This article explains the rules that schools must follow to change or refuse to change a special education student’s Individualized Education Program (IEP). This article also explains what parents may do when they do not agree with a school’s decision about their child’s IEP. If you do not agree with a school decision about your child’s IEP, you have the right to appeal that decision (have it reviewed). If you have any questions about your rights, please contact LSNJ-LAW™, Legal Services of New Jersey’s statewide, toll-free legal hotline at 1-888-LSNJ-LAW (1-888-576-5529).
Does the school need my permission to change my child’s IEP?
Your child’s school may change your child's IEP without your consent (permission). This includes a change to your child’s school placement and services. Before the change is made, the school district must send you a letter, called prior written notice. The prior written notice must be in English or in your native language. The school must give the prior written notice within 15 days of the school district’s decision to change the IEP. Prior written notice must also be given at least 15 days before the change will happen. In the prior written notice, the school district must describe the action that it proposes or refuses to take and why, and it must detail the other options that the IEP team considered and rejected before making its decision. The prior written notice must describe all evaluations and assessments (testing), records, and reports that the IEP team used to make its decision. The notice must also inform you of your rights and your child’s rights and tell you where you can get a copy of the Parental Rights in Special Education manual (commonly called the PRISE manual). The manual describes your child’s special education rights. (For more information about the PRISE manual, please see the box below.) The notice must also include a list of resources where you can go for help.
My child's school gave me a copy of the PRISE manual. What is it?
The PRISE manual describes your child's special education rights. It is written by the New Jersey Department of Education's Office of Special Education Programs (OSEP). The PRISE manual includes information about:
- Evaluations
- Independent educational evaluations
- Prior written notice
- Parental consent
- Access to school records
- Discipline procedures
- Due process hearings
- Placement pending an appeal.
Schools must give you a copy of the PRISE manual when your child is first referred for a special education evaluation and once a year after that. It must also be given to you the first time you file a due process request (request for a court hearing to resolve a dispute with the school district). If you request a copy of the PRISE manual, your school must provide one to you.
Get a copy of the PRISE manual on the New Jersey Department of Education’s website.
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What should I do if I want a change to my child’s IEP?
If you want a change to be made to your child’s IEP, you should send a letter requesting the change to your child’s special education case manager. The school district must respond to your request within 20 days. If a meeting needs to be held to discuss your request, the meeting must be held within 20 days of your request.
What should I do if I don’t agree with the school’s decision about my child?
If you do not agree with a decision the school has made about your child’s education, or if the school has refused your request about your child’s education, you may request mediation or due process. You may file for mediation alone or with a request for due process. Examples of reasons you may file a mediation or due process request include:
- The school’s refusal to evaluate or reevaluate your child;
- The school’s determination that your child is not eligible for services;
- The fact that you disagree with the school’s choice of your child’s special education classification, placement, or related services.
If you are appealing a discipline matter, you may ask for an expedited due process hearing. This means your matter will be heard quicker than a regular due process hearing request. If you are planning to file for mediation or due process, you should speak with a lawyer before you file by contacting the number at the end of this article.
What is the difference between mediation and due process?
Mediation is a meeting involving you, the school, and a mediator. A mediator is a neutral third party who will help you and the school reach an agreement about your child’s education. If you come to an agreement, it will be put into writing. This agreement is enforceable. You cannot be required to attend mediation or enter into a mediation agreement. Anything that you or the other side says during a mediation session is confidential.
Due process hearings are conducted by judges. At a due process hearing, you and the school district will have the opportunity to argue your positions regarding your child’s education by presenting witnesses and evidence to support your argument. After hearing from both sides, the judge will make a decision in the case. If you do not agree with the judge’s decision, you have the right to file an appeal in state or federal court within 90 days of the judge’s decision.
How do I request due process or mediation?
You may request due process and/or mediation by writing to New Jersey’s Department of Education’s Office of Special Education Programs (OSEP). The New Jersey Department of Education has a standard form that you may use for your request. The form is available online on the Department of Education’s website. The request must include the following information:
- Your child’s name and address
- Your child’s date of birth
- The name of the school your child attends
- A description of the problem
- Any facts relating to the problem
- What you think should be the solution to the problem
- A statement that you mailed a copy of the request to the school district.
It is very important that your request includes all the required information listed above. If the request is missing any information, the school district may object to it and your case could be dismissed.
Your request must also include all the concerns and issues you have. You will not be able to bring up any new issues at the time of the hearing.
To file the request, mail one copy to the school district and two copies to:
Peggy McDonald, Director
Office of Special Education Programs
New Jersey Department of Education
P.O. Box 500
Trenton, New Jersey 08625-0500
You must make the request within two years of the date that you knew or should have known of the issue about which you are filing. Under certain limited circumstances, the two-year requirement may not apply.
As previously mentioned, when a school district wants to make a change to your child’s IEP, it must send you prior written notice before the change is made. If you file for due process and the school has not sent you prior written notice, the school must respond to your due process request within 10 days. If the school district has filed for due process, you must respond to the issues in its request within 10 days.
How do I request mediation and a due process hearing?
To settle a dispute with the school district through mediation, and also keep open the option of having a due process hearing (in case mediation does not resolve the issue), you should request both mediation and due process. It is easy to do this using the standard form for a due process request, available online. Check the box on the form that says you are requesting due process and then check the box below that says you are requesting mediation.
I only requested mediation, but now I want a hearing. May I request a due process hearing?
If you only requested mediation to settle a dispute with your child’s school district, you may change your mind and decide that you wish to have a due process hearing in front of a judge. To do this, send a letter to the Office of Special Education Programs changing your original request for mediation to a due process request.
I was told I have to go to a resolution meeting. What is that?
If you file a request for due process, before a due process hearing is held, you will be required to have a meeting with the school district to see if you can resolve your dispute without a hearing. This meeting is called a resolution meeting. Resolution meetings must be held within 15 days of filing for due process. If you filed due process about a discipline matter, the resolution meeting must be held within seven days of when you filed for due process.
You must attend the resolution meeting, unless you and the school district agree to attend mediation or agree not to have the resolution meeting. The resolution meeting is a chance for you and the school district to try to resolve the matter without going to court. You have the right to bring a lawyer with you to this meeting. If you do, the school district may also bring a lawyer. If you do not have an attorney at the meeting, the school district may not have an attorney. What is said at a resolution meeting is not confidential. This is different from mediation. Everything that is said at mediation is confidential.
If you and the school district come to an agreement, that agreement must be put in writing and signed by you and a school district representative. You have three days to review the written agreement. After three days, the agreement is enforceable in state or federal court.
I filed for due process two weeks ago but still do not have a court date. What should I do?
Once you file for due process, your request will stay at the Office of Special Education Programs for 30 days. If you do not resolve your matter within those 30 days, the Office of Special Education Programs will forward your request to be scheduled for a hearing with an administrative law judge. If your matter involves a discipline issue and you have filed for expedited due process, your matter will be scheduled for a hearing after 15 days.
What happens if I need to have the hearing in less than 30 days?
If waiting 30 days before a hearing is scheduled will cause your child to suffer serious harm, you can ask for emergent relief as part of your due process request. Examples of when you may need emergent relief include a situation when your child is out of school and not receiving any educational services or a situation where remaining in a current school program may cause your child physical or emotional harm. You may only ask for emergent relief under certain circumstances, such as:
- A break in delivery of services
- Disciplinary issues
- Placement
- Graduation or participation in graduation ceremonies.
How do I ask for emergent relief?
If you believe you need emergent relief, you should fill out an emergent relief request along with your due process request. This form is located at New Jersey Department of Education's forms page. In order to obtain emergent relief, you will need to show that:
- Your child will suffer irreparable harm if the relief you are requesting is not granted.
- The legal right underlying your claim is settled.
- You have a likelihood of winning your underlying claim on the merits.
- Your child will suffer a greater harm than the school district if the relief you have requested is not granted.
What happens to my child’s placement while I am disputing a change the school wants to make?
In some cases, your child may be allowed to stay at her current school and/or continue to receive her current level of services during a dispute about her education. What will happen depends on when you file your request for mediation or due process. If you file your request within 15 days of the school’s written notice about the change to your child’s education, your child will stay in her current placement or educational program and keep her current level of services until the matter is resolved. This is called stay put. Stay put does not apply to appeals of discipline matters. (See Special Education and School Discipline: What You Need to Know)
If you file your request for due process or mediation after 15 days from when you received the school’s written notice, you will not receive stay put. This means that any change the school district made will happen during the time period when you and the school district try to resolve the dispute. This is true even if you did not consent to the decision or change in placement, or if you filed for due process or mediation.
If you are asking for stay put, you should file an emergent due process request along with your request for mediation or due process.
What is a complaint investigation?
If you do not agree with a decision by your school district about your child’s education or you feel the school district is not following the law, you may also file for a complaint investigation. Any person or group is allowed to request a complaint investigation from the Department of Education. You do not have to be a parent of a special education student. A request for a complaint investigation must be filed within one year from the date of the alleged violation. You can find a form for this request at the website of the New Jersey Department of Education. This request is filed in the same way as a request for due process.
When a complaint investigation is requested, the Office of Special Education Programs must investigate the matter. This may require an on-site investigation of the school or the placement. The OSEP then must issue a report. If the OSEP determines that the school district is not following the law, the school district will be required to correct the violation(s).
For more information about complaint investigations, or if you have any questions about your rights, contact LSNJ-LAW™, Legal Services of New Jersey's statewide, toll-free legal hotline, at 1-888-LSNJ-LAW (1-888-576-5529). Hotline hours are Monday through Friday, 8 a.m. to 5:30 p.m. You may also contact the hotline through our website intake. If you are not eligible for assistance from Legal Services, the hotline will refer you to other possible resources.
This article appeared in the March 2012 issue of Looking Out for Your Legal Rights®.
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