Question: My child was a special education student in one district and we moved to another district. The new district where we live refuses to give us the same services that the old district gave us. What can I do?

Answer: Under IDEA, all public school districts must provide its special needs students with an appropriate education that is designed to provide the student with more than minimal educational progress. For transfer students the new school has a choice. They can implement the IEP from the prior school and wait until the time the old IEP is about to expire to modify it. Alternatively, with parent’s consent, immediately place the student in an appropriate program and within 30 days convene an IEP Team to create a new IEP.

At any reasonable time after an IEP has been implemented, if the parents of any IDEA eligible disabled student do not believe that their child’s current Individualized Education Plan (IEP) is appropriate and/or their child is not progressing, they need to address their concerns, in writing, to their school’s special education director and request that the IEP Team reconvene to address their concerns and to create a new or modified IEP document.

I suggest to my clients that before the IEP Team meets, they create a written and detailed list of the areas (services, placement, etc.) where they see that their child’s current IEP is inappropriate. They need to provide that list to the IEP Team chairperson for distribution to the Team. The parent should also include with the list they have prepared copies of any evaluations, letters, etc. from the professionals (physicians, therapists, OT, PT, speech-language, etc.) that work with their child and justify the parents’ requests.

After the IEP Team meets, as a rule I recommend to my clients not to make any decision regarding the acceptability of the IEP at the end of the meeting. It is just too important a document to be reviewed when time is short. However, realize that if the proposed IEP remains unsigned, the school will generally notify the parents of their intent to implement the plan. 15 days after that notice the plan will be implemented unless (under current law) the parent request a due process hearing.

Also, ask the EP Team chairperson to make a copy of the proposed IEP. Take it home and review it with persons you trust. Discuss your options with those persons or with your advocate/attorney if you are working with one. After reviewing the proposed IEP document, I generally recommend the parents send a follow-up letter (certified mail) to the chair of the IEP Team detailing what they initially asked for and their understanding of the IEP Team’s response. Then ask for a written response from the Team as to exactly why the Team refused to grant the parents’ requests. This way you at least will know the school’s reasoning for denying your request. Whether that reason is valid or not is an entirely different question.
At that point, the parents need to make an important decision. Do they want to: (a) sign the new IEP indicating they are in agreement with the Plan and allow it to be implemented, (b) sign indicating they are in disagreement with the Plan, but will allow the proposed IEP to be implemented anyway, or (c) sign indicating they are in disagreement with the proposed Plan and ask for either for mediation (a request the school can reject) or an evidentiary due process hearing before an impartial hearing officer. If it is the later, that request should (but sometimes does not) set into motion the process of the school informing the parents of their hearing rights and the selection process for picking a hearing officer. It may also prompt direct discussions as to what is needed to settle the matter, although by law that should not delay the hearing process. It is at this stage that many school districts turn the matter over to highly experienced school attorneys with extensive experience in special education law and practice. It is also the first step in what can be a long process that is both emotionally and financially draining.

In response to a refusal to provide services or programs that a parent feels are appropriate may trigger the parent transferring their child to a charter school or another nearby school district that may be willing to accept students under the Michigan “school of choice” program (see the accepting school for requirements and details). Another alternative for some parents is a private placement in a specialized special education setting. However, if any reimbursement is expected from the school district of residence, the parent must provide the IEP Team with notice of the parents’ claim that the school is denying their child a free and appropriate public education (FAPE) and their intention to privately place the student. To be safe, this notice should be given in writing (certified mail) at least ten school days before the child is removed from the school so that the school has a chance to appropriately respond.

Navigating the waters of special education law and practice can be a difficult task, even for experience attorneys and school administrators. Parents of special needs children need to educate themselves as to the process. With the Internet that is easier than ever before. Web sites that can help parents are many. One of the better ones in my opinion is www.wrightslaw.com. In addition, in Michigan there are a number of public agencies that provide free or low cost advocacy services. The Bridges4Kids website has details.

Hope you find these generalized comments helpful.
 

John Brower, JD
Education Law Center, PLLC
www.michedlawcenter.com

Education Law Center, PLLC · 810-227-9850 · www.michedlawcenter.com 

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