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  • What is Special Education?
    • Special Education is schooling that has been specifically designed to meet the needs of a child with a disability.
    •  Under both federal and state law, school districts must provide each student with a disability with free appropriate public education (FAPE).
  • Who is eligible for Special Education?
    • Children with qualifying disabilities who require special services in order to benefit from their education have a right to receive special education and related services. Eligible disabilities include:
      •  Autism;
      • Deaf-blindness;
      •  Developmental delay
      •  Emotional disturbance;
      •  Hearing impairment;
      • Learning disability;
      • Mental disability;
      • Orthopedic impairment;
      • Other health impairments;
      • Speech and/or language impairment;
      • Traumatic brain injury;
      • Visual impairment and preschool speech delay

    20 U.S.C. § 1401(3)-(30) (2011); DEL. CODE ANN. tit. 14, § 3110 (West 2011); 14 DEL. ADMIN. CODE § 925(2.0)-(6.0) (2011); 34 C.F.R. §§ 300.8, 300.15, 300.304 – 300.306 (2011). 


    • If the child has one of the disabilities specified above, but only needs a related service and not special education , the child is not a child with a disability under these regulations.
    • A child is not considered a child with a disability if the determination is based on the child’s lack of appropriate instruction in reading, math, or has limited English proficiency. 14 DEL. ADMIN. CODE § 925(6.2). 
    • If a child has a disability that is not visible or obvious, such as depression, and it interf3eres with the child’s learning, he may be eligible for special education services. 14 DEL. ADMIN. CODE § 925(6.7).
    •  Eligible children must be provided with special education services from age three until the end of the school year of their twenty-first birthday, high school graduation, or if the child is determined to no longer be in need of special education and related services.

    The Division of Public Health’s Child Development Watch program provides service to eligible children who are ages three and under. 20 U.S.C. § 1400(d)(1)(A); DEL. CODE ANN. tit. 14 § 3120.

  • In addition to a free appropriate public education, are there other services a child with a disability is entitled to? What are “related services”?
    • Federal and state law also require school districts to provide “related services” in addition to a free appropriate public education.
      • Related services: services that allow children with disabilities to benefit from special education.
    • Related services include:
      • Speech language and pathology and audiology services;
      • Interpreting services;
      • Psychological services;
      • Physical and occupational therapy;
      • Recreation, including therapeutic recreation;
      • Early identification and assessment of disabilities in children;
      • Counseling services, including rehabilitation counseling;
      • Orientation and mobility services;
      • Medical services for diagnostic and evaluation purposes;
      • School health services and school nurse services;
      • Social work services in schools;
      • Parent counseling and training

    14 DEL. ADMIN. CODE § 922(3.0). 

    • Related services do not include surgically implanted medical devices, optimization of functionality, maintenance of the devices, or replacement. However, the IEP should still monitor and maintain devices as is reasonably appropriate. 14 DEL. ADMIN. CODE § 923(13.2).
  • What type of education are children with a qualifying disability entitled to? What is a “free appropriate public education”?
    • Both federal and state law require school districts to provide each student with a disability with a free appropriate public education (FAPE). FAPE means special education and related services that are provided:
      • Public expense;
      • Under public supervision and direction;
      • Free of charge.
    • The education and services must meet the standards of the Department of Education and they must include an appropriate preschool, elementary school, or secondary school education in Delaware.
    • School districts must provide an appropriate individualized education program (IEP). 20 U.S.C. § 1401(9); DEL. CODE ANN. tit. 14, § 3110.
      • The parents will work with a school team to identify the child’s unique educational needs and the development of the IEP.

    20 U.S.C. § 1400(d)(1)(A); DEL. CODE ANN. tit. 14 § 3120.

  • Who provides Special Education?

    Public agencies within Delaware including the Delaware Department of Education (DDOE), local educational agencies, educational services agencies and public charter schools are responsible for providing special education services. 20 U.S.C. § 1412; DEL. CODE ANN. tit. 14 § 3110

  • Where should a child receive his/her special education and related services? What is a “least restrictive environment”?
    • The least restrictive environment requires that students with disabilities be education in general education environments with non-disabled children to the greatest extent possible.
      • Interagency programs can be considered within the least restrictive environement requirement when a child’s needs cannot be met in the local education authority (LEA) of residence or other public agency. 20 U.S.C. § 1412(a)(5); DEL. CODE ANN. tit. 14, § 3110.
    • A child may receive his education in the following settings:
      • Regular class with special education services;
      • Resource room;
      • Home;
      • Hospital;
      • Residential facilities
      • Correctional facilities;
      • Parentally placed private schools.
    • If a child with disabilities is a danger to himself/herself or cause disruptions that interferes with the learning of his/her classmates, the IEP team may provide supportive instruction and related services at home. 20 U.S.C. § 1412(a)(5); DEL. CODE ANN. tit. 14 § 3110.
  • How is a child determined to be eligible for special education? Is there an assessment or evaluation?
    • An educational evaluation to determine whether a child has a disability may be requested by:
      • Parents
      • Teachers, with parental consent
      • Public agency worker, with parental consent

     14 DEL. ADMIN. CODE 925 § 2.2; 34 C.F.R. § 300.301. 

    • Only  parents can provide the written consent for an initial evaluation. Delaware considers the following individuals as parents:
      • Biological or adoptive parents
      • A guardian,
      • Someone acting in place of a biological or adoptive parent,
      • Someone who is legally responsible for the child’s welfare
      • A surrogate parent appointed by the Department of Education

    14 DEL. ADMIN. CODE § 922(3.0); 34 C.F.R. § 300.30

    • The Educational Evaluation involves gathering information from:
      • Aptitude and achievement tests,
      • State assessments,
      • Information from response-to-intervention processes,
      • Parent and teacher input.

    14 DEL. ADMIN. CODE § 925(4.2); 34 C.F.R. § 300.301.


    • If a parent disagrees with the child’s educational evaluation, parents can inform the school in writing and request an Independent Educational Evaluation (IEE).
      • IEES are conducted by a qualified person not employed by the school district free of charge.

    14 DEL. ADMIN. CODE § 926(2.0); 34 C.F.R. § 300.502.


    • If a child’s behavior is interfering with her education, a functional behavioral assessment (FBA) can be included in the evaluation process.
  • What if a parent believes the school district is not doing its job (i.e. failing to implement a valid Individualized Education Plan (IEP)?
    • If parent believes the child’s school district is failing to comply with special education laws, the parent has a right to file a written complaint with the DDOE.
      • Within 60 days of receiving the complaint the DDOE must take action.


    • The DDOE will determine whether the district is or is not complying with the law and notify the parents
      • If the DDOE determines that the school district is not complying with the law, the notification letter will specify the corrective action.

    20 U.S.C. §1221e-3; DEL. CODE ANN. tit. 14 § 3110; 14 DEL. ADMIN. CODE § 923(51).

  • What options does a parent have if s/he disagrees with the proposed IEP placement or services? What are the procedures for due process?
    • If a parent disagrees with the proposed IEP placement or services and has tried to resolve the conflict directly with the IEP team or teacher, the parent can opt to take more formal measures. These options include:
      • Mediation session,
      • IEP meeting.

    20 U.S.C. § 1415(e); DEL. CODE ANN. tit. 14 § 3110; 14 DEL. ADMIN. CODE § 926(6.0).


    • If parents are unable to resolve conflicts, they may request a due process hearing.
      •  Parents must file a due process complaint with the DDOE alleging that a violation occurred that interfered with the child’s right to a free appropriate public education.
    • The complaint should:
      • Identify of the person filing the complaint;
      • Include information  about the child;
      • Describe the alleged violation ;
      •  Propose a resolution.

    20 U.S.C. § 1415(b)(7), (c)(2); DEL. CODE ANN. tit. 14 § 3110; 14 DEL. ADMIN. CODE § 926(7.0)-(8.0)


    • Within 15 days of receiving the written complaint, the school district must have a resolution meeting unless both parties agree to waive the meeting or use mediation instead.
    • If the parent is unsatisfied with the school district’s attempts to resolve the complaint within 30 days of receiving the written complaint, the due process hearing may occur.

    20 U.S.C. § 1415(f)(1)(B); DEL. CODE ANN. tit. 14 § 3110; 14 DEL. ADMIN. CODE § 926(10.0).

    • Due process hearing: involves an impartial three member panel appointed by the Secretary of Education on a rotating basis. The panel member includes a Delaware attorney, an educator with knowledge about special education, and a community representative interested in special education and approved by the Governor’s Advisory Council for Exceptional Citizen’s.
    • Parents must be provided with a list of free or low cost attorneys.
      • Parents are allowed to recover reasonable attorney fees if they win in the hearing and the court approves the fee.
    • The hearing panel must issue a written decision within 45 calendar days of the hearing request.
    • During the hearing process, the child must remain in his/her original educational placement. 20 U.S.C. § 1415(f)(1)(A), 1415(f)(3)(A)-(D); DEL. CODE ANN. tit. 14 §§3110, 3137, 3140; 14 DEL. ADMIN. CODE § 926(11.0-13.0).
    • If a parent wishes to appeal they must file an appeal within 30 days of the decision of the panel.
  • Can a special education student be disciplined?
    • A child with a disability is subject to the same disciplinary actions that apply to non-special education students. However, a child cannot be punished for behavior caused by his/her disability.
    • A child with a disability can be suspended up to ten days before the IEP team intervenes and determines whether the behavior was caused by the child’s disability.
      • During this time, the public agency must provide educational services
    • If the suspension is determined to be based on behavior unrelated to the child’s disability, the school may use the same disciplinary measures as those used for non-special education students. 14 DEL. ADMIN. CODE § 926(30.4).
    • The IEP team members and parents will examine relevant information to determine if the conduct is related to the child’s disability or a failure of the IEP program.
      • If the team determines it is a deficiency in the program, the LEA will take stpes to address the problems.
      • If the team determines the conduct was caused by the child’s disability, the IEP team can opt to conduct a functional behavioral assessment, review a previously created intervention plan, or return the child to her placement.

    14 DEL. ADMIN. CODE § 926(30.6).

    • In the following circumstances a child may be suspended for up to 45 days without determining whether the behavior was caused by the child’s disability:
      •  Carries a weapon,
      • Drug possession,
      • Inflicting a serious injury on someone at school.

    14 DEL. ADMIN. CODE § 926(30.7).

    • If a parent disagrees with any placement decision or the manifestation determination may appeal the decision by requesting hearing.
      • An appointed official will make the determination within  30 days.
      • In the meantime the child should be placed in a temporary educational setting.

    20 U.S.C. § 1415(k)(3), (4)(B), (f)(1)(A); DEL. CODE ANN. tit. 14, § 3110.

  • Can parents see the school records of their special education child?
    • Parents have the right to obtain copies of and examine all relevant education records.
      • All records, except the actual evaluation instrument, can be obtained free of charge, or for a fee that does not exceed the actual cost.
      • The fee should not be so high that parents cannot exercise their right.
    • Parents have the right to visit and observe their child’s current or proposed educational program.
    • When the child reaches age 18, the rights of parents to educational records are transferred to the child. 20 U.S.C. § 1415(a); DEL. CODE ANN. tit. 14 § 3110; 14 DEL. ADMIN. CODE § 926(1.2)