Due Process is the process by which the rights and needs of a child with special needs are identified, assessed, and provided for by appropriate services.  The implementation of these services is indeed a process!  This process must be implemented in a timely way and within strict guidelines that have the best interest of the child at heart.

If you have a child with special needs, you need to know the legal obligations of your child’s school.  Does your child’s current IEP (Individual Education Plan) address ALL of your parental concerns?  Do the minutes from the last IEP meeting clearly reflect the discussions at that meeting and include the rationale for all decisions?  Are the accommodations that are appropriate for your child written specifically?  If not, your school may not be complying with both State and Federal law.  All public schools must comply with these requirements of Due Process.   Parents must be empowered to ask questions and participate.

Whether a child has a suspected learning disability or a physical disability that substantially limits one or more major life activities, the public school system has obligations to that child under both state and federal law.  All public schools have an affirmative obligation to locate, identify and provide services to any child who may be disabled and/or may need special education services.  If public school administration or staff know of or even have reason to believe that a child has a disability, the school has an affirmative duty to act.  The school district may be liable under either Special Education Laws and Civil Rights Laws or both if the school district fails to take action.

Under the law, in order to have provided a disabled student with a fair and appropriate public education (FAPE), a school district has the obligation under the Individuals with Disabilities Education Act, which is a federal law, (IDEA) to provide each disabled student with a basic floor of opportunity and provide appropriate educational services that will allow the disabled student to benefit from the instruction.  In determining if a student has received an appropriate education as required, the IDEA and the courts give “great deference” to the educators who developed the child’s individual education plan (IEP).  Professionals, educators, experts, and parents must work as a team in order to develop and implement the best IEP possible for a child with special needs.

If you are a parent or caregiver of a child with special needs, it is often difficult, if not impossible, for you to understand the process of determining what services your child should be receiving.  It is also hard to know your rights.  Special education is a continued collaborative process that involves decision making on many levels.  School professionals often communicate using terms and language that is meaningless to parents without an explanation.  Schools often get away with telling parents “…this is how we do it,” or “…this is our policy.”  Parents need and deserve more information than that.  I have found, however, in working with many school systems that the schools, for the most part, really do want to do the right thing.  Communication is essential.

The law is also intended to ensure that the rights of children with disabilities, and parents of such children, are protected.   The right of a parent to be “fully informed” is also recognized in the law.  In essence, the purpose behind law’s extensive procedural framework is to provide parents and guardians the opportunity for meaningful, informed, and effective participation in the Special Education Identification process and IEP process.  Schools need the meaningful participation of parents in this way.  If a parent disagrees with a child’s IEP or believes the school district has violated the law in terms of the identification, evaluation, educational placement or the provision of FAPE, the parent is entitled several remedies.

The special education process is and must be collaborative and dynamic to be effective.  Parents and caregivers must be able to participate in a meaningful way in this process.  It is important to listen, assess, communicate and, by all means, ask questions.  Parents or caregivers must be afforded the opportunity to ask questions and get the answers they must have.  It is certainly a good idea ask to have certain terms explained or ask to have comments re-stated or re-phrased to foster  understanding during any meeting regarding the student.  Parents and caregivers have the right to this and the school should encourage you to do so.  Parents are experts on their student and the student’s best advocate.  That said, teachers are experts on teaching and learning and they want and need insight about their students.  Ideally, when parents, administrators and teachers work together as a team and communicate well, significant progress can be made.  A team approach keeps the focus on the best interest of the child.

Parents are an integral and important part of the IEP team, and the law requires that parental input be considered.  Under the law, parents have the right to review their child’s educational records, obtain a private, independent educational evaluation of the child, be notified in writing in their native language when the school proposes to initiate ANY change to the child’s IEP, and the right to mediation to settle disputes between the school and the family.  The IEP process must be collaborative and dynamic.  An education law attorney can help families ensure that the process is implemented to involve parents in meaningful ways and always focus on the best interests and unique needs of the child.

As meaningful participants in the IEP process, parents must be organized and have a basis for their questions and requests at an IEP meeting.  From a legal perspective, if parents have concerns about a schools actions, in-actions, or services those concerns must be put within the framework of: 1)  The appropriateness of the services; 2) The appropriateness of how they have been and are being delivered; 3)  and, the inquiry into all available data and interventions.  The crux of the matter, as always, is the best interest of the child and if the school has implemented an effective IEP and provided the appropriate services as required by the IEP.  If parents are concerned about procedural issues, those concerns must be tied to how any violations of procedural issues have negatively affected the child or disrupted the services provided to the child.  Legally, if there are procedural issues that have not been followed, they are not actionable until they have negatively affected the child or disrupted the services provided to the child.  Parents have the right to ask questions!     

The IDEA (Individuals with Disabilities Education Act) requires that a student with disabilities be involved in the general education curriculum to the greatest extent possible.  The IDEA sets forth the requirements that local education agencies must follow in making a free and appropriate education available to all students between the ages of 3 and 21.  The law sets forth specific affirmative requirements for the identification and evaluation of all children with such disabilities.  The IDEA requires that and individualized education program be developed for each child with the focus being each child’s unique and individual needs.  That IEP must be reviewed at least annually. 

The IDEA does not go so far as to prescribe specific curriculums and specific interventions.  This idea goes toward the deference the IDEA and the Courts give to the educators to develop and implement the IEP. What works for one child may not work for another.  This is why, wisely, the IDEA was developed around a focus of the specific, unique, and individual needs of each child and does not prescribe a specific curriculum or approach for any area of the curriculum or any area of disability.

Teachers are role models.  That fact is undeniable, but does the trust placed in a teacher elevate him or her to the status of a fiduciary?  I think so.  I think it also speaks to the legal obligations of teachers as well.  Studies have shown that the single most important factor in a student’s academic development is the teacher in the classroom.  The definition of “Fiduciary” also speaks to my belief that all teachers are fiduciaries: It is fair to say that a fiduciary relationship extends to every possible scenario in which one side places trust and confidence in another and such confidence is accepted.  

Although the Courts have not offered a definition of the particular circumstances specific to all fiduciary relationships, the Courts have also not set any limitations on such relationships.    What parent does not send their child to school with the leap of faith that the teachers there can be confidently trusted?  Teachers are fiduciaries!

The commentary to the IDEA states that the word appropriate is used to mean “suitable or fitting” for a particular child, condition, or place. In developing the IEP, the IEP team must consider the child’s strengths, parental concerns, the results of the initial and most recent evaluation, and the child’s individual academic, developmental and functional needs.  If a child’s behavior impedes learning, special factors must be considered such as:  limited English language proficiency, and any sensory impairments.  Once again, the focus must be on each child’s unique and individual needs, objective data, and information that is research based and data driven.

The Response-to-Intervention (RTI) process allows schools to evolve from a reactive model in which students had to obviously deteriorate before being identified as having special needs and receiving services, to a model that emphasizes early and high-quality research-based interventions in regular programs that generate useful data with which to make key decisions for each struggling student.

The information and data obtained from this process helps to guide the SST (Student Support Team) that is assigned to a struggling student.  The SST and RTI process are legally required to happen prior to the formal identification for special education services.  The downfall of these processes is that, often, the process is initiated too late in the school year to be complete prior to the advancement to the next grade level.  Also, for transient students, the process often begins again when they move to a new school, thus delaying identification and the provision of services.