Because the resources that children receiving special education services require are often either hard to find or involve signifi cant cost, parents and other advocates can find themselves having to fi ght for what their child needs from his or her school, even when the law is clearly on their side.
While the federal government has established a free, appropriate public education (FAPE) as the right of every student (see "FAPE for All It's the Law!" p. 14), it has been left to each of the 50 states to implement this mandate through their educational policies and administrators. While the process of ensuring that a child with special needs receives a FAPE varies, we can glean some insights by examining the options in the state of Texas, where Jeffrey Petty lives (see "Education: Just How Accommodating Does it Need to Be?" p. 12).
The Texas Education Agency (TEA), under the oversight of the State Board of Education, provides three options for parents or guardians who believe that their child is not receiving an adequate FAPE. These options seem to be typical of those offered in other states and include mediation, fi ling a complaint and a formal hearing.
According to the TEA, "Because the parties [i.e., parents and the school or school district] will need to work together in the future on matters relating to a student's educational program, TEA's policy is to encourage resolution of disputes at the local level if possible."
Mediation offers the best opportunity for an outcome that is both educationally benefi cial and conducive to an ongoing cooperative relationship. "Nearly 80 percent of the parties that have used TEA's mediation services during the last several years have reached an agreement as a result of the mediation," according to TEA. Mediation is a voluntary, confi dential process that is usually less costly and less time-consuming than the other options. The fi nal agreement is usually a signed, legal contract, enforceable in court.
If an agreement cannot be reached via mediation, a parent or other concerned party may fi le a formal complaint alleging non-compliance with IDEA. In Texas, TEA staff members review and evaluate complaints. In this process, there is no formal testimony by witnesses and no formal record of the proceedings. If TEA finds that a school district is in violation of IDEA, it can direct that various remedies be applied, including monetary reimbursement for educational expenses incurred by parents because of a failure on the part of a school district, and that corrective action be taken, such as staff training or revision to policies and practices. TEA typically requires school districts to submit a plan and timeline for implementation of the corrective actions within 30 calendar days.
If parents do not receive satisfaction from the fi ling of a complaint, they can initiate a special education due process hearing a formal, adversarial legal process similar to a bench trial. If a due process hearing does find that a school was guilty of a substantive violation, such as not providing a student with a FAPE, then the due process hearing can result in several kinds of relief, including: awards of compensation or reimbursement; disciplinary sanctions; or orders for a school district to implement an educational program, conduct an evaluation or change an educational placement.
Thus there are various avenues of petition for parents seeking to provide the best mainstream education for their special needs child. While the outline above applies directly to the state of Texas, the process in other states can be found via their respective state departments of education. A national directory of these state departments can be found by visiting: www2.ed.gov/about/contacts/state/index.html
