Exploring Legal Options for Placement in Special Education

 

In this article we will explore a parent’s options for resolving conflicts over evaluations, conflicts over initial placement in the school district’s special education program, and conflicts over a “free and appropriate public education” (FAPE) or the student’s Individualized Education Program (IEP).

The Individuals with Disabilities Education Act (IDEA) has a mandatory early resolution process for the purpose of resolving disputes earlier and less expensively than in due process hearings.

This process is triggered by the filing of a due process complaint. The school district must convene a resolution meeting within 15 days of receiving the parent’s due process complaint and prior to the initiation of the due process hearing.

If the school district does not resolve the due process complaint to the parent’s satisfaction within 30 days of receiving the complaint, a due process hearing may occur.

Parents and IEP team members participate in the early resolution process. The school district may not bring an attorney unless the parent brings an attorney. Failure of the parent to participate in the early resolution meeting will cause a delay in the resolution process.

If an agreement is reached during the early resolution process, then the parties execute a legally binding agreement that is enforceable in court. However, after the agreement is reached, any party may void the agreement for any reason within three days.

Mediation is also an option when the parent and school district disagree about special education services for a student. Either party may request mediation, and the state bears the cost of the mediator.

If an agreement is reached during mediation, it is put in writing and signed by the parties. It is then legally binding and enforceable in any State or Federal Court. There is no three-day voiding rule of the mediation agreement.

When an agreement cannot be reached, a parent has two options for proceeding with a complaint about the child’s special education program. A complaint can be filed with the Department of Education (DOE), or a due process complaint can be filed which will be heard by the Office of State Administrative Hearings.

Choosing between these two options necessitates consideration of which best fits your situation because there are differences between the two routes.

For instance, the statute of limitations for complaints filed with the DOE is one year, while the statute of limitations applicable for a due process hearing is two years.

The remedies available differ depending on which route you choose as well. Remedies available through the DOE are limited.

For instance, if the DOE finds that the school district was not in compliance with the IDEA, it can require compensatory services, technical assistance, reimbursement, or other corrective actions, but it cannot award attorney’s fees. Also, there is no right to appeal the decision of the DOE.

Filing a due process complaint to be heard by the Office of State Administrative Hearings has written notice requirements and will result in a hearing conducted before an administrative law judge (ALJ).

In that hearing, the burden of proof is on the party seeking relief. While a due process hearing is pending, the student will “stay put,” meaning that the student’s current education and related services and placement as prescribed by the student’s most recent IEP will continue to be provided.

Any party who disagrees with an ALJ’s decision under the IDEA may bring an appeal by filing a civil action in either Superior or Federal Court

Remedies can include compensatory services, which means services that are above and beyond the services normally due to a student and intended to make up for a school district’s past failure to provide FAPE.

Read more at Special Education law Part II Conflict resolution.

Jimmy Kilpatrick, a national recognized professional special education advocate since 1994.

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