Special Education Due Process and the SLP
November 13, 2019
Let’s face it - sometimes what we think is best for a student is not the same as what parents think is best for their child. At my school, we used to call these “hot cases”, and you always knew what hot cases you had on your campus on the first day of a new school year even if you had not met the students yet.
While many multidisciplinary evaluation teams (MET) and individualized education program (IEP) teams can work disagreements out through IEP meetings and phone calls, this does not work in all situations. And under IDEA, there is a set protocol for filing and resolving these disagreements.
Here’s a step by step guide on what you can expect during this process, as well as what it means for speech language pathologists.
Step 1: The parent disagrees with a decision made by the IEP/MET team.
An IEP or MET team is designed to look at a collective set of data and make eligibility and programming decisions based on that data. The team typically consists of regular education teachers, special education teachers, related therapy providers, administrators, and parents. If a team comes to a deadlock on a decision (e.g. the type or amount of services, location of services, if a child is even eligible for services) then the district representative must make the final call on what will go in the MET report or IEP. Under IDEA, the parents have the right to take further action and not just accept the district’s decision.
Step 2: Parents file a complaint.
A written complaint can be filed within 2 years of when the disagreement originally happened. It is a formal letter that goes to both the school and the state department of education. Under IDEA, parents can only file a due process complaint for disputes related to “identification, evaluation, or educational placement of [a child with a disability], or the provision of a free appropriate public education [FAPE].”
Complaints include identifying information about the student, as well as details related to the dispute and a proposed solution.
Step 3: Resolution Session
A resolution session is then scheduled within 15 days of the written complaint to see if things can be settled in this way; but both parties (the district and the parents) can waive this meeting if desired. The team has 30 days from the resolution session (or waiver of) to reach an agreement.
During this 30 day window, mediation can also be attempted. Special education mediation is when a a neutral person, the mediator, helps the team resolve the dispute in hopes of coming to a mutually satisfactory agreement. The mediator is paid by the state department of education and does not cost anything for the school district or the parents. However, if either party decides to bring attorneys or advocates to the meeting, those will be paid for by the respective party.
Step 4: Due Process Hearing
If an agreement still cannot be made, the next step is due process. This is sort of like a courtroom trial and is scheduled within 45 days of when it is clear that no resolution can be made . Each party will bring their evidence and present it to a hearing officer, who acts as the judge in the case. The hearing officer makes the final decision on what programming will be implemented for the student.
Step 5: Appeal
If all else fails, either party has 90 days from the due process decision to file a lawsuit in state or federal court. Depending on the state you live in, some parents can file immediately in court, while others are required to first file an appeal with the state department of education.
So what does this mean for SLPs?
It is never fun to sit in meetings that involve advocates and lawyers. In my 20+ career as an SLP, I have not personally had to go to court, but I have sat in meetings that were heading in that direction.
My biggest takeaways from being involved in these types of meetings are:
1. Have your data ducks in a row.
One of the worst things we can do is go into a meeting without sufficient data. If you were asked to pull up data from 2 years ago - could you do it? How would it look? Would it say “We read ‘How I Became a Pirate’” or would it have complete information on goals addressed, quantitative and qualitative information related to performance during the session, and plans for the next session? I am a huge fan of digital data collection as it allows me to really track information in a meaningful way as well as pull it up easily when needed.
2. Listen to the parents.
A lot of times as special education professionals, we get so focused on our own set of data that we do not zoom out and realize we are surrounded by a whole team with data. Parents are a part of the team. They have an invaluable perspective on their child. While it is sometimes necessary to tease out emotions once there has been a history of disagreements with the district, stay positive and remember that if the tables were turned, you would fight for what you believe is right for your child too.
3. Advocates/attorneys are just people.
Parents and their representatives are just trying to get appropriate services for a student. The same goes for the school team - we are advocating for what we feel is best for that student. However, all recommendations should be filtered through data. If you can stay away from “I think” statements as well as steer “I think” statements from other team members back to the data, it will keep the meeting on an objective level. I like to map out specific strengths and needs, compare that to classroom performance, and then decide what needs require a goal with specialized instruction, which needs require accommodations and which needs can be supported through general education supports (e.g. tutoring). I do this in advance of the meeting using our Meaningful IEP Worksheet in case my nerves take over when I’m sitting in front of a large group.
Remember - every person on the team should advocate for the needs of a child. An IEP is not just another paperwork hoop to jump through - it is one of the most important things we do for a child in special education each school year.