Whether your child is just starting kindergarten or his or her senior year, if your child has a disability of any kind, there are certain rights of which you should be aware to help you and your child navigate conflicts that can arise in the special education process.
There are several applicable laws, and one that is especially significant is the Individuals with Disabilities Education Act (IDEA).
The IDEA is the federal law that governs special education services provided by school districts. It ensures that all students with disabilities have a “free and appropriate public education” (FAPE) and that these students receive related services to meet their unique needs in the least restrictive environment.
Three types of conflicts can arise: conflicts over evaluations, conflicts over initial placement in the school district’s special education program, and conflicts over FAPE or the student’s Individualized Education Program (IEP).
Conflicts over Evaluations
The school district is obligated to identify, locate, and evaluate children with disabilities residing in its jurisdiction. Once a student is identified, that student is evaluated to ensure the student truly has a disability.
A student must have this initial evaluation, which can be requested by the parent or the school. However, the parent must provide consent prior to the student being evaluated.
What if you want your child evaluated, but the school district disagrees? You can file a due process complaint, which will be discussed in more depth in next month’s article.
Similarly, if the school district wants your child to be evaluated, but you disagree, the school district may pursue the evaluation using the IDEA’s due process procedures.
If your child is evaluated, and you dispute your child’s initial evaluation, you have the right to request one independent educational evaluation at public expense. There is no deadline for a parent to make this request, but it should be done before the first IEP meeting.
Conflicts over Initial Placement in the School District’s Special Education Program
As a parent, you must consent to your child’s participation in a special education program. This is a separate consent from the consent to the initial evaluation.
In the absence of parental consent, the school district cannot use due process procedures to override the parent’s lack of consent. Consequently, the school district will not be required to develop an IEP for the child.
If you consent to your child’s participation in a special education program, the school district must provide you with prior written notice of your child’s placement in the program.
You may later revoke your consent, but the school district is then required by the IDEA to provide written notice of the discontinuation of your child in the program before ceasing services.
Again, without parental consent for the child to participate, the school district does not violate FAPE and will not be required to develop an IEP for the child.
It is important to note that a parent’s revocation of consent for the child to be part of the special education program is a revocation for the entire program, not just for specific services.
Conflicts over FAPE
An IEP is a written document that provides a plan for implementation of the student’s special education and other related services. The IEP is developed in a meeting with the IEP team and will cover a specific period of time — usually one year or shorter.
Although a parent is a necessary participant in the development of the student’s IEP, decisions regarding services provided to the student are made based on the consensus of the IEP team members; the IDEA does not contemplate a majority rule or vote being taken.
The IEP team will consist of the parent or guardian, at least one general education teacher, at least one special education teacher, and a district representative who is qualified to provide or supervise the provisions of the specifically designed instruction.
The team may also include evaluators, service providers, students (when appropriate), or attorneys.
The IDEA does not establish that a parent can mandate the services the child receives.
If a conflict arises between the parent and the school district over what services are to be included in the child’s IEP, the school district must provide prior written notice to the parent.
This prior written notice will include a description of the action proposed or refused by the school district and an explanation of why the district proposes or refuses to take the action, as well as other information.
Summary
I hope this overview has given you an idea of the potential for conflict in the area of special education law.
As a parent, your attention throughout the special education process is essential to your child’s success.
Look for next month’s article, “Special Education Law — Part II: Conflict Resolution,” Sept. 2 for information on how to overcome these types of conflicts.
Sarah L. Shearouse is a practicing attorney in Canton at the Law Office of Sarah L. Shearouse, LLC. Her practice focuses on Juvenile and Probate law. She is the immediate past president of the Blue Ridge Bar Association, and is a graduate of Mercer University’s Walter F. George School of Law and Wesleyan College.
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