Parents Rights

Raising Special Kids is Changing to My Special Kids

Raising Special Kids site is coming down soon - by the end of the month, but don't worry, I am putting together a brand new site from Raising Special Kids - and because that brand is already in use by www.raisingspecialkids.org, I am changing my site to www.my-special-kids.com. I will have the index page up and will rewrite and post the pages as I go along, updating and adding new information and experiences. Stay tuned

Parents Rights

Your Rights

You have rights, too, parents rights, under the special education laws to help safeguard the rules of procedure that ensures your child with special needs is given a Free Appropriate Public Education (FAPE).

You get a copy of the "Notice of Procedural Safeguards" from your school every year - probably during your annual IEP (Individual Education Program). Take the time to read that booklet as it outlines your rights specifically as they apply under the policies of your local school district or regional service agency.

It rolls downhill

The Federal Government issued their laws concerning special education in the IDEA 2004 (latest legislation for the Individuals with Disabilities Education Act of 2004), which tells the states what they have to put in their state laws to be in compliance. State laws spell out the state standards that the local school districts or regional educational service agencies (RESA) must follow when they establish their own local policies. They print up the Procedural Safeguard Notice booklets that spell out your parents rights of a special needs child in their school district and it will tell you basically what you can and can't do to make sure your child gets a Free Appropriate Public Education (FAPE).

Procedural Safeguards

Procedural Safeguards are also called Due Process Procedures. Under IDEA 2004, certain Procedures must be followed to Safeguard against the school (also called LEA, or Local Education Agency) depriving your special needs child a Free Appropriate Public Education (FAPE). Due Process is constitutionally guaranteed right for US Citizens (under the 5th and 14th amendments), and here it describes what you, as a parent, can do under the law if you do not agree with the procedures, or actions, the school is taking, or failing to take.

Your "Notice" Handbook

The "Notice of Procedural Safeguards" must be given to parents of children with special needs by the school at least:

once a year
on intitial referral
on request for evaluation
when either the parent or the school asks for a due process hearing.
schools can post the handbook on their website, if they have one.

Your Basic Rights

Your rights, as a parent of a qualifying special needs child in a public school district, come under these main categories and are explained below:

Opportunity to Examine Records and Participate in Meetings

Parents have, by law, full access to their child's educational record (FERPA-Family Educational Rights and Privacy Act). The school cannot refuse to grant a parent access to any document that mentions their child either directly or indirectly. Parents have the right to participate in meetings which have an effect on the identification, evaluation, and placement of their child. Notice it does not say "attend" it specifically states "participate" in the actual law (IDEA 2004 - USC Section 1415(b)(1))

Independent Education Evaluation

This one is complicated and is consequently mis-interpreted by both the schools and parents on a regular basis, so I will try to be clear about this one. Parents have a right to have their child evaluated by independent evaluator that is not employed by the school. Simple enough - the complicated part is who gets to pay for the Independent Education Evaluation (IEE).

First case is that the parents handle the request and payment on their own, by choice. Parents can do this anytime, and (if you can afford it, or have good insurance coverage) I would recommend you have your child evaluated independently as well as through the school. It gives you a second opinion, an objective point of view, and something to compare with the results the school obtained at the MET (Mult-Discipline Evaluation Team) meeting. An IEE, whether paid for by the school or not, must be considered by the school (MET Team, IEP Team) and it may be used as evidence in a due process hearing.

Second case is that the school pays for the IEE. Parents have the right to request an Independent Education Evaluation at school expense if the parents disagree with the evaluation conducted by the school.

The school must provide the parents with information on how to contact independent education evaluators that meet the criteria for conducting an appropriate education evaluation.

The evaluation criteria remains the same as the school examiner. The school may not impose any additional conditions or time constraints.

The school may ask the parents why they are requesting an Independent Education Evaluation (IEE), but may not:
require the aparents to provide an explanation
deny or dely providing an IEE or initiating a due process hearing

The school may call for a due process hearing if they do not agree that an IEE is warranted. The due process hearing officer will decide the issue.

Informed Consent

Parents have a right to be fully informed before giving consent to the school whenever consent is requested or required verbally or in writing. Fully informed means, at a minimum, that parents have been told the advantages or benefits of the subject as well as drawbacks or problems that may occur.

In other words, you have the right to get both sides of the situation in a way that you understand what you are signing and why.

Prior Written Notice

Parents have the right to receive prior written notice (in their native language or translated verbally if their native language is not written) within a reasonable time before any change or refusal to change in the identification (category of disability) evaluation, or educational placement of the child or a change in providing FAPE (Free Appropriate Public Education) to the child.

The law specifies that Prior Written Notice must contain all of the following in order to be a proper prior written notice:

A description of what the school proposes to do.
An explanation of why the school plans to take or refuses the action as planned.
A description of all the other options the school considered and the reasons for rejecting these options
A description of what was used to make the decision - ie evaluation, procedure, test, record, or report.
A description of any other factors applicable to the school's proposed action or refusal to act
A statement that you have protection under procedural safeguards and how to obtain a copy of the Notice of Safeguard Procedures.

Prior Written Notice, by law (USC Section 1415(c)), is very detailed. Use this list to politely ask for the information that is required to be included in your prior written notice. Be professional, polite, and make your request in writing.

Resolution Session

A resolution session (new in IDEA 2004) gives the school an opportunity to resolve the complaint before going to a due process hearing. The LEA (Local Education Agency) calls a meeting with the parents and IEP Team to work out their differences - unless both parents and LEA agree in writing to waive the resolution meeting, or the school and parents can both agree to use mediation.

The resolution meeting includes a representative of the LEA
No lawyer - unless the parents are bringing a lawyer too.
Parents of the child have the opportunity to discuss the complaint and present facts supporting the complaint.

Mediation

Parents and school can agree to foreo the resolution session and do mediation - or they can use mediation after a resolution session has not resolved the problem. Mediation is done using a third party mediator who has been trained in mediation techniques (there are mediation for special education resources available from the state to local levels).

An agreement reached during mediation is legally binding
Any agreement must be in writing and signed by both parties
You (and the school) have 3 days to void the agreement after signing

The state is required to have a list of qualified mediators who are trained in special education law. The state pays for the mediator and arrangements to meet must be agreeable by both parties.

Adminstrative Complaint

Also called due process complaint notice. You have the right as a parent to file a written complaint with the school district. If the school has not sent the parents a prior written notice concerning the subject of the complaint, then they have 10 days to send you a response that contains:

An explanation of why the agency proposed or refused to take the action in the complaint.
A description of the options considered and the reasons for rejecting them.
A description of each evaluation, report, assessment or record that was used as a basis for their decision.
A description of the factors that relate to the schools proposal or refusal to take action.
Otherwise, they have 10 days, once they receive the complaint to send you a response that specifically addresses the issue in the complaint.

Timing: The school has 10 days to send you something in writing once they receive the complaint. Then, they have an additional 5 days to notify you of the scheduled hearing with the hearing officer, and within 5 days after notifying you, the hearing officer must make a decision. The timeline for this type of complaint is 20 days to resolution.

Due Process

You have the right to an impartial due process hearing where both sides present evidence and a decision is made by the hearing officer. This is the "dreaded" formal hearing that you hear all those horror stories about. However, as stated above, the revisions in IDEA 2004 put in the resolution session before the due process hearing as an attempt to settle things. And both parties could agree to mediation at any time during this process as an alternative way to resolve the dispute.

However, sometimes you can go through all the informal meetings, resolution meetings, mediation and still not have a satisfactory solution.

The Due Process Hearing.
IDEA 2004 gives the timeline of 30 days from receipt of complaint to hearing. There are a few stipulations in the law, but congress has put in the means for a speedy resolution to special education disputes. The hearing officer's decision is final (you do have appeal rights).

The law gives you, the parent, 2 years from the time you should have known about the complainable issue to file for a due process hearing - unless the local agency (the school) falsely gave the appearance of having provided resolution or they kept information from the parent.

Due Process can be a very complicated and intimidating thing for parents to go through. I would recommend speaking with an attorney who is skilled with special education before making the decision for a due process hearing.

Child Placement During Dispute

Fortunately, the laws have given some action timelines so that disputes are not dragged out for months or years, but still, where is the child during all of this? The law states the child is to remain in their current educational setting until the resolution of the dispute.

If it is for an ititial entrance to a school, they need to let the child attend until a decision is reached.

CIVIL ACTION (the appeal)

If a resolution meeting was conducted by the local education agency and the issue not resolved, you have the right to appeal to the state education agency.

If you don't agree with the decision of the due process hearing, then you do have the right to file an appeal (within 90 days) to an appropriate state court or federal district court. I would hope that if you are taking things this far, then you have already retained a competent special education attorney to present your case. You can represent yourself and your child, but I would at the very least consult an attorney.

These are your basic rights as a parent of a special needs child in a public school system to help you make sure your child is getting a Free Appropriate Public Education under the law. These are your rights for getting things done should there be a dipute with the school. Just remember that the laws cover your child receiving a Free Appropriate Public Education, and right, wrong, or otherwise, if the school can prove they did provide FAPE, that is the bottom line. I've covered the basics, but this article is certainly not meant to be a substitute for reading the law yourself, or for consulting a lawyer. There are also advocates and parent support agencies who can be very knowledgable about special education law that can be a good source for helping explain what all this means. Another great source for information is www.wrightslaw.com.

Return from Parents Rights to Special Education

References: Individuals with Disability Education Act 2004 (IDEA 2004), USC Section 1415, wrightslaw.com, US Department of Education (www.ed.gov)

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