I. Child Advocacy

     A. School Law

          1. Special Education

Parents Have Many Statutory Rights Before, During, and After the IEP Process

As a parent of a child with a disability, you have a host of statutory rights that you may exercise before, during, and after the Individualized Education Program (“IEP”) process. If you are not sure that your child’s IEP is sufficient, the law provides avenues for you to seek to improve it.

The IDEA

The Individuals with Disabilities in Education Act (“IDEA”) states: “The procedures required . . . shall include . . . [a]n opportunity for the parents of a child with a disability to examine all records relating to such child and to participate in meetings with respect to the identification, evaluation, and educational placement of the child, and the provision of a free appropriate public education to such child, and to obtain an independent educational evaluation of the child.” 20 U.S.C. § 1415(b)(1).

Opportunity to Examine Records and Participate in Meetings

First, you have the right, subject to regulations regarding confidentiality of information, to an opportunity to inspect and review a number of education records. All education records with respect to the identification, evaluation, and educational placement of your child, as well as education records regarding the provision of Free Appropriate Public Education (“FAPE”) to your child, are subject to this rule.

Similarly, you have the right to an opportunity to participate in meetings with respect to the identification, evaluation, educational placement, and provision of FAPE of/to your child. The public agency must provide notice of these meetings to ensure that you have the opportunity to participate in them. (Some conversations among agency personnel and preparatory activities are not considered “meetings” to which this rule applies.)

Next, you have the right to be a member of any group that makes decisions on your child’s educational placement. The public agency must use procedures that are consistent with the procedures for IEP Team meetings to ensure your participation in the decision-making process. That is, the agency must take steps to ensure that one or both of the parents of a child with a disability are present at each meeting at which placement decisions are made. These steps include notifying you of the meeting early enough to ensure that you will have an opportunity to attend and scheduling the meeting at a mutually agreed-on time and place.

Independent Educational Evaluation

Further, you have the right to obtain an Independent Educational Evaluation (“IEE”) of your child. An IEE is an evaluation conducted by a qualified examiner who is not employed by the public agency responsible for your child’s education. Upon your request for an IEE, the public agency must provide you with information about where an IEE can be obtained and about the agency’s criteria applicable for IEE’s.

Subject to government regulations, if you disagree with an evaluation obtained by the public agency, you have the right to an IEE at public expense. If you as a parent request an IEE at public expense, the public agency has two options. It can file a Due Process Complaint to request a hearing to show that its evaluation is appropriate, or it can ensure than an IEE is provided at public expense (unless the agency demonstrates in a Due Process Hearing that the IEE obtained by the parent did not meet agency criteria).

Prior Notice by the Public Agency

Additionally, you have the right to written notice in a reasonable time before the public agency either proposes or refuses to initiate or change the identification, evaluation, or educational placement of your child or the provision of FAPE to your child. Government regulations specify the contents of the notice that must be provided. The notice must be written in understandable language.

Mediation

If, after the IEP Team meetings, the evaluations and re-valuations, and the IEE, a dispute about your child’s educational placement remains between you and the public agency, you may resolve the dispute through mediation, if the public agency agrees.

The public agency must establish procedures that ensure that the mediation process (1) is voluntary on the part of the parties; (2) is not used by the agency for an improper purpose; and (3) is conducted by a trained, qualified, and impartial mediator who is selected on an impartial basis. The state must bear the cost of the mediation process. Mediation sessions must be scheduled in a timely manner and held in a mutually convenient location. If you are able to resolve the dispute at mediation, you and the public agency will execute a legally binding and enforceable agreement.

You also, either after mediation or in lieu of it, have the right to file a Due Process Complaint. The Due Process Complaint and Hearing process is the subject of other articles on this website.

Contact a Special Education Attorney

Many of these rights are subject to detailed regulations established at federal, state, and public-agency levels. Some of these rights can be waived if the parents fail to take required actions. But all of these rights should be exercised as appropriate in your case so that your child’s educational needs are met. If you need help understanding or exercising these rights, then you should contact a special education attorney who can help you pursue your legal rights.