Vol. 10, No. 3 Summer/Fall 2002	Previous Issues Subscribe to AT Messenger Download PDF Viewer
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Procedural Safeguards under the IDEA: What Parents Can Do To Enforce the Provisions of a Student's IEP

Mary Beth Musumeci, Disabilities Law Program

Parents of children with disabilities who qualify for special education and related services under Part B of the federal Individuals with Disabilities Education Act ("IDEA") quickly become familiar with the document known as an Individualized Education Program ("IEP"). The IEP is the written plan developed by a team composed of the parent, teachers, a school district representative, and other individuals who have knowledge or special expertise regarding the child. The IEP describes the components of the "free and appropriate public education" ("FAPE") to which eligible students are entitled under the IDEA. It includes, among other things, measurable annual goals and short-term objectives geared toward how the child's educational needs will be met and a statement of the special education and related services and supplementary aids and services that the student will need in order to benefit from FAPE. What parents can find confusing or frustrating, however, is how to ensure that their child's IEP is written and implemented so that the provisions contained in that document become a reality for their child.

The IDEA and corresponding state law in Delaware provide several mechanisms by which parents can enforce the provisions of their child's IEP. These rights are described in the Notice of Procedural Safeguards that must be provided to parents when the child is referred for an evaluation or reevaluation for eligibility under the IDEA, when notice is provided for an IEP meeting, and when parents request a due process hearing. The remainder of this article describes the various options available to parents when they disagree with the implementation or contents of their child's IEP.

1. Call an IEP Meeting

Calling an IEP team meeting can be a simple and effective way to resolve disputes about the content of an IEP or how the provisions of a student's IEP are being implemented. The IEP is supposed to be the product of consensus among the IEP team members, and parents should remember that they are an important and co-equal member of the IEP team under the IDEA. The IDEA makes clear that a parent can call an IEP team meeting at any time. Parents also can invite other people who have special knowledge or expertise regarding their child to participate in the IEP meeting. (It is courteous to let the school know in advance of the meeting if parents will be inviting people who are not otherwise part of the team.)

An IEP team meeting can be an informal, relatively quick way to resolve disputes. The ability to effectively communicate and collaborate with teachers and school district personnel is an important skill for parents to master so that the student's needs can be met. Establishing a productive working relationship with the school is vital because parents typically are going to have to work with the school for many years, potentially from the time their child is age three through age twenty-one. Therefore, the best approach is usually to make an earnest effort to work out disagreements within the IEP team setting before utilizing a more formal dispute resolution process.

2. File an Administrative Complaint with the State Department of Education

If parents are unhappy with the results of the IEP team meetings, they can file an administrative complaint with the state Department of Education ("DOE"). Administrative complaints must be in writing and signed by the person who is filing the complaint. The complaint must include the name of the agency against which the complaint is made, a statement that the agency has violated the IDEA and/or the state regulations contained in the Administrative Manual for Special Education Services, a description of the facts underlying the alleged violation, the time frame in which the incident occurred, a description of the attempts made to resolve the dispute prior to filing the complaint, and contact information for the person filing the complaint. Complaints have to be received by the DOE within one year of the alleged violation, unless the violation is a continuing one, or unless compensatory services are sought for a violation that occurred within three years of the date the complaint is received.

In response to an administrative complaint, the DOE will conduct an independent investigation, give the person filing the complaint the opportunity to submit additional information about the allegations contained in the complaint, review all relevant information and make an independent determination about whether the school district is violating the IDEA, and issue a written decision that addresses each allegation in the complaint, including findings of fact and conclusions of law and the reasons for the final decision. The DOE's decision must be issued within sixty days, unless there are exceptional circumstances that justify a longer time. If the DOE determines that the school district failed to provide appropriate special education and related services to a child who is the subject of a complaint, the decision must address how that denial will be remedied.

3. Go to Mediation

In addition to filing a state administrative complaint, parents also can choose to pursue the administrative hearing system known as "due process." However, the DOE cannot investigate and resolve the parts of an administrative complaint that are also the subject of a due process hearing. In that case, the DOE must wait for the due process hearing decision.
Parents can choose mediation as an initial step in the due process hearing procedure. In Delaware, mediation is provided through the University of Delaware Conflict Resolution Program. Mediation is voluntary and free to parents. A trained impartial person will listen to the parent and to the school district's perspectives and help the parties work out a solution that is acceptable to everyone. Any agreement reached by the parties in mediation must be put into writing.

Mediation is less formal and is intended to be less adversarial than a due process hearing. The content of the parties' discussions in mediation is confidential and cannot be used as evidence by either party later in a due process hearing or in court. One of the benefits to mediation that the focus is on not only resolving the current dispute between the parent and the school district but also on helping the parties to repair or develop a productive working relationship so that they can resolve other conflicts that arise in the future.

4. Request a Due Process Hearing

Perhaps the most well known procedural safeguard that parents can invoke under the IDEA is the due process hearing. This is an administrative hearing before a hearing panel composed of three persons. (There also is a procedure for requesting an expedited hearing. In that instance, a single hearing officer will hear the case.)

A due process hearing must be requested in writing, addressed to the state Secretary of Education, and signed by the parent, guardian, or attorney for the child. The hearing request should include the child's name and address, the name of the child's school, a description of the problem, including the facts related to the problem, and a proposed resolution to the problem. Parents can request a due process hearing when they disagree with the school district's decision about their child's identification for IDEA services, evaluation, educational placement, or the provision of FAPE to the child. Parents might disagree with something that the school district proposes to do, or they might disagree with the school district's refusal to do something that the parent believes should be done.

A due process hearing comes with many procedural rights. These include the rights to have a fair and impartial hearing before a three-member hearing panel, to be represented by an attorney hired by the parents, to present evidence, to confront and cross-examine adverse witnesses, to compel witnesses to be present, to prevent evidence from being presented at the hearing if it was not disclosed at least five business days in advance of the hearing, to be told about evaluations that have been completed and the resulting recommendations at least five business days in advance of the hearing, to receive a written decision from the hearing panel, to have the child present at the hearing, and to decide whether to have the hearing open or closed to the public.

5. Appeal to Federal or State Court

If parents are unhappy with the due process hearing panel's decision, they can file a civil complaint in either the federal district court or in the state Family Court. Parents cannot file a complaint in court without first going to a due process hearing. Due process decisions must be appealed to court within thirty days of the hearing panel's final decision. Parents must choose whether to file in federal court or state court. Although parents can go to a due process hearing without an attorney and represent themselves, they must have an attorney if they want to pursue an appeal in federal court.

Conclusion

Congress currently is debating the merits of reauthorizing the IDEA. At least for now, the IDEA's mechanisms for enforcing the provisions of IEPs remain essential tools for ensuring that children with disabilities receive the free and appropriate public education to which they are entitled under the IDEA.