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If your child has an IEP, or is being evaluated for special education, you and your child have legal rights in the special education process, called "Procedural Safeguards"
The Individuals with Disabilities Education Act (IDEA) provides protections called Procedural Safeguards. These safeguards outline parental rights within the special education process. There are many procedural safeguards stated within IDEA. These safeguards are parental rights that define how a parent (and student) can work through the special education process with the school, the school district, and the state department of education.
The safeguards should help ensure that everyone on the team plays by the federally mandated rules through descriptions of:
The safeguards do not define or mandate what accommodations, modifications, goals, or services a student will receive. Those decisions are made by the IEP team, of which the parent (and child if appropriate) are a part.
Your school or school district must provide you with a written explanation of your rights under IDEA and any other applicable state regulations. You will receive this as a printed “Procedural Safeguards Notice”. If there are areas of this notice that you do not understand, you may ask for a verbal explanation. This notice, and all other communication must be in your native language.
Some of the key procedural safeguards, and what they mean for you and your student are defined below.
Prior to evaluating your child for special education, or providing special education services, the school must ask your permission to do so. The consent will inform you of what the district is proposing to do, such as evaluate your child in certain areas, or start providing specially designed instruction. You have to give your consent in writing before the school can proceed. You also have the right to refuse consent at any time.
You have the right to view and receive any and all of your child’s special education records. You also have the right to ask for an explanation of these records and their content, and to request corrections.
The school must provide you with prior written notice (PWN) before making any changes to your child’s educational experience within the IEP plan. This includes any instance the school wants to change or deny services. The school must always provide written notice of how and why they intend to make changes, before changes are made (view my video on PWN).
You have the legal right to request an Independent Educational Evaluation (IEE) if you disagree with the school’s evaluation results. An IEE is an evaluation of your child’s abilities and needs, completed by a professional outside of the school system. The school will be required to review and consider the external evaluation results, but they do not have to accept the findings (View my video on IEE).
If your child is suspended, keep in mind the following statement about special education and FAPE (Free and Appropriate Public Education):
A school cannot suspend your student for more than 10 days in a school year without continuing to provide special education services, and without holding a Manifest Determination meeting (sometimes referred to as MDT).
This meeting discusses whether or not the team feels that the student’s behavior is a result of, or is caused by, their disability.
There are two potential outcomes from this meeting:
If the school district is able to offer the student a Free and Appropriate Public Education (FAPE), the district is not required to pay for private school or special services for the student if the parent wishes to enroll the student in a private school.
If a court hearing officer finds that the school district is not able to provide FAPE, the district may be required to pay for a private school.
Sometimes when you have reached a point of impasse with your child’s IEP team, it may be effective to have another, previously uninvolved, individual as part of the process. This may take the form a Special Education Advocate, or you may decide to hire an attorney. Mediation or a state facilitated IEP meeting is also a possibility. Get in touch with me if you would like to discuss these options.
You have the right to file a state complaint. A state complaint is a formal document indicating a special education law or state regulation that you feel has been violated by the school or school district. The complaint should also include a description of the circumstances the law or regulation was violated and how it affected your child’s right to FAPE.
A state complaint will usually follow documented efforts at working with your child’s team to resolve any issues. Sometimes, simply describing how you feel the school is not providing FAPE is enough to start a conversation of remedying an issue.
Finally, you have the right to due process. Due process is a formal, legal way to resolve a dispute over special education services with your child’s school district. Due process begins when you file a written Due Process Complaint. The process begins with a 15 day resolution period where attempts are made to mediate and resolve the situation. If the case is not resolved, it will proceed to a due process hearing. Your case will be heard in front of a hearing officer where you will have the right to present evidence and witnesses.
If you choose to hire a lawyer for this purpose it is possible, but not a given, that your costs for due process (i.e. lawyer fees) may be paid by the school district if you win your case.
These are brief examples of parts of the procedural safeguards defined within IDEA. Your Procedural Safeguards booklet has more detailed descriptions of parental and student rights.
The special education process can be challenging, and at times overwhelming. As a Special Education Advocate, I am here to support you. If you have questions or concerns about your child’s process, please get in touch. I offer a free initial consultation.
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