Navigating Public Education with a Student With A Disability (Pt. 3) – Enforcement of IEP and 504 Plans

Navigating the public education system with a child who has a disability can be challenging and at times an overwhelming experience. However, it’s important to remember that both students and their parents have legal rights that protect them through this journey.

Enforcing IEPs and 504 Plans

Generally speaking, the enforcement and conflict resolution measures available for parents with regards to both Individual Education Plans (IEPs) and 504 Plans are similar: both plans require active participation from parents in the creation, implementation, and ongoing enforcement. In fact, both plans have legislative safeguards built in to ensure that a student’s family is provided meaningful opportunities to voice concerns and advocate for their student’s needs. Below is a breakdown of the steps available for addressing concerns of plan enforcement.

Step One: Communication and Documentation

If a parent suspect that the student’s IEP or 504 Plan is not being followed, immediate action should be taken: do not wait for the annual review meeting. Start by contacting the appropriate school staff: principal, teachers, counselor, etc., with your concerns.

For 504 Plans, the Rehabilitations Act requires that each school district have a grievance policy in place.  Parents should request a copy of the district’s grievance policy for their personal file. It is critical for parents to create and maintain a paper trail of all communications. Parents have the right to access all records related to the student’s plan and progress at any time. Request copies of all progress notes and relevant documentation.

Then, parents should meet with the student’s “plan team” to review specific concerns for the student and their plan; if necessary, the “plan team” should modify the IEP or 504 Plan as needed. Many concerns can be resolved at this level with open communication and collaboration.

Step Two: Agency Complaints

If parent concerns are not resolved after meeting with the school, the next step is to file a formal complaint with the appropriate government agency.  For IEPs, your state’s Department of Education is tasked with receiving and investigating violations of the Individuals with Disabilities Education Act (IDEA). For 504 Plans, the Office of Civil Rights (OCR) is tasked with receiving and investigating violations of the Rehabilitation Act.

IEPs

There are two routes available for filing complaints for IEP violations. The first, a Due Process Complaint, addresses issues of identification, evaluation, educational placement, or denial of a Free Appropriate Public Education (FAPE). Filing this complaint initiates a due process hearing, where both sides present evidence and a binding decision is issued. Prior to a hearing, and within 15 days of a Due Process Complaint being filed, the agency representative is required to confer with the claimants about their concerns and the allegations raised in the Complaint. Based on that information, the agency can hold a Pre-Hearing Conference, which functions like mediation, wherein both parties attempt to amicably resolve the dispute (any resolution attained is legally binding on both parties). If the parties are unable to come to an agreement within 30 days of the filing of the complaint, then a Due Process Hearing shall be held, and the agency will issue a resolution.

The second type of complaint that may be filed for IEP violations is filed with your state’s Department of Education for violations of IEP or IDEA. The department has 60 days from the receipt of the Complaint to investigate and provide a written resolution. A complete investigation report shall be provided to all parties, specifying all the findings related to the allegations raised in the Complaint and any remedial measures required. If any of the allegations raised in this complaint have also been raised in a Due Process Complaint, the state is required to set aside those issues, and the resolution is binding.

At any point, prior to or after the filing of a Due Process Complaint or a general agency complaint, either party may request mediation, where both parties, with the assistance of a mediator, try to amicably discuss the issues and reach an agreement that satisfies all. if a mediation agreement is reached, it is legally binding on all parties.

504 Plans

There are a few routes available for filing complaints for 504 Plan violations. First, you should follow your school district’s internal grievance policy. These procedures must include methods for filing complaints, equitable resolution of complaints, opportunities to present evidence, prompt and reasonable time frames, notification of findings, and an appeal process. Further, school districts are required to provide an impartial hearing upon request, which functions similarly to the hearing process noted above for IEPs. Either party may file a request for impartial hearing to resolve issues concerning non-compliance.

A parent may also file a complaint with the U.S. Department of Education’s Office for Civil Rights (OCR) which will investigate and issue a resolution. While the agency does not conduct formal mediations, OCR may offer to facilitate an Early Complaint Resolution, which functions similar to mediation wherein both parties come together to discuss possible resolutions to the issues brought up in the complaint. Any agreements reached by the parties during an Early Complaint Resolution are not carried out or monitored by OCR. OCR may not investigate issues pending for hearing at the school district grievance level; any such issue will be set aside.

Lasty, in Arkansas, the Arkansas Division of Elementary and Secondary Education (DESE) established the Equity Assistance Center (EAC) to provide technical assistance to Arkansas educational institutions to enable them to effectively carry out their obligations under Section 504. EAC is tasked with receiving, reviewing, and investigating complaints alleging misinterpretations or violations of Section 504 and to provide technical assistance for remedial measures. EAC will conduct an independent investigation and issue a resolution with its findings. EAC may not investigate issues that are pending at the OCR. Other states may have similar programs in place to assist with Section 504 compliance; parents should seek state-specific complaint procedures.

Step Three: Civil Complaints

If administrative steps do not resolve the issue, or if a parent disagrees with an agency’s decision, the parent may consider pursuing the matter in state or federal court. Pursuant to IDEA, before a state or federal complaint may be filed relating to a violation of an IEP, all administrative measures must be exhausted. The steps above, as well as other measures advised by the respective agency must be followed prior to seeking redress from the public court systems. On the other hand, the Rehabilitation Act does not contain a requirement to exhaust administrative measures and instead provides a specific private right to sue in federal courts for violations of 504 Plans.

Given the complexities of the legal system, parents are strongly encouraged to consult with an experienced education law attorney before initiating court proceedings.

If you have questions or concerns about your child’s current education plan, The Law Group of Northwest Arkansas can help. Contact The Law Group of Northwest Arkansas PLLC to schedule a free, initial consultation with one of our Education Law attorneys. You can also contact us by using our online contact form or call 479-316-3760.