Delaware Special Education Due Process Hearing Showcases What Rights A Parent Should NEVER Give Up

A recent due process hearing in Delaware, filed by the parents of a child with a mood disorder, gave an example of the first thing parents should not do with special education.  The due process hearing was against the Cape Henlopen School District.  The parents claimed the district did not fulfill their obligation under IDEA with manifestation determination.  The case also showed a glaring flaw with special education law in the Delaware code, one I hope a legislator picks up on in the 149th General Assembly beginning in January.  Or if a very brave soul with a great deal of tenacity picks up the baton and literally runs for their life during the last two days of the 148th General Assembly and miraculously gets a law like this passed in the next two days, that would be a true miracle.  What did the parents do that ultimately caused a dismissal of the case?

The parents gave up their rights for protection under federal IDEA law and state code by denying a special education evaluation.  The parents requested special education services for their child diagnosed with a mood disorder.  Eventually, the district and the parents formed 504 plan for the student.  In doing so, they gave up some of the most fundamental rights a parent can have for their child.  When a situation arose involving a confiscated cell phone, the student hit an elderly substitute teacher and was suspended.  When the student’s suspension lasted longer than 10 days, the mother filed a due process complaint against Cape Henlopen School District.

Because the student had a 504 plan, and not an IEP, the question immediately arose if the due process complaint could even be handled by the state because of the simple fact IDEA law is not covered by a 504 plan.  Even worse for the parents, Delaware law does not allow a due process complaint to cover 504 plans.  22 other states, including Pennsylvania, have that in state law that a due process complaint is covered by state law.

I can’t begin to imagine the circumstances that would cause a parent to deny a special education evaluation.  It is paid for by the district.  It was determined during the course of the due process hearing the student had more than sufficient grades.  Even though there was some history with discipline issues, the parents had given up their rights for proper special education services covered under IDEA law by declining an evaluation.  No matter what the circumstances are, this is something a parent should never do.  It is the cardinal rule with special education: never give up any of your rights because once you have them, the burden of proof is not against you or your child.  The district or charter school must present prove their side.

This is not to say 504 plans do not have another level of due process.  The Office of Civil Rights is the jurisdiction for complaints for 504 plans.  However, those types of cases are much more difficult to win and can take a very long time.  I feel very bad for these parents.  They were given a copy of their rights by the district and the father still declined to take them up on an invitation for an evaluation.  The only reason this matter went to a due process hearing was because the district indicated there was a “pattern of behavior” existing with the student.

I can understand a parent’s concern with the social stigma of having a child who is receiving special education services.  While this should not be something every student in a school knows, most students know when another student is having issues.  Kids talk, unfortunately, and special education students tend to get labeled by their regular peers.  Even if a disability is not always transparent.  Once again, I can’t speak to the reasoning behind the declination of an evaluation.  I am only surmising here.  In the report, it was indicated by the parents that the child was already seeing a therapist.  Because the child appeared to be of average or more than average intelligence and received good grades, there was no education impairment based on the disability.  But an evaluation would have gone into more detail (provided the district administered the appropriate evaluations) and could have shown how the disability impacted the child’s ability to receive a Free and Appropriate Public Education (FAPE).  In my opinion, any disability that manifests itself in such a way that causes a student to be out of the classroom due to that manifestation is already having an educational impact.

There are definitely some lessons learned with this case.  Should the district have fought harder for the student to allow an evaluation?  That is hard to say.  Based on the below due process decision, the father was very adamant about not getting the evaluation for his son.  At the end of the day, it is a parent’s decision.  But in this case, it had ramifications down the road that the parents may not have been fully aware of.  Even receiving a copy of procedural safeguards (which shows the rights parents have when they request special education services, even if it is through a 504 plan or an IEP) is not a guarantee parents actually read or understand it.

I believe Delaware law needs to be changed again in regards to special education.  I think due process complaints should cover a 504 plan.  Not every parent who requests an IEP for their child gets one.  In many cases, an IEP request is declined when it clearly should have qualified.  I believe, based on the presence of multiple disabilities, this child would have received an IEP had the parents consented to an evaluation.  There is some confusion in the decision about if the parents truly understood what the request for evaluation was and what it would have meant for their child.  I have heard this complaint from parents over the past couple of years.  The wording on this is crucial.  Districts and charter schools should know, by now, exactly what rights parents have with 504 plans and IEPs.  In this case, I think the district should have fought harder for an evaluation.  But the rights of the parents actually had a detrimental impact on the eventual outcome of this case.  I also believe there should be a change in the law to indicate that both parents need to be made fully aware of the impact of declining an evaluation and that both parents need to decline an evaluation provided they are both citizens of the state in question.  If just one parent declines an evaluation, I don’t think that is sufficient for a district to proceed with a 504 plan over an IEP when prevailing conditions suggest an IEP is warranted.  Again, this is just my opinion and I am not an attorney.  If there is already statutes in the law which give provisions for only one parent consenting or rejecting an evaluation, at a federal or state level, I will find out.  But if there is, I believe that law needs to change so situations like this do not happen.

In this case, if the district was aware of medication the student took because of a pre-existing psychological condition and the substitute teacher was not given sufficient awareness of the existing accommodations for the student, even under a 504 plan, these parents could conceivably have justification to pursue this with the Office of Civil Rights.

Because the parents lost this due process hearing and the case was dismissed, they had to cover their own attorney fees.  It comes down to this: if you have the ability to get your child special education services covered under an IEP or a 504 plan, always shoot for the IEP.  Especially if they more than qualify for it.  It can mean the difference between the equivalent of owning a BMW or a 1973 Pinto.

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3 thoughts on “Delaware Special Education Due Process Hearing Showcases What Rights A Parent Should NEVER Give Up

  1. I firmly believe that parents should be required to talk with someone at PIC before making the decision not to evaluate. At least then they can make sure the parents are informed appropriately and fully understand the consequences. This makes me very sad – especially that it happened in Cape.

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    1. While I don’t always agree with PIC, this seems to be a potential solution, however, how do you “require” a parent to do something? That could become a very thorny issue. We can suggest changes in the law for the actual IEP process, but requiring a parent to reach out to a DOE supported group is very tricky.

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  2. I totally understand but my concern will always be with the child’s best interest and the parents have to be able to make an informed decision. I had my child’s father living on that river in Egypt for a long time but I had to take control for our daughter’s sake. If not PIC then who? And I agree that they can refuse to meet with anyone to discuss the decision but then they waive all legal recourse in regards to services for their child. It just needs to be crystal clear.

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