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Due Process -- How Parents Assert Their Rights

When the IEP Process Goes Bad

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Due Process is the legal name for the hearing that may decide a dispute between parents and school district about a student's IEP.

The IEP is the most critical Document in dealing with the challenges offered by a student who qualifies for special education. A special educator is responsible for writing the IEP, but all too often decisions about appropriate services are decided by someone else. It may be your special education supervisor, it may be the building principal, it may be whoever serves as your LEA (Local Education Agency or Authority.) Still, the special educator is the one who has kept data on a student's progress, has administered his or her program, and will be asked to testify on the matter at hand.

Common Reasons for Due Process

Parents are important stakeholders in the IEP process. They speak for the interests of their minor children, even when common sense may seem to reflect better choices or options. The whole process is difficult for a layperson to understand. Add the concerns a parent may have for the well-being of his or her child, and they may become very reactive. It is critical that you keep communication open and positive long before you present a new IEP, in order to avoid the sort of emotionality and recriminations that can be part of the process, if not to avoid Due Process altogether.

Among the common reasons:

Questions About Placement. Often districts make placement decisions that may not fulfill parents desires. Least Restrictive Environment (LRE) should be the default placement, with a child receiving his or her services in a general education classroom. (Inclusion) Sometimes those decisions are made in the best interest of the child, who may not be able to succeed in a general education classroom. Sometimes it is done because the school, the district or the general education teachers do not know how to manage the student's behavior, or would rather not differentiate instruction to include students with disabilities in the general education classroom.

Unwillingness on the Districts Part to Accept an Outside Evaluation. If the parent has had a child evaluated by someone other than the district's psychologists, they may have provided a different "diagnosis" than the Multi-Disciplinary Team. This is especially true with Autism Spectrum Disorders, which is sometimes preferred to other diagnoses because of the number of services that are often provided. Or, a district may decide that the child doesn't have a developmental or cognitive disability, but an emotional disability.

Failure to Provide the Services a Child Needs. This can, of course, be a very subjective matter. The legal concept of Free and Appropriate Education (FAPE) promises an equivalent education, not the best possible education.

Denial of Special Education: The emphasis on Response to Intervention (RTI) attempts to provide intervention to young children struggling with reading before they are diagnosed with a learning disability. That can be problematic in some communities where having a child who qualifies for SSI/Disability creates a reliable extra source of income.

Private Placement Reimbursement Parents will sometimes remove a child from a public setting before they have gone through due process, and will use due process as a way to get the district to pay for the tuition at a private school.

The Process

The IEP or Multi- Disciplinary Team Meeting

Due process cannot begin until there has been a MDT (Multi-Disciplinary Team) or IEP meeting. Failure to respond to a written request for evaluation within the time legally allotted (may differ from state to state: it needs to be "reasonable." ) When the evaluation is completed, the parents will participate in the MDT meeting to determine eligibility, which will be followed by an IEP meeting, which will lay out the goals for the student. The parent is asked to "sign off" or approve both the MDT report and the IEP, usually at two different meetings

Mediation

Both the district and the parents are encouraged to participate in mediation with an impartial mediator before going to due process. Although the mediator is paid by the district, he or she is a neutral party identified by the state department of education. Their purpose is to bring about an agreement between parents and the district.

Mediation is usually a preferable way to proceed, for if the parents intend to keep their child in the district, or if they have other children in the district, they want to avoid completely alienating the district. It is also much less expensive for both the district and the parents, although it is likely that the district will agree to pay the parents' attorneys' fees in order to avoid the cost of both their own and the family's attorneys should they go to due process. A capable mediator will probably find a middle ground where parents and district can agree on a course of action that will be acceptable to both parties.

The Due Process Hearing

When an impasse is reached, the family or the district may choose to go to due process. If the parent wins, the district is required to pay the lawyers fees. If it is determined that the due process is "frivolous" the parent may be required to pay his or her fees. A reputable lawyer will discourage a parent from going to due process if they lack the evidence of misfeasance or malfeasance on the part of the district, if the demands of the parents are unreasonable, or if they are unable to prove that the program offered by the district will fail.

The hearing is presided over by a hearing officer, from a list of hearing officers provided by the state. In some states a PHD in special education, psychology or a related field is required. The hearing officer will be the one who will determine the outcome of the due process on behalf of the child and the district. In many ways the process is adversarial, like a civil suit. If either party contests the outcome, they have the right to take it to a state of federal court (especially when appealing application of Federal Law.

Court

If either party feels that the hearing officer was wrong in their findings, they have the right to take the dispute to court. It is likely that the district would prefer to apply state law, designed to protect public education, and the family to federal court, though there is nothing hard and fast. In any case, it is an expensive process, an only parents or districts with significant resources would pursue a final outcome through the legal process.

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