As the parent of a child who needs special education services, you are an equal member of your child’s educational team. Legal safeguards ensure your right to challenge school decisions on a range of special education concerns, including but not limited to eligibility, disability classification, IEPs, and placement. Your child’s right to a free and appropriate public education (or FAPE) is protected at the federal and state level. Both IDEA and New York state laws provide formal mechanisms for challenging a school district’s special education decisions.

Common Points of Disagreement Between Schools and Parents Include:

Special Education Eligibility and Denial of Services:

If you disagree with a school decision on your child’s eligibility to access special education, you still have options. School determinations can be challenged. Denied requests for special education services and evaluations can be reviewed. As a parent, you have the right to make a due process complaint and request an impartial hearing if your child is denied special education services.

For example: A child placed on a 504 Plan when an IEP was warranted may not be receiving the level of services the law requires. You can learn more about these key distinctions from our team of Special Education attorneys, here: “504 Plan vs. IEP – What’s The Difference?”

Individualized Education Program (IEP)

If the school proposes an IEP that is insufficient to meet your child’s educational needs, or they fail to properly implement the IEP, the law provides procedural safeguards to ensure your ability to seek multiple levels of review. As your child’s parent and primary advocate, your right to legal counsel is protected throughout the special education process. A special education attorney can help ensure an IEP is appropriate for your child by holding the school district accountable for their legal obligations.

An appropriate IEP should—

• be individually tailored to your child’s unique needs, including: learning, social development, physical development, and management needs
• set achievable goals and identify a plan to both achieve those goals and assess progress
• reflect your concerns as a parent and be written in a way you can understand
• be specific and based in your child’s evaluations, taking into account not only their needs and limitations, but also their strengths, preferences, and interests
• address any special considerations, like assistive technology, limited English proficiency, communication needs, and positive behavioral interventions

Disability Classification

IDEA covers thirteen categories of disabilities. How your child is categorized will determine their IEP and the services they are eligible for. A misclassification can result in insufficient services, the wrong services, or even too many services. You can challenge a disability classification in order to receive appropriate special education for your child.

Placement:

IDEA guarantees students with disabilities access to education in the Least Restrictive Environment (LRE) possible (IDEA §300.116). As a parent, you have a say in not only what services your child receives, but where your child receives them. Your child’s placement should be individualized to their needs, not assigned according to a category of disability. The core reason for their placement should be the IEP, not staff preferences, costs, or “convenience.”  Placement determinations should be timely, i.e., before instruction begins.

Challenging School District Decisions

IDEA provides three primary mechanisms for resolving disputes related to special education:

(1) Mediation

As a form of alternative dispute resolution, mediation is a voluntary and confidential means of resolving IEP and related disputes between parents and schools. The process is facilitated by a trained neutral third party called a mediator. While mediation can produce legally binding and enforceable written agreements, it does not generate the enforceable orders available through a hearing. All parties must agree to enter into mediation. Some measure of give and take is involved for both sides; you are unlikely to receive everything you want.

You can request mediation at any time; mediations and impartial hearings are not mutually exclusive options. You can request mediation after you’ve already requested an impartial hearing or filed a State complaint. It is also possible to resolve some of your issues through a partial mediation agreement while reserving other issues for an impartial hearing. Many benefit from mediation and find it a highly constructive process. But should mediation prove unsuccessful, you may still pursue another course, like an impartial hearing.

(2) Due Process Complaint to Request an Impartial Hearing

An impartial hearing is the primary adjudicative mechanism under IDEA. Impartial hearings are a formal process with strict procedural requirements and deadlines, comparable to a trial. In New York, hearings are conducted before an Impartial Hearing Officer (IHO) appointed from a state-maintained roster. Like a trial, both parties present evidence and legal arguments, and the IHO issues a binding written decision. Parents have the right to legal representation, and it is highly advised to consult a special education attorney before proceeding.

(3) Seeking Further Review

State Review: In New York state, parents who disagree with the findings of the IHO may appeal to the Office of State Review (OSR). You must file your appeal within thirty-five days of the IHO’s decision. The State Review Officer (SRO) decision is final: meaning, it satisfies IDEA’s exhaustion requirement (8 NYCRR §200.5(k)(3)).

Judicial Review: IDEA requires parents to fully “exhaust” the administrative review process before filing suit in court (§ 1415(i)(2)). If you disagree with the State Review Officer’s review determination, IDEA allows for judicial review in the New York State Supreme Court or federal district court.

Practical Considerations for Parents

Navigating the web of special education appeals and judicial review in New York state is complex. Enforcement procedures and appeal options vary depending on the special education or disability accommodation services in question, the nature of the violation, and the legal framework(s) involved. Because parents may have multiple options available, it is highly advised to speak with a special education attorney before committing to a particular course of action. Otherwise, you may risk restricting your options and available remedies in future.

Before entering mediation:

Mediation is meant to be a collaborative process, but it is permitted—and beneficial—to bring an attorney to ensure your child’s rights are protected. Unlike an attorney, mediators are impartial; they are not there to take your side, advocate for you and your child’s interests over those of the school district, or give you legal advice. Your attorney, by contrast, is there to represent, advise, and advocate for you and your child—not the school district.

For many, a key benefit of mediation is that it is less formal or confrontational than a hearing, making it less stressful. Hiring an attorney at this stage does not make mediation less collaborative or more formal. On the contrary: participation by a special education attorney can make collaboration even more effective. An attorney’s presence at the early stages can also eliminate the need to escalate down the line, whether pursuing a due process complaint, or going to court.

Before submitting a due process complaint:

Due Process Complaints are formal documents and submitting one is comparable to filing a lawsuit in many ways. It is critical to be aware of any and all requirements, lest you limit your options to seek resolution and redress.

Strict Procedural Requirements

While there is no required format, certain information must be included in a due process complaint, including but not limited to:

• Your child’s education history
• Requested relief
• Request for pendency, if desired

A special education attorney can help ensure completeness and accuracy of your due process complaint.

Raise or waive

Your due process complaint must raise every alleged denial of FAPE or you risk waiving your right to have it addressed. If you do not raise an issue explicitly at this stage, you will not be able to argue that point in your hearing. It may be possible to amend your due process complaint through stipulation or an IHO, but at the cost of significant delays. Attorney assistance is highly advised at this point.

Deadlines:

In order to protect children’s right to access education, IDEA includes strict deadlines and windows within which certain actions must take place. New York imposes a two-year statute of limitations on due process complaints, with limited exceptions. A parent who delays risks losing the right to challenge past conduct and narrows the period of harm for which relief can be sought. An attorney may be able to argue for exceptions and extensions in some cases, as well as advise you on how to comply with any legal deadlines.

Statutory deadlines keep school districts from delaying the process unnecessarily, but they do not always follow them. Legal counsel can advise parents when the school district fails to comply with its legal obligations, and help hold schools accountable.

Practical Steps New York Parents Should Take Now

Procedural New York School disabilities rights under IDEA and New York education law are only as effective as a parent’s ability to exercise them. Parents should request and retain copies of all evaluations, IEPs, prior written notices, and communications with the district. Those who believe their child’s IEP is inadequate, that required services are not being delivered, or that the district has otherwise failed to meet its legal obligations should not wait for the annual review to raise those concerns.

It is highly advised to consult a special education attorney as early in the process as possible in order to prevent avoidable delays and expense down the line. In some cases, early intervention by an attorney can convince the school to provide the FAPE as required by law—without the need to pursue a formal hearing or court review.

Navigating the school disciplinary and appeals process on behalf of a student with a disability can be overwhelming. Tully Rinckey’s special education attorneys will handle your matter with the attention and tact it deserves. If you have additional questions about the rights of parents and students with disabilities in New York state, our team of attorneys is available to assist you today. Please call (888) 259-7918 to schedule a consultation, or schedule a consultation online.

Greg T. Rinckey is one of Tully Rinckey PLLC’s two founding partners. He worked with Founding Partner and fellow Hofstra University alum Mathew B. Tully in 2004 to build the firm from the ground up into the coast-to-coast, full-service powerhouse that it is today. As Founding Partner, Greg collaborates with Mat in all areas of strategic planning and law practice management to develop and deploy innovative business solutions that continue to grow the firm.