IEP

Critical Procedural Safeguards Under IDEA for Special Education IEPs – A Guardian’s Rights

When a school is evaluating your child to receive special education services, or if the child is already in the program, you likely want to be part of the decision making. Through the Individuals with Disabilities Education Act (IDEA), you as the parent or guardian have this right. 

Procedural safeguards set forth in IDEA describe how you can interact with the school in this type of case. If you are wondering what exactly this means, count on our procedural safeguards guide to help you gain the knowledge you need to collaborate with the school to create the best program for your child.

The Importance of Procedural Safeguards for Parents and Guardians

While working as a Special Education Teacher, Special Education Program Specialist, and Autism Specialist in a public school system outside of Seattle, I was able to participate in the development of many types of special education programming plans. I saw first hand the importance of having parents and guardians involved in the process to move toward a successful plan and outcome.

Simply put, procedural safeguards work! That said, it is important to understand the rights you have in this process. The better you understand your rights and your role in developing the program for your child, the smoother the process will go.

Before delving into the safeguards themselves, I want to provide some background definitions and information. This information is important for you to be able to participate in this process as fully as possible.

What Is IDEA?

IDEA stands for Individuals with Disabilities Education Act. IDEA is a federal law that ensures that children with disabilities can receive education related services up to the age of 21. 

These services provide students with disabilities the right to education, including any special education services and related services they require. These services must occur under the concept of free appropriate public education (FAPE). The public will pay for these services as part of normal school budgets.

What Is LRE?

IDEA requires that students with disabilities operate in schools under the least restrictive environment (LRE). Under the concept of LRE, special education students should spend time with their non-disabled peers in a general classroom setting as much as possible. 

When this is not possible, the school needs to provide settings and services to accommodate the child with special needs.

What Is an IEP?

The Individualized Education Program (IEP) is a written plan that lays out the educational program for a student with special needs. Educators, parents, guardians, school administrators, and special education teachers all may participate in the development and management of the IEP for a particular child.

What Are Procedural Safeguards?

The concept of procedural safeguards is a specific requirement under IDEA. It ensures that parents and guardians receive the ability to actively participate in the development of the child’s IEP. 

As a second aspect of procedural safeguards, the parents can make a request to have any disagreements over the IEP mediated. This can involve meetings with special education teachers, hearings with school district administrators, and hearings with state education agencies. If the dispute continues, you have the right to take the case to court.

As part of the IDEA law, all language shared should be easily understandable for members of the general public. Jargon and highly specialized terms should have explanations included with them. Additionally, if the family’s primary language is not English, the school needs to accommodate the family’s desired language.

Working With Procedural Safeguards

With this background knowledge in place, let’s move to the important aspects of working through the procedural safeguards in IDEA. As a guardian or parent, you have the right to receive these procedural safeguards once the school decides to evaluate your child for special education services. 

Remember, procedural safeguards describe how the school must interact with you. They don’t discuss the services that the school will provide for your child in the IEP. The eight primary procedural safeguards you should understand include:

Receiving Notice of IDEA Procedures and Procedural Safeguards

Once the school chooses to evaluate your child for special education services, you as the parent or guardian need to receive notice of this process. (Either the school or you can initiate the request that the school evaluate your child.)

As part of this, you’ll receive information about IDEA and about the procedural safeguards. Should your state have specific laws or guidelines regarding special education services, you should receive these as part of this notice as well.

Once per year, the school needs to provide parents with new copies of these guidelines, ensuring parents receive notice of changes.

Should you be unable to understand the printed guidelines, you have the right to seek a meeting to have the items explained to you in a verbal manner. 

Requesting an IEE for the Child

After the school completes its evaluation, you may agree or disagree with the results. If you disagree, you may dispute the results. In a case like this, you as a guardian have the right under IDEA to request an Independent Educational Evaluation (IEE) and to have the school pay for it. 

The IEE is almost like a second opinion that you may request from your medical doctor. The IEE may end up with different findings, or it may mirror the school’s evaluation. 

What Is an IEE?

The IEE is a private evaluation where an examiner who has no attachment to the school system performs an examination of the student. The IEE would occur at the time the school district is evaluating whether your child needs special education services. Some of the reasons you may request an IEE include:

  • You believe the school did not do a thorough enough evaluation. 
  • The school did not find any evidence of a disability for your child, but you believe this finding is in error.
  • You believe the testing process the school used in its evaluation did not generate accurate results.

The process involved in requesting an IEE is a little tricky to understand. Some school districts have specific policies regarding IEEs, as do some states. You will want to figure out what local and state rules you must adhere to before starting the process of undertaking an IEE.

Public IEE

In a public IEE, the school will pay for the IEE. If the school pays for the IEE, this evaluation will become part of your child’s educational records.

Even though the term used here is “public” IEE, the process still involves the use of a private evaluator. In other words, in a public IEE, the evaluator cannot work for the school district. The “public” portion of this term simply means the school will pay for the IEE.

The state education department should maintain a list of approved evaluators that schools can use for these public IEEs.

Sometimes, the school may argue vehemently that a publicly funded IEE is not necessary. It may take the process to a mediator or to a due process hearing, if it feels strongly enough. Should this process move toward a due process hearing, you may want to hire legal representation, as the due process hearing is similar to a trial.

Private IEE

As another option, you as the parent or guardian can choose to pay for a private IEE on your own. In a case like this, the evaluation belongs to you, not to the school. You can choose to keep the evaluation private and not share it with the school. Or you can share the private IEE with the school, and it then would become part of your child’s educational records.

Understand that when you submit a private IEE to the school, the school doesn’t have to accept the results. It must look at the results and consider them in its evaluation of your child. But it doesn’t have to follow them as part of the evaluation of the child’s needs for special education services.

Inspecting Educational Records

As part of IDEA, parents and guardians are able to request access to the child’s educational records at any time. Should you struggle to understand what these records mean, you can ask for a face-to-face meeting to receive an explanation of what the records contain.

You also have the right to request copies of the child’s records. 

Should you find errors in your child’s records, you have the right under the procedural safeguards to request a correction. If the school does not believe that the information in the records is in error, it doesn’t have to change them. You can request mediation or a formal hearing to try to fix the error if the school refuses to change the records.

If you don’t want to go through a formal hearing, you do have the right to ask the school to place a statement of correction in your child’s records. This will officially show that you believe an error is in the records, even if the school disagrees.

Participating in Meetings

As a parent or guardian, you have the right to participate in all meetings related to how the school will set up the plan for your child’s special education services. The school has to give you notice about any meetings it will have related to your child’s special education plan, giving you the opportunity to attend.

You also have the option to request a meeting with school officials at any time. 

It is important to understand that IDEA gives you an equal role in the IEP team that is planning for your child’s special education services. Your voice is equal to that of the special education professionals and school administrators in the room. 

Providing Consent for the School to Proceed

Under IDEA, the school must make a formal request to you as the parent or guardian for consent to proceed with the process of determining your child’s special education needs.

The school must obtain this consent before evaluating the child for the need for special education services. The school also must obtain consent before starting any program involving special education services for your child.

As your child approaches age 21 and prepares to transition into adult life, it is possible that the school will request a consultation with an external agency. This is common when creating a plan to help the child make the transition out of the school environment and into adulthood. However, the school must obtain your consent before bringing in the outside consultant.

You as the parent must provide this consent in writing before the school can take any of these actions. Each time any of these actions occurs, the school must obtain consent again. Should you disagree with any of the actions that the school is planning to take, you have the right to deny consent.

Receiving Prior Written Notice About Program Changes

Should the school decide that it wants to change an established IEP in any way for your child, IDEA requires that you receive written notice about these changes before they occur. These changes can involve adding services or removing services. Through the notice, the school must:

  • Explain why the school is planning to make the change
  • Inform you about any other options the school considered
  • Remind you of your legal rights to dispute the planned changes

The public school must provide this written notice before undertaking any changes. Failure to do so is a violation of federal law. 

Disputing Plans for Program Changes

Should you disagree with the changes the school is proposing, you have the right to ask for dispute mediation or for a formal hearing to discuss your concerns. 

Stay Put Process

When you officially tell the school that you are disputing its decision, IDEA’s rules require that the school employs a process called stay put. This simply means that the school cannot implement its proposed changes until you choose to drop your dispute or until some sort of negotiated or mediated settlement occurs.

Once the stay put process is in place, your child’s IEP will remain as it was before the school attempted to make changes to it. 

If you want the special education services to remain in place by invoking the stay put process, it is important for you to notify the school as quickly as possible. Some states only give parents or guardians a limited amount of time to notify the school of the disagreement. After that time period, it may not be possible to invoke the stay put process.

Mediation and Negotiation

You can start the process of disputing these planned changes through a negotiation with the rest of your child’s IEP team at the school. Perhaps you and the school officials can come to an agreement without the need for mediation. You may discover that the situation is simply a misunderstanding.

If negotiation does not work, you can request mediation with the school. You, school officials, and a neutral third party will sit down and try to come to a negotiated consensus. The mediator will not make a decision in the case. Instead, he or she tries to help the two sides find common ground that can lead to a solution.

Due Process Hearing

If negotiations and mediation fail, and if you want to continue to dispute the school’s decision, the next step is a due process hearing. 

The school will appoint an officer to oversee and mediate the hearing. This officer is not directly involved in your child’s case or education. The officer acts like a judge, as the due process hearing operates similarly to a courtroom trial.

The due process hearing happens inside the school, and it may take a day or two to complete. By default, the hearing is private. However, you as the parent or guardian can request to have the due process hearing opened to the public.

You will present your reasons for disputing the school’s decision, and the school will present its reasons for its decision. After closing statements, the officer will take the information under advisement and deliver a judgment within a few weeks. If you win in the due process hearing, the school should receive instructions for adhering to your wishes from the officer.

Should you or the school disagree with the officer’s decision, either party has the right to appeal it in a formal court setting. 

Clearly, it can be a challenge for a parent who is new to this type of process to have success and to follow all of the rules required. Many parents will want to hire representation for the due process hearing. 

If you and your attorney can show that the school did not provide appropriate services for your child or that the school made significant errors along the way, you may be able to receive a reimbursement for your attorney’s fees.

Maintaining Privacy and Confidentiality for the Child’s Information

As part of IDEA and the Family Educational Rights and Privacy Act (FERPA), the school must maintain your child’s confidentiality and privacy during the formation and implementation of the IEP. Some of the information the school must protect includes:

  • Child’s name
  • Family’s address
  • Child’s Social Security number
  • Family’s contact information
  • Child’s medical needs
  • Child’s educational history and grades

FERPA offers exceptions to these rules. If a health or safety emergency is occurring, emergency officials may be able to access these records. If an official at the school has a legitimate reason for requesting any of these records, especially those regarding the child’s educational history, the school can share the records with this official. Other exceptions are possible.

Conclusion

IDEA gives you as a parent or guardian the ability to participate in your child’s special education plan, and you should take advantage of this opportunity. 

Understandably, it can be intimidating for parents to try to discuss the nuances and details of special education with professionals. Trust me, though, the special education professionals value parental input. No one knows your child better than you, after all. 

The combination of your knowledge of your child and the experience of the special education professionals will yield the best possible results for your child’s IEP. Understanding your rights provided in IDEA’s procedural safeguards can help you give your child the support he or she needs for the best possible outcome in school.

I know this is a lot! I’d love to hear from you. Please feel free to leave a comment or question down below. You can also email me! I’m here to help!

About the author

Emily Cummings

I am a mom of two crazy, amazing, independent, little feminists. They bring so much light to my life and a lot less sleep. Since becoming a mother and increasingly in the last year, I have witnessed parents struggling to connect with their child's special education team with no success. I have become more aware of the gaps in our public school system and how parents may benefit from empowerment and advocacy tools.

My work experiences range from a juvenile detention center to an autism specialist in the Issaquah School District and a special education teacher in a self-contained program in the Lake Washington School District. My master's in teaching focused on special education and behavioral disorders from Seattle Pacific University. I completed my BCBA coursework from Montana State University.

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