ADVOCATING FOR A CHILD WITH SPECIAL NEEDS

1
ADVOCATING FOR A CHILD WITH SPECIAL NEEDS

• Presented By
• Dina C. Kaplan, Esq.
• Andrea Lorant, M.A.
• Maureen Cataldi, M.Ed

2
What is Special Education

• Special Education isnt a place or type of
  classroom
• Its services and supports given to children with
  disabilities in order for them to benefit from
  their education

3
Special Education Law

• Federal Law
• State Law
• Federal and State Regulations
• Circuit Courts (9th District)
• Supreme Court

4
History of Special Education

• Before 1975 handicapped children were often
  excluded from school
• Education for All Handicapped Children Act of
  1975
• Congress intended that all handicapped children
  would have access to a free appropriate public
  education, and to establish a process by which
  state and local educational agencies may be held
  accountable for providing educational services
  for all handicapped children

5
Individuals with Disabilities Education Act20
U.S.C. Sec. 1400 et. seq.

• Education for All Handicapped Children Act was
  reauthorized and renamed in 1990, amended in 1997
  (IDEA 97), and reauthorized again in 2004 (IDEA
  2004)
• Serves ages 3-22
• Serves ages 0-3 in early intervention programs
  (Early Start)
• Receives federal funding
• Includes legal timelines

6
IDEA (4 Parts)

• Part A - Defines terms used in all 4 sections
• Part B - Ages 3-22 schools children
• Part C - Ages birth-3 early intervention program
• Part D Information research professionals and
  parents

7
Purpose of IDEA 2004

• High expectations for children to access general
  education curriculum
• Prepare children to lead productive and
  independent adult lives
• Prepare children for further education
• Strengthen role and responsibility of parents

8
Purpose of IDEA 2004 (continued)

• Highly qualified teachers in accordance with No
  Child Left Behind (NCLB)
• Increase academic achievement and functional
  performance of children using scientifically
  based instructional practices
• Reduce paperwork

9
IDEA 2004 Provisions

• Six main principles describe what schools must do
  to comply with law
• Free Appropriate Public Education (FAPE)
• Least Restrictive Environment (LRE)
• Appropriate Evaluation
• Individual Education Plan (IEP)
• Parent and Student Participation in Decision
  Making
• Procedural Safeguards

10
Definition of FAPE

• The term free appropriate public education,
  means special education and related services
  that
• Have been provided at public expense
• Meet the State educational standards
• Include an appropriate education, and
• Are provided in conformity with the
  individualized education program (IEP)

11
Board of Education v. Rowley

• First U.S. Supreme Court decision to define FAPE
  (1982)
• Special Education is specially designed
  instruction to meet the unique needs of the child
  supported by such services as necessary to permit
  the child to benefit from the instruction
• Public education does not have to maximize a
  childs potential

12
Least Restrictive Environment (LRE)

• Children with disabilities are educated with
  their non-disabled peers to the maximum extent
  possible
• Removal of children from the regular education
  environment occurs only when the nature or
  severity of the disability is such that education
  in the regular classes with the use of
  supplementary aids and services cannot be
  achieved satisfactorily

13
Related Services / DIS Services

• Transportation
• Speech and language pathology
• Audiology
• Interpreting services (2004)
• Psychological services
• Physical and occupational therapy

14
Related Services (continued)

• Recreation, including therapeutic recreation
• Social work services
• Orientation and mobility services
• Counseling services including parent training
• Diagnostic medical services
• Assistive technology evaluation and devices

15
Related Services (continued)

• School nurse services necessary for child to
  receive FAPE (2004)
• All related services required to assist child
  with disability benefit from special education
• Does not include medical device surgically
  implanted (2004)

16
IDEA 2004 Special Education Eligibility

• Hearing impairments (including deafness)
• Visual impairments (including blindness)
• Speech or language impairments
• Orthopedic impairments
• Autism

17
Eligibility (continued)

• Mental Retardation
• Emotional Disturbance
• Traumatic brain injury
• Other health impaired
• Specific learning disabilities

18
Eligibility (continued)

• AND WHO BY REASON OF THEIR DISABILITY NEED
  SPECIAL EDUCATION AND RELATED SERVICES

19
Specific Learning Disabilities under IDEA 2004

• Eliminates need for local educational agency to
  use severe discrepancy between ability and
  achievement model
• Local educational agency to use a process for
  determining a learning disability that includes
  determining if the child responds to scientific,
  research-based intervention as part of the
  evaluation process

20
Overview of Section 504

• Section 504 of the Rehabilitation Act of 1973 29
  U.S.C. Sec. 701, et. seq.
• Anti-discrimination federal law
• Eligibility Having a mental or physical
  impairment which substantially limits a major
  life activity (learning) having a record of such
  impairment or being regarded as having such an
  impairment

21
Section 504 (continued)

• Applies from birth to death
• In education, employment recreation
• Applies to any agency receiving federal money
• Fewer procedural protections
• Complaints to Office of Civil Rights

22
Comparison - IDEA 504

• 504 was designed to level the playing field by
  eliminating barriers that exclude people with
  disabilities
• IDEA is more of an affirmative action law as
  children who qualify are given more services and
  protections than children without disabilities

23
Comparison (continued)

• IDEA requires more from schools and provides
  funding
• 504 does not provide any financial support to
  schools
• The definition of disability is much broader
  under 504
• All IDEA students are eligible for 504 services
  but not visa versa

24
No Child Left Behind Act

• Federal law passed in 2001
• Requires annual testing of children in grades 3-8
• Schools must show Adequate Yearly Progress (AYP)
• 100 proficiency in reading, math and science for
  ALL students by 2012
• Failure to make AYP for 2 years, must offer
  students the option to transfer to another school
  and pay for the cost of transportation

25
NCLB 2001 (continued)

• Failure to make AYP for 3 years, District must
  provide supplemental instructional services from
  a provider chosen by parents
• Failure to make AYP for 4 years, District must
  implement corrective action
• Failure to make AYP for 5 years, District must
  implement a plan for significant change in how
  the school is run

26
NCLB 2001 (continued)

• Requires states to ensure all teachers who teach
  a core academic subject are highly qualified by
  2005-2006 school year, no waivers or emergency
  credentials
• Core academic subjects are english, reading or
  language arts, history and geography

27
NCLB 2001 (continued)

• Highly qualified means teacher has obtained
  full state certification and holds license to
  teach in the state, has minimum of a bachelors
  degree, and demonstrated subject area competence
  in each academic subject that he/she teaches
• Increases qualifications for teachers aids
  must have at least 2 years of study in college or
  an associates degree, or passed a test
  demonstrating knowledge of academics

28
BACK TO THE INDIVIDUALS WITH DISABILITIES
EDUCATION ACT 2004
29
Highly Qualified Special Education Teachers

• Highly qualified special education teachers
  under IDEA 2004 need to have met the requirements
  under NCLB, and/or
• Are licensed by the state as special education
  teachers, do not have an emergency credential and
  have a bachelors degree

30
Highly Qualified Teachers (continued)

• Special ed teachers who teach alternative
  achievement standards and those who teach
  multiple subjects, must also be highly
  qualified under NCLB and IDEA 2004
• See definitions, Section 1401 of IDEA 2004, for
  further information

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32
Evaluations Under IDEA

• Request for initial evaluation can be made by
  parent, state educational agency, other state
  agency, or local school district
• Parents should send a written request for an
  evaluation in all areas of childs suspected
  disability, by certified mail or hand deliver, to
  district/school offices, obtain a receipt, and
  keep copy for their files

33
Legal Time Lines

• School district has 15 days to send parent an
  assessment plan
• Plan should be in primary language of the parent
• Plan should be easily understood and explain the
  types of evaluations being conducted
• If request for an initial evaluation, district
  must include a copy of the notice of parental
  rights and procedural safeguards

34
Legal Time Lines (continued)

• Parents have at least 15 days to approve the plan
  
• Parents must provide informed consent if parent
  refuses, the district may file for due process
• Sign plan and write directly on it that you are
  requesting copies of the evaluation reports 3-5
  days prior to the IEP meeting

35
Assessment Results

• IDEA states that upon completion of assessments
  and other evaluation measures, a determination of
  whether the child is a child with a disability
  and the educational needs of the child shall be
  made by a team, including parents, and copies of
  the assessments given to parents.

36
Copies of Assessments

• Often times districts will take the position that
  copies of the assessment results only need to be
  provided at the IEP meeting and not before.
• Parents cannot be equal participants in the IEP
  process if they havent had the opportunity to
  review the assessments prior to the meeting.

37
Legal Time Lines (continued)

• IDEA 2004 provides 60 day timeline from time of
  the parental request to time that evaluations
  are completed and an IEP meeting is held
• California law recently changed to adopt this
  timeline
• IDEA 2004 - no exception for vacation days

38
Legal Time Lines (continued)

• California timeline does not count days between
  regular school sessions or terms or days of
  school vacation in excess of five school days
• If parent fails or refuses to consent to an
  initial evaluation, the District may pursue Due
  Process. If the parent refuses consent to
  services, the District will not be responsible
  for failure to provide FAPE and does not need to
  have an IEP meeting

39
Legal Time Lines (continued)

• If no new evaluation is requested, district has
  30 days to hold IEP
• If request for evaluation is made 20 days or less
  prior to the end of the school year, district has
  30 days from the start of the next school year to
  complete evaluation and hold IEP

40
All Areas of Childs Suspected Disability

• Evaluations should be in all areas of childs
  suspected disability including
• health and development, vision and hearing,
  motor abilities, general abilities and self-help
  skills, language function, academic performance,
  orientation and mobility skills, career and
  vocational abilities, social/emotional
  development and behavior

41
Evaluation Procedures

• Instruments must be free of racial or cultural
  bias
• They must be valid and reliable for the purposes
  for which they are used
• No single instrument is to be used as sole
  criterion
• Must consider information provided by parents

42
Evaluation Procedures (continued)

• Must be provided and administered in language and
  form most likely to yield accurate information on
  what child knows and can do academically and
  functionally, unless it is not feasible to do so

43
Re-evaluations

• Re-evaluations shall not occur more frequently
  than once a year unless both the district and
  parent agree otherwise
• Re-evaluations are to occur at least every three
  years, unless the parent and the district agree
  that a reevaluation is not necessary

44
Re-evaluations (continued)

• Must do reevaluation prior to determining a child
  is no longer eligible, unless child is graduating
  or aging out of special education
• In that case, must provide a summary of childs
  academic achievement and functional performance
  and make recommendations how to assist child in
  meeting post-secondary goals

45
Independent Evaluations

• If parent disagrees with results of districts
  evaluation(s), parent is entitled to obtain an
  independent evaluation at districts expense
• Must inform district in writing that you disagree
  and want them to pay for independent evaluation
• Make sure assessors are as qualified as
  districts assessors
• If district doesnt want to pay, they have to
  file for due process

46
School Records

• Parents are entitled to obtain copies of their
  childs school records
• Entitled to copies of all personally identifiable
  information regarding the child that is
  collected, maintained or used by district
• If child has IEP, district must provide records
  within 5 business days of written request

47
THE INDIVIDUALIZED EDUCATION PROGRAMPROCESS,
CONTENTS AND SERVICES
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49
IEP TEAM MEMBERS

• Parents of child
• Not less than one regular education teacher if
  the child participates at all in general ed
• Not less than one special education teacher, or
  where appropriate, not less than one special
  education provider
• Individual able to interpret evaluation results,
  including related services personnel

50
IEP TEAM MEMBERS (CONTINUED)

• Representative of the local educational agency
  (lea) who is qualified to provide or supervise
  the provision of specially designed instruction
  to meet unique needs of children with
  disabilities, is knowledgeable about the general
  curriculum, and knowledgeable about availability
  of resources in the district and has authority to
  approve services

51
IEP TEAM MEMBERS (CONTINUED)

• The child, when appropriate
• Others at the discretion of the parents or
  district who have knowledge or special expertise
  regarding the child, including agency personnel
  from Regional Center, California Childrens
  Services, etc.

52
IEP TEAM MEMBERS (CONTINUED)

• Members can be excused from attending the meeting
  by written agreement of the parents if,
• Members area of curriculum or related services
  is not being discussed, or
• If all agree and member submits, in writing,
  input into the development of the IEP prior to
  the meeting (IDEA 2004)

53
WHEN IEP MEETINGS MUST BE HELD

• IEP must be in effect at beginning of school year
• To change or amend an IEP, parents and district
  can agree that a meeting is not necessary
• Changes in an IEP can be made by amendment rather
  than rewriting entire IEP, but parents can
  request a revised copy of the IEP with the
  amendments incorporated

54
WHEN IEP MEETINGS MUST BE HELD

• IEP team meetings must be held a least once a
  year
• Parents can request IEP meeting at any time
  something needs to be changed or addressed
  regarding childs program
• With agreement of the parents, meetings can be
  held by video conference and conference telephone
  calls

55
MATTERS TO BE CONSIDERED BY THE IEP TEAM

• Strengths of the child and concerns of the
  parents for enhancing the education of the child
• All evaluation results, including independent
  assessments
• Consideration of positive behavioral
  interventions, when behavior is impacting the
  childs learning

56
MATTERS TO BE CONSIDERED BY THE IEP TEAM
(CONTINUED)

• For a child with limited English proficiency,
  consideration of language needs in relation to
  childs IEP
• Braille instruction, if appropriate, for a
  visually impaired child
• For a child who is deaf or hard of hearing,
  consideration of childs means of communication,
  and instruction in that means of communication

57
MATTERS TO BE CONSIDERED BY THE IEP TEAM
(CONTINUED)

• Consideration of whether or not child requires
  assistive technology devices or equipment
• The academic, developmental and functional needs
  of the child
• (IDEA 2004)

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CONTENTS OF THE IEP

• Statement of present levels of educational
  performance, including impact of childs
  disability on involvement and progress in general
  curriculum
• For preschool children, how childs disability
  affects his/her participation in appropriate
  activities
• IDEA 2004 requires statement to include present
  levels in academic achievement and functional
  performance

60
CONTENTS OF THE IEP(CONTINUED)

• For children taking regular statewide assessment
  of academic achievement, annual goals are still
  required, but short term objectives are not (IDEA
  2004)
• For children taking alternative assessment of
  achievement, both goals and objectives are still
  required

61
CONTENTS OF THE IEP(CONTINUED)

• Annual goals must be measurable and include
  academic and functional goals to meet childs
  needs that result from the disability, to enable
  him/her to be involved in and make progress in
  the general education curriculum, and
• Meet each of the childs other educational needs
  resulting from the disability

62
CONTENTS OF THE IEP(CONTINUED)

• Description of how childs progress toward
  meeting the annual goals will be measured, and
  when periodic reports on the progress child is
  making toward meeting the annual goals ( such as
  the use of quarterly or other periodic reports)
  will be provided

63
CONTENTS OF THE IEP(CONTINUED)

• Statement of special education and related
  services and supplementary aids and services,
  based on peer-reviewed research to the extent
  practicable, to be provided for the child
• Statement of program modifications or supports
  for school personnel that will be provided for
  the child

64
CONTENTS OF THE IEP(CONTINUED)

• To advance toward reaching the annual goals
• To be involved in and make progress in the
  general education curriculum and to participate
  in extracurricular and other nonacademic
  activities, and
• To be educated and participate with other
  children, with and without disabilities in all
  activities

65
CONTENTS OF THE IEP(CONTINUED)

• Explanation of extent child will not participate
  with non-disabled children in regular class and
  related activities
• Statement of individual modifications for
  participation in the administration of state or
  district-wide assessments of student achievement
  and functional performance

66
CONTENTS OF THE IEP(CONTINUED)

• If IEP team determines child shall take an
  alternate assessment, a statement of why child
  cannot participate in the regular assessment, and
  the particular alternate assessment selected that
  is appropriate for child
• Projected date for beginning services and the
  frequency, location and duration of services

67
CONTENTS OF THE IEP(CONTINUED)

• Beginning not later than first IEP to be in
  effect when child is 16, and updated annually
  thereafter
• Appropriate measurable post-secondary goals,
  based upon age appropriate transition assessments
  related to training, education, employment, and
  where appropriate, independent living skills
• Transition services, including courses of study,
  needed to assist the child in reaching those
  goals (IDEA 2004)

68
CONTENTS OF THE IEP(CONTINUED)

• Beginning not later than one year before child
  reaches age of majority under State law (18 in
  CA), a statement that child has been informed of
  his/her educational rights, if any, that will
  transfer to him/her on reaching the age of
  majority

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DISCIPLINE

• A student with disabilities may be disciplined to
  the same extent as a student without disabilities
  if, the behavior is a violation of the school
  code of conduct and is not a manifestation of the
  students disability, except that the student
  must continue to receive services
• 20 USC 1415(k)(1)(C)(D)

71
DISCIPLINE

• School personnel have the authority to remove a
  child to another appropriate interim setting, or
  suspend a child for not more than 10 school days
  to the extent that such alternatives are applied
  to children without disabilities.
• 20 USC 1415(k)(1)(B)

72
DISCIPLINE

• IDEA 2004 authorizes school personnel to
  consider, on a case-by-case basis, any unique
  circumstances when determining if the childs
  placement should be changed as a result of the
  students violation of a code of student conduct.
• 20 USC1415(k)(1)(A)

73
DISCIPLINE

• Students who are removed from a current
  placement, must continue to receive educational
  services that enable the student to continue to
  participate in the general education curriculum
  and to make progress toward meeting the students
  goals. When appropriate a functional behavioral
  assessment, behavior intervention and
  modifications to the students IEP should be
  addressed, 20 USC 1415(k)(1)(D)

74
DISCIPLINE

• If a decision is made by school personnel to
  change a students placement, within 10 days of
  that decision, a meeting must be held to
  determine if the behavior is a manifestation of
  the students disability,
• The meeting is to include the parents and
  relevant members of the IEP team.
• 20 USC 1415(k)(1)(E)

75
DISCIPLINE

• Participants are to consider if the conduct was
  caused by or had a direct and substantial
  relationship to the students disability or,
  whether the students conduct was the direct
  result of the districts failure to implement the
  IEP. If so, the behavior is a manifestation and
  the student is returned to the current placement
  unless otherwise agreed, 20 USC
  1415(k)(1)(E)(i)(ii)

76
DISCIPLINE

• If the students behavior was a manifestation of
  his disability, the district must conduct a
  functional behavioral assessment and write a
  behavior plan, or if a plan exists, review and
  revise the plan as necessary to address the
  students behavior,
• 20 USC 1415 (k)(1)(F)

77
DISCIPLINE

• If the student carries or possesses a weapon or
  possesses or uses illegal drugs or sells or
  solicits the sale of a controlled substance at
  school, on school grounds, or at a school
  function or inflicts serious bodily injury upon
  another while at school or school function,
  student may be removed to an interim alternate
  placement for up to 45 school days regardless of
  whether the behavior was a manifestation of the
  disability,
• 20 USC 1415(k)(1)(G)

78
DISCIPLINE

• Under IDEA 2004, a drugs, violence or weapons
  offense no longer requires a manifestation
  determination before a student can be removed to
  an interim alternative placement.

79
DISCIPLINE

• IEP team makes placement decision. If parents
  disagree with placement or manifestation
  decision, they can appeal. If district believes
  that the current placement is substantially
  likely to result in injury to the child or
  others, they can appeal. The hearing must take
  place within 20 school days and a decision made
  10 school days after the hearing,
• 20 USC 1415(k)(3)(4)(B)

80
DISCIPLINE

• Hearing officer decides only whether to return
  child to placement from which the child has been
  removed or ordering the child to an interim
  placement for not more than 45 days if
  maintaining the current placement is
  substantially likely to cause injury to child or
  others,
• 20 USC 1415(k)(3)(B)

81
DISCIPLINE

• A student who has not yet been found eligible for
  special education, may assert the protections
  provided by IDEA if it is determined that the
  district had knowledge of the disability prior to
  the behavior which resulted in the discipline.
  Prior knowledge can only be established by
  showing.

82
DISCIPLINE

• parents had expressed concern in writing to
  administrators or to the childs teacher that the
  child was in need of special education services,
• the parents had requested an evaluation,
• a teacher or other school personnel had expressed
  specific concerns about the child to the
  administrators, 20 USC 1415(k)(5)

83
DISCIPLINE

• If the district did not have knowledge, and the
  parents request an evaluation, the assessment
  shall be expedited and if eligible, the district
  shall provide services. A district is deemed not
  to have knowledge if the parents had previously
  declined assessment or special education
  services,
• 20 USC 1415(k)(5)(C)(D)

84
PROCEDURAL SAFEGUARDSGeneral Protections

• An opportunity for the parents to examine all
  records relating to their child, to participate
  in meetings with respect to the identification,
  evaluation, and educational placement of the
  child and the provision of a free, appropriate
  education, and to obtain an independent
  educational evaluation of the child. 20 USC
  1415(b)

85
PROCEDURAL SAFEGUARDSGeneral Protections

• Procedures to protect the rights of the child
  when the parents are not known.
• To appoint a surrogate for such children within
  30 days of determining the need for such
  surrogate. 20 USC 1415 (b)(2)(A)(B)

86
PROCEDURAL SAFEGUARDSGeneral Protections

• Provide written prior notice to parents when the
  district proposes to initiate or change, or
  refuses to initiate or change the identification,
  evaluation, or educational placement of the child
  or the provision of FAPE.
• 20 USC 1415(b)(3)
• Notices can be by e-mail if parent chooses and
  district has the ability to do so.
• 20 USC 1414(n)

87
PROCEDURAL SAFEGUARDSGeneral Protections

• Notice must be in parents native language.
• Must give notice of the mediation and Due Process
  complaint procedures.
• Notice must contain
• A description of the action proposed or refused
  by the district
• An explanation of why the district proposes or
  refuses to take action

88
PROCEDURAL SAFEGUARDSGeneral Protections

• A description of each evaluation, procedure,
  assessment, record or report the district used as
  a basis for the proposed or refused action
• A description of other options considered by the
  IEP team and why those were rejected
• A description of any other factors relevant to
  the districts proposed or refused action

89
PROCEDURAL SAFEGUARDSGeneral Protections

• A statement that the parents have access to
  procedural safeguards and a list of sources for
  parents to contact where they can obtain
  assistance in understanding these provisions
• IDEA 2004 at 20 USC 1415(b)(3) and (c)(1)

90
PROCEDURAL SAFEGUARDSGeneral Protections

• IDEA 2004 reduces the number of times that notice
  of procedural safeguards is required to be given
  to one time per year, except it must be given
• Upon initial referral or parental request for an
  evaluation
• Upon the first filing of a complaint, and
• Upon request by the parents,
• 20 USC 1415(d)(1)(A)

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THE DUE PROCESS COMPLAINT

• In California we call the Due Process Complaint a
  Request for Due Process.
• A complaint may be filed by any party regarding
  the identification, evaluation, or educational
  placement of the child or the provision of a
  free, appropriate, public education 20 USC
  1415(b)(6)

93
THE DUE PROCESS COMPLAINT

• If parents refuse to consent to placement and
  services, the district is not required to file
  for due process and cannot subsequently be held
  to have denied FAPE to the student, 20 USC
  1414(a)(1)(D)(i) and (ii)

94
THE DUE PROCESS COMPLAINT

• Either party or their attorney must provide
  notice of the due process complaint to the other
  party and forward a copy to the state educational
  agency
• The notice SHALL include
• The name and address of the child and the name of
  the school the child is attending

95
THE DUE PROCESS COMPLAINT

• In the case of a homeless child, available
  contact information for the child and the name of
  the school the child is attending
• A description of the nature of the problem
  relating to the proposed action or refusal to
  act, including facts relating to such problem,
  and
• A proposed resolution of the problem.
• 20 USC 1415 (b)(7)(A)(i) (ii)

96
THE DUE PROCESS COMPLAINT

• A party may not have a due process hearing until
  the party, or attorney representing the party,
  files a notice that meets the requirements of the
  statute,
• 20 USC 1414(b)(7)(B)
• A party filing for due process shall not be
  allowed to raise issues at the hearing that were
  not raised in the complaint unless the other side
  agrees, 20 USC 1415(f)(3)

97
THE DUE PROCESS COMPLAINT

• A complaint must be filed within two years,
  unless State law allows a different limitation,
  20 USC 1415(b)(6)(B)
• Currently California law provides for a three
  year statute of limitations. However, a new
  statute of limitations will take effect in 2007
  that drops the time down to two years. AB 1662

98
STAY PUT

• With the exception of appeals related to
  discipline, when a due process complaint is
  filed, a child stays in the last agreed upon
  placement with the last agreed upon services
  unless the parents and the district agree
  otherwise.
• 20 USC 1415(j)

99
OBJECTIONS TO THE DUE PROCESS COMPLAINT

• Within 15 days of receipt of the complaint, the
  party against whom the complaint is filed may
  file with the hearing office and objection that
  the complaint is insufficient to comply with the
  law, 20 USC 1415(c)(2)(C)

100
OBJECTIONS TO THE DUE PROCESS COMPLAINT

• Based on the face of the documents, the hearing
  officer is to rule on the sufficiency of the
  complaint within 5 days of the receipt of the
  notification and immediately notify the parties
  in writing of the ruling,
• 20 USC 1415(c)(2)(D)

101
OBJECTIONS TO THE DUE PROCESS COMPLAINT

• A party may amend its due process complaint only
  if
• The other party consents in writing and is given
  the opportunity to resolve the complaint by
  Resolution Session, or
• The hearing officer grants permission.
• The timeline for the hearing recommences at the
  time the party files the amended notice, 20 USC
  1415(c)(2)(E)

102
RESPONSE TO THE DUE PROCESS COMPLAINT

• If the district has not sent prior written notice
  regarding the subject of the complaint, the
  district shall, within 10 days of receipt, send a
  response to the parents that contains all
  elements of prior written notice
• If prior written notice has been given, the
  non-complaining party shall respond to the
  complaint within 10 days,
• 20 USC 1415(c)(2)(B)

103
THE DUE PROCESS HEARING

• Existing law, by federal regulation at, 34 CFR
  300.511(a), provides that a hearing must be held
  within 45 days of the date the request is
  received.
• IDEA 2004 contains not specific provision as to
  how soon a hearing must be held, but does delay
  the timeline by inserting a 30 day period for a
  resolution session.

104
RESOLUTION SESSION

• Unless waived, in writing, by the parties, the
  district is to hold a resolution session within
  15 days of receipt of the complaint, 20 USC
  1415(f)(1)(B)
• In addition to the resolution session, voluntary
  mediation must be available to the parties either
  before or after the complaint has been filed, 20
  USC 1415(e)

105
RESOLUTION SESSION

• The resolution session must include members of
  the IEP team who have specific knowledge of the
  facts identified in the complaint and a
  representative that has decision making
  authority. The district may not have an attorney
  present unless the parents are represented.

106
RESOLUTION SESSION

• If the matter is resolved, a written settlement
  agreement must be signed by all parties. The
  agreement is legally binding and can be enforced
  in a court of law. Either party may void the
  agreement within three business days from the
  date it was signed, 20 USC 1415(f)(1)(B)

107
RESOLUTION SESSION

• If the complaint has not been resolved to the
  satisfaction of the parents within 30 days of the
  date the complaint was filed, the applicable
  timelines for the due process hearing will
  commence,
• 20 USC 1415(f)(1)(B)(ii).

108
THE DUE PROCESS HEARING

• The parties are entitled to an impartial due
  process hearing. The hearing officer must not be
  an employee of the district or state educational
  agency, may not have a personal or professional
  interest that conflicts with objectivity, must be
  knowledgeable and understand the applicable law
  and legal interpretations by the Courts.

109
THE DUE PROCESS HEARING

• must have the knowledge and ability to conduct
  hearings in accordance with appropriate, standard
  legal practice, and possess the knowledge and
  ability to render and write decisions in
  accordance with the appropriate standard legal
  practice,
• 20 USC 1415(f)(3)

110
THE DUE PROCESS HEARING

• Not less than 5 business days before the hearing,
  each party shall disclose to all other parties,
  all evaluations completed by that date, and
  recommendations based thereon that the party
  intends to use at the hearing.
• Failure to disclose may bar the party from
  introducing the evaluation,
• 20 USC 1415(f)(2)(A)(B)

111
THE DUE PROCESS HEARING

• All parties have the right
• to be accompanied and advised by counsel and
  individuals with knowledge of the problems of
  children with disabilities,
• to present evidence and confront and
  cross-examine witnesses,
• to compel the attendance of witnesses

112
THE DUE PROCESS HEARING

• to a written or, at the option of the parents,
  an electronic verbatim record of the hearing,
• to a written, or at the option of the parents, an
  electronic, findings of fact and decision, 20 USC
  1415(h)
• Sanitized copies of the decisions are to be made
  available to the public and state advisory board,
  20 USC 1415(h)(4)(A)(B)

113
THE DUE PROCESS HEARING

• The two year statute of limitations may be waived
  if the delay was because of specific
  misrepresentations by the district that it had
  resolve the problem forming the basis of the
  complaint or the district withheld information
  that it was required to provide,
• 20 USC 1415(f)(3)(C)(D)

114
THE DUE PROCESS HEARING

• The hearing officers decision must be made on
  substantive grounds based on a determination of
  whether the child receive a FAPE or on procedural
  grounds when the procedural errors impeded the
  childs right to FAPE, significantly impeded the
  parents opportunities to participate in the
  decision making process, or caused a deprivation
  of educational benefits. 20 USC 1415(f)(3)(E)

115
APPEAL

• Appeal of a hearing decision is to the district
  courts of the United States or to a state court
  of competent jurisdiction within 90 days unless
  other state law. The court hearing the appeal
  will receive the record of the administrative
  hearing, hear additional evidence if requested
  and base its decision on a preponderance of the
  evidence,
• 20 USC 1415(I)(2)(A)(B)

116
ATTORNEY FEES

• Fees and costs can be awarded to the parents if
  they are the prevailing party. The fees are
  determined based on what is reasonable and
  customary. No fees for attending IEP meetings
  unless the meeting is as the result of a due
  process matter. No fees for an attorney
  attending a resolution session.

117
ATTORNEY FEES

• Fees can be reduced or denied for actions that
  delayed the resolution of the matter, or the
  relief obtained at hearing was not better than
  what was proposed in a written offer from the
  district given 10 days prior to hearing, or the
  attorney did not provide appropriate information
  in the complaint,
• 20 USC 1415(i)(3)(B),(C),(D),(F)
• 20 USC 1415(h)(2)(C)

118
ATTORNEY FEES

• If the educational agency wins at hearing, it may
  seek fees against the attorney for the parents if
  it can demonstrate to a court that the filing of
  the complaint and subsequent action was
  frivolous, unreasonable or without foundation or
  if it can demonstrate that the attorney continued
  to litigate after the action became frivolous,
  unreasonable or without foundation, 20 USC
  1415(h)(3)(B)

119
ATTORNEY FEES

• If a district wins at hearing, it may seek fees
  against the parents or the attorney for the
  parents if the complaint or due process
  proceeding was presented for any improper
  purpose, such as to harass, to cause unnecessary
  delay or to needlessly increase the cost of
  litigation, 20 USC 1415(h)(3)(B)