Establishing an IEP- Rights of Special Education Students

This video describes your child's rights under the federal Individuals with Disabilities Education Act. These are federal laws, so the information is true for every state. 

Common Questions

What is the Individuals with Disabilities Education Act (IDEA)?

It is the federal law that governs how special education and related services are provided to children with disabilities. Children with disabilities from birth to age 18-21 are entitled to a Free Appropriate Public Education (FAPE).

What is a Free Appropriate Public Education (FAPE)?

The law requires public schools to provide a FAPE to students with disabilities. A FAPE is appropriate special education and related services that are provided to a student without charge to the parent.

I have a child who may qualify for special educations services, where do I begin?

A parent must submit a written request to the school district for his or her child to be evaluated.

What happens after the school district receives my written request?

If the school district agrees to evaluate the child an evaluation must be completed within 80 days of parental consent. If the school district does not agree to evaluate the child, the district must provide the parent with written notification of their refusal to evaluate and the parent may then file a complaint.

We have an evaluation conducted by the school. Now what?

The Eligibility Committee (EC) will meet and determine whether a student is eligible for special education services.

What factors will the Eligibility Committee consider for eligibility?

In WV there is a 3 prong eligibility test. 1) The student must have a designated exceptionality as listed in WV Policy 2419. 2) The student must experience an adverse effect on educational performance. 3) The student needs special education. All three must be met for a student to be found eligible for special education.

If the Eligibility Committee determines that my child qualifies for special education, what are the next steps?

An IEP meeting must be held and a written Individualized Education Program (IEP) must be developed within 30 days of the eligibility determination.  

What does educating a student in the “least restrictive environment” mean?

Schools are required to education children with disabilities along with children who are not disabled “to the maximum extent appropriate.” The regular classroom in the school the student would attend if not disabled is the first placement option considered before a more restrictive placement is considered. This is the student’s least restrictive environment. A child may only be placed in a more restrictive educational environment, such as homebound, alternative school, or special education classroom, if the nature or severity of the disability is such that the child cannot be educated in regular classes, even with the use of supplementary aids and services.

What if I disagree with the initial evaluations considered by the Eligibility Committee when they determined that my child was ineligible special education services?

Parents can request an Independent Educational Evaluation (IEE). An IEE is an evaluation at the school district’s expense completed by a qualified examiner not employed by the school district.

What if the Eligibility Committee determines that my child still does not qualify for special education services after the IEE is completed?

The parent may file a State Complaint, a Due Process Complaint, or request mediation.

What is a State Complaint?

A State Complaint is filed with the WV Department of Education (WVDE) for violations of WV Policy 2419. The complaint must be filed within 1 year of the violation, or of learning of the violation. The complaint must be in writing and include details of the violation(s). The WVDE shall investigate and resolve the written complaint within sixty (60) calendar days from the date the complaint is received unless exceptional circumstances exist justify an extension.e an

What is mediation?

Mediation is available through the WVDE to resolve disputes relating to the identification, evaluation, or educational placement of an exceptional student. Mediation is voluntary and is conducted by a qualified and impartial mediator. If an agreement is reached it will be put in writing and signed by both parties. This agreement is enforceable by the courts.

What is a Due Process Hearing?

A parent/adult student may submit a written request for a Due Process Hearing on violations of WV Policy 2419. The request must be submitted within 2 years of when the party knew or should have known of the violation. A Due Process Hearing is an administrative hearing before a hearing officer contracted by the state and the hearing officer determines the outcome of the case. The hearing officer’s decision may be appealed to circuit court.