Special Education Tip-of-the-Day: Access to Records (Part 2)
By Jessica Jansepar Ross, Attorney
If you have been following along with this blog, you know how important it is to review the Prior Written Notices (PWN) that you receive at the end of your child’s IEP meeting, and under what conditions you are entitled to review your child’s educational records (if you’d like to catch up, click here.)
Now, we are going to discuss what to do if you disagree with something that you find in your child’s educational records.
Under the IDEA, parents can challenge information in their child’s special education records that they believe is inaccurate, misleading, or that violates the privacy or other rights of the child. This could arise, if, for example, a parent believes that that the school inaccurately summarized in a PWN the parent’s rationale for a change in their child’s IEP services, or if the record only included part of the student’s evaluation from their private evaluator.
Here are the steps that you can take if you disagree with a record in your child’s file:
- Request (preferably in writing) that the school amend or remove the specific sentence or paragraph that is misleading, inaccurate, or otherwise violates the students’ rights.
In your request, you should be as specific as possible. One option is to copy the document and highlight the specific line or section that is inaccurate or misleading. You should also state why you believe it is inaccurate, and if you are requesting that other information be substituted or added, provide the language that you believe is appropriate. While the school may not want to adopt your exact wording, this gives you a starting point for discussion.
Once it has received your request, the school district has to decide within a “reasonable amount of time” whether to amend the record in response to your request. If it agrees to make the requested change, the school district has to let you know in writing. If the school district declines your request, it must inform you of your right to a hearing.
- Request a hearing over the contested record
For hearings regarding the content of special education records, the IDEA has adopted the minimum procedural requirements found in FERPA. These requirements are that:
- The hearing can be conducted by any individual, including a school or district official, who does not have a direct interest in the outcome of the hearing. This means that, depending on the circumstances, the district might contract with a hearing officer, but may use a superintendent or other administrator instead.
- The hearing has to take place within a reasonable time after receiving the hearing request from the parent.
- The parent must be provided with a “full and fair” opportunity to present relevant evidence, and may be assisted by other individuals, including an attorney (at the parent’s expense).
- The parent must be given notice of when the hearing is going to take place “reasonably in advance.” What is reasonable will depend on the circumstances, but a day or two to pull together evidence might not be enough time to have a “full and fair” opportunity, especially if the parent is still waiting for documents from the school district.
- The decision-maker’s determination has to be based only on the evidence presented at the hearing. This means that it is important that you come prepared.
- Within a reasonable amount of time after the hearing, the decision-maker has to issue a written decision regarding the dispute that includes a summary of the evidence and the reasons for their decision.
If the decision-maker rules that the record should stay as it is, the parent still has the option to include a written statement in the student’s file identifying and commenting on the information with which they disagree, or any reasons for disagreeing with the school district’s decision to include the record. This statement has to be kept as part of the student’s record as long as the contested part of the record is maintained, and provided anytime the contested part of the record is disclosed (for example, if the student’s new school requests the student’s educational records).
To review the relevant legal text that spells out the requirements discussed in today’s blog post, look back at the U.S. Department of Education’s side-by-side chart.
The Next Tip-of-the-Day: Dispute Resolution
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