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Ask the Attorney: Five Rights Parents of Children with Disabilities Need to Know

I’ve heard I have some rights as a parent who has a child with disabilities, in addition to my child’s rights. Can you tell me about these parental rights?

The federal law which mandates all children with disabilities receive a free and appropriate education (FAPE) also includes a host of rights for you – the parent or parents. These rights are commonly called “procedural safeguards.” I’ll go through a few with you here.

1. Prior Written Notice

The school district must provide you, the parent of a child with a disability, a notice – in writing – before it begins, refuses, or changes the identification, evaluation, educational placement, or provision of FAPE for your child.

Under law, the written notice from school must do the following:

  • Describe the action that the school district is proposing or refusing to take;
  • Explain why the school district is proposing or refusing to take that action;
  • Describe each evaluation, procedure, assessment, record, or report the school district used in deciding to propose or refuse the action;
  • Include a statement that you, the parents of a child with a disability, have protection under the law’s procedural safeguards;
  • Tell you how to get a copy of the procedural safeguards (in every situation other than an initial referral for evaluation);
  • Include sources you can contact to help you understand the law (usually the Parent Training Information Center for your state);
  • Describe any other options that your child’s IEP Team considered and the reasons why those were rejected; and
  • Describe any other factors or reasons as to why the school district proposed or refused the action.

Note that the district must provide this notice in your native language, and also in wording that is “understandable by the general public.” It is of utmost importance that you understand what is written in this notice.

2. Native Language

As mentioned above, the school district must provide information regarding your child’s education in your native language. The definition of your “native language” is the language you use on a normal basis; the definition of your child’s “native language” is the language the child uses in the home or at school.

For parents or students who are deaf or blind, or who don’t know a written language, the school district must provide information in whatever mode of communication that person normally uses. This might include sign language, Braille, or oral communication.

3. Parental Consent

If the school district wants to evaluate your child to determine if she is eligible for special education and related services, the district must first send you the prior written notice, as described above, and also obtain your written consent. To effectively provide parental consent, you must satisfy these components:

  • You have been fully informed in your native language about the action for which you are giving consent (for example: you have been given information about the type of evaluation the school district wishes to conduct and what that evaluation entails);
  • You understand and agree in writing to that action;
  • The consent describes the action to be taken and lists any records that will be released, and to whom; and
  • You understand that your consent is voluntary and that you may withdraw your consent at any time.

Note that the school district must make “reasonable efforts” to get your informed consent for an initial evaluation. The key word here is “reasonable.” Also, providing your consent for an evaluation does not mean you have agreed to allow the school district to start providing services for your child. You must provide separate consent, typically at an IEP meeting, for the provision of services, as well as your child’s educational placement.

Keep in mind that if you refuse to consent to one particular service or activity, that doesn’t mean the district can refrain from providing other services. Also, if you decide to withdraw your consent after your child has already started to receive services, you must put that withdrawal in writing.

4. Independent Educational Evaluations

If you disagree with an evaluation the school conducted, you have a right to an independent educational evaluation (IEE) at public expense. An IEE is an evaluation conducted by a “qualified examiner” who is not an employee of the school district. The school district’s psychologist usually conducts the first evaluation; this new IEE will be from someone who has no ties to the school district. States differ on how much of the cost they cover. For example, Massachusetts uses a sliding scale based on income, which doesn’t amount to much coverage of an expensive evaluation. Check your state laws to determine how the funding works.

Once you request an IEE at public expense in writing, there are a few things that can happen:

  • The school district agrees to provide the IEE, or
  • The school district determines that its own evaluation was, in fact, appropriate, and files a due process complaint to prove this.

If the school district files for due process, you can still go out and get an IEE on your own. Just know that the district will not be paying for it. IEEs can be costly (sometimes several thousand dollars, again depending on your location and the particular evaluator), so be sure you do background research on the evaluator. It might help to talk with other parents who have pursued IEEs for their children.

The school district might ask why you object to the evaluation they conducted. You aren’t required to provide an answer, and know that they can’t delay providing the IEE or filing the due process complaint just because you haven’t provided an answer.

Your requests for IEEs should follow the same timeline as the evaluations with which you disagree. This will typically mean you are requesting an IEE after an annual evaluation, or the 3-year re-evaluation.

5. Due Process and Stay Put

Either the school or parent can request due process. Sometimes a due process hearing and appeal can last a long time, which might make you wonder what happens to your child and her services.

Your child has the right to remain in her current educational placement while the dispute is going on. This right is called stay put provision under law. Until you sign a new IEP for your child, she will continue to receive all services from the last agreed upon IEP. If you disagree with a new placement the district has proposed, you can invoke your “stay put” right to ensure you child remains in the last agreed upon placement. You can do so by agreeing in part to the new proposed IEP – perhaps agreeing to the services proposed, but disagreeing with the placement. This means your child will receive the services as outlined in the new IEP, but with no change to her current educational placement. If the last agreed upon placement no longer exists, the school district must find another program or placement that is “comparable,” or similar, to the last one and it must offer the same types of services that were offered in the prior placement.

Overall, the goal of these procedural safeguards is to ensure that parents participate in the special education process in a meaningful way. For more information, be sure to visit our Special Education Guide.

Sources: 20 USC § 1415(j); 34 CFR §§ 300.29, 300.300, 300.502, 300.503, 300.9.

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