Stacy M. Meyers
In order for administrators and school districts to avoid due process hearings it is crucial that school personnel review parents' rights with them. Parents' rights under IDEA (Individuals with Disabilities Education Act) are specifically reviewed. Some important topics reviewed include: free appropriate education (FAPE), appropriate evaluation, individualized education program (IEP), least restrictive environment (LRE), parent and student participation, and disciplinary guidelines. Discussion of procedural safeguards is also included. It is important that all professional staff and administrators are aware of parents' rights under IDEA and that they take the necessary precautions to avoid due process.
Due process is often a term school officials as well as parents dread to hear. Due process can be and is avoidable. Parents, school personnel and administrators must have adequate knowledge of the law in order to avoid due process. Due process is defined by the Department of Special Educations as ". . . a disagreement over the identification, evaluation, placement, or provision of a free appropriate education for students with disabilities" (Desktop Reference, 2001). One way for a school district to avoid a due process hearing is to inform the parent's of their rights. Reed Martin, J. D. (2003) informs his parents of children with disabilities to "Make sure your school district complies with the mandate that they inform you of ALL your rights under ALL the federal laws pertaining to special education" (Martin, 2003). There are several federal laws that discuss children with disabilities such as Section 504, ADA (Americans with Disabilities Act) and IDEA (Individuals with Disabilities Education Act). IDEA is the focus of this review. By informing parents of their rights under IDEA, school districts can avoid many a due process hearing as well as save major amounts of money each year.
The Individuals with Disabilities Act (IDEA) came out of what was once known as the Education of the Handicapped Act. IDEA regulates what is appropriate for students with disabilities to be educated in a state. IDEA is a federally mandated law, therefore, states must comply with what restrictions the federal government hands down to them. IDEA was last amended in 1997 and is currently up for reauthorization. In 1997, IDEA underwent changes in the areas of identification, evaluation, programming, interventions, behavioral issues, and training of personnel for children with disabilities. There are six major principles that must be addressed when over viewing IDEA with parents. These include: 1.) free appropriate education (FAPE), 2.) appropriate evaluation, 3.) individualized education program (IEP), 4.) least restrictive environment (LRE), 5.) parent and student participation and decision making, and 6.) procedural safeguards (Desktop Reference, 2001).
Public schools are required by IDEA to provide all eligible children with disabilities a free appropriate education (FAPE) in the least restrictive environment that is individualized for their needs (IDEA: Congress, 2002). IDEA defines a FAPE as special education and related services that entail the following:
must be provided by public expense, under public supervision/ direction;
must meet the standards of the State Education Agency (SEA);
must include an appropriate educational setting whether it be preschool, elementary or secondary education within the State; and
must conform to the (IEP) Individualized Education Program (Desktop Reference, 2001).
In order to comply under the guidelines of IDEA to accomplish a FAPE the child must be served in a least restrictive environment (LRE).
Least Restrictive Environment is addressed in Section 612 (a)(5)(A) of IDEA as " . . . the presumption that children with disabilities are most appropriately educated with their nondisabled peers and that special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily" (IDEA, 1997). Therefore, parents should be informed of what the law states is a FAPE along with what is meant by LRE. All guidelines set up by the State agency should be reviewed with the parent in order for them to fully understand the role the school can play in providing FAPE and LRE to the student. However, it is equally as important for the school to make sure the parents understand that LRE does not require every child with a disability be totally included in regular classes all of the time (Desktop Reference, 2001). Parents need to understand all regular classes cannot meet the needs of some students. LRE does require the schools to make available to parents options regarding placement. These options may include: traditional classroom, shortened school week or day, tutorial services, training in the home, private placement or contractual agreements with other agencies (Desktop Reference, 2001). Parents should also understand that the IEP team is responsible for making the decision concerning placement and that parents can only choose from the options that meet the requirements set up in IDEA for FAPE (Desktop Reference, 2001).
Each child with a disability is guaranteed an appropriate evaluation under IDEA. All children are appropriately assessed for the purposes of eligibility, educational programming, and performance monitoring (Desktop Reference, 2001). The law states that all testing material must be selected and administered in a way that is not racially or culturally discriminatory (Desktop Reference, 2001). Also, the amendments made in 1997 to IDEA require parents to be given the opportunity to be involved in meetings regarding evaluations of their child as well as being given prior notice by school personnel wanting to conduct evaluations on their child (Martin, 2000). Parents must also give school personnel the consent to conduct an evaluation (IDEA, 1997). It is important to note that having the parents give informed consent to evaluate their child must not be mistaken to mean they give consent for a specific placement (Comparison, 1997). Furthermore, school personnel must include the parent's experiences with the child as significant data for the evaluation (Martin, 2000). Parental input is crucial to getting an appropriate and effective evaluation of a child. It is important for school personnel to inform the parents of the following rights regarding testing and evaluating of their child:
the right to have their child tested to determine their abilities and challenges for learning,
the right to agree or disagree about any testing the school wants to conduct; and
the right to have their opinion concerning the child's abilities and challenges included in the results of the testing (Yeager, 1990).
The core principle of IDEA is to ensure that each child with a disability has made available to them an appropriate education. The law specifies that the appropriate education be individualized. In order to do this each child with a disability must have an individualized education program or IEP. The IEP is the centerpiece of special education for a child with a disability. An IEP must include what the child can do, what it is they need to learn, programs or services the child will receive, dates that the IEP will begin and end, time lines for participation in special, general and vocational education and how progress will be measured and reported (Desktop Reference, 2001). The IEP must be developed by a team consisting of the child's parent, special education providers, regular education teacher, representative of the Local Education Agency (LEA), person(s) who conducted the assessment or who can interpret assessment results, and the student him or herself when appropriate (Comparisons, 1997). If the student is fourteen years of age or older, he or she must be invited to attend the IEP meeting in order to develop his or her plans for transitioning for life after high school. When the child has reached this age, the individuals or agencies responsible for providing transition services must also attend (Desktop Reference, 2001). Again, it is imperative that parental input is a part of developing the IEP.
Parents must be made aware of how important it is for the child that they be as involved as possible. It is in the best interest of the school to include the parent. Congress states in regard to Section 601(c)(B) of IDEA (1997), "Over 20 years of research and experience have demonstrated that the education of children with disabilities can be made more effective by . . . strengthening the role of parents and ensuring that families of such children have meaningful opportunities to participate in the education of their children at school and at home." In most cases, the parent is the sole person who knows the child the best and understands his or her capabilities. According to law, the schools must notify the parents of evaluations and IEP meetings, parents must give consent for any testing or programming issues, and most importantly parent input must be solicited by the school system and must be taken into consideration (Desktop Reference, 2001).
School administrators and personnel must consider IDEA procedural safeguards when over viewing parental rights. The focus of procedural safeguards is to ensure that parents and students are provided with adequate information in which to make decisions when discussing the best free appropriate education as well as making sure their rights are protected and that there are mechanisms in place to resolve conflict between parents, students, and school personnel (Desktop Reference, 2001). IDEA legislation was written in such a manner to ensure that the schools cannot make decisions concerning a student unilaterally without informing the parent. It further wants to ensure that parents are given the opportunity to contribute to the overall well being of the child (Desktop Reference, 2001). Section 615(d) of IDEA states "Parents shall be given a copy of procedural safeguards at a minimum upon initial referral for evaluation, upon each notification of IEP meeting and reevaluation, and upon registration of complaint" (Comparison, 1997). Therefore, it is imperative that the school system make available to the parents at the onset of communication their rights.
IDEA further states how notices should be produced to parents. Written notices must be easily understandable and provide full explanations of procedures relating to the following: educational evaluations, prior written notices, parental consents, access to educational records, opportunities to present complaints, placement in regard to pending due process proceedings, interim alternative education settings, private school placement at public expense, mediation, due process hearings, state-level appeals (where applicable), civil action, and attorney fees (Comparison, 1997). Therefore, there are three main points school personnel must remember when discussing procedural safeguards: protecting rights of parents and children, make certain information is provided, and the process for resolving disputes (Desktop Reference, 2001). One important way to make sure parents are well informed on making decisions concerning their child is to inform them of their right to view the child's record. According to IDEA (1997), parents must not be denied the right to have access to their child's educational record. Similarly they must also be given access to evaluation data (IDEA, 1997). The third point deals with resolutions of disputes. Parents as well as school personnel may not always agree on what is best for a child. The law provides guidelines for dealing with these disagreements. One such way is through mediation.
Section 615(e) of IDEA (1997) instructs the State Education Agency (SEA) or the Local Education Agency (LEA) to establish procedures concerning dispute resolution through mediation whenever a hearing is requested. The law states that mediation must be voluntary, must not be used to deny or delay a parent's rights or their right to a due process hearing, and the mediation must be conducted by a qualified impartial mediator (Comparisons, 1997). Mediators are individuals with various backgrounds such as general education, special education, psychology, social work, speech/language pathology, and counseling who are without ties to the SEA or LEA. They must have thorough knowledge of State and Federal regulations (Desktop Reference, 2001). Also, results of mediation must be in the form of a written agreement and all discussions while in mediation are to be kept confidential. Furthermore, these discussions cannot be used as evidence in future due process hearings or civil proceedings (Comparisons, 1997). The law also provides a provision for parents who choose not to use a mediator. The law addresses this issue by stating parents should meet with a "disinterested party" to discuss use and benefits of due process (Comparisons, 1997). IDEA (1997) requires states to maintain a list of qualified mediators and they must also absorb the cost of the mediation processes which includes meetings between the disinterested party and parents.
Another such way to resolve disputes is through formal complaints. The Parent Outreach Division of Mississippi's Office of Special Education responds to all complaints that a district has violated IDEA requirements. The following guidelines must be followed when filing a complaint:
must include a statement as to why the complaint is being filed;
facts to which this statement is being filed;
the alleged violation cannot have occurred more than one year prior to the filing of complaint; and
if the alleged violation is continuing to occur or the person filing is seeking compensatory services for the violation, then the alleged violation cannot have occurred more than three years prior to the date the complaint is received (Desktop Reference, 2001).
Within sixty days of the Office of Special Education (OSE) receiving a formal complaint a decision must be issued. During these sixty days the OSE must:
conduct an investigation (may include a visit to the school district in question);
review all information including additional information submitted by the person making complaint;
make an impartial decision as to whether the school district violated IDEA; and
issue a written decision to the individual that filed the complaint that included OSE findings, conclusions and reasoning behind the final decision (Desktop Reference, 2001).
The OSE has the further responsibility of remedying the violation of IDEA requirements. This may include awarding monetary reimbursement or other corrective action appropriate to the needs of the child. It also is responsible for making sure appropriate future provision of services for children with disabilities are made (Desktop Reference, 2001). Parents should be made aware that if their formal complaint is also the subject of a due process hearing the OSE must set aside the complaint until a decision is reached in the hearing. Also, the hearing officer's decision is binding in regards to the complaint and the OSE must inform the person making the complaint to this effect (Desktop Reference, 2001).
It is important for school personnel to inform parents of regulations under IDEA concerning placement in alternative educational settings and provisions dealing with discipline. "Free appropriate education shall be available to all children with disabilities, ages three to twenty-one, including children with disabilities who have been suspended or are expelled from school" (IDEA Section 612(a)(1), 1997). The school has the authority to order a change in placement under the following guidelines:
Alternative Educational Settings (AES), other setting, and suspension cannot occur more than ten days; or
appropriate interim AES for more than forty-five days if the child brings a weapon to a school function or if the child possesses, uses, or sells illegal drugs;
LEA must conduct an IEP meeting to develop assessment plan if the LEA did not conduct functional behavioral assessment and implement behavioral plan prior to behavior resulting in suspension (must be done before or no later than ten days of disciplinary action); and
IEP team will review and revise plan as necessary if a functional behavioral plan already is in place (Comparisons, 1997).
Also, the law states that the hearing officer may order a change in placement to AES no more than for forty-five days if he or she finds the following to be true:
LEA has been found with substantial evidence that the child is likely to injury him or herself or others if current placement is maintained;
appropriateness of current placement is considered to be accurate;
LEA has made every reasonable effort to minimize risk of harm in current placement; and
AES meets the following requirements:
enables the child to participate in general curriculum;
the child receives services or modifications that were included in their IEP; and
behavior of child is addressed through appropriate services or modifications (Comparisons, 1997).
Corresponding with AES procedures, school personnel should review manifestation determination guidelines with parents.
If a child's disciplinary action involves a change in placement for more than ten days, the parents of the child must be notified of the disciplinary decision and their rights no later than the date on which the decision is to take place (Comparisons, 1997). Furthermore, the relationship between the child's disability and their behavior must be reviewed immediately or no later than ten school days after disciplinary decision has been made (Comparisons, 1997). In order to determine if a relationship between the behavior and the disability exists the IEP team along with other qualified personnel must conduct the review (Comparisons, 1997). The team may determine the behavior not to be a manifestation of the disability by reviewing all relevant information such as evaluation results, observations of the child, and the child's IEP and placement. The team may then determine the relationship between behavior, IEP or placement were appropriate and the disability did not impact the behavior. Furthermore, they may determine that the disability did not impair the child's ability to control their behavior. Therefore, the child may be disciplined under the school's general conduct codes (Comparisons, 1997). If the parents do not agree with this decision they must request and receive an expedited hearing (Comparisons, 1997). The child will remain in AES pending the decision by the hearing officer or expiration of time allowed for AES during this time (Comparisons, 1997). However, the child will return to current placement if a decision is not reached by the end of the allowable time for AES unless the school personnel maintain that it is dangerous to return the child (Comparisons, 1997). If this is the case, the LEA may request an expedited hearing.
It is important for school personnel to understand that children who violate the rules of conduct and have not yet been determined eligible for special education may assert protection under IDEA (Comparisons, 1997). In order for the child to do this, however, they must produce evidence that the LEA had knowledge of their disability prior to the misconduct. Under IDEA (1997) it is determined the LEA had knowledge if:
the child's parents expressed written concern to agency personnel regarding special education needs or related services for their child;
the child's performances or behavior indicated a need for services;
the child's parents requested an evaluation; or
the child's teacher or other school personnel expressed concern regarding performances or behavior to special education personnel or other agency personnel.
If an evaluation is requested during the time the child is undergoing disciplinary action, an evaluation is to be conducted expediently. The child is to remain in current placement pending the results of the evaluation. If the evaluation determines the child to be eligible, services are to be provided. School personnel must report criminal activity to the appropriate authorities and they must also ensure that the child's special education along with disciplinary records are transmitted to the authorities. However, if the LEA does not have knowledge of a child's disability and an evaluation is not requested the child is subject to the school's general code of conduct (Comparisons, 1997). Parents should be given knowledge of school's code of conduct as well as the school's obligation under IDEA concerning disciplinary action of children with disabilities.
In conclusion, this is by no means a complete listing of what school personnel should discuss with parents concerning IDEA regulations. It is, however, a good starting place to avoid due process. There are many resources available to school personnel and parents concerning IDEA legislation. Here is a brief list of some websites to visit:
www.mde.k12.ms.us.us/acad/sped (Mississippi Department of Education)
www.msprotectionandadvocacy.org (Mississippi Protection and Advocacy)
www.cec.sped.org/ (The Council for Exceptional Children CEC)
www.disabilityresources.org/SPECIFIC.html (Disability Rights Education and Defense Fund DREDF)
www.ncd.gov/index.html (National Council on Disability)
www.ed.gov/offices.osers/osep/index.html (Office of Special Education Programs OSEP)
It is the intent of this paper to make school personnel aware of IDEA regulations and what it is they need to know to avoid due process. It cannot be expressed enough the importance of communication with parents and the need to establish this communication at the onset of acquiring an individual with a disability into your school system. Please make available to the parents their rights under IDEA for both school personnel and parents sake.
Comparisons of key issues: Current law and 1997 IDEA amendments. (1997). National Association of State Directors of Special Education. www.nasdse.org.
Desktop reference for special education. (2001). Desktop Reference. www.oreilly.com.
IDEA: Congress to reauthorize education bill in 2002. (2002). Advocate, 1, 11.
Individuals with Disabilities Education Act (IDEA). (1997). Available: http://www.ideapractices.org/lawregulations/topicIndex.php.
Martin, R.(2000, Sept.-Oct.). Avoiding due process: The top ten things every parent needs to know. Autism Asperger Digest, 22-24.
Martin, R. (2003, Jan.-Feb.) Special education law: Top ten issues on parents' hot list. Autism Asperger Digest, 10-19.
Yeager, M. H. (1990). IDEAs: Regulations for school law. Boswell Regional Center. www.boswell.state.ms.us.
For further information:
Bay Springs, MS 39422