is an administrative hearing before a hearing officer contracted by the state and the hearing officer determines the outcome of the case. The hearing officer’s decision may be appealed to circuit court.

What is Section 504 of the Rehabilitation Act?

It is a civil rights law that ensures students with disabilities receive equal access to education. It applies to any program or activity receiving financial assistance from the US Department of Education.

What is a 504 Plan?

A 504 Plan spells out the modifications and accommodations that will be provided to a qualifying student so that he/she may access the educational environment and have the opportunity to perform at the same level as their non-disabled peers. The plan may include such things as wheelchair ramps, blood sugar monitoring, extra set of textbooks, a special diet, home instruction, a tape recorder for taking notes, or therapy services.

My child has a disability. Is he/she covered and protected by Section 504?

Every student with a physical or mental impairment which substantially limits one or more major life activity is recognized and protected under Section 504.

What is the difference between an IEP and a 504 Plan?

The 504 Plan provides accommodations and modifications in order to provide a qualifyingstudent equal access to the learning environment.

The Individualized Educational Plan (IEP) is a plan or program developed to ensure that a child receives specialized instruction and services to meet the unique needs of the child.

What is the Individuals with Disabilities Education Act (IDEA)?

It is the federal law that governs how special education and related services are provided to children with disabilities. Children with disabilities from birth to age 18-21 are entitled to a Free Appropriate Public Education (FAPE).

What is a Free Appropriate Public Education (FAPE)?

The law requires public schools to provide a FAPE to students with disabilities. A FAPE is appropriate special education and related services that are provided to a student without charge to the parent.

Is there also a state policy in West Virginia that outlines special education services?

This is general legal information. For guidance about your situation, talk to a lawyer.