The ABCs of IEPs

By Sheila Wolfe - IEP Services

We have covered quite a bit on the appropriate content in an IEP and how to determine the needs of a particular child with a disability in previous articles. But what happens when you have developed an appropriate IEP, but the school is not implementing it as written? What happens if the school refuses to provide needed services? This is when parents need to pursue one of their administrative remedies.

Article 7 Rule 45 contains the law regarding the available administrative procedures parents may decide to engage in to compel a school to follow an IEP. These administrative options can also be used to resolve disagreements between parents and schools regarding the appropriate content of an IEP. This often happens when a school is not providing the services and supports spelled out in the IEP and/or when a school will not provide supports and services the parents feel their child requires to learn and make meaningful progress.

MEDIATION: A parent (or school) can request mediation whenever there is an issue that seems to have reached an impasse. These issues are usually ones of philosophy or opinion regarding what the student needs for the IEP to be appropriate. Mediation is completely voluntary and either party can refuse the request for mediation. If the parents and school agree to go to mediation, the Indiana Department of Education randomly assigns an independent mediator to hear the “case.” This mediator’s role is to bring both sides to an agreement that usually involves meeting somewhere in the middle on the issues. This can be highly effective if there are many issues in dispute between the school and the family. The downside to mediation can be the knowledge of the mediator regarding special education law and best practices in education. The mediator is usually not an attorney and does not have expertise in special education matters. Their skillset involves promoting compromise so that each side “wins some” and “loses some.” This can be a “hard sell” when families and schools have very definite (but different) ideas about what the student needs to enable them to learn and progress.

STATE COMPLAINT: When there has been a direct and documented violation of the terms in the IEP, and the school is not responsive to the parent’s request for correction, I recommend the family file a complaint with the State Department of Education. An example of this might be when a student is to receive 60 minutes of speech therapy each week, but the speech therapist has been out on maternity leave and the school has not provided another therapist in her absence. Any situation where the IEP is not being fully implemented as written is a good candidate for a State Complaint. The State DOE will not get involved in matters regarding differences in opinion between parties. The role of the State DOE is to make sure schools comply with Article 7. The complaint process is simple and free. https://www.in.gov/doe/students/special-education/ special-education-complaint-511-iac-7-45-1/

DUE PROCESS: Due process is similar to a court, but instead of having a judge and jury, the State DOE assigns a Hearing Officer to hear the case and render a decision on the various matters in the due process filing. In my opinion, due process should always be the last resort when trying to resolve a conflict between families and schools. First, due process is expensive. I would never advise a family to go to due process without a special education attorney. It is possible for families to recover attorney’s fees IF the family prevails (wins) on the issues. Second, for reasons that can be debated, it is somewhat difficult for families to win a due process case in Indiana. Special education attorneys I have worked with have always told me that if you are considering filing a due process case, you would be wise to make sure the school has many “procedural violations” as part of the case. These are direct violations of Article 7…not matters regarding a difference of opinion. As an example, if a parent is fighting with a school over the need for a 1:1 aide for a student with autism, but the school has followed the current IEP to the letter, it could be more difficult for the family to prevail on just this one issue. Cases where a school has violated Article 7 in numerous ways and shown extreme indifference to the effective education of a student are cases that have a better chance of success in due process hearings. Of course, families should always consult a special education attorney when trying to make this decision since every situation is unique.

Being a well-educated advocate for your child with special needs is the best way to avoid the need for dispute resolution from an outside source. Start by reading Article 7 and the school’s parents’ rights document given to you at every Case Conference. It is amazing to me how many parents have never done this. These two sources of information are not difficult to understand and are invaluable when navigating the world of special education. https://www.doe.in.gov/sites/default/files/specialed/ art-7-english-may-2019-update-index.pdf

Sheila A. Wolfe IEP Services, LLC sheilawolfe@sbcglobal.net