According to federal law, every child has the right to a free public education, with equal opportunities to learn regardless of race, background, socio-economic status, citizenship, or physical or intellectual disability.
If your child or someone close to you has a physical or intellectual disability, the U.S. Individuals with Disabilities Education Act (IDEA) mandates that all differently abled students, from kindergarten through twelfth grade, be provided with an Individualized Education Plan (IEP). Under IDEA, the school district is responsible for developing this customized plan for each eligible student. What's more, school districts must do so without pushing any extra costs to students or their families.
While federal laws like IDEA govern IEPs for the most part, states do have some leeway in determining how they administer such plans and programs. At times, this may mean your state will provide services beyond what's defined by national policy. In other cases, they may have policies that limit what is mandated due to the limitations of specific school districts.
Washington State is a unique place. While the majority of residents live in cities like Seattle and Spokane, its rural population has grown by almost 10% over the last decade. Washington's student populations are just as unique. And there are additional state laws and regulations that govern IEPs and providing adequate services to students with disabilities. It's imperative, as the family of such a student, that you are familiar with these laws and how they may affect your student's day-to-day education.
Understanding the IEP
Per IDEA, an IEP should be unique to each and every student. These are plans developed in partnership between school districts, educators, and families, to determine the appropriate services, support, and instruction an individual student requires to be successful in the school environment. For some students, that may mean extra time for tests. For others, it may mean regular sessions with a speech or occupational therapist. The idea is that each plan is customized for the specific needs of the individual student – so that the school can ensure they receive a free appropriate public education (FAPE), as mandated by federal law.
To be eligible for an IEP, students must have a diagnosed physical or intellectual disability. Once documentation of that diagnosis is provided to the school district, it is incumbent upon them to provide the student with a personalized IEP. It is also important to note that IEPs are not a "one-and-done" type of thing. After the first IEP is crafted, students have the right to request a revision to the plan each school year. This is important as the student's needs may change – or they may outgrow the need for certain supports over time.
Washington state law dictates specific categories of disabilities that may merit the development of an IEP, per the Washington Administrative Code (WAC 392-172A-01035). They include:
- Autism
- Deafblindness
- Deafness
- Developmental Delay
- Emotional or Behavioral Disability
- Hard of Hearing
- Intellectual Disability
- Multiple Disabilities
- Orthopedic Impairment
- Other Health Impairment
- Specific Learning Disability
- Speech or Language Impairment
- Traumatic Brain Injury
- Visual Impairment, Including Blindness
You may notice that these are broad categories. The state statute goes into more detail about what diagnoses may fall into each category – and what services school districts may provide.
In Washington, it is also possible that your school may instigate the development of an IEP if your student's teacher notices that there may be an issue. The state has instituted a special program called Child Find which makes it mandatory for school districts to have policies and procedures in place for schools to identify and evaluate students they believe may have a disability.
What Is Included in a Washington State IEP?
The IEP needs to be detailed enough to act as a roadmap to help the associated student receive a FAPE. And while each school district may have a slightly different format for the document, each one should include the following:
- A description of the student's present academic and functional performance at school;
- The specific educational or other goals to be achieved – and those goals should be specific and measurable;
- A description of how the school plans to measure progress toward the defined goals, including how often they will provide progress updates to the family;
- A description of the services, aids, and supports that will be provided to your student;
- A description of any program modifications required to support your student;
- A description of how, where, and when the student will participate with nondisabled students in a general education setting, including extracurricular and nonacademic activities, and when they will need to be in a special education classroom.
- A description of accommodations necessary to help measure achievement via state, district, and other standardized assessment tests or if the student will require assessment using some alternative;
- The need, if applicable, for extended school year services;
- The projected start date for the service and modifications, as well as the frequency, location, and duration of those supports;
- If the student is approaching 16, a post-secondary transition plan;
- By the age of 17, a statement informing your student of their rights under IDEA once they turn 18.
Far too often, under-resourced or understaffed schools may not cover all required items in an IEP. It's important to know what federal and state laws mandate – and make sure your student's rights are protected as you move forward.
Transitioning from School to the Real World
The development of a transition plan, or what services are necessary to help your child transition from high school after graduation into a new setting, is an important part of your student's IEP. By Washington law, at the age of 16, all students with an IEP will be provided with transition services to help them prepare for adult life.
Such transition plans may include plans to help students move to college or trade school – or may involve independent living programs, employment, or other adult services for individuals with disabilities. By Washington state law, this transitional planning needs to occur at the annual IEP meeting prior to the student turning 16 years of age. The members of the IEP team, which includes the family, will define the desired and appropriate goals for post-school life – and the services and supports students may need to reach them. This is the time when students, and their families, can advocate for their future – and make clear what their goals are. In doing so, they can make sure there is a plan in place to help students acquire the skills they need to succeed outside of the school environment.
Washington's Program Improvement
The state of Washington has come under fire for a lack of oversight of IEPs and special education services. In response, the state has an active special education program improvement workgroup. They collect both qualitative and quantitative data to better ensure that students with disabilities are getting the services they need from school districts. And they mandate that any issues of non-compliance must be addressed within one year of discovery.
State law also holds that if a student's special education needs cannot be met by their resident district due to a lack of resources, the district can ask a nonpublic agency (NPA) to provide the necessary education-related services deemed necessary by the IEP. Nonpublic agencies are private schools or programs that offer special education services. This law was designed to help students get the support they need. Yet, it has been an area of contention for many families in the state as districts have remarkable flexibility in contracting those outside agencies. They are often overcrowded and under-resourced – and parents can struggle to have their students placed in the right programs.
This is why retaining an experienced attorney-advocate, who understands the ins and outs of both IDEA and Washington's special education laws, is so important. Many school districts, when looking at the cost of services, may try to pass off accommodations to a NPA due to financial or resource limitations. The Lento Law Firm has nationwide experience in helping parents and guardians in the state of Washington get the services and support they need to meet the FAPE standard. They can ensure a student is not cavalierly passed off to a NPA who will be unable to meet their needs.
An Increase in Funding?
It is also important to note that state law previously mandated that only 13.5% of students in each district could receive funding for special education services. In 2023, the state legislature passed house bill 1436 (HB 1436), which would increase that cap to 15% of students, as well as add more than $400 million in additional funding for special education. The bill has been delivered to the governor for signing – but is not part of the state law yet.
It's important to understand, based on the state legislature, the cost can be a factor in determining "reasonable" accommodations for a particular student and, as a consequence, what services are included in your student's IEP. But the cost, in and of itself, should not be the only reason a school district denies a request for a needed service. Far too often, school districts will look at average expenditures for students with disabilities – and keep their eye squarely on the legislated 13.5% cap. For the benefit of your student, however, that should not be their focus. It should be on your student and their needs. This is yet another area where having an experienced IEP attorney can help you ensure you do not accept inadequate services because the school is claiming they are limited financially.
Emergency Response Protocol
Since 2015, Washington State has prohibited IEP teams from planning to use restraint or isolation for students with specific behavioral or emotional issues who may be in danger of causing themselves or others imminent harm. Today, the use of restraint or isolation can only be included in a special emergency response protocol if both the school district and the family agree that it may be necessary. In addition, school districts cannot push parents to agree to such a protocol – and it cannot replace a more comprehensive behavioral intervention plan.
Unfortunately, the term "imminent harm" can mean different things to different people. Some school districts will restrain or isolate students when it is not necessary to do so because of a lack of staff or other resources. The right attorney can help ensure you aren't bulled into an emergency response protocol that is not right for your student.
Understanding the IEP Process in Washington
Once a student has been identified and evaluated by Child Find, or, alternatively, a parent or guardian has submitted documentation of a disability diagnosis, the school will kick off the process to develop, review, or revise an IEP.
While the school district will be responsible for developing the initial framework for the IEP, your student benefits when the family participates. The state requires the school district to notify you of their intention to develop an IEP and ensure you are afforded the opportunity to attend any meetings with the IEP team. Ideally, the IEP team should include the following:
- The student's parent(s) or guardian(s);
- At least one of the student's general education teachers who is familiar with their abilities;
- At least one special education teacher;
- A school district representative who understands the special education curriculum and availability of resources in the district;
- An individual who can explain the evaluation results and make recommendations based on them;
- Other individuals who may have knowledge of the student can help to determine goals and appropriate services;
- As your student ages, it may also be recommended that your child be a part of the team and contribute to any related goals or plans.
What If I Disagree with My Student's IEP?
As the parent or guardian of a student with an IEP, you have the right to ask for meetings outside of the annual review to address any issues with the IEP. If the school district denies this request, they must explain, in writing, why they are refusing.
If your request is refused, or if, after meeting again, you are still dissatisfied with your student's IEP plan, the state of Washington offers two methods of dispute resolution.
Citizen complaint. Parents or guardians who would like to make a formal complaint due to disagreements about an IEP, or the belief that their school has violated IDEA or state special education requirements, can make a citizen complaint to the Washington State Office of the Superintendent of Public Instruction (OSPI). A citizen complaint can be made by any citizen of the state – that includes parents, educators, or other interested parties.
A citizen complaint must be in writing, state the facts of the complaint, including the names and addresses of the parties involved, and be signed by the person making the complaint. If the complaint concerns a specific student, it should also include the name of the student, the student's school district, the nature of the issue, and a proposed resolution to the problem.
Once a citizen complaint is filed with the OSPI, a copy will be sent to the appropriate school district. They then have 20 days after receiving the complaint to investigate the issue and respond in writing. A copy of that response will be sent to the complainant, and at that point, the complainant will have the opportunity to send additional information.
Within 60 calendar days, the OSPI will make a determination of whether the school district has violated federal or state special education policy.
Civil Rights Complaint. Parents or guardians can also file a civil rights complaint to the federal Office of Civil Rights (OCR) if they feel their student is being discriminated against. They must file a written complaint within 180 calendar days of the alleged date of discrimination and provide detailed information about the incident. Parents or guardians can submit a civil rights complaint directly on the OCR website.
The OCR will acknowledge a complaint within 15 but may take up to 45 days to review the matter. They will then initiate an investigation. One hundred twenty days after the start of the investigation, they will notify you of their findings.
Mediation. Under IDEA, the state of Washington is required to provide mediation services to help address issues between parents and guardians and school districts when there are disagreements about an IEP. A neutral third party will sit down with both the district and the student's family to try to come to a resolution for any ongoing issues. If the mediation is successful, both parties will be asked to sign a legally binding agreement that outlines any changes to the education plan. Details regarding the mediation process, as well as how to request mediation services, can be found on the OSPI website.
Due Process Hearing. If you are unable to find a resolution through other avenues, you can request a formal administrative hearing where you have the ability to present evidence and witnesses – as well as cross-examine the witnesses provided by the school district or NPA. A hearing officer will listen to all the facts and then make a decision based on federal and state law. While you do not have to have an attorney present for a due process hearing, engaging an education attorney-advocate can help you present strong evidence to the hearing officer and make sure your rights are protected throughout the entire process.
You can request a due process hearing in writing to the OPSI and the school district. You should include pertinent details of the issue, including the name and address of your student, the associated school district and school, your concerns, and any suggestions you may have for resolving the issue.
If you have reached the point where you feel you must file a written complaint or request mediation or a formal hearing, it's important to put your best foot forward. Retaining an experienced IEP attorney can help ensure no detail is overlooked – and that your school district, as well as the state of Washington and the OCR, understand your issue in detail.
Protecting Your Student's Rights
Unfortunately, Washington state, thanks to the state cap on special education funding, has had several high-profile issues involving IEP and special education rights over the past few years. While the state is looking into passing legislation to increase funding and finding ways to support IEPs above and beyond federal mandates, it is still important that you understand your student's greatest advocate is you.
Far too often, students with disabilities lag behind – and fail to have the appropriate transitional plan once they leave school. Your student has a right to free, appropriate public education. He or she should be protected from being discriminated against due to their disability. But loopholes in legislation, unfortunately, can allow schools to use lack of funding or other excuses to not meet their requirements and responsibilities under both federal and state law.
As a law firm with national experience in IEP protections, the Lento Law Firm can help Washington students both in large cities like Seattle, Tacoma, and Spokane, as well as rural communities, get the educational accommodations and services they are entitled to under the law. We work with families and school districts to make sure each and every student's right to an education is preserved. We can help you and your student, too.
Joseph D. Lento and the Student Discipline Defense Team is well versed in special education law and IEP development. We have the knowledge and the skills to make sure your rights are protected – so your student can achieve their full potential in a school setting, despite any disability. We can assist in IEP development, written complaints, mediation, and formal hearings. And we are always here to fight for your student and their future. If your student is facing an IEP issue in the state of Washington, we know you are likely frustrated, scared, and even a little angry. Let us help you get to the resolution you deserve. Contact us online or at (888) 535-3686 to discuss your case today.
