Students with disabilities may need special help to meet the educational goals of schools. Individualized Education Plans (IEPs) are developed to help these students reach their goals. IEPs will list the unique educational services that'll be provided to students with disabilities and reasonable educational goals. Since each student has different strengths and weaknesses, a different IEP is needed for each student.

In order for a student to have an IEP, he must be found eligible under the Individuals with Disabilities Education Act (IDEA). This federal act regulates how schools provide education to special needs students. The child must be evaluated by a variety of professionals to determine his eligibility.

A problem arises when parents believe that their child is entitled to an IEP and the professional evaluators determine that he isn't entitled to one. Another problem occurs if an IEP is created for a student, but the school isn't following through on its obligations. Parents have some options they can take to help their child receive his entitled education.

Rights of Students with Disabilities

The IDEA attempts to ensure that all children with disabilities have free appropriate public education. The free education must emphasize special education and related services designed to meet their unique needs. Schools are legally required to fully evaluate any student who may need special education.

A student that's found to have a disability under the IDEA is entitled to an IEP. The IEP is to be developed at an IEP meeting between the professional evaluators and the parents. The school must make sure that the IEP is being carried out correctly and that the student's progress is measured and reported to the parents.

Independent Educational Evaluation

If the parents disagree with their child's evaluation, they may take their child for an Independent Educational Evaluation (IEE). An IEE is an evaluation that's done by a qualified examiner who doesn't work for the school district. School districts must inform parents of their right to obtain an IEE.

If an IEE is performed, the IEP team must consider and review the evaluation. Parents may ask the school district to pay for the IEE. Only one IEE may be conducted at public expense each time the school has an evaluation that parents disagree with. However, parents may have as many IEEs as they want at their expense.

Mediation

Mediation may be an option for parents if there are disagreements about the IEP. It's a non-adversarial process in which the parents and the school negotiate an agreement without litigation. The process will be run by a mediator that helps both sides come to an agreement. Mediation won't be offered by every school district.

Due Process Hearing

If a school is withholding an IEP, parents may request a due process hearing. A due process hearing is a formal proceeding in front of a qualified hearing officer who resolves the dispute. All states offer due process hearings to resolve disputes with IEPs.

There are many reasons parents may want to request a due process hearing. Some examples include:

  • The school refuses to evaluate a child for an IEP
  • The child is deemed ineligible for an IEP
  • The parents don't agree with the educational services and the placement of their child under the IEP
  • The school is refusing or failing to carry out the IEP

The parties must attend a mandatory resolution session to try to resolve the dispute before the due process hearing. The hearing will be held if the school district fails to resolve the complaint to the parents' satisfaction within 30 days of receiving the complaint.

Due process hearings should be a last resort for parents. The hearings can be complex and costly. Although parents don't have to have an attorney, they should probably have one since the school district will probably be represented by an attorney. Parents should find an attorney that has experience with special education litigation.

Questions for Your Attorney

  • Should I seek an Independent Educational Evaluation if my school district decides my child is ineligible for an IEP? Does the school have to pay for it?
  • What documentation and evidence do I need for a due process hearing to prove that the school is refusing to carry out my child's IEP?
  • If I win at a due process hearing, can I have the school district pay my attorney fees? If I lose, can the school seek attorney fees from me?
  • I asked the school district to evaluate my child for a learning disability; it refused. If I decide to obtain an IEE, is the school required to act on it if it shows my child has a disability, and can I recover the cost of the IEE from the school district?

Tagged as: Education Law, Special Education, withholding IEPs, special education lawyer