Children who receive special education services are entitled to a free and appropriate public education (FAPE).  As a result, schools are obligated to work with parents to come up with a program that appropriately addresses the student’s unique needs so that they can access a FAPE. 

While an Individualized Education Plan (IEP) provides educators with the blueprint for how to best educate your child, rest assured that changes can be made to the plan, and as a parent, you have a right to dispute aspects of your child’s IEP.

When you and the school disagree about your student’s IEP, there are legal  procedures available that allow you to address the issues you have with the program.  When you decide to confront the school with your concerns, you should first consult with an experienced education lawyer, who can let you know what to expect during the process and can provide an overview of your rights. 

What Is an IEP?

The Individuals with Disabilities Education Act (IDEA) states that eligible students with disabilities are entitled to a free and appropriate public education.  An IEP is the basic framework for a student’s education and related services, and is used to ensure that the child received a FAPE.  Ideally, the school district collaborates with the parents, clinicians, and others who have an understanding of the student’s unique circumstances, in order to design the program.   

When Can an IEP Be Developed?

Before an IEP can be drafted, the school district must identify a child as potentially needing special education services.  While the school district has an obligation to locate students within its jurisdiction that may require such services (known as Child Find), a teacher or parent can also request that a student be evaluated.  If the school determines that evaluations are necessary, the child will be assessed to ascertain their strengths and weaknesses, and to facilitate the development of a program that would address the child’s specific needs. After the evaluations, the District will convene an IEP meeting.  

What Happens During an IEP Meeting?

The IEP meeting is the opportunity for school officials, parents, and other interested parties to discuss the results of the evaluations and the plan for your child’s education. The participants of the IEP meeting must include (unless otherwise agreed) a general education teacher, a special education teacher, and one or both parents (or legal guardian) of the child.  Others who may attend include: 

• School administrator: This is typically a person who is authorized to make decisions on the school’s behalf (such as the director of special services) 
• Clinician: This is the person (or persons) who evaluated the child personally, and can present their findings and recommendations during the meeting. 
• Invitees: You and the district can invite others (in addition to those individuals listed above) to the meeting, such as a private therapist, doctor, or lawyer.  You should let the district know ahead of time that you intend to bring an invitee to the IEP meeting. 

Because the child’s education plan may be finalized during the IEP meeting, it is imperative that a parent or guardian attends.  If they cannot make the meeting, they should attempt to reschedule as soon as possible.  Although school officials prefer that IEP meetings occur in person, arrangements can be made to attend remotely (via phone or alternative format, like Zoom).  This is especially important during the pandemic.

There are also times when the student is encouraged to attend the IEP meeting. For example, the IDEA requires that a student be invited to meetings when transitional services will be discussed (that is, when the student is about to graduate from high school).  Ultimately, the plan for the student’s education and related services will be placed into a written document that the parent or guardian will be asked to sign.  If the parent disagrees with the IEP and therefore refuses to sign (which is their right), they have 15 days (under New Jersey law) to inform the District that they do not agree with the plan and/or file for mediation or due process.  If they fail to do so within the previously mentioned period, the IEP will go into effect.  

Note, however, that just because the IEP goes into effect does not mean that the “stay-put” placement automatically changes.  The “stay-put” protects the placement that is actually in place at the time a dispute arises.  So, for example, if a district proposes an IEP on day one, and the parent neither signs it nor initiates a dispute, then on day 15, the school can put the IEP into place, and change the child’s placement.  But if the district does not change the placement, and on day 56 the parent requests mediation or a due process hearing (while the previous placement is still operative), the currently operative placement becomes protected by the stay-put.

What Recourse Do I Have If I Disagree with an IEP?

Even though parents (and sometimes students) have the opportunity to provide input and feedback on an IEP during the discussion phase, in the end, the school district that makes the final decision.  As a result, you might disagree with the final IEP. If that is the case, your first recourse is to speak with school officials.  Throughout the process, it is important to maintain a positive working relationship with school officials.  Fostering such a relationship with the district can make the process of altering your child’s IEP less difficult, or at least less contentious. 

As mentioned above, when you dispute the proposed IEP, you should inform school officials as quickly as possible and in writing.  This way, you can establish a paper trail in the event your attempts to amicably resolve the dispute are unsuccessful.  Specifically, if the district does not acquiesce to your request for revisions to your child’s program, you may have several legal options at you disposal.  The options include:

• Mediation: In this option, an unaffiliated third party works with the parents and school representatives to negotiate a settlement. If one is reached, it is then put into writing for all parties to sign.
• Request a due process hearing: In New Jersey, a due process hearing is presided over by an Administrative Law Judge (ALJ).  The parents and the school each make their arguments, call witnesses, and submit evidence.  At the conclusion, the ALJ will make a ruling in writing.  If you disagree with the decision, you can file an appeal. 

• State complaint: You might reach a point where you feel as if the school district has failed to meet its obligations or has even violated the law.   Under those circumstances, you can file a complaint with the Department of Education.  This is also an option if you are not in a position to participate in a due process hearing.
• Office for Civil Rights Complaint: Section 504 of the Rehabilitation Act protects students with IEPs from discrimination and provides parents the authority to file a written complaint with the Office for Civil Rights (OCR) of the U.S. Department of Education. 

The importance of maintaining a positive working relationship with the school district cannot be overstated.  However, if you feel that your attempts to collaborate with the school district are not working, you should speak with an experienced attorney who can help you advocate for your student’s education. 

New Jersey IEP lawyers at John Rue & Associates, LLC are here to help when your child’s school will not listen to your IEP concerns.

You want what is best for your child and their education, which is why an IEP is so important.  If the school is failing to uphold its obligations, it can be frustrating.  However, our New Jersey IEP lawyers at John Rue & Associates, LLC can help.  Call us at 862-283-3155 or contact us online today to schedule a thirty (30) minute consultation.  Located in Montclair and Princeton, New Jersey, we serve clients throughout the state.