Child's Rights to a Special Education
by David Sherman
Ordering Information
SAMPLE CHAPTER
Extended School Year Services
What Should You Do if You Do Not Agree with the IEP Offered Your Child by the School District?
What should you do when the school district offers your child a program or services that you believe are inappropriate? The first step is to obtain as much information as you can about the school district's offer of placement and services. You may have questions about the appropriateness of the actual placement, the teaching methods, the qualifications of the teachers and staff and other areas of inquiry.
You have a right to information regarding the placement and services under the Prior Written Notice statute and the Code of Federal Regulations section on informed consent.
Prior Written Notice
The school district is required to provide you with written information under the federal Prior Written Notice statute (20 USC 1415 Subsection (b)(3). This statute states that prior written notice must be given to a parent when the district:
- Proposes to initiate or change the identification, evaluation, or education placement of the child or the provision of FAPE to the child.
- Refuses to initiate or change the identification, evaluation, or education of the child or the provision of FAPE to the child.
The Prior Written Notice statute gives you the right to written information about factors that are relevant to the school's proposed offer of placement and services. (Under subsection (b) (3) the written notice must include "a description of any other factors that are relevant to the agency's proposal or refusal.")
Informed Consent
You also have the right to informed consent to the IEP. Code of Federal Regulations Section 34 C.F.R. 300.9 states that "consent" means that the parent has been fully informed of all information relevant to the activity for which consent is sought..."
Additionally, the courts have held that parents have the right to be equal participants, and to have meaningful input into the IEP process. Further, these rights are denied when significant information about the district's proposed placement and/or services is not provided in a timely fashion. Punxsutawney Area School District v. Kanouff, 23 IDELR 73 (Penn. Commonwealth Court 1995).
What information should you request?
Upon receiving an offer of placement and services, you should write to the school (either by sending a letter or adding a "Parent Attachment" to the IEP document) with any questions you have about the school's placement and services.
(See http://www.aboutautismlaw.com/letters/letter25.doc for a Parent Attachment. See Sample Letter No 32 http://www.aboutautismlaw.com/letters/letter32.doc for list of possible questions. If you use this form, ask only for the information that is relevant to your child. (It is advisable to consult with a private educational expert and ask the expert what questions he or she has regarding the proposed placement and services.)
Once you have the relevant information, express any concerns that you may have to the school -in writing. This also can be in a letter or "Parent Attachment" to an IEP. If you believe that it would be appropriate for your child to receive more services in an area, where the school does not have a current assessment, simply make a written request for an assessment in that particular service area. For instance, let's say that your believe child needs a computer, but the school district refuses to provide it. Make a written request for an assistive technology assessment. (See sample letters on this website for letters requesting assessments.) Or, if you believe that your child needs more speech and language, and the speech and language assessment is old, you might consider making a written request for a speech and language assessment.)
What are your legal rights to a free private assessment (IEE)?
If you disagree with the recommendations or other parts of a school assessment, you may be entitled to a free Independent Educational Evaluation (IEE) by a private expert. Obtaining an IEE is an important right that allows a parent to challenge the school's experts, their assessments and conclusions. IEEs are assessments performed by a private expert of the parent's choosing and paid for by the school district.
Code of Federal Regulations Section 300.502 governs independent educational evaluations. This section provides that the "parents of a child with a disability have the right under this part to obtain an independent educational evaluation of the child, subject to paragraphs (b) and (e) of this section.
If a parent requests an independent educational evaluation, the school must, without unnecessary delay, either – (I) Initiate a (due process) hearing under Section 300.507 to show that its evaluation is appropriate; or (ii) Ensure an independent educational evaluation is provided at public expense, unless the school district demonstrates in a hearing under Sec.300.507 that the evaluation obtained by the parent did not meet agency criteria.
The US Supreme Court in the Schaffer v. Weast (2005) case held that the IDEA and regulations provide that a "parent has the right to an independent educational evaluation at public expense if the parent disagrees with an evaluation obtained by the public agency." 34 CFR 300.502(b)(1)(2005). (Public agency means the school.)
A parents' right to an independent educational evaluation is one of the parents' most important special education rights. As stated by no less than the United States Supreme Court, "the IDEA ensures parents access to an expert who can evaluate all the materials that the school must make available, and who can give an independent opinion. They are not left to challenge the government without a realistic opportunity to access the necessary evidence, or without an expert with the firepower to match the opposition." P. 11 (emphasis added.)
Have you ever felt powerless in an IEP meeting when a teacher or other school personnel tells you what is appropriate for your child and you disagree? As the Supreme Court pointed out, with a private expert, you will have the firepower to challenge the school's offer of placement or services.
Remember that you are entitled to a free evaluation from a private expert, only if the school district's assessment was not appropriate. If you make a written request for an independent educational evaluation, the school district must, without unnecessary delay, either initiate a due process hearing to show that its evaluation is appropriate or pay for the IEE - unless the IEE to be obtained by the parent does not meet agency criteria. (See below for information on 'agency criteria.")
In most cases, if you have a good argument that the school assessment was not appropriate, the school district will not contest the request for an independent educational evaluation. Or, they will put up a minor fight before caving in.
If you disagree with the school district assessment or its recommendations, you have two options regarding hiring a private expert. (1) You can pay a private expert for a full assessment. (In the San Francisco Bay Area, a private assessment can often cost $5000 or more.) or (2) You can seek an IEE. In latter case, the first step is to pay a private expert to review the school assessment to determine if it was inappropriate in some regard. (This normally is at minimal cost.)
The private expert may determine that the school assessment is not appropriate for a variety of reasons. (Failure to assess in all areas of disabilities, failure to adhere the test protocols, use of the wrong tests, conclusions were inappropriate, etc.) If the private expert determines the school assessment was inappropriate in some manner, you can get the school district to pay for the private assessment - in most cases.
Code of Federal Regulations Section 300.503 governs Independent Educational Evaluations. Under subsection 4, the school district has the right to ask why the parent objects to the school district evaluation. However, the school district cannot require the parent to provide an explanation and the public agency cannot unreasonably delay either providing the independent evaluation at public expense or initiating a due process hearing to defend the public evaluation.
How do you make a request for an IEE?
Requesting an IEE can be done in an IEP or by letter. Either way, make sure that the request is in writing. See http://www.aboutautismlaw.com/letters/letter8.doc for a form letter
The school district can require the IEE to comply with the school district's agency criteria.
Under 34 CFR 300.502, "agency criteria," (including the location of the evaluation and the qualifications of the examiner) must be the same as the criteria that the public agency (the school) uses when it initiates an evaluation to the extent that those criteria are consistent with the parent's right to an independent educational evaluation. Except for the criteria described above, the school district may not impose conditions or timelines related to obtaining an independent educational evaluation at pubic expense. 34 CFR 300.502(e). When a parent makes a written request for an IEE, it is a good idea to send a lettering request any existing written "agency criteria" at the same time. (Example of agency criteria - the assessor must have a doctorate or equivalent.)
What do you do if the school district gives you list of experts and tells you that you must choose from the list?
The federal government Office for Special Education (OSEP) addressed the issues of IEEs and 34 CFR 300.502(a)(2) in Letter to Young in 2003. OSEP said that there is nothing in the regulations prohibiting a LEA (the school district) from providing parents with a list of qualified examiners. If, however, a LEA wants to limit parents to using the examiners on the district's list, the list must be exhaustive, i.e., all qualified examiners in the geographic location must be included on the list. Also, the LEA must include in its policy that parents must have the opportunity to demonstrate that unique circumstances may justify the selection of an IEE examiner who does not meet the LEA's qualification criteria and are not on the LEA's list of examiners. Also see 34 CFR 300.502(e).
How much can the private expert charge for the IEE?
In Letter to Anonymous 22 IDELR 637, 22 LRP 3097, OSEP determined that a district may establish maximum allowable charges for specific tests to ensure that the cost of a publicly funded IEE is reasonable. However, the maximum fee cannot be an average of fees customarily charged by professionals in the area and only eliminates unreasonably excessive fees. In all cases, the district must give the parent an opportunity to demonstrate that unique circumstances justify going outside of the district's fee criteria, and if they do, the district must pay the fee.
The school district must agree to pay for the IEE or file for due process without unreasonable delay.
Once you make a written request for an IEE, the school district has only two options. The district must either agree to pay for the IEE or file for due process without unreasonable delay. There is no federal definition of what constitutes unreasonable delay. Several states have statutory or regulatory requirements for a response, which are quite strict, from 5-30 days. In California, there is no state law as to how long the school has to agree to the IEE, refuse to pay for the IEE, or file a due process complaint.
The United States, in a request/policy letter, has stated – "Although Federal law does not prescribe a specific time for responding to requests for an IEE, it is the position of the United States Department of Education, the parents have a right to obtain an IEE at public expense, without delay, and in a manner which does not interfere with a Free and Appropriate Public Education provided for a child."
To be safe, my advice is to wait 31 days unless your state has a lessor time period. If the school district does not file for due process, have an attorney file a due process complaint or possibly file a complaint before your states special education agency.
Before making an IEE request, it is important to consult with a special education attorney. Generally, a claim for an IEE can be handled with a minimum of attorneys' fees.