DISPUTING AN IEP
Though an IEP cannot go into effect without your approval and consent, it is not uncommon for parents to find an issue with the IEP that they would like to see addressed at some point during the school year. You might think your child needs more time on tests, additional hours of a related service or an updated goal where progress is not going as well as you’d hoped.
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The simplest and often most effective way to resolve a disagreement with your child’s school is through an honest conversation. Call a meeting with the IEP team or even meet directly with the special education teacher or case manager to share your concerns. The IEP process can be emotional, so it can make the conversation more productive to present your thoughts with facts or notes to back them up. Assume that the team is all on the same page in terms of wanting the best possible education and outcome for your child.
If an informal conversation or a planned IEP meeting does not resolve your issue, there are several steps you can take under IDEA. Start by writing a letter to your school that outlines your concerns and your proposed solution. The next step is often to request a mediation session, or a conversation between you and the school with a neutral third party present who has expertise in special education and IEP matters. You can make this request to the school by letter as well.
The goal is for the mediator to help the two parties explore compromises and reach a solution that is agreeable to everyone. The mediator does not make the decision, but rather facilitates a constructive conversation that hopefully results in an agreement. A mediation session is much less formal and confrontational than a hearing. If you are able to reach a solution during a mediation session, that solution will be documented in writing and binding on you and the school district.
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Due Process Hearing
If a mediator cannot help you reach an agreement, the next step is a due process hearing. You must file a due process complaint with your school district and send a copy to the state Department of Education responsible for special education. Under IDEA, the complaint must be filed within two years of when you feel the issue began or violation occurred.
A due process complaint must contain:
- the name of the child
- the address of the residence of the child
- the name of the school the child is attending
- a description of the nature of the problem, including relevant facts
- a proposed resolution of the problem to the extent known and available to the party at the time
Most parents will hire an attorney to prepare for and assist them with a hearing. A hearing is a formal process that involves you and the school district making opening and closing statements and presenting written evidence and witness testimony.
Witnesses will be questioned by both you and the school district, so make sure to prepare your witnesses to answer questions that may be asked by the school district and also prepare questions to ask the school district’s witnesses. A neutral third party, a hearing officer, will preside over the hearing and will make a final, binding, written determination regarding the dispute.
Both you and the school district have the right to appeal the written determination to a state or federal court. You should consider the strength of your case, the time and costs related to filing an appeal prior to proceeding.
State or Federal Complaint
There is a difference between disagreeing with your child’s IEP or with the services being provided to your child, and finding that the school is not fulfilling their legal obligations under IDEA to provide a “free appropriate public education” in the “least restrictive environment.”
Mediations and due process hearings focus on issues with the education your child is getting at school; filing a state complaint is essentially formally accusing the school district of violating the law.
If you are unable to resolve an issue with the school district and you do not feel they are complying with their legal obligations, you can file a complaint with your state’s Department of Education or the U.S. Department of Education. You may obtain a complaint form from your state Department of Education or the U.S. Department of Education, Office for Civil Rights. It is essential that your complaint include facts and detailed evidence of the legal violations.
Upon filing a complaint, the applicable government agency will investigate the complaint, which will likely entail meeting with you and providing you an opportunity to present additional information, reviewing the evidence and records and then issuing a decision. IDEA requires a decision to be issued within 60 days after the complaint is filed.
Each state handles these complaints differently, so be sure to research the process in your state thoroughly before moving forward.
In 2013, the U.S. Office of Special Education and Rehabilitation Services (OSERS) issued a Q&A document to provide parents, parent training and information centers, school personnel, state educational agencies (SEAs), local educational agencies (LEAs), advocacy organizations, and other interested parties with information to facilitate appropriate implementation of the IDEA dispute resolution procedures, including mediation, state complaint procedures, and due process complaint and due process hearing procedures.
Hiring an Attorney
It is unfortunate when schools and parents are unable to resolve issues and reach compromises on their own. Hiring an advocate or an attorney to help you is sometimes necessary to bridge the gap and ensure that your child’s rights are not being violated and that his needs are being met at school. Below, attorney Gary Mayerson answers the most frequently asked questions on the subject.
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