It is important to realize that changes may occur in this area of law. This information is not intended to be legal advice regarding your particular problem, and it is not intended to replace the work of an attorney.

The Individuals with Disabilities Education Act, frequently referred to as “IDEA” or “IDEA 2004,” is the major federal law that creates and defines the right to individualized special education for many children with disabilities. In general, IDEA (and related state laws) entitle eligible children between the ages of three and 21 to a free and appropriate public education (often referred to as “FAPE”) that includes individualized special education and necessary related services. In addition, certain services are also available for children with disabilities from birth to age three.

Under these laws, school districts must thoroughly evaluate any child suspected to have a disability that impacts his or her ability to learn in school. After completion of this initial  evaluation, the district is required to convene a team of knowledgeable persons, including the parents, to determine whether the child is eligible for special education services. If eligibility is established, an individualized education program or "IEP," is prepared for the child.

The IEP Process
The individualized education program, or IEP, is a basic and essential component of IDEA. It describes the child, sets measurable educational and functional goals, and establishes the level of services that the district must provide to attain those goals. IDEA also generally requires that a district must provide all IEP services in the least restrictive placement environment that would allow the child to reach IEP goals. Although IEP and placement must be reviewed annually by the IEP team to review progress and make any changes necessary, both parents and districts have a right to request additional meetings if necessary.

Under most circumstances, children who are served by IEPs, cannot be disciplined by procedures such as expulsion or long suspensions for behaviors that are substantially caused by their disabilities.

Children who are served by IEPs must be reevaluated at least once every three years unless the IEP team determines with parent agreement and states in writing that no additional information is needed to determine continued eligibility.

IDEA broadly requires that parents must be given reasonable opportunities to participate in meetings about evaluation, eligibility, placement and other matters related to a free and appropriate public education.

In addition to participating in decision-making, parents are entitled to written notice from the school district whenever important decisions that affect or alter special education services are made. They also have the right to written notice whenever the district refuses a parental request related to eligibility, evaluation, placement or the nature and implementation of the IEP.

Parent Rights
Parental consent is required before the school district initially evaluates a child for eligibility, places the child in a special education program for the first time, or reevaluates the child. However, districts have a right to pursue these actions without parental consent by obtaining permission through a hearing before a neutral hearings officer.

If parents disagree with an evaluation completed by the school district, they may request an independent educational evaluation at school district expense. School districts maintain a list of agencies qualified to conduct independent evaluations. This list is available to parents on request.

School districts must maintain detailed written policies that describe parental rights and must provide and explain those rights when eligibility is sought, at IEP meetings, and upon request.

Disputes
If parents have concerns about special education services and cannot resolve problems through normal parent contact with staff or administrators, the first step is to request an IEP meeting. If disputes are not resolved at that level, parents can take further steps, including mediation, a written complaint to the Oregon Department of Education, or a request for a due process hearing.

Mediation is a voluntary process. Both the parents and the school district must agree to try it before a mediator will be appointed. A mediator is a neutral person who is trained in strategies to help people come to agreement over difficult issues. The cost of mediation will be paid by the district or the Oregon Department of Education. More information about mediation can be obtained by calling the Oregon Department of Education in Salem at (503) 378-3569.

A written complaint may be filed with the Oregon Department of Education if the parents believe the district has violated the IDEA. The complaint must describe the problem, including the specific facts. The Oregon Department of Education investigates such complaints and then prepares a written order, usually within 60 days.

A due process hearing is a formal legal proceeding before a neutral hearing officer. It is somewhat similar to a trial and can be a long and complicated process that is difficult to navigate without legal assistance. Parents may request a due process hearing if they disagree with the evaluation, placement, educational program or other aspects of FAPE. The decision of the hearing officer is final except that the losing party may challenge the decision by filing a civil action in court within 120 days of the final order. Parents who prevail in a hearing or in court may be reimbursed for some or all of their attorney fees. Requests for due process hearings are made to the state superintendent of public instruction at the Oregon Department of Education.

Section 504
Some children may have disabilities that affect major life activities but that do not entitle them to special education services under IDEA. However, these children may be protected by a different law, Section 504 of the Rehabilitation Act of 1973 (often referred to as “504.”) 504 rights are largely similar to those under the IDEA, but there are important differences. Each school district has a Section 504 coordinator who can provide more information about these rights.

Resources
For more information about the education rights of children with disabilities, see the disabilities resources list.

Legal editor: Joel Greenburg, November 2008