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HomeLearning DifficultiesLegal Rights & Advocacy

Special education FAQ

Page 3 of 3

By Jan Baumel, M.S.

Should I consider filing for due process?

If you feel you're at an impasse with the school district, you may think about your right to due process. Usually it's wise to consult with a trained advocate or attorney knowledgeable about special education law to help you evaluate the case before filing for due process.

Are there any other steps you could take first? Is your case based on facts or on feelings and frustrations? What are you trying to achieve for your child? Are these goals realistic? Do you want to commit the time, energy, and expense to go forward?

To make these decisions, a thorough review of all of your child's records is important. You may already have copies of this information, but if not, you can ask the school district to review and/or provide copies of your child's educational records. However, if the school makes copies for you, there may be a charge.

If you decide to proceed with mediation and/or an administrative hearing, be prepared for a somewhat demanding process. After a lengthy procedure of reaching a settlement with the school district, one dad commented that he'd rather have a root canal than participate in due process again!

Most states have some form of mediation, generally viewed as a win-win strategy, available. After you and the district have each presented your side, a trained mediator will help you reach agreement — generally some sort of compromise. By prioritizing objectives ahead of time, you'll be able to focus on what's really important for your child. Each side may have to give a little, but you'll both have control over the final decision because it has to be mutually agreed upon by you and the district.

An administrative or "fair" hearing resembles a court proceeding. One at a time, you and the school district will be asked to present your side of the case to an Independent Hearing Officer (IHO), often an attorney trained in special education law. There are specific rules to follow regarding inclusion of written documents, testimony and cross-examination of witnesses, and other procedures. Because the final decision is made by the IHO on points of law, not emotion, it's usually best for you to be represented by an attorney.

The process can last much longer than the 45-day timeline — often 90 to 200 days — because of delays related to getting additional assessments and finding mutually convenient times for lawyers. The cost can run into the thousands of dollars per day for attorney fees and experts. If the IHO rules in your favor, you may recover some or all of the fees you've paid. However, if the IHO rules in favor of the district, you are responsible to pay your own costs. And remember, in either decision, the school district pays for its attorney and experts and that money comes from the general fund - monies which are used to provide for all children in the school district.

The result of many cases is that parents prevail on some issues and the school district on others, so that neither wins the case on all points presented. The decision can leave both parties dissatisfied with the outcome. So before deciding to go to a hearing, you may want to try one more time to communicate your concerns about your child's special education program with school district personnel.

Reviewed 2011

Jan Baumel, M.S., Licensed Educational Psychologist, spent 35 years in education as a teacher, school psychologist, and special education administrator before joining Schwab Learning. Today she is a consultant to local school districts and university field supervisor for student teachers.

Comments from GreatSchools.org readers

05/2/2012:
"Does anyone know how much a school in MA has to pay to another town if they refer a child on an IAP out of district? How much Federal money they forfeit? They are fighting a referral with me and I am wondering if money is the issue and how all that works. Thanks "
08/10/2010:
"You were wrong about an IEE. They have to pay for a private evaluation. They are entitled to limit the area ie a 50 mile radius and they are allowed to set cost limitations on each test given.But they are definately allowed to use a private evaluator. In fact I wouldn't even consider using one of their evaluators. It's leting the fox guard the hen house."
08/18/2009:
"Once qualified for IEP, does this classification follow your child from school to school within the same state that it was initiated? i.e., 3rd grade from Lake Oswego school district to 3rd grade, Bend or Ashland, Oregon school district."
04/2/2009:
">While it may sound good to you to have your child educated in a school in which all the other kids have LD, be aware that such a private school legally may be considered a more restrictive environment because he'll have little, if any, access to nondisabled peers. In other words, your child will be educated only with kids who are considered to have a disability. Therefore, the setting may not be considered the LRE because there's no opportunity to work and play with nondisabled kids. < This is not necessarily true. If the only kids who attend a private/non-public school areactually on an IEP, then this statement is correct. If the most of the kids are placed by parents thne those children arenot considered disabled because they are not or no longer on IEP's. "
01/29/2009:
"Yes, I would like to know if anyone can give me some information on how my son can go to college as he graduated with a special education diploma or an IEP. College don't realize this and doesn't accept person into college without a GED. For my son to get an GED Diploma, who is well over 21, would be or is impossible. Can anyone provide any information on how my son can go to college on an IEP? Thank you, PP "
03/6/2008:
"I read everywhere about special ed and the rights and research for schools. However I am fustrated that I am unable to find ratings or where to find deaf schools that teaches for deaf students, such as new mexico school for the deaf. Why isnt these schools also listed so I can research mainstream hearing school versus deaf schools? Thank you."
01/22/2008:
"Hello, I live in Northern NJ and my oldest child was evaluated last summer 2007. During the Eligib/IEP mtg we disagreed w/ the OT eval - it was discovered that the OT report was 'about another child' - as stated by the OT herself. With that said, I requested and independent eval in Sept 2007 and still have not received it yet. I'm so disgusted with this school district. They attitude towards special ed is not encouraging to us thus far. There seems to be NO accountability for schools and unless you bring the district to court and spend lots of $$$ - your (or our) child's rights will continue to be broken. Why is this lack of accountability allowed?"
01/10/2008:
"I found your name online and was curious if you had any advice. I have a bright 4 year old with mild CP. He is currently in a public school we do not feel are meeting his needs at all, we are getting the run around to let him stay there (I believe it is money driven). After our meeting today with a very unqualified and rude speech therapist and his teacher who says she can not possibly give him ANY one on one time/work etc with 8 special needs children in the class, her paperwork of his progress was basic and extremely minimal and he is such a bright little boy. We are determined to place him elsewhere for the remainder of the year. Our goal is to ensure he is ready mentally and emotionally for kindergarten. Where can I turn to? Other public schools – ask what? Private schools? Montessori? Any suggestions??"
09/6/2007:
" i am from out of state and I noticed that the IEP I bought to the table for the new school to follow in educating my child was overlooked. It was decided she would be placed in resource classes becaused the class she was in in the other state was not offered. There was life skills for more physically handicapped children where she was placed but being mentally challenged also her placement was not a fit. Not even close. So she was constantly suspended and given tickets for her behavior. This school year has just begun so a behavior plan was not in place to help my child stay in scool. Today she was given a ticket and suspended for three days. The teacher gave my child scissors for a project and then I was called to pick her up because it is said she was brandishing the scissors and cutting herself. So the classroom was cleared out because it was said she was holding the scissors as if she was going to hurt someone. Because I was in an uproar about the whole thing I withdr! ew her from the school. Now I want due process for my child, but the school says if I bring my child back she would get a ticket and be suspended. My child has been at the school 3 month last year with teachers she had started to kearned and learn her. This year she started with those teachers gone and the new teacher does not know my child who made the allegation and gave her the scissors. The concept was to graduate my child this year. But now will she be one who is left behind, because teachers only have to provide FAPE. IDEA is not an option. I am being led around the block when it comes to the differences across state lines in SPECIAL ED.My child is one year from graduating and has brcome a drop out because the system has failed her. They say 'no' we can't put her here or there asif there are options. There are only two options in Texas resouce or life skills. Where is the rest of the special ed department? Can someone tell me? I have hurt my child because she does no! t know the importance of being in school and graduating, yet. ! So, I wi ll find her a school. I am afraid to return to that school because of the abuse the faculty have put on my child and using the police to discipline so easily to get out of the task to put in place a much needed plan to intercept her when she is not on task, The faculty comes full force when it istime to suspend her, but she can't get a her teachers together to attend her IEP to discuss a plan to keep her on task. When you try and ask what is rightfully due her, it is put off so far in the future, that under the norm where you and I could wait, a sick child who is in distress in the classroom the wait could seem like an enternity. One with MR, ODD, OCD, DEP, it is hard to cope. This is a true behavior plan IEP, Academics is second. The schools in houston does not adress or have classrooms for mentally challenged chilldren other than Cerebral palsy, come on, ADDHD is not the only disorder and if there is a cover over my eyes, it's coming off because the Federal Governt mand! ates all placement and I refuse for my child to be clumped into one classroom whereby if she can't funtion reasonably () she would be suspended and ticketed like a criminal or be placed in a classroom wher none of her needs are met to avoid it in the first place. then be sent to court because she is absent to many times when she is sick with diseases not considered to be class serious enough. ie. cebral palsy, muscular dys, autism. What to do? i read the article. i understand the content, but this needs to be brought to the cogress table again. The schools should not be left alone to decide and should be evaluated to see if they are doing all they can to educate these children. I have been to two different school districts and the policy is the same. The practice is not good. It is not fair I have to go back to the state where I came from to get her graduated. Where am I suppose to find money for a lawyer to fight for me. I have seen good SPECIAL ED PUBLIC SCHOOLS, and! I can't believe Texas is limited to two classroom to handle t! he diver se special educational needs of the mental and physical challenged children. Money from the taxpayer to ensure a child does not become a statistic of the near homeless in this country, should not be adressed here as if the dollars should not be used for it, but intead use taxpayers dollars to build more jails to put them in because it is easier. This is what I get from the article when 'taxpay money' is mentioned. As for the chevy caddy educatin, Texas is not in the rent a jalopy categoty of education as far as I have seen. The other state provided a own a jalopy education and you can graduate to keep it fixed and running for a while after graduating. "
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