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Special Education Due Process 101 – The Nuts and Bolts

A number of disputes and disagreements can arise between parents and school districts regarding a child’s special education programming. Some of these areas of disagreement may include identification, declassification, appropriateness of program, appropriateness of placement or services, evaluations, or transition planning. The Individuals with Disabilities Education Act (IDEA) affords parents and guardians “due process” rights, enabling them to proceed to a hearing if a dispute cannot be easily resolved.1

Jacqueline DeVore, Esq. and Maria McGinley, Esq.

Jacqueline DeVore, Esq. and Maria McGinley, Esq.

Identification/Child Find2

Children between the ages of 3 and 21 who have a disability and require special education and related services must be located, identified, referred for testing, and evaluated by their school district under the “Child Find” provision of the IDEA. Parents may pursue due process if a district refuses to evaluate a child, if there is a disagreement over whether to classify a child after evaluation, or if they want to pursue a claim for compensatory services due do a district’s failure to timely identify a child.

FAPE3

Under the IDEA and implementing state regulations, once a child is identified, the district is obligated to provide that child with a free, appropriate, public education (FAPE). Many disputes arise over a whether a FAPE was in fact offered or provided, including the appropriateness of the district’s programming, services, and placement. Through due process, a parent may seek alternate programming within the district, or funding for private tuition or services.

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Evaluations/IEEs

A district must evaluate a child in all areas of suspected disability.4 Once identified, re-evaluation must take place at least once every three years. If a parent disagrees with a district evaluation, state regulations provide the steps that must be taken for the parent to request an independent educational evaluation (IEE) at the school district’s expense.5 If a district refuses to conduct an evaluation, or fund an IEE, a parent can seek recourse through due process.

Services

A dispute may arise regarding whether a child requires a certain related service (including but not limited to Speech and Language Therapy, Occupational Therapy, Physical Therapy, Counseling, Vision services, and Hearing Education Services), or whether the frequency and duration of a service is adequate. Due process can address a parent’s request for a change in services, funding for services privately obtained, or compensatory services that may be owed to the child.6

LRE

The IDEA expresses a preference for children with disabilities to be educated alongside their non-disabled peers to the maximum extent that is appropriate. Least restrictive environment (LRE) is a guiding principal, and not a place or certain type of classroom.7 Disagreements arise when a parent and district have different views of what a child’s LRE is, which can ultimately lead to FAPE claims in a due process proceeding.

Transition Planning

Appropriately planning for a child’s transition into adulthood is a critical piece of every child’s IEP development. Once a child turns 14, a district is required to conduct certain vocational, educational, and independent living evaluations, which should correspond with appropriate IEP goals and programming.8 The appropriateness of a district’s evaluations and programming, or lack thereof, can be a source of dispute, which may be addressed through due process.

Declassification9

A conflict can arise due to a parent’s disagreement with a district’s decision to declassify a child, thereby removing their IEP entitlement. A district may decide to fully remove all special education supports or may propose a “504 Plan” or “related services only” IEP, which does not require classification.

Some families may wish to request a reconvene IEP meeting to discuss issues and try to avoid litigation. Other families request mediation as an alternative to due process, wherein an unbiased mediator will assist the parties in identifying and trying resolve open issues.10

The IDEA provides specific time restrictions for certain steps and your own state’s regulations may impose other time requirements. Before filing for due process, you must make sure that you have a solid record supporting your claims. This may include a written record of what has transpired, expert reports, assessments, evaluations, or recommendations supporting what is needed, and other forms of “proof” to show why a student has been deprived of a FAPE.11

Prior to filing a due process complaint, a parent must put their school district on ten-business-days’ notice that they believe their child has been deprived of a FAPE and that they seek to hold the school district financially responsible for certain services or educational programming. A due process complaint must include: child’s name, child’s address, name of child’s school, description of issues and proposed solution.12 The complaint must be sent to the school district and the state department of education.

If a case is not resolved during the resolution period, or settled prior to a hearing through mediation or otherwise, parents can present evidence and witnesses at the hearing. Evidence must be disclosed five business days before the hearing. Parents have the following rights: to hire a lawyer, to represent themselves, present evidence and witnesses, cross examine school district witnesses, receive a copy of the record, and receive a written decision, among other things.13 If you win your due process proceeding, you have the right to recover reasonable attorneys’ fees.14 If you do not win, you have the right to appeal to a state review office (if your state has one) or to federal court.15

Proceeding to a formal due process proceeding should be a case-by-case decision – one that should be weighed carefully. Due process can be a powerful mechanism for helping your family resolve a dispute about your child’s needs, but it can be complicated. It is imperative that you educate yourself about your legal rights so that you can make a well-informed decision.

For more information you can email Maria McGinley, Esq., at maria@mayerslaw.com and Jacqueline DeVore, Esq. at jacqueline@mayerslaw.com and visit mayerslaw.com.

Footnotes

  1. 34 C.F.R. Individuals with Disabilities Education § 300.507 Filing a due process complaint.
  2. 34 C.F.R. § 300.111 Child find.
  3. 34 C.F.R. § 300.101 Free appropriate public education (FAPE).
  4. 34 C.F.R. § 300.304 Evaluation procedures.
  5. 34 C.F.R. § 300.502 Independent education evaluation.
  6. 34 C.F.R. § 300.34 Related services.
  7. 34 C.F.R. § 300.114 LRE requirements.
  8. 34 C.F.R. § 300.43 Transition services.
  9. 34 C.F.R. § 300.306 Determination of eligibility.
  10. 34 C.F.R. § 300.506 Mediation.
  11. 34 C.F.R. § 300.507 Filing a due process complaint.
  12. 34 C.F.R. § 300.508 Due process complaint.
  13. 34 C.F.R. § 300.512 Hearing rights.
  14. 34 C.F.R. § 300.517 Attorney’s fees.
  15. 34 C.F.R. § 300.517 Finality of decision; appeal; impartial review.

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