Overview of Disagreements and Problems with an IEP

There’s a lot of trauma associated with an IEP, but we believe in setting expectations:  It’s very common for people to disagree with one another during legal negotiations.

One of the reasons why the IEP part of claiming support for our children is so difficult is that it’s not quite clear where we stop being the nice mommy, sending an apple to the teacher, and start showing up with a lawyer and a stack of papers.

Let’s walk through the places in the IEP process where you can anticipate disagreement.  This will help you plan for it, and meet it with your own actions. This overview is to read before you dive into the trenches. You can do this.  Dress and act as professionally as possible, and cultivate your own “executive” approach to dealing with teachers

Here are more tips from parents who have gone through this:

• The school district is not your friend or your enemy. You are in negotiation. Be pleasant, firm, and low-key.
• Do not get your only advice from employees of the school district. Consult more than one source for advice, including even basic interpretations of what the law says. Even if your school says that something is absolutely not covered, don’t just blindly accept that as fact. Look it up. Get alternate opinions and do your own research. Read the actual words of the law yourself.  Print them out and bring them to meetings.
• Every school district is unique. Find other parents in your school who have gotten an IEP and ask them what the process was like. Ask them who to work with, the most effective approaches, and if there’s anything you need to know. In particular, ask them what the most difficult part of the process was for them and how they handled it.
• The school can afford to delay the process. If they delay long enough, your child’s learning issues are no longer their problem. Can your child afford to wait? Don’t let your child go without help because the school is dragging its feet. If you write a letter asking for official testing and an IEP today, you automatically start the timed process of getting an IEP.

As you find local resources, keep the names of these people in your binder, and call them when you need help, even if it’s just for a quick coffee. The culture of LD parents is generous and supportive. And especially when it comes to negotiating out interpretations of law with their school district, parents need both help and emotional support.

Disagreeing During the IEP Process

When you request support for your child, you’re starting a legal process and negotiation.The law sets out a process, which has four points where the school can deny service to your child, in one form or another. At a fifth point, the parent can disagree with the IEP and refuse to sign it.

If your child is denied at one of these points, it’s not personal, and it doesn’t mean that your child won’t get support. Your child must officially qualify, and sometimes it takes time and effort. Keep working.

This figure shows you the five points of disagreement during the IEP process.

Getting Ready to Disagree

Remember: the IDEA law has laid out a legal procedure that both you and the school need to follow. If you disagree, there are actions that you can take, at every stage.

It’s important for parents to realize that your child’s teacher, or the principal, or the special education director are not the only people calling the shots in an IEP process. You can always file a due process complaint, which is heard by an impartial hearing officer.

Before you start disagreeing, we suggest that you read about parent rights here, and look for a parent training and information center for your state. We’ll list pointers to more resources at the bottom of this section.

Because getting an IEP is a legal negotiation, every interaction needs to be in text.  If anybody from the school calls you to talk about your child, either ask them to send an email, or send them an email, summarizing the conversation.

The Procedure to Request Support Comes with Safeguards. Learn Them.

The IDEA law comes with “procedural safeguards” so you can disagree or raise a flag if the school isn’t following the procedure properly.  Here’s a link telling you about the procedural safeguards. 

And here’s another link, written by special education advocate Lisa Lightner on her blog, A Day in Our Shoes. This link explains why it’s so very important for parents to be very familiar with the procedural safeguards.

School Says NO to An Evaluation

The law requires the school to evaluate children for LD, even if the child hasn’t failed classes.

If you request a formal evaluation in writing, the school district evaluates your information.

They use the information you and the teacher provide to determine if the student meets the 3-prong rule:

1. There is a diagnosed or suspected learning disability
2. Academics are negatively impacted
3. The student needs specially designed instruction.

If, after reviewing several types of information, the student does not meet this criteria, then the school can say NO to an evaluation.

Disagreeing

If the school district refuses to test your child, there are several things that you can do.

The IDEA law specifies that schools must must send you a letter within 10 days, telling you why they won’t test your child, and on what they based their decision. If the school doesn’t send you this letter (within ten days), write them a letter, asking them to explain why they aren’t testing your child.

If you write a letter to the school, feel free to (again) explain why you think that your child should be tested. You can ask for details and data about why they feel that your child doesn’t have a disability.

If you don’t understand or accept their reason, go ahead and call a meeting to discuss your concerns.  Remember to bring your own data to the meeting. If they still refuse to evaluate at the end of the meeting, ask for information on your legal rights. The letter you received from the school district contains additional directions for how to disagree within your school district.

In some cases, you can ask for an Independent Educational Evaluation, in which the school pays to have an outside professional test your child. (See below.) You can also have your child evaluated by outside testing professionals, and pay yourself, and then write a letter requesting an IEP, saying that you have outside testing results.

School Concludes NO Disability After Testing

The school can agree to test, but after testing, the testing team can conclude that your child has NO disability. If the school denies support to your child, it must send you a letter explaining why, and what tests were used. With that letter is a letter explaining what you can do in the process. If you don’t understand the school’s explanation you have the legal right to request that they explain it to you. A big question in this type of case is whether or not the school tested correctly. Sometimes your child can qualify for support through more than one category.

Asking for an Independent Educational Evaluation (IEE)

When the district explains your child’s test results to you, if you feel that the test results don’t accurately represent your child’s learning needs, you have the right to have your child evaluated by a medical doctor and/or outside educational specialist. This is called an independent educational evaluation (IEE). In some cases, the school district will agree to pay for the IEE. Two other reasons why parents request an Independent Educational Evaluation (IEE), include:

• The evaluation wasn’t done in your child’s native language.
• You feel that the original evaluation was incomplete and additional tests are needed.

You can request that the school district pay for the IEE by writing a letter before an outside evaluation, and sending it to the special education coordinator or principal at your child’s school. It’s a good idea to send the letter “return receipt requested” from the post office, so you have proof that it was received. In your letter, state your child’s name, when she was evaluated, why you feel that the evaluation wasn’t complete, and describe specifically what types of tests you want.

When you request that the school pay for an IEE, your district will set up a hearing. A hearing officer will preside over the hearing and will decide whether the school will pay for an independent evaluation. If the hearing officer decides against your request, you can still get an independent evaluation, but you will have to pay for it.

If you get an IEE, the IEP team must take the IEE results into consideration when evaluating your IEP request. In addition to hiring your own testing professional, you you can read books, take classes, and hire advocates to work with you in the IEP process.

Here’s more information about requesting an IEE.

Even with an LD, School Refuses to Issue an IEP

The school can determine that, even though your child has an LD, they don’t qualify for an IEP. In this case they will refuse to issue an IEP. Sometimes, they will give a 504 instead.  You can disagree with this.

Here is a list of good parental responses from Understood, from this situation. And here’s a list of 10 things you can do.

IEP Doesn’t Support Needs

The IEP team can refuse to support your child’s needs by providing an incomplete IEP. (See the section called “Parent Disagrees with the Contents of IEP,” below.)

If you are unhappy with the IEP that the team comes up with during the IEP meeting, you can refuse to sign it. However, most parents suggest that you sign it, but mark that you only agree with part of it. This will ensure that the school begins supporting your child while you continue to negotiate.

A good thing to do in this situation is to request another IEP meeting, then take classes and read books before the meeting. The www.fetaweb.com and the Wrightslaw.com websites can help with specific questions. You also might want to consider hiring an advocate.

Teacher isn’t Following IEP

Sometimes a teacher or school refuses to follow the IEP.

The Wrightslaw website describes a process to follow if your child’s IEP isn’t being followed. First, write to the principal and schedule a discussion. Then, the Special Education Director. After that, the Superintendent and school board members. If the problem continues, you can request a due process hearing or file a complaint with the Office of Civil Rights. Here’s a great success story from a young man who did just that and won.

Filing a Due Process Complaint

If you feel that the school district is violating IDEA by not declaring your child eligible for an IEP, by not providing an IEP that supports your child’s needs, or by not following and enforcing your child’s IEP, you can submit a due process complaint. There are fewer than 50 mediation requests per 10,000 special education students, so few parents take advantage of this part of the law. Don’t be intimidated. If you feel that you’re not being supported, the law supports the filing of due process complaints.

A due process complaint, also called a “hearing request,” is a written document that can be filed by a parent or a school district. This starts a process that may lead to a formal hearing where a hearing officer decides the outcome. A parent doesn’t need an attorney to file a due process complaint, although parents may choose to hire one.

The Wrightslaw website offers a DVD called Surviving Due Process: Stephen Jeffers v. School Board. The DVD takes you though a special education due process hearing from initial preparations to testimony by the final witness. The film is based upon an actual case.

The Wrightslaw website also offers a download of instructions for writing a due process request letter or a state complaint.[xxxii]

Due process complaints differ by state. Details on how to file a due process complaint for your state are available from your state’s State Educational Agency (SEA).[xxxiii] In general, IDEA requires that a due process complaint include:

• Name of child and name of child’s school
• A description of the specific problem and facts to support the description.
• Ideas or suggestions to solve the problem.

The parent must send a copy of the Due Process complaint to the school district at the same time as they file the complaint with the SEA.

The SEA will send a letter to you and the school district with information about what you can expect to happen. This letter will include:

• Name and contact information of your hearing officer.
• Due process timelines.
• Information about mediation.
• Information about legal resources.

The school district has 10 calendar days to respond, and the district must schedule a meeting within 15 days of receiving the complaint, unless you and the district agree in writing to use mediation, or not to have a resolution meeting.

If a due process hearing takes place, the hearing office must mail a copy of the decision to each party no longer than 45 calendar days from the beginning of the hearing timeline.

The hearing officer’s decision is legally binding, even if you disagree with the outcome, unless the decision is appealed.

Clashing with the School

LD parent groups and internet forums are full of parents who will tell you depressing stories of being treated unfairly and poorly by their school districts. Claiming support for disabled students is an old fight, and one which has gone through many rounds. In the endnotes for this chapter, you’ll see several letters from the US Department of education to school districts, telling them to support various issues, but the fact is: many school districts will try hard to not give your child an IEP.

This section walks you through the basic disagreement points during the LD screening process, but in reality, getting an IEP can be a full battle. It can also mean the difference between getting the legal education that your child is entitled to, and paying up to $40,000 a year for private learning disability school.

The law is always up to interpretation, and many school districts just deny that they need to support various LDs. If you run into this type of situation, you’ll need to pull back, learn the law, and treat the situation like a lawsuit. But don’t stop. The world is also full of parents who are using their school and retirement funds to pay for their LD child’s education. Before you go there, try hard to claim benefits.

If you need to go up against your school to get support for your child, make sure that you read the law yourself, even if you hire a professional to help. The Wrightslaw website contains a page of resources that can help you learn.

For more information, you can follow this link to find a parent center near you that provides free training.