Yes. The parents of a student with a disability will be given the opportunity to inspect and review their stu­dent’s educational records including all records related to the identification, evaluation, and educational placement of the child and the provision of a free appropriate public education  to the child.  34 CFR §§ 300.613-6; Fla. Admin. Code R. 6A-1.0955.

In Florida, special education is called exceptional student education. Children who need specially designed instruction and related services are exceptional students. This includes special help at school for students with disabilities, but also for especially gifted students. Fla. Stat. § 1003.01 (effective July 1, 2011)(amend. EDUCATION, 2011 Fla. Sess. Law Serv. Ch. 2011-175)(C.S.C.S.H.B. 1255)(WEST)); Fla. Admin. Code R. 6A-6.03311-6.03031 (2007). 

Where do the laws on special education come from?

There are federal, state, and local laws on exceptional student education (ESE).

The main federal law is the Individuals with Disabilities Act, known as the IDEA. Specifically, IDEA requires that:

1)      children with disabilities be evaluated,

2)      that an Individual Education Plan (IEP)  be established for them and that,

20 U.S.C. §§ 1412 (a)(1)-1482 (2005); Title 34, Code of Federal Regulations (C.F.R.) Sec. 300.101­­-300.108. 

A free and appropriate public education (FAPE)  “does not require states to meet all the particular needs” of each child, but must be designed to provide a meaningful opportunity to learn.  Cohen ex rel. Cohen, 450 So.2d 1238, 1241 (Fla. 3d DCA 1984); Sch. Bd. of Lee County v. S.W., 789 So.2d 1162, 1166 (Fla. 2d DCA 2001); Hendry County Sch. Bd. v. Kujawski, 498 So.2d 566, 568 (Fla. 2d DCA 1986). 

Most state law follows federal law, since Florida has to follow the rules of the IDEA to get federal money.  So Florida includes most of the federal rules for the IDEA in state statutes. See 20 U.S.C. § 1412 (2005); Florida Statutes Section 1003.57, Florida Administrative Code, Chapter 6A-6;  M.H. v. Nassau County Board of Education, 918 So. 2d 316, 318 (2005).

School districts develop their own programs according to the state rules to serve their students “in the most effective way possible.”  Fla. Stat. § 1003.57 (1)(2010).

Children who are evaluated, and have certain disabilities can get special education. Just having a disability is not enough. Children’s disabilities must deny them some educational benefit. Also, specialized education must help them get this benefit.  20 U.S.C. § 1401 (3); 34 C.F.R. § 300.8; Fla. Stat. § 1003.01. 

A child who just needs more instruction in math and verbal skills, or merely has limited English ability, does not qualify for exceptional education. 20 U.S.C. Sec. 1414(b)(5); 34 C.F.R. Sec. 300.306(b); Fla. Admin. Code R. 6A-6.03311(3)(d). 

The following disabilities often qualify:

1)      Intellectual disability;

2)      Autism spectrum disorder;

3)      Speech or language impairments;

4)      Orthopedic impairment;

5)      Traumatic brain injury;

6)      Visual impairment;

7)      Emotional or behavioral disability;

8)      Specific learning disabilities;

9)      Deaf, hearing or dual sensory impairment;

10)  Hospitalized or home bound and;

11)  Developmental delay. 

To qualify for one of these disabilities, children must meet the specific legal standards for each disability, as outlined in the Florida Code.  Fla. Stat. § 1003.21(1)(e)(2010).

Children may be eligible for exceptional student education  between the ages of 3 and 21 years of age.  20 U.S.C. 1412 (a)(1); 34 C.F.R. Sec. 300.102(a)(3); Fla. Admin. Code R. 6A-6.03028.

Children below age 3 with physical disabilities or developmental delays may be eligible for special programs. The following conditions may qualify: 

1)      Deaf or hard of hearing

2)      Visually impaired

3)      Severely physically handicapped

4)      Trainable mentally handicapped

5)      Profoundly handicapped

6)      Developmental delays

State Board of Education rules require schools to identify these conditions for children birth through 2 years of age.  Schools must identify developmental delays in children from birth through 5 years of age.  Fla. Stat. § 1003.1(1)(e)(2009).

Local school boards are required “to ensure that students suspected of having a disability … are identified, evaluated, and provided appropriate specially designed instruction and related services if it is determined that the student meets the eligibility criteria.”  M.H. v. Nassau Board of Educ., 918 So. 2d 316, 321 (2005).

This is consistent with the IDEA’s “child find” program, which makes sure that “[a]ll children with disabilities residing in the State, including children with disabilities attending private schools, regardless of the severity of their disabilities, and who are in need of special education and related services, are identified, located, and evaluated.”  20 U.S.C. § 1412(a)(3)(A); 34 C.F.R. § 300.125(a)(1)(i).

The Florida Department of Education maintains regional diagnostic and learning resources for exceptional students. The centers must assist in the provision of services to evaluation and diagnose students with disabilities and exceptionalities. Centers also make referrals to services, and facilitate the provision of instruction to students. Some centers also assist in evaluating infants and preschool children at risk of developing disabilities. Fla. Stat.  § 1006.03(4)(2003), Fla. Stat. § 1006.03(4). 

A school must provide a free appropriate public education (FAPE). In order to meet the standards for FAPE, a school must do the following:

• provide special education and related services at public expense, without charge,
• meet appropriate standards,
• include preschool through secondary education,
• conform to an Individual Education Program (IEP). 

See 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17; Cohen ex rel. Cohen, 450 So.2d 1238, 1241; Sch. Bd. of Lee County, 789 So.2d 1162, 1166; Hendry County Sch. Board, 498 So.2d 566, 568. 

Further, IDEA allows reimbursement of the costs of private special-education services to children with learning disabilities when:

1)       a school district fails to provide children with FAPE

2)      A private-school placement is appropriate.  IDEA, § 612(a)(10)(C)(ii), 20 U.S.C. 1412(a)(10)(C)(ii); Forest Grove School Dist. v. T.A., 129 S. Ct. 2484 (2009). 

This reimbursement, however, is only available if a federal court decides that the public placement violated IDEA and that the private school placement was appropriate under the act.  Id. 

The John M. McKay Scholarships for Students with Disabilities Program gives alternate public school options or private school attendance for students with disabilities with an individual education plan. Fla. Stat. § 1002.39 (effective July 1, 2011)(amend. SCHOLARSHIPS–HANDICAPPED PERSONS–JOHN M. MCKAY SCHOLARSHIPS, 2011 Fla. Sess. Law Serv. Ch. 2011-127 (C.S.H.B. 1329)(WEST)).

Special education programs must be held in the least restrictive environment (LRE).  34 C.F.R. Sec. 300.114; Fla. Admin. Code R. 6A-6.03028.  This means that as much as possible, all students with disabilities should be educated with students who are not disabled.  Id.

A school must also provide any services which are needed for an exceptional student to benefit from education. These “related services” may include:  

1)      Transportation;

2)      Diagnostic and evaluation services;

3)      Social services;

4)      Physical and occupational therapy;

5)      Speech and language pathology services;

6)      Job place­ment;

7)      Orientation and mobility training;

8)      Braillists, typists, and readers for the blind;

9)      Interpreters and auditory amplification;

10)  Services provided by a certified listening and spoken language specialist;

11)  Rehabilitation counseling;

12)  Transition services;

13)  Mental health services;

14)  Guidance and career counseling;

15)  Specified materials, assistive technology devices, and other specialized equip­ment and;

16)  Other such services as approved by rules of the state board.

Fla. Stat. § 1003.01

The school district usually provides special education services. Florida school districts must make sure that all exceptional students are identified, located, and evaluated. Fla. Admin. Code R. 6A-6.0331.

If children are eligible, school districts must also make sure that an appropriate exceptional student education is made available to them. Fla. Admin. Code R. 6A-6.03011 – 6A-6.0361,  Fla. Admin. Code R. 6A-6.0331 (2).  This is a responsibility that applies to all students, “including those who are homeless or are wards of the state or who attend private schools, regardless of the severity of their disability.”  Id.

Each district school board must provide for an appropriate program of special instruction, facilities, and services for exceptional students.  Fla. Stat. § 1003.57.  The district school board must provide:

• the special instruction, classes, and services, either within the district school system,
• in cooperation with other dis­trict school systems, or
• through contractual arrange­ments with approved private schools or community facilities that meet standards established by the commissioner. 

The Florida Department of Education oversees the local school districts finances, and insures that exceptional students are residents of the state.   Id.

Special education must be provided in the least restrictive environment. (LRE)  This means, that to the maximum extent appropriate, children with disabilities must be educated with their nondisabled peers. Fla. Admin. Code R. 6A-6.03028. 

Special education students may be removed from the regular education environment only when the nature or severity of the disability means that supplementary aids  and services would interfere with the general education environment. 20 U.S.C. Sec. 1412 (a)(5)(A); 34 C.F.R. Sec. 300.114; Fla. Admin. Code R. 6A-6.03028.

 A variety of alternative placements must be made available to meet the needs of exceptional students with disabilities:

1)      instruction in regular classes, special classes, and special schools,

2)      home instruction, and

3)      instruction in hospitals and institutions supplementary services, such as resource rooms, in addition to regular class placement. Fla. Admin. Code R. 6A-6.03028.

According to Florida statutes, no student will receive special instruction until he or she has been properly evaluated. Fla. Stat. § 1003.57(5).

FAQ about the Special Education Evaluation

After a child has been evaluated and is identified as eligible for special education, the next step is the development of an IEP. 

FAQ About Developing an Individualized Education Program (IEP)

If the parents and the school cannot agree on the contents of the IEP, either party may request a due process hearing.  Fla. Admin. Code R. 6A-6.03028; M.H, 918 So. 2d 316, 206. Due process hearings are conducted by an administrative hearing officer from the Division of Administrative Hearings (DOAH).  Fla. Stat. § 230.23(4)(m)(4).  

The “parent of an exceptional student evaluated and placed or denied placement” has the right to a due process hearing on the “identification, evaluation, and placement, or lack thereof.”  Fla. Stat. § 230.23(4)(m)(4)(2010); Fla. Admin. Code R. 6A-6.03311; P.J.S. v. Sch. Bd. of Citrus County, 951 So. 2d 53, 54 (Fla. Dist. Ct. App. 2007).

 A due process hearing request must be for a violation that occurred not more than 2 years before the date the parent or school district knew or should have known about the alleged action that forms the basis of the due process hearing request. Fla. Admin. Code R. 6A-6.03311(9)(b). 

The party filing a due process hearing request must forward a copy of the request to the Florida Department of Education.  Fla. Admin. Code R. 6A-6.03311(9)(d). The receiving party has 15 days to notify the administrative law judge (ALJ) and the other party in writing if they believe the due process hearing request does not meet the requirements under law. Fla. Admin. Code R. 6A-6.03311(9)(d). Within 5 days of receipt of the notification, the administrative law judge (ALJ) must make a decision about the due process hearing request and must imme­diately notify the parties in writing of that determination. 

The decision of the administrative judge is a final order. However, a negatively affected party may bring a lawsuit in either state or federal court within 90 days after the decision of the administrative judge. 20 U.S.C. § 1415(e)(2); Fla. Stat. § 1003.57(5); Sch. Bd. of Lee County, Florida, 2:05-CV-5-FTM-29SPC, 2007 WL 983274.

Throughout the due process procedures, mediation  is a voluntary option.  If mediation has not been dismissed by both parties, the school district has 15 days after receiving the due process notification to bring together a meeting with the parents and the relevant members of the IEP team who have specific knowledge of the facts identified in the due process hearing request for a resolution meeting .  Fla. Admin. Code R. 6A-6.03311(9)(m).

If the school district fails to hold this meeting, the parent may seek the interven­tion of an administrative law judge (ALJ) to begin due process procedures.  The due process timeline is 30 days, with a 45 day due process hearing schedule, unless a party fails to participate in the resolution meeting, which will delay the hearing until the meeting is held.   If the parent does not respond to the school district’s attempts to hold a resolution meeting, the parent’s due process hearing request may be dismissed.  Fla. Admin. Code R. 6A-6.03311(9)(o)-(v).

A parent may make a complaint to the Florida Department of Education. Within 60 days of a complaint by a parent or other party being filed, the Department of Education will:

1) carry out an independent investigation,

2) give the person making the complaint the opportunity to submit additional information,

3) provide the opportunity for mediation,

4) extend the time established and

5) make a determination about whether the school district is violating a federal requirement regarding students with disabilities.  Fla. Stat. § 230.23(4)(m)(4); Fla. Admin. Code R. 6A-6.03311(5).

A due process hearing is for disagreements about what a child’s education should be. State complaints are for failure to implement the current policies or IEPs.

Most of the rules about suspension and expulsion of special education students are at the federal level.  Each school board, district superintendent, and school principal will have particular duties to maintain discipline and school safety for each school.  Fla. Stat. § 1006.07-09 (effective July 1, 2011). 

Students with disabilities whose behavior impedes their learning or the learning of others, strategies, including positive behavioral interventionsand supports to address that behavior must be considered in the development of their individual educational plans (IEPs).  Fla. Admin Code R. 6A-6.03312

Detention is defined and administered at the local level through the student code of conduct approved by each district school board.  Fla. Stat. § 1006.07.  A principal may suspend a student only as provided by rule of the district school board.  A good faith effort  must be made to immediately inform the parent by telephone of the student’s suspension and the reason for the suspension. In addition, notice of each suspension and the reason for the suspension must be reported in writing within 24 hours to the parent by mail. A good faith effort must be made to use parental assistance before suspension unless the situation requires immediate suspension.  Fla. Stat. § 1002.20 (4)(a)(effective July 1, 2011).

Special education students may be suspended for up to 10 days in a row without any special procedures. Suspensions for more than 10 consecutive school days and expulsions are considered “changes of placement.” To make a change in placement, the school must have parent consent, or conduct a manifestation determination review.    20 U.S.C. Sec 1415(k)(1)(G); Fla. Admin. Code R. 6A-6.03312 (1),(3).

 For extreme situations, involving weapons, drugs, or imminent danger, a school may suspend a student without a manifestation determination. 20 U.S.C. Sec 1415(k)(1)(G); Fla. Admin. Code R. 6A-6.03312 (1),(3),(6). In such circumstances, the district may place the student in an interim alternative setting for up to 45 days.  20 U.S.C. Sec. 1415(k); Fla. Admin. Code R. 6A-6.03312 (6).

 A manifestation determination review is a meeting of the relevant members of the IEP team to determine whether a child with a disability may have a change of placement for misconduct. Fla. Admin. Code R. 6A-6.03312 (1), (3). The meeting must be held within 10 days of the school’s decision to expel the student or change his placement.  Fla. Admin. Code R. 6A-6.03312 (1), (3).

The team must review all relevant information in the student’s file, include the student’s IEP, and review information supplied by parents and teacher observations The team must decide whether: 

• The conduct was caused by or had a direct and substantial relationship with the student’s disability, OR

The conduct was direct result of failure to implement the student’s IEP Fla. Admin. Code R. 6A-6.03312 (3).

If the team denies that the behavior is a manifestation of the child’s disability, then there are no special procedures. Ordinary school discipline rules apply. The parent may appeal by requesting a due process hearing.  The appeal is sped up for discipline issues and should be resolved within 30 days. In the meantime, the child remains in the interim educational setting .  20 U.S.C. Sec. 1415(k)(1)(F); 34 C.F.R. Sec. 300.530(f); Fla. Admin. Code R. 6A-6.03312 (3); Fla. Stat. § 1003.57(5). 

 Students with disabilities must continue to receive educational services. This includes periods of suspension longer than 10 days, during interim placements, and during expulsions. The services must enable the student to continue to participate in the general curriculum. The student should continue to progress toward meeting IEP goals. The school should continue to provide support for behavioral assessments and services.  20 U.S.C. Sec. 1415(k)(1)(D); 34 C.F.R. Sec. 300.530(d)(1)(i)(ii); Fla. Admin Code R. 6A-6.03312.

If the conduct was a manifestation of the student’s disability, the school district must take immediate steps to change the student’s IEP to address this misbehavior. The team must conduct a functional behavioral assessment , and implement a behavioral intervention plan for the student. Fla. Admin. Code R. 6A-6.03312 (3), (5).

If a behavioral intervention plan already has been developed, the school district must review it and modify it, as necessary, to address the behavior. The school should return the student to the original placement. However, with parent may consent to make a change of placement as part of the behavior plan. Fla. Admin. Code R. 6A-6.03312 (3), (5).