Education isn't just about learning. It's also about the possibilities it does or doesn't create for a student's future. The stakes are high, and it's understandable that disagreements can arise between families and schools about curriculum and what's in a student's best interests.
These stakes are especially high for students with disabilities. Whether a student is receiving support, if they're receiving effective accommodations, and if a school is fully implementing those accommodations and support can be the difference between success and failure.
Appreciating that disagreements can and will happen, as part of the Individuals with Disabilities Education Act (IDEA), the federal government requires that all states have dispute resolution options to help families and schools find resolutions. States are responsible for implementing these options and may add additional avenues for solving disagreements.
The Education Law Team at the Lento Law Firm assists families nationwide in resolving special education disputes. Tell us more about your situation at 888-535-3686 or with this form.
Understanding IDEA
Disputes can arise at any point in the special education process. A student doesn't have to be currently receiving special education services for families to make use of IDEA's dispute resolution options. A child or teenager doesn't even need to be enrolled in their local school or be old enough to attend school.
For K-12 students with disabilities, IDEA is the cornerstone for protecting their right to an education. Public schools must provide services and reasonable accommodations to all children who reside within their boundaries, regardless of whether the child attends that school. This includes babies and toddlers too young to attend school, children who are homeschooled or attend private school, and any individual under 21 years of age (22 in some states) who hasn't graduated from high school.
All children have the right to a free public education in the United States, and that right extends to special education services and accommodations for students with disabilities. These services must be provided at no cost to families.
IDEA Eligibility
Students must have a qualifying disability to be eligible for protection under IDEA. Schools will assess students to determine if they have an eligible disability and if that disability impacts their education. The general process is the same in each state, and Colorado provides a good overview of the IEP process, including charts, of the general process. If children meet both criteria, schools must provide them with an Individualized Education Program (IEP).
Parents or guardians will meet with school staff to determine what accommodations, services, and modifications will be included in a student's IEP. Once agreed upon, IEPs are legally binding. Families can request a meeting at any point about concerns regarding a student's IEP. Whether parents or guardians are concerned that accommodations are no longer effective or if an IEP is being fully implemented, they should generally begin by requesting a meeting.
IDEA requires that school districts offer parents or guardians an annual IEP meeting. While parents or guardians can waive this meeting, even if you believe your student's IEP is currently effective, these meetings can still be beneficial.
The Student, Not the Disability
Both assessments and IEPs should be tailored to the individual student. Two students with the same disability may require different accommodations or have different manifestations of their disability. IEPs should also factor in a student's strengths and goals.
IEPs can and should change as a child ages. What's best for a first grader may not be equally effective for a fifth grader.
On a related note, while early intervention is important, a child or teenager can be diagnosed with a disability at any point during their K-12 years. Some disabilities may not be readily apparent or properly diagnosed. A school cannot refuse to assess a student because they're too old or too young.
Discipline and Disabilities
Students with disabilities are more likely to face discipline and drop out of school than their nondisabled peers. One study found that while students with disabilities made up approximately 12 percent of the student population, they accounted for almost 25 percent of suspensions. In 2021, students with disabilities were twice as likely to drop out of school.
Given these issues, in 2022, the U.S. Department of Education released guidance on how to better support students with disabilities and minimize the use of discipline, and improve the understanding of disability-based behavior. This is one reason why formalized dispute resolution options matter: They give families an avenue to advocate for their students when a school isn't supporting them.
Grounds for Disputes
As the above summary of IDEA suggests, disputes about special education can occur at any point in the process. A school may claim a student isn't eligible for services. An assessment may be insufficient, resulting in a student receiving inadequate support or accommodations.
An IEP may be ineffective. A school may fail to implement portions of a student's IEP or decline to revise an IEP. A school may fail to acknowledge the rule of disability-based behavior in disciplining a student.
In some cases, families may not know precisely what's wrong, they may just suspect that a school is somehow avoiding its responsibility to their student. The Education Law Team at the Lento Law Firm can help you, whether you know the grounds for a dispute or merely suspect something is amiss.
Dispute Resolution
IDEA requires that states provide mediation, state complaints, and due process hearings as part of the dispute resolution process. States and school districts may choose to add other dispute resolution options, but they cannot offer less than what IDEA requires.
When possible, families should first pursue more informal options to resolve disagreements. They should seek meetings with their student's teachers or school administrations. In some cases, once each side knows the why behind the other side's viewpoint, they may be able to reach a resolution.
One advantage of resolving a disagreement through an informal chat or meeting is timing. The quicker you can find a resolution, the sooner you can get support for your child.
A second advantage of these meetings is that if you do opt for a more formal dispute resolution option later in the process, you can show that you've attempted to resolve the issue without success. Demonstrating that you were willing to find a resolution may be beneficial to your overall case.
Unfortunately, these meetings may not always end in an acceptable solution, or a situation may be serious enough that such meetings aren't beneficial.
Which dispute resolution option is best depends on your situation. While there may be small differences between how states implement these options, they're generally similar. The Kansas State Department of Education has a chart comparing the three.
Costs
States are generally responsible for the administrative costs of dispute resolution. Families are responsible for their legal costs and any other costs they accrue, such as additional testing, although, in some situations, they may be able to recoup legal costs if a dispute is resolved in their favor.
Recognizing the cost of special education dispute resolution, California set aside $100 million in 2021. Part of the funding is intended to help increase the number of neutral facilitators in IEP meetings.
Mediation
Mediation is a voluntary process. Neither families nor schools can force the other side to participate. During mediation, a third party oversees the conversation between the two sides. Mediators don't weigh in on the conversation or offer any opinions or decisions. Their purpose is to help both sides communicate to reach a resolution.
States must maintain a list of qualified mediators, and these mediators should be selected on an impartial basis. The State bears the cost of mediation.
Mediation may occur over multiple sessions. The location should be convenient for both parties. Since 2020, some states have allowed virtual mediation to be available. California has a dedicated page about virtual mediation.
If families and schools reach an agreement during mediation, the agreement must be written and signed. Once signed by a parent and an authorized representative from the school district, the mediation agreement is enforceable in court.
What isn't admissible as evidence in later hearings is discussions that occurred during mediation. All discussions are confidential.
State Complaint
State complaints are unique because they're focused less on a specific student and more on an alleged violation or noncompliance with IDEA. Anyone can file a complaint against a school.
All states must make information on the timeline for investigating a complaint available to the public. Following an investigation and collection of evidence, investigators will determine if there was any violation of IDEA. They will then issue a written report. In some cases, a report may include recommended corrective actions or other.
To see an example of a state's implementation of the complaint process, Texas has a page dedicated to this dispute resolution option that includes an FAQ and filing information. For individuals who may be submitting potentially confidential or sensitive information, the Texas page offers a good reminder of the importance of verifying whether information will be secure before submitting it.
Due Process Hearing
Of IDEA's required dispute resolution options, due process hearings are the most formal. Similar to courtroom proceedings, these hearings involve a third party, known as a hearing officer, acting as a judge.
Both sides will present evidence, which must be limited to the initial complaint. The hearing officer will make a decision, and families have a right to appeal that decision.
Families have the following rights during hearings:
- The right to counsel
- The right to present evidence and cross-examine witnesses
- The right to prohibit the introduction of any evidence that was not disclosed to them at least five days before the hearing
Parents may also decide if their child will be present at the hearing and if a hearing will be open to the public. They also have a right to have access to the hearing's records.
Appeals can be made to U.S. District Courts. They must be filed within 90 days of the hearing officer's decision.
State Options
While not required, states may offer additional avenues for resolving special education disputes. Having more options means families may be better able to find a resolution option that fits their circumstances.
One common option is facilitated IEP meetings. Similar to mediation, facilitated IEP meetings involve a neutral third party helping schools and families create an IEP. Georgia, Missouri, Nebraska, New Jersey, and Washington are five of the states that offer facilitated IEPs. To get an idea of what a facilitated IEP session generally involves, these state's facilitated IEP pages offer a good starting point.
Another common option is an ombudsman. The ombudsman's role can vary dramatically. Virginia, New Mexico, New Jersey, and Washington are four states that have education ombudsman programs. In New Jersey, the office is more of a resource than an avenue for dispute resolution.
That's not the case for the San Diego Unified School District. The California school system offers a district-level ombudsman that helps find solutions to special education disagreements.
Knowing what IDEA requires is a good first step for resolving a special education disagreement. What states and school districts may offer above and beyond IDEA's requirements may mean a better dispute resolution option exists for your specific circumstances.
Find a Solution
Education has high stakes, and emotions often run high. Parents understandably want their children to receive the best possible education and, by extension, the best groundwork for their adult lives and careers. When disagreements arise, it can be difficult to know the best option and the way that will keep the focus on your child's best interests.
IDEA lays the groundwork for special education dispute resolution. States may add requirements or other dispute resolution options. School districts may also have procedures in place to address disagreements. If and when you disagree with a school's district implementation of your child's IEP or another portion of IDEA, you should first check with your school district and state for specific requirements.
The Education Law Team at the Lento Law Firm works with families nationwide to help resolve disagreements about special education services. We help our clients identify the best solutions for their circumstances and emphasize collaborative solutions that focus on what's best for students. Call us at 888-535-3686 or fill out this form.
