You’ve gone through the proper channels to get your child the accommodations he needs to succeed at school, but you and the school do not see eye-to-eye on what your child needs. Or perhaps your school system refuses to include needed accommodations in your child’s 504 or IEP plan, or the accommodations are listed in the plan, but your school system refuses to follow through.
What should you do? Heidi Konkler-Goldsmith, a Berwyn, Pa., attorney, specializing in civil rights and special education, offers answers to questions about how to file a dispute.
Q. What should I do if I can’t reach an agreement with the school system or the school system doesn’t comply?
The first thing I recommend parents do is to go up the administrative ladder. If you are unable to work out a satisfactory IEP or 504 plan with the school district person assigned to you, go to that person’s supervisor or go to the superintendant’s office. You really want to exhaust working with the district before you go to outside people.
Q. If I can’t resolve grievances within the school system on my own, what are my options?
The answer is different depending on which law you are going under and the state where you live. If you are going under IEP, which falls under the Individuals with Disabilities Educational Act (IDEA), your state uses a state administrative process with a hearing officer assigned to the case. If you are under 504 of the Rehabilitation Act, that process is different in every state. In some it goes through the local school district, in some it goes through a state administrative process and in some it is a State Department process.
Reach out to your state education department and figure out what resources they offer for resolving complaints. Some states have options before you file an official complaint, such as a mediation process where an outside mediator comes in and tries to work out a resolution. In Pennsylvania we have facilitated IEPs or 504s, where someone from the state comes to the IEP or 504 meeting before you need full-on mediation.
Q. If I file a dispute, what will I need to support my case?
You would need documentation to prove that your child needs an accommodation that the school system refuses to provide. This would include notes from treating doctors and the recommendations of outside therapists. In some cases, those professionals might need to testify at an administrative process to the effect that “they have evaluated the child and to a reasonable degree of medical certainty,” the child does need this support or recommendation.
Q. Will I need a lawyer to file the dispute? If so, how can I find a good one and what will be the cost?
You should have a lawyer to file for due process. The best place to find a lawyer is through another parent who has been in a similar situation and has hired a lawyer they would recommend. Attorneys can have nice shiny websites, but that might not be a reflection of your representation. You can also check with your local bar association or websites including Lawyers.com that have lawyer ratings.
The cost of legal services can vary greatly. Some lawyers charge a flat rate, some charge by the hour and some charge on a contingent basis where they take the risk and you pay them only if you win. Because IDEA and 504 are fee-shifting statutes, you may have attorney fees reimbursed if you hire an attorney and win. You can also request information from your state’s Legal Aid Society and Disability Law Project. Sometimes they can provide referrals to attorneys that work for a reduced or no fee.
Q. How long can I expect the dispute to last?
That also can vary greatly. I have had cases that were resolved within a couple of days of making a phone call to the school system. But a case that goes all the way to the Supreme Court, which would be very unlikely, could take years.
Q. How likely am I to win?
The vast majority of these cases settle without going to court. If your case goes to litigation you have about a 50-50 chance of winning, but your actual chances of winning may be greater or less depending on your case, your school system, and the federal circuit you reside in. Some systems are weighted heavily toward the School District, while others are weighted heavily toward parents.
Q. What if I lose?
Try again. These are one-year plans, so you’ll have another chance in a year. In the meantime, document any communication from the school having to do with your child’s disability. I recommend sending what I call Oreo cookie emails, beginning with a “thank you,” documenting the problem and then ending with another “thank you.” For example, “Thank you very much for contacting me about Jimmy’s day at school. You said he had problems copying from the board so you let him stay in from recess and finish his work. I always appreciate your efforts to help Jimmy keep up. Thank you again.”
Later if the teacher claims Jimmy doesn’t have a problem, you have an email that says he does.