A Special Education Legal Primer for the Family Law Attorney

Matthew W. Bell | 01.28.22

This article also appears in the Wisconsin Journal of Family Law, Vol. 39, No. 1 (January 2022)

In 1975, Congress passed landmark legislation known as the Education for All Handicapped Children Act (“EAHCA”) to address long standing discriminatory practices in education against children with disabilities. At the time of its passage, estimates revealed that approximately 8 million children required special education and 4.25 million of those children were receiving substandard or no schooling at all.^[i] Over the course of nearly a half century, Congress has revised the EAHCA multiple times, and the law is now known as the Individuals with Disabilities Education Act (“IDEA”).^[ii]

The prevailing concept behind the IDEA appears simplistic: provide students with disabilities a free appropriate public education (“FAPE”) in a setting where those same students are included with ​“children who are nondisabled.”^[iii] However, myriad procedural requirements included in the IDEA make the process of determining who is eligible for FAPE, what services are necessary in order to provide FAPE, where FAPE should be provided, and even, who can authorize a school to provide FAPE, can be confusing even to the most experienced educator. When parents with joint legal custody share decision-making rights disagree regarding their child’s need for special education, the process can be even more complex. This article seeks to demystify the special education process and highlight where parents who disagree on major educational decisions might be a barrier to the process. 

Initiating the Special Education Process

Prior to any child receiving special education, a school district must conduct an evaluation to determine the child’s eligibility for special education. That evaluation is initiated by a special education referral.^[iv] Certain individuals, such as physicians, doctors, social workers, or administrators of social agencies are required to make a referral if a student is brought to the individual for services and the individual ​“reasonably believes” a child is a child with a disability.^[v] Teachers of the district are also mandatory referrers.^[vi] Before making a referral, an individual required to refer ​“shall inform the child’s parent that he or she is going to submit the referral.”^[vii] Other individuals, such as parents or an attorney for the parent or the child, may submit a referral for an evaluation. In fact, the Wisconsin statute governing special education referrals notes that ​“any person” who reasonably believes a child is a child with a disability may submit a referral for an evaluation.^[viii]

A referral for special education must be in writing, include the name of the child, explain the reason for believing the child is a child with a disability and, in most instances, be submitted to the public school district in which the child resides. Most districts have template referral forms that may be used to submit a referral and may be obtained by simply contacting the district.^[ix] However, any writing (e.g., an email or letter), containing the required elements of a referral will initiate the process.^[x]

It is noteworthy that because the statute permits ​“any person” to submit a special education referral, under IDEA, a parent with or without educational decision-making authority could initiate the special education process without prior notice to the other parent.^[xi] This is likely contrary to the requirements that in joint custody situations, parents must agree on such decisions. Regardless, in that case, a district would be obligated to accept the referral and then notify the other parent or guardian of receipt of the referral.^[xii]

Special Education Evaluations 

Upon receipt of a referral, a district is required to notify the student’s parent or guardian of the referral and initiate the special education evaluation process. The first step in that process is for the student’s Individualized Education Program (IEP) Team^[xiii], a group of school-based professionals, the parent, and child if appropriate, to review existing data regarding the student and determine whether additional data is needed to determine the student’s eligibility for special education.^[xiv] This ​“review of existing data” must be completed within 15 business days of receipt of the referral.^[xv] At the conclusion of the 15 business day period, the district must either seek the parent or guardian’s consent to conduct additional assessments or notify the parent or guardian that no additional data is needed. 

In most scenarios, the district will need to conduct additional assessments to determine a student’s eligibility for special education. In those cases, the district must provide written notice to the parent of the evaluation procedures and the names of individuals who will conduct the evaluations.^[xvi] The district must also obtain written parental consent prior to conducting the identified evaluations.^[xvii]

As readers might predict, parents often have differing opinions on whether their child should be evaluated for special education. In those instances, the Department of Public Instruction (DPI) has advised that districts must proceed with a special education evaluation ​“when consent from one custodial parent is received.”^[xviii] In other words, absent obtaining a judicial or administrative order prohibiting a district from conducting an evaluation, a parent may not halt a special education evaluation when one parent with the legal authority to grant consent has already granted consent for the evaluation. 

Special Education Eligibility Determination

A district has 60 calendar days from receipt of the parent’s written consent for evaluation to complete all necessary assessments and determine the student’s eligibility for special education.^[xix] Students qualify for special education by meeting criteria associated with one or more of 12 different categories of disability and also by demonstrating a need for special education.^[xx] The disability categories include: Intellectual Disability; Orthopedic Impairment; Blind and Visually Impaired; Deaf and Hard of Hearing; Deafblind; Speech or Language Impairment; Specific Learning Disability; Emotional Behavioral Disability; Autism; Traumatic Brain Injury; Other Health Impairment; and Significant Developmental Delay.^[xxi]

The eligibility determination must be made by the student’s IEP team at an IEP team meeting. As a reminder, parents are members of the IEP team and the IDEA places a premium on parental participation throughout the special education process. As just a few examples of the importance of parent participation, all meetings of the IEP team must be scheduled at a mutually agreeable time and place, parents must be provided sufficient notice of meetings so they can attend, and districts must provide notice of the purpose of the meeting so the parent is prepared to participate.^[xxii] Parents also may be accompanied by other individuals at IEP team meetings. Advocates, attorneys, mental health providers, family members, and the occasional Guardian ad Litem are frequent participants in IEP team meetings.

At the eligibility determination meeting, the IEP team will once again review data existing at the time of the referral, discuss any interventions provided to the student prior to the referral and the effects of those interventions, and then discuss the assessment data obtained through the special education evaluation. That discussion will culminate in the IEP team determining whether a student meets the criteria for one or more of the categories of disability listed above and is therefore eligible to receive special education. If a student is eligible for special education, the IEP team will move on to the next step in the process, developing an IEP for the student. If the IEP team determines that the student is not eligible, the special education process will end and the student will not be entitled to receive special education services.

Development of the Individualized Education Program

Within 30 calendar days of the IEP team’s determination that a student is eligible to receive special education, the IEP team must meet once again and develop an IEP for the student. Depending upon the age and individual disability-related needs of the student, the IEP can contain over 30 different components, categorized into five broad categories of information that must be included in any IEP. Those categories include the student’s present level of academic achievement and functional performance, the student’s identified disability-related needs, measurable annual goals and how progress towards those goals will be measured and reported, a statement of the special education services the student will receive, and an explanation of the extent to which the student will not be educated with nondisabled students.^[xxiii] If the student is 14 years of age or older, the IEP must also contain a ​“postsecondary transition plan” to address the student’s postsecondary goals and services to achieve those goals.^[xxiv] Finally, at least one year before a student turns 18, and annually thereafter, the IEP must also include a statement that the student has been informed of the rights that will transfer to the child upon turning 18.^[xxv]

As noted in other sections of this article, parent participation in the IEP development process is required and an IEP team meeting may only be held without the parent if the district ​“is unable to convince the parents they should attend.”^[xxvi] Indeed, DPI has consistently and repeatedly determined that failure to facilitate parent participation in the IEP process is a violation of the IDEA.^[xxvii]

Placement

At the conclusion of the IEP development process, the IEP team must establish the student’s ​“placement.” Placement consists of the location in which services will be provided, for example a regular classroom or a special education classroom, and the building or facility the child will attend.^[xxviii] When determining a student’s placement, the IEP team must adhere to the IDEA’s ​“least restrictive environment” mandate.^[xxix] Specifically, the IEP team must ensure that, to the maximum extent appropriate, the student is educated with students without disabilities. Placement in an environment that does not include students without disabilities may only occur if the student’s disability is so severe that ​“education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.”^[xxx]

When developing an initial IEP for a student (i.e., the student’s first IEP developed after an initial determination of eligibility), a school district may not implement the IEP or place the student in the placement developed by the IEP team until the parent or guardian has provided written consent for that placement. This means that without written parental consent, the student will not receive the services or be placed in the setting set forth in the IEP. 

Providing consent for the initial implementation of an IEP is another instance in which parents with divergent views may express their disagreement. A district must implement an IEP if one parent with legal custody provides written consent. The consent of both parents who share legal custody is not required. However, a parent with legal custody may revoke consent in writing for the provision of special education at any time and may do so even if that parent did not provide the initial consent for those services.^[xxxi] If a parent takes such action, a district “[m]ay not continue to provide special education and related services to the child.”^[xxxii] An example is illustrative. Mother and father have joint legal custody. Father submitted a special education referral believing his daughter to have a learning disability and provided consent for the initial evaluation. Mother objected to the evaluation and has voiced her concerns about special education generally, and more specifically, the harmful effects of labeling her daughter. Over mother’s objection and because father provided consent, the district conducted the evaluation, and the IEP team ultimately determined the student to be eligible for special education. The IEP team also developed an IEP for the student and the father provided written consent to implement. Mother objected, verbally, to the implementation of the IEP but did not immediately revoke consent in writing. One month into the IEP’s implementation, mother revoked consent for special education in writing. The district had no choice but to terminate the student’s special education services. Furthermore, if the father wanted the student to receive special education services, the father would need to reinitiate the entire process, starting with a referral prompting another initial special education evaluation.

Free Appropriate Public Education

The ultimate purpose of the IEP process is to provide a student with FAPE. FAPE had been defined in a variety of ways over time and courts have struggled to develop one unifying definition. In 2017, however, the US Supreme Court issued a landmark ruling defining FAPE in the case of Endrew F. v. Douglas Cty. Sch. Dist. RE‑1, 137 S. Ct. 988 (2017). In Endrew F., the Court analyzed whether a Colorado school district provided a young student with autism FAPE. The parties adopted diametrically opposed definitions of that term, with the District asserting FAPE meant an IEP ​“reasonably calculated to provide some benefit, as opposed to none,”^[xxxiii] and the parent arguing that that same term should be defined as ​“an education that aims to provide a child with a disability opportunities to achieve academic success, attain self-sufficiency, and contribute to society that are substantially equal to the opportunities afforded children without disabilities.”^[xxxiv]

The court rejected both proposals and crafted its own definition, holding that a student receives FAPE when a district provides, ​“an educational program reasonably calculated to make progress appropriate in light of the child’s circumstances.”^[xxxv] The Court further opined that it could not elaborate on what 
​“appropriate progress will look like from case to case.”^[xxxvi] The individualized nature of IEPs prohibit such formulaic determinations. In light of the Court’s guidance, parents and educators must collaborate to identify the child’s circumstances, determine appropriate progress and develop ambitious goals in light of those circumstances, and provide services to attain the identified levels of progress. 

Disputes in Special Education

Regarding all decisions of the IEP team, the goal is to reach a consensus among IEP team participants. However, consensus is not always achievable and districts and parents my disagree about the many decisions made over the course of the IEP process. For example, if a district determines that a student is ineligible for special education, the parent may disagree with that determination and believe the student to be eligible. Or a parent may disagree with the placement offered by the district. While the district may believe that the student’s disability is sufficiently severe as to require services in a more restrictive setting or even placement in a specialized school, the parent may believe that the student should remain in the regular education setting for the entirety of the day. IDEA incorporates dispute resolution procedures that a parent may access to resolve such disputes, each of which are described below.

The first dispute resolution mechanism is an IDEA state complaint (“complaint”). ​“Any individual or organization” may file a complaint regarding an alleged violation of IDEA or concomitant state laws.^[xxxvii] The filing requirements associated with complaints are minimal, requiring only that the complainant include a statement of the alleged violation, the facts on which the statement is based, contact information of the complainant, biographical information related to the student, and a proposed resolution.^[xxxviii] ​“The complaint must allege a violation that occurred not more than one year prior to the date that he complaint is received.”^[xxxix] A complaint must be submitted to DPI and after receipt, DPI must forward the complaint to the involved district for review. The district must be given the opportunity to respond to and resolve the complaint, including the opportunity to engage in mediation with a parent filing a complaint. DPI has 60 days to investigate the complaint and submit a written determination to the parties. The Department’s investigation typically consists of a review of relevant records, an interview of the complainant, and interviews with relevant district staff. If DPI finds that a district has violated IDEA, DPI has the explicit authority to direct a district to engage in ​“corrective action appropriate to address the needs of the child (such as compensatory services or monetary reimbursement).”^[xl]

The second dispute resolution mechanism involves filing a ​“due process complaint.”^[xli] Similar to an IDEA state complaint, a parent initiating a due process hearing must submit their complaint to DPI. However, after the initial acknowledgement of the due process complaint, DPI will transfer the complaint to the Division of Hearings and Appeals (DHA) to be assigned to an administrative law judge (ALJ) who will preside over the due process hearing. Like an IDEA state complaint, the filing requirements for a due process hearing are minimal and require the complainant to provide biographical information regarding the involved student, a description of the nature of the problem, and a proposed resolution to the problem.^[xlii] Finally, unless an exception exists, the allegations contained within the complaint must have occurred within one year of the date of the filing.^[xliii]

There are numerous procedural requirements associated with due process hearings. Initially, when a due process hearing is requested, the student must remain in his or her ​“current educational placement” unless the parties agree to alter that placement.^[xliv] This so called ​“stay-put” provision acts as an automatic injunction barring the district from changing the student’s special education placement during the pendency of the due process hearing. IDEA also requires a district to respond to the request within 10 days of receipt. Within 15 days of receiving a due process request the district must convene a ​“resolution meeting” with the parent to allow the parent to discuss the complaint and provide the district the opportunity to resolve the dispute.^[xlv] Notably, a district may not bring an attorney to the resolution meeting unless the parent is accompanied by an attorney.^[xlvi] If the parties’ resolution efforts are successful, the parties must execute a written agreement memorializing the parties’ agreement by parent signature and the signature of a district staff member with authority to bind the district.^[xlvii]

If the parties do not resolve the dispute within 30 days of receipt of the due process request, a period referred to as the ​“resolution period,” the due process hearing may proceed and upon conclusion, a final decision must be mailed to the parties within 45 days.^[xlviii] IDEA establishes the following hearing rights: be accompanied and advised by counsel; present evidence; confront, cross-examine, and compel the attendance of witnesses; prohibit the introduction of evidence that has not been disclosed 5 business days prior to the hearing; obtain a written record of the hearing; and obtain a written findings of fact and decision.^[xlix] Any party who is ​“aggrieved by” a due process hearing decision may initiate a civil action within 90 days of the date of the decision in any ​“state court of competent jurisdiction” or a ​“district court of the United States without regard to the amount in controversy.”^[l] IDEA also contains a fee-shifting provision allowing a prevailing parent and, in certain circumstances, a prevailing district, the ability to pursue attorneys’ fees.^[li]

A final dispute resolution mechanism is mediation.^[lii] Wisconsin is fortunate to have a well-established mediation system dedicated solely to resolving special education disputes. The Wisconsin Special Education Mediation System (“WSEMS”) provides mediators with specialized training in special education. WSEMS is supported by federal grant funding and therefore mediation services are free to both parents and districts. As is typical with mediation, parties must voluntarily participate and discussions that occur during mediation are confidential ​“and may not be used as evidence in any subsequent due process hearing or civil proceeding.”^[liii] Parties to a due process hearing may also substitute mediation for the resolution meeting required under due process hearing procedures and described above. 

Conclusion

The IDEA is a complex regulatory scheme that establishes prescriptive procedures aimed at ensuring students with disabilities receive a free appropriate public education. The information above provides an overview of the process and dispute mechanisms that may be implemented when districts and parents may not see eye to eye. Attorneys representing families are uniquely positioned to advise clients regarding the process and their due process rights and, hopefully, navigate disputes in a manner that serves the needs of children.