Most special education parents have received enough copies of their procedural rights to build a fort. But, even if you have taken the time to read them, they don’t inform or educate you about the “tools” the law provides parents and how you can use them to support your child’s right to that all too elusive FAPE (Free and Appropriate Public Education). In a way, the depth and complexity of the rights almost obscure the most important ones that make up the foundation of a parents’ toolkit. Here are the top five tools that are derived from those rights.
- The Right to Request Assessments – Schools are legally required to assess students with IEPs every three years. This “triennial” pattern of assessments mandated by the law. However, parents are empowered to request assessments “not more often” than annually. It is important to realize that the law requires the school assess in every known or suspected area of disability. Many different areas are commonly tested, and you can specify the areas you want to be evaluated. But, you don’t have to be an expert in assessments, just lay out your area of concern. Use examples of deficits or challenges that are impacting your child at school, or while doing homework to place the school on notice of the type of issues that require further examination.
- The Right to an Independent Educational Evaluation – Assessments are intended to guide the IEP team (which by law includes the parents) in crafting an individualized plan to allow the student to access their education. If the school fails to assess in all known areas, fails to utilize appropriate assessment instruments, or otherwise conducts inadequate assessments to allow the parent to participate as a full and informed member of the IEP team, you can request the school fund assessments by an outside expert. This tool is designed to level the playing field by providing a qualified expert who is not beholden to the school for their livelihood. A parent may disagree with the assessments conducted by the school and request the school pay for independent evaluations.
- The Right to Records – A parent has the right to view and inspect all their child’s educational records, commonly called their cumulative file. That means everything, not just grades and registration records. You have the right to all correspondence about your child, internal and external, including emails between administrators, teachers, and staff. If you want copies of those records, they may charge a reasonable copying fee to cover expenses.
- The Right to Add Your Side to the IEP – IEPs are drafted by the school. During an IEP meeting a school employee takes notes and afterward, a record of the meeting, the notes page, is appended to the IEP. Often the meeting notes do not completely and accurately reflect the content of the meeting. A parent may draft their own “notes” that more wholly or accurately reflect the contents of the meeting and request it also be appended to the IEP. The addendum creates a more balanced record and preserves the parents right to be a full participant in the IEP process.
- The Right to Accept or Refuse “Ala Carte” – IEPs are often presented as a “package.” The way they are written and presented makes it seem very all or nothing, but that is not the case. There are many actions the school cannot impose without parental approval. You can accept the components you approve of and reject the others if you specify. You can also accept the services and accommodations while preserving your position that they are inadequate and do not constitute FAPE. This partial acceptance” is most effectively done in conjunction with the Parental Addendum process and we refer to it as “acceptance with exception.”
Bonus Right – The Right to Recovery of Fees – Whether the school files due process against parents or the parent filesagainst the school, the law provides for recovery of “reasonable” attorney’s fees if you “prevail.” Prevailing means you won a major issue, or you received a result that was better than the District’s ten-day offer before the hearing. Fees reimbursement is also commonly negotiated as part of settlement discussions. This “right” may need to be enforced by filing a separate lawsuit to obtain an enforceable order to reimburse for fees.
We offer a 20 minute free phone consult for everyone who needs it. Whether you are looking for an attorney to hire or just need to have a question answered, please call 408.286.3081 or submit the form below.