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Special education for student’s who turn 18

When a disabled student turns 18 a, the student and his or her parent need to consider how the law impacts this event especially in terms of educational decision making.

First, the law states: When a student receiving special education services who is legally competent reaches 18 years of age, the local educational agency shall provide any required notice of procedural safeguards to both the student and the student’s parents. (34 C.F.R. § 300.517(a); Ed. Code, § 56041.5.) All other special education rights previously accorded to the parents shall transfer to the student.

Consider asking whether it’s appropriate to transfer educational rights from the student, who has reached 18, to the parent. This can be done with a form that confirms by signatures of the parent/guardians and the student that the student wishes to have all educational decisions made by the parent.
Often school district’s have a form.

A legal guardianship can also be obtained to transfer these rights and should be considered for student’s who are reaching the age of majority and do not have the ability to care for themselves.

All of the above are important to consider if your child is going to continue on in public k-12 school beyond 18 or you are contesting graduation.

If you contest graduation, it’s critical that you do this on the record in writing and before the child actually graduates.

California Education Code section 56026.1(a) and 34 Code of Federal Regulations part 300.122(a)(3)(i) provide that a student who graduates from high school with a regular high school diploma is no longer eligible for special education services. Some courts have found that any claim that a FAPE was denied becomes moot upon a valid graduation. Along these lines, some courts have long held that there is authority to order compensatory education to an adult if it is necessary to cure a past violation. (Bd. of Education of Oak Park & River Forest High School Dist. 200 v. Ill. State Bd. of Education (7th Cir. 1996) 79 F.3d 654, 656; see also Capistrano Unified School Dist. v. Wartenberg (9th Cir. 1995) 59 F.3d 884, 890 [request for reimbursement for private school tuition is not moot after the student graduates from high school]; Maine School Administrative Dist. No. 35 v. Mr. and Mrs. R. (1st Cir. 2003) 321 F.3d 9, 18 [a child eligible for special education services may be entitled to further services in compensation for past violations even after his or her eligibility for special education services has expired]; Pihl v. Mass. Dept. of Education (1st Cir. 1993) 9 F.3d 184, 189, relying upon Zobrest v. Catalina Foothills School Dist. (1993) 509 U.S. 1, 4 fn. 3 [request for reimbursement of educational services remains a live controversy after student’s graduation from high school].)

If you believe you require transference of ed rights or contesting graduation, it’s critical you seek legal advice.