Special Education for Students in Detention Centers, Prisons and Jails: Dispute Resolution

By Amanda Glass, Equal Justice Works Legal Fellow*

Although the federal laws and regulations governing special education encourage parents and public education agencies to work collaboratively in the best interests of children, disputes sometimes arise. The Individuals with Disabilities Education Act (IDEA) and its implementing regulations require states to develop specific methods for resolving special education disputes, including mediation, due process complaints, and state complaint procedures.

Just as students receiving special education in traditional schools have access to these dispute resolution methods, so too may students in secure care settings avail themselves of these procedures when a dispute arises between students/parents and the public agency.

Special Education Dispute Resolution for Youth in Secure care settings

The mediation, due process, and state complaint procedures used to dispute special education decisions are much the same for youth in secure care settings as they are for those students in traditional school settings. The public agency responsible for providing special education to detained students is required to develop a mediation process that parents or non-minor youth can use to resolve disagreements regarding special education.

Parents or rights-holding youth can file a request for a due process hearing, being sure to name the correct responsible public agency in the request. Just as in a due process dispute with a school district, when a child is in a correctional facility, the agency responsible for the facility must convene a resolution meeting with the parents and relevant members of the IEP team within 15 days of receiving notice of the complaint, unless both parties waive the meeting in writing. After this meeting either occurs or is waived, a 45-day timeline begins for the due process hearing to be held before a hearing officer. Either party can appeal the hearing officer’s decision to a competent state or federal district court within 35 days of the decision being rendered.

There is also the option to file a complaint with the Arizona Department of Education. Although other public agencies are responsible for providing special education services to students in secure care, the Arizona Department of Education maintains general supervisory responsibilities to ensure that educational programs in secure care settings meet State education standards and IDEA requirements. If the special education program in a secure care setting violates the IDEA, a parent or other concerned individual can file a state complaint. The Arizona Department of Education must investigate the complaint, and if noncompliance with state or federal law is discovered, must order the public agency to correct the noncompliance.

Secure Care Dispute Resolution Scenarios

1. My child had an IEP before being arrested and placed in a juvenile detention facility. Now that he is being detained, he is not getting any special education services. What should I do?

• • This student is entitled to continue to receive special education services while detained, whether in a juvenile detention facility or an adult county jail. These facilities are required to screen students for possible disabilities within 45 days of the students’ admission to the facility.
  • Ensure the public agency is aware that your child has an IEP by reaching out to the appropriate point of contact and offering to provide them with a copy of the IEP or the contact information of your child’s last school.
  • If more than 45 days pass and your child still is not receiving any services, consider requesting mediation or filing a state complaint.

2. My IEP states that I should be receiving sixty minutes of physical therapy per week. Since being detained, I have only had physical therapy one time for 30 minutes, and I have been detained for two months.

• • The agency detaining you is responsible for providing you with services comparable to those described in your existing IEP until the facility either adopts your existing IEP or develops a new IEP for you.
  • Request that your IEP be implemented appropriately and that you receive compensatory services for those the agency failed to provide you by reaching out to the special education point of contact.
  • If the facility fails to work with you to resolve the issue, request mediation, file a state complaint, or file a due process complaint.

3. The public agency where my child is being detained developed a new IEP for him. This new IEP does not offer any speech therapy services, although my child was receiving speech therapy at his last educational placement. I want my child to get speech therapy again. What can I do?

• • This disagreement with the public agency is a substantive disagreement, rather than a procedural one. So long as the public agency has followed all applicable timelines and procedures around implementing this new IEP, the agency is in compliance with the IDEA’s procedural requirements. Therefore, a state complaint is unlikely to result in a finding of noncompliance and an order of relief.
  • If you believe the agency is not providing your child with a free appropriate public education (FAPE) based on this change in services, you have the option to seek mediation or to file a due process complaint.

Look for the next blog post in this three-part series, which will discuss the public agencies responsible for providing special education services to students in secure care settings.

*Amanda Glass is an Equal Justice Works Legal Fellow at the Disability Rights Arizona (DRAZ), formerly Arizona Center for Disability Law (ACDL). Before attending law school, Amanda earned her master’s degree in special education and spent two years as an elementary school special education teacher in Los Angeles through Teach for America. During law school, Amanda spent a summer interning at the Disability Rights Arizona (DRAZ), formerly Arizona Center for Disability Law (ACDL), where she had the chance to work with staff to provide advocacy and legal services to Arizonans with disabilities.

If you are the IDEA or 504 parent of a student involved with the Department of Child Safety and are having problems with special education, you may be able to get free legal help from Amanda’s fellowship project at DRAZ. To get help, call toll free at 1-800-927-2260, locally at 602-274-6287, or visit our website and do an intake. Together, we can improve outcomes for Arizona foster youth with disabilities.