Parents of children receiving special education have special rights concerning decisions about their child’s free and appropriate public education (FAPE). Parents who do not agree with a school’s decision to do something (or in some cases not to do something that a parent asks for) concerning their child’s education have the right to appeal the school’s decision. This article will give parents a basic understanding of what schools must do before making a change (or when they refuse to make a change) and how parents can appeal those decisions. If you have any questions about your rights, please contact Legal Services at the number listed at the end of this article.
Can my child’s school change his or her IEP without telling me?
When a school district wants to make a change to your child’s individualized education plan (IEP), it must tell you in writing before the change is made. This is called prior written notice. The recent changes in the Individuals with Disabilities Education Improvement Act (IDEIA) permit parents to choose to receive this notice by e-mail if their child’s school district has this option. Prior written notice (in your native language, unless the school is clearly unable to do so) must be given whenever a school wants to make a change or refuses a request you have made involving your child and his or her identification, evaluation, classification, placement, or right to receive FAPE. Prior written notice must be given within 15 days of the district’s decision and at least 15 days before they make the change. If you have requested something, the school must give you prior written notice of its response within 20 days of your request.
The prior written notice must describe what is being proposed or refused, and it must explain why and what other options the IEP team considered and rejected. The notice must describe all evaluations, assessments, records, or reports that were used as a basis for the school’s decision. The notice must inform you of your rights (see discussion below) and must tell you how you can get a copy of the “Parental Rights in Special Education” manual (commonly called the PRISE manual). The notice must also include a list of resources where you can go for help.
My child’s school gave me a copy of the PRISE manual. What is it?
The PRISE manual tells parents about some of the rights they have in special education. It is written by the New Jersey Department of Education, Office of Special Education Programs. The PRISE manual includes information about independent evaluations, prior written notice, parental consent, access to school records, discipline procedures, due process hearings, and placement pending an appeal.
Schools must give you the PRISE manual when your child is first referred for evaluation and once a year after that. It must also be given to you the first time you file a due process complaint and anytime you request it. It is from the New Jersey Department of Education Web site.
What if I don’t agree with the school?
You have several options if you do not agree with something the school wants to do. This is also true if you have asked for something that the school will not do concerning an evaluation, classification, placement, related services, or your child’s right to FAPE. You can request mediation or due process or both in combination. If you are appealing a discipline matter, you can file for what is called an expedited due process hearing. This means that your matter will be heard more quickly than a regular due process hearing request. You can also file for a complaint investigation.
How do I file for due process?
When you do not agree with something the school wants to do or when they will not do something you have requested, you have the right to file an appeal of their decision. This appeal is called due process. If you want to file for due process, you must file a request, also called a complaint. Requests must be filed within two years of the date that you knew or should have known of the issue that you are now filing a request about. Under certain limited circumstances, the two-year requirement may not apply. If you are planning to file for mediation or due process, you should speak with a lawyer before you file by contacting the number at the end of this article.
Your request must include your child’s name and address (if you and your child do not have an address, you must include somewhere you and your child can be contacted), what school he or she attends, a description of the issue and facts, and what you want that will resolve the matter. It is very important to make sure you include all the required information. If you do not include it, the school district is allowed to object to your request and your case could be dismissed just for the reason that you failed to include required information. In your request, you must include all the concerns and issues you have or you will not be able to bring them up at the time of the hearing. You can get a form to request due process either by contacting the number at the end of this article or by going online to the New Jersey Department of Education Web site. Requests are filed with the Office of Special Education Programs, New Jersey Department of Education, P.O. Box 500, Trenton, NJ 08625-0500 (two copies), and a copy must be sent to the school district.
If the school has not already given you prior written notice, they must respond to your request within 10 days. Their response must include certain information. If the school district has filed for due process, you must respond to the issues in their request within 10 days.
What happens to my child’s placement when I dispute a change the school wants to make?
If you file your request within 15 days of the school’s written notice telling you of a proposed change, your child will stay in his or her current placement or educational program until the matter is resolved. This is called stay put. Stay put does not apply to appeals of discipline matters. (See Special Education and School Discipline: What You Need to Know.)
What is the difference between mediation and due process?
You can file for mediation alone or in combination with a request for due process. A mediator is a neutral third party who will help both you and the school come to an agreement to resolve the dispute. You cannot be required to attend mediation or enter into a mediation agreement. What you say in a mediation session is confidential. If you come to an agreement, it will be put into writing. This agreement is enforceable.
Due process hearings are conducted by judges. Both you and the school district will have the chance to present witnesses and evidence to support your side. After hearing both sides, the judge will make a decision in the case. If you do not agree with the judge’s decision, you have the right to file an appeal in state or federal court within 90 days of the judge’s decision.
Before the hearing is scheduled you will be required to attend what is called a resolution session or meeting. This is to take place within 15 days of when you file your request for due process. In cases regarding discipline matters, it must take place within seven days. You must attend this meeting unless you and the school district agree to attend mediation or agree not to have the resolution session. The resolution session is a chance for you and the school district to try to resolve the matter. The school district is only allowed to have a lawyer come if you have one as well. Unlike at mediation, what is said at this meeting is not confidential. If the matter is resolved, the agreement must be put in writing and signed by the parties. After a three-day review period, the agreement will be enforceable in state or federal court.
If the matter is not resolved, the Office of Special Education Programs will send the case 30 days after the request was filed to the Office of Administrative Law to be scheduled for a hearing. A hearing before an administrative law judge will be scheduled within 10 days once the case is received for scheduling.
What is a complaint investigation?
Any person or group is allowed to file for a complaint investigation from the New Jersey Department of Education. The form for these requests is filed in the same way as a request for due process. When a complaint investigation is requested, the Office of Special Education Programs must investigate the matter. This may require an on-site investigation of the school or the placement. The Office of Special Education Programs must issue a report and, if it is found that the school district is not following the law, they will be required to correct the violation(s).
Contact Legal Services of New Jersey’s Education Representation Project
For additional information, contact Legal Services of New Jersey’s Education Representation Project by calling LSNJ-LAW™, Legal Services of New Jersey’s statewide, toll-free legal hotline, at 1-888-LSNJ-LAW (1-888-576-5529), Monday through Friday, between 8:00 a.m. and 5:30 p.m.
This article appeared in the January-February 2006 issue of Looking Out for Your Legal Rights®.
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