Options if you disagree with the IEP/504 Plan or believe discrimination is occurring

If you disagree with the suggested 504 plan or the IEP, you have many options including due process, administrative complaints, mediation and resolution meetings. However, your rights regarding your education are different under Section 504 and the IDEA.

Section 504

  • You always have the option to assemble a meeting and discuss your areas of concern before taking a more adversarial step.
  • Under Section 504, if you disagree with the proposed accommodations, you have the right to file a grievance with the local school district. A grievance could be in the form of a letter, which spells out your complaints with the 504 Plan.
  • You can request an impartial Section 504 due process hearing.
  • You can also file a complaint with the Office of Civil Rights of the United States Department of Education (OCR) within six months from the date you knew or should have known about the problem for which you are filing a complaint. In your complaint you will need to specify the type of discrimination the student suffered based on the student’s 504 Plan.  You can learn more in the next section.

Using Office of Civil Rights (OCR) Complaints – Students Eligible under Section 504, the ADA, or IDEA

The Office of Civil Rights of the U.S. Department of Education (OCR) can be used to file complaints against schools / districts, as well as the Delaware Department of Education, when they violate Section 504’s and the ADA’s protections for individuals with disabilities, including discrimination.  OCR enforces Section 504 and Title II of the ADA, as well as other laws safeguarding protected classes.  OCR does not have jurisdiction over IDEA but students with IEPs can still file complaints with OCR for violations of Section 504 and the ADA.  This is because students who are covered by IDEA (meaning students with IEPs) also meet Section 504 and ADA eligibility requirement of qualified persons with disabilities, and so are protected by those laws as well.

OCR complaints can be used for a single student or for a group of students.  OCR complaints must be filed within 180 calendar days of the alleged discrimination, except in certain circumstances.  After OCR receives a complaint it performs a neutral investigation and can help the parties negotiate an agreement or issue “findings” (a decision on the complaint).  If OCR finds that either the ADA or Section 504 was violated, the school, district, etc. can potentially lose their federal funding if they do not fix the problem.  You can learn more, file an OCR complaint online, or download a PDF OCR complaint at: http://www2.ed.gov/about/offices/list/ocr/complaintintro.html or call 1-800-421-3481.

 

IDEA

As a parent or a student classified under IDEA, you have a substantial number of options if you believe that a student needs changes in his or her IEP.

  • First, it is always a good idea to try to request changes when you are at the IEP meeting. You should explain your reasons for wanting changes and listen to the IEP team’s reasons if the other members’ opinions differ from yours. You can request an IEP meeting at any time, even if the IEP is not scheduled for a review for several months.
  • Alternatively, you can ask for a reevaluation if you believe the IEP team has failed to consider important information.
  • You also have the right to request an independent educational evaluation, which the IEP team will be required to consider in planning for the student. You can either pay for the evaluation on your own, or you can request that the independent evaluation be covered at public expense. Be aware that the procedures to have the school district or charter school pay for an independent evaluation are very specific.

Independent Evaluations

  • First, you will need to put your request in writing. You can find a sample request letter at the end of this guide.
  • The school district will either give you a list of evaluators and the district’s requirements and procedures or the district may file for a due process hearing if it does not agree that the student needs an independent evaluation.
  • Bear in mind that an independent evaluation is only appropriate if an independent evaluator is likely to propose different recommendations, or a different classification and/or placement for the student. An independent evaluation that would duplicate an existing evaluation will not be helpful, and is unlikely to be paid for at public expense.

Mediation

If you find that you and the school have reached an impasse, you can write the school or Department of Education to request mediation. The school IEP team and the parents can attend mediation with a neutral third party at no cost to the parents (or student if 18+). It is often a successful, efficient way to resolve differences between the parties. It also is a less adversarial process. A mediation request form can be downloaded from the Department’s website at: http://www.doe.k12.de.us/infosuites/students_family/specialed/procsafe.shtml.

State Administrative Complaints

If you are not satisfied with the school’s special education services and you have hit an impasse at meetings, you also have the option of filing an administrative complaint with the Delaware Department of Education. The Delaware Department of Education calls these complaints “State Complaints.”

State complaints are appropriate for cases where there is a clear denial of services or placement. Appropriate administrative complaints include, for example, when your child has not received therapy sessions listed in your child’s IEP, or when the school will not consider an evaluation in developing an IEP plan.

State complaints are only available for issues that arise within one year of when you knew or should have known about the problem(s).

The complaint can be sent to the Director, Exceptional Children Resources, Delaware Department of Education, John G. Townsend Building, 401 Federal Street, Suite 2, Dover, Delaware 19901, and should include:

  1. the name of the school or the agency you are filing the complaint against;
  1. a statement that the agency has violated a requirement of IDEA or a Delaware special education regulation (and what the violation was);
  1. the facts of your claim;
  1. the time frame in which the incident(s) occurred;
  1. a description of the attempts made to resolve the issue(s) before filing the state complaint;
  1. a proposed resolution to your complaint (how you suggest the fix things, like providing an aide or compensatory education to make up for the violation);
  1. your name, relationship to the student, address, phone number(s); and
  1. your signature and the date you signed the complaint.

You can obtain a sample state complaint form online at: www.doe.k12.de.us/infosuites/students_family/specialed/NEW/files/specialedcomplaintform.doc and further information on state complaint procedures at: http://www.doe.k12.de.us/infosuites/students_family/specialed/files/admin_complaints_dp/admin%20complaint%20procedures.pdf.

Once you file a state complaint, the Department of Education will investigate within 60 days and issue a decision. During the investigation:

  • A member of the DOE may interview you to hear your side of the situation
  • The DOE will also interview the school district or charter school and review their records.
  • You also have the option of going to mediation after you have filed your state complaint.

State complaints are investigatory actions; you will not go to a hearing in person to present your complaint. Therefore, any issues you have need to be thoroughly explained in your complaint. State complaints are a less contentious and faster way to resolve disputes, but they are most appropriate where no material factual disputes exist (meaning both sides agree on the important facts of the situation, they just may disagree about how the law applies to those facts).

“Due Process”

Before you file for a “due process” hearing (also called a special education hearing), you have the right and opportunity to consider alternatives such as calling an IEP meeting, mediation, or a resolution meeting. If you decide to file for a due process hearing, keep in mind that it may take a long time to resolve and your child will remain in his or her same placement through the duration of the due process proceedings under “stay put.” However, if you believe that a due process hearing is the most appropriate means to resolve disagreements with the school regarding your child’s educational needs, the following are important steps.

  1. The due process hearing is limited to issues raised in your complaint. The hearing panel has 45 days from the date they receive your complaint to schedule a hearing.
  1. A due process complaint must include:
    1. The name of the student, the student’s address and the name of the student’s school;
    1. A description of the problem, including facts relating to the problem and when they occurred;
      1. Your complaint should be specific.
      1. Do not just write that you believe the school violated FAPE; say why you think the school has violated FAPE. Be explicit about what problems you see in the special education plan (for example, an inadequate number of therapy hours based on the recommendations of the therapist, or that no progress has been made on a student’s IEP goals, or that the goals are the same every year.)
    1. A proposed resolution of the problem to the extent you can provide one.

You can find a copy of a due process hearing complaint form on the DOE’s website, as well as due process procedures and due process hearing requirements at: http://www.doe.k12.de.us/infosuites/students_family/specialed/procsafe.shtml.

  1. You must send a copy to the other side (school district, charter school, etc.) at the same time you send it to the Delaware Department of Education.
  1. You have 2 years from the date you knew or should have known of the action/basis for the complaint (unless you have cause to show the school made misrepresentations about the student’s progress).
  1. After a parent/advocate/student (if 18+) files a due process complaint, the school district or charter school must file a response to the complaint and provide the parents/advocate/student with two copies within 10 days of receipt of the complaint.
  1. Alternatively, the school district or charter school can also object to the complaint within 15 days of receipt of the parent’s/student’s complaint if it lacks sufficiency/specificity. When the complaint lacks specificity, the parent/student can no longer proceed with due process. Instead, an objection by the school that a complaint is insufficient has the effect of starting the 45 day period for a due process hearing again. A new 45 day period begins each time a party amends the complaint.
  1. If you find you have more issues that you want to raise you must seek the school district or charter school’s consents to amend the complaint. A new 45 day period begins each time a party amends the complaint.

Resolution meeting

After you have filed your due process complaint, the school district must hold a resolution meeting with you and the IEP team within 15 days of receipt of the due process complaint to give parents and the school a chance to work through the complaint. A resolution meeting can only be waived in writing.

  • Any agreement signed during a resolution meeting can be modified or cancelled within three business days.
  • Any agreement reached is enforceable by a court.
  • The agreement and meeting are not confidential. Therefore, any information acquired at the meeting may be used as fact finding or as a way to gather evidence by either party if the school and the parents later go to a formal due process hearing.
  • The school’s attorney is allowed to attend the resolution meeting only if the parents are also represented by counsel.

Mediation

You have the option of going to mediation before you initiate due process. But, the school district or charter school is also required to offer mediation during due process in addition to a resolution meeting. There is no requirement for you to attend mediation before proceeding straight to due process. However, any agreement reached at mediation is enforceable in court.

The Due Process hearing

At a due process hearing, you have the right to present any evidence or testimony in support of your case. The school district or charter school has the burden of proof, which means the school has to prove their actions were more reasonable then not. The dispute will be decided by a three person panel composed of a Delaware attorney, an educator with knowledge of special education, and a lay person with knowledge of special education.

Federal Court

If you are unsuccessful at Due Process, you have the right to appeal to Federal District Court or Delaware State Family Court within 90 days from date of decision.

Legal representation

You can go to a due process hearing without an attorney. If you choose to have legal representation, you may be able to collect attorneys’ fees for any actions arising out of the due process complaint. Attorneys’ fees are available if you are successful in your due process complaint for drafting the complaint, participation in mediation, resolution meetings, the due process hearing, or court proceedings. No attorneys’ fees are available for attorney representation prior to filing for due process.

The school district or charter school is also entitled to seek attorneys’ fees for due process complaints that are frivolous, unreasonable, or for an improper purpose in limited circumstances. If you file a complaint in good faith and withdraw it if the complaint is no longer valid, you are not subject to this sanction.

However, if you proceed to court (either federal or Family Court) you must be represented by an attorney if the student is under the age of 18. This may not be true if the student is over the age of 18 and represents himself “pro se.”

You can find more information on your special education “procedural safeguard” rights, including due process, administrative complaints and mediation, on the Delaware Department of Education’s website: www.doe.k12.de.us/infosuites/students_family/specialed/procsafe.shtml. This website has sample due process and administrative complaint forms which you can use should you wish to pursue one of these two procedures.