FAPE and Due Process Hearings

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Lea Filippi, Sedor, Wendlandt, Evans & Filippi, LLC

Part 8 of the series Back to Basics

Children are legally entitled to a public education. The education appropriate for some students with disabilities may be different from the education appropriate for their peers. Alaska state law includes provisions necessary for ensuring that school districts meet their legal obligations to children with disabilities, including by complying with the Individuals with Disabilities Education Act (IDEA), a federal law governing the provision of a free appropriate public education to children with disabilities.

The IDEA is a procedural statute. It establishes rules for when and how school districts must work with parents to determine how to appropriately serve students with disabilities.

Under the IDEA, school districts have what is called a “child find” obligation. Each district must take steps to proactively identify, location and evaluate children with disabilities, regardless of the severity of their disability, who may need special education and related services.

Parents who are worried about their child’s progress and think he or she might need extra help can request that their child be evaluated. If the school agrees that evaluation is needed, the school must evaluate at no cost to the family. If test results, observations or a teacher’s experience with a child raise concern that a child may have a disability, the school must ask parents for permission to evaluate a child and receive the parent’s informed written consent before conducting an evaluation. The IDEA establishes rules for how and on what timeframe evaluations are conducted. Once a parent has given permission to evaluate, the school district must use appropriate assessment tools to determine if that child has a disability and what their educational needs may be.

A team of people including educators and the parent then considers the information gathered as part of the evaluation and determines if the child is eligible to receive special education and related services. If a parent disagrees with the results of a school district’s evaluation, they have the right to request an independent educational evaluation by someone not employed by the school district.

If a child is determined to be eligible for special education, their team works together to establish an individual education plan (IEP) that sets reasonable learning goals for the child and specifies what services the school will provide them. Sometimes when a student’s team has trouble reaching agreement, the team can work with a neutral third-party who facilitates communication for the successful drafting of an IEP for the student.

There are safeguards protecting a student’s rights to a free appropriate public education.

Anyone concerned that a school district is violating Part B of the IDEA can file with DEED an administrative complaint outlining their concerns. DEED then appoints an investigator who gathers information to independently determine whether IDEA is violated.

A parent can file a due process complaint on any matter relating to the provision of a free appropriate education to their child, including placement, refusal to initiate or change identification, evaluation or educational placement of the child. The parent can do so within 12 months of the date the school district provided written notice of the decision the parent disagrees with. When DEED receives a due process complaint, it randomly selects from a list of trained hearing officers. The appointed hearing officer conducts a formal hearing to receive evidence and argument from the parties, and then provides the parties a written ruling which can include specific direction about a school district’s obligations for serving the child going forward. The cost of the due process hearing, including paying for the hearing officer’s time to hold the hearing and draft their written decision, is all paid by the school district. Sometimes, depending on the issue, it is more cost effective for a school district to provide what the parent is requesting for their child rather than paying the cost of conducting the hearing to defend the decision not to do so. In other situations, it can be important to go through the hearing process to get a clear ruling from a neutral hearing officer about a disputed issue.

Practice Pointers:

We offer the following “practice pointers” to connect our commentaries with practical suggestions for school board members and administrators:

  • School boards should ensure that their budgets include funding adequate for providing a free appropriate public education to children with disabilities.
  • School districts should have a child find program that publicizes to their local community how a child can be evaluated to determine if they have a disability and may be eligible for services.
  • School districts should train their educators to recognize when a student may have a disability so the school can ask parents for consent to evaluate.
  • Teachers and school administrators should be aware of services like mediation and facilitators that DEED can provide if IEP teams are having difficulty communicating or reaching consensus.

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