Education and Disability Access: Alleging IDEA Violations

The Individuals with Disabilities Education Act, or IDEA, is a federal law. It ensures that students with disabilities can access free appropriate public education (FAPE). A school district must provide special education and related services appropriate to each student. These services help ensure students have access to education and learn and grow in school.

IDEA is a funding statute that provides money for children with disabilities. If a local agency fails to provide FAPE, that agency loses its federal funding. Parents of children with disabilities can seek administrative and judicial remedies for a FAPE violation. Parents can do this when they feel the education provided to their child is insufficient for meeting their child's individual needs and requirements.

This article briefly overviews IDEA and FAPE. It also includes details of what to do if you believe your child is suffering from a violation and not being provided a FAPE.

A Brief Overview of IDEA and FAPE

IDEA ensures that students with a disability receive an Individualized Education Program (IEP). An IEP is a plan that guides a child's education. It includes special education services tailored to the child's needs. IDEA ensures students with disabilities learn in the least restrictive environment. This means they spend as much time as possible with peers who do not have disabilities.

FAPE (Free Appropriate Public Education) is an essential part of IDEA. It guarantees that services are provided at public expense and under public supervision. Children in need of special education have the right to receive tailored instruction and services under IDEA. These services are designed to meet the unique needs of each child with an impairment. These services should also help prepare them for further education, employment, and independent living. FAPE assures the provision of special education at no cost to parents.

Together, FAPE and IDEA guarantee that every child's placement and any change of placement is decided through an IEP team meeting. This IEP team involves parents and school personnel. The team makes important educational decisions tailored to the child's individual needs. The IEP team does this for children starting in elementary school through middle and high school. The team meets if the child is in general education or special education.

All members of the IEP team work together to serve the child's best interests. They help ensure that a child's need for special education is met. Moreover, the Rehabilitation Act of 1973 in the U.S.C. works in harmony with IDEA. This Act guarantees no child with a disability is excluded from participating in federally funded programs. This includes public schools.

How Does IDEA Work?

The IEP team, including the child's teacher and parents, works together to create the child's IEP. They meet at least once a school year or more often if necessary. Parents have the right to be part of all IEP meetings. School personnel must provide them with prior written notice about when and where all these meetings will take place about their child.

It's important that all IEP meetings and related communication are conducted in the parent's native language or mode of communication. This ensures that parents understand the decisions made about their child's education. These are known as procedural safeguards. They are crucial to protecting students' educational rights in special education programs.

Parental consent is a fundamental part of the IDEA. This means parents must agree to the initial evaluation of their child for special education services. They must also agree to any changes to the child's IEP. Parents who disagree with the school's evaluation can request an independent educational evaluation. These evaluations can be done at a parent's request or using public funds. Suppose a student with a disability doesn't have an available or identifiable parent. They are also not a ward of the state. In that case, the school district must assign a surrogate parent to represent the child's educational interests. If a child with disabilities is a ward of the state, the special education services and protections provided by IDEA still apply.

An essential part of IDEA is ensuring a smooth transition from high school to post-secondary school life. Transition services should be part of every child's IEP by age 16, including help with:

• Getting into college or vocational training
• Finding a job
• Living independently

IDEA also covers situations where a child's behavior causes disciplinary action. There should be a process called a manifestation determination to see if the child's behavior was due to their disability. If so, they may get a referral to an alternative educational setting. But they must still receive special education and intervention services to progress in their IEP. If a child with a disability has been suspended or expelled, they still have a right to FAPE. This may include services in an alternative setting.

IDEA also provides protections for students with disabilities who are homeschooled or placed in a private school of their parent's choice. However, the requirements are different than for public schools. IDEA also has rules for when a public agency places a child in a private school as a part of their IEP. In such cases, the private school must meet the standards of the state agency.

What If There Is an IDEA Dispute?

Parents and schools may disagree about a child's education. Disagreements might be about the child's disability itself, the child's educational placement, or the services in the child's IEP. If this happens, there are ways to solve disputes under IDEA.

Parents can use mediation, file a state complaint, or request a due process hearing. The mediation process involves a neutral third person who helps the school and parents come to an agreement. If this doesn't work, a due process complaint can be filed. This starts a legal process where a hearing officer makes a decision about the dispute.

Parents of a child with a disability have certain rights under IDEA. These are outlined in Subpart E of IDEA, called “procedural safeguards." Some of these rights include:

• Access to educational records
• Informed consent before evaluations or changes to the IEP
• The ability to challenge decisions about identification, evaluation, educational placement, or provision of FAPE in a due process hearing

The law provides for reimbursement of attorneys' fees for parents who win a due process hearing at the court level. However, this is not automatic. It depends on the decision reached and relevant federal regulations.

Procedures for Alleging Violations of Statutes Protecting Children With Disabilities

If parents believe their child's rights under IDEA are being violated, they can take certain steps to challenge these violations. These steps can vary from state to state. The first step may involve filing a written complaint with the school district or the state's educational agency. The violation should be clearly detailed. After the complaint is filed, the school district or agency has a time limit to resolve the issue. They must investigate and resolve the issue within 60 calendar days (or school days).

Parents may file a due process complaint if the violation is not corrected. This begins a formal, legal procedure. This process involves a due process hearing. Both sides will present their case in front of an impartial hearing officer at this hearing. It's crucial to note that the child generally remains in their current placement during this process. This procedure is outlined under federal law and timelines.

Once the state education authority decides, a parent may appeal to another state-level agency. Parents should consult their own state's laws to determine the appropriate agency for such an appeal. Judicial bodies, including federal and state courts, can review administrative proceedings. Judicial action may not take place until the parties have exhausted all their administrative remedies.

One remedy parents often seek is injunctive or declaratory relief concerning their child's placement. In some cases, monetary damages may be appropriate. This can be in the form of a request for tuition reimbursement for a child placed by his parents in a private school. Complaints based on discrimination by schools should be filed with the Department of Education.

Once administrative remedies have been exhausted, parties may seek judicial review. Often, parents seek injunctive or declaratory relief. An example is a court order making a school provide the requested access to special education services.

Getting Legal Help With IDEA Violations

Legal help can be crucial in dealing with IDEA violations. Parents can contact a lawyer specializing in special education law. Legal representation can help ensure the child's civil rights are adequately protected. It also helps ensure the procedures outlined in IDEA are strictly followed.

Lawyers can help interpret federal and state laws. They can help advise you about decision-making during the legal process. They can also help organize dispute resolution meetings. They can advise parents about their parental rights and represent them at IEP team meetings, during due process proceedings (including at the due process hearing), and during all court proceedings. Review FindLaw's educational attorney directory to find a lawyer's contact information today.