Procedural Safeguards Kristina Krampe, 2005 EDS 513: Legal Issues in Special Education.
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Procedural Safeguards
Kristina Krampe, 2005Kristina Krampe, 2005
EDS 513: Legal Issues in Special Education
Introduction to the Presentation
Prior to beginning this presentation, you should have read Chapter 13 of Yell’s (2006) The Law and Special Education, 2nd Edition
Upon completion of this session, you should be able to discuss the safeguards requirements under the IDEA
Definition of Parent
Under the IDEA, parents include:Biological parents (custodial & noncustodial)Adoptive parentsLegal guardiansPerson acting in place of parent (resides with student;
parental permission)Foster parents (6 months or longer; parental rights
relinquished)Surrogate parents (wards of state & homeless
students; parents cannot be located; no longer than 30 days)
General Requirements
Notices must:Include full explanation of safeguardsBe written in parent’s native languageBe in understandable IanguageBe available to parents
Safeguards must be provided to parents:At least once a yearAt initial referralWhen due process compliant filedWhen a copy is requested
General Requirements
Notice must be provided to parents:When referral is initiatedBefore initial placementBefore changes to identification,
placement, or IEP are madeBefore changes to identification,
placement, or IEP are deniedWithin a reasonable amount of time (e.g.,
10 days)With enough information for parental
understanding
General Requirements
Written consent required before:Initial evaluationInitial placementProvision of special education services
Written consent is recommended before:ReevaluationsChanges in student’s IEP and/or
placement
General Requirements
Consent is voluntary
Consent can be revoked while activity is taking place
If parental consent is refused for initial evaluation, due process and mediation can be pursued
If parental consent is refused for initial placement, no action is taken and school’s legal responsibilities end
General Requirements
Parents must have access to records: Within 45 days or lessBefore IEP meetingsBefore due process hearing
Record of individuals accessing records must be kept (not including authorized personnel and parents)
Access is not extended to personal notes, school security records, or personnel records
General Requirements
Parents may request records be amended; if amendment is refused, due process hearing can be requested
Parents may request 1 IEE at school expense
Hearing officer can require reimbursement for IEE
Mediation
Helps maintain working relationship
Must be offered as a voluntary option
May not delay parental right to due process hearing
Involves trained, impartial, & knowledgeable mediator selected by both parties from list maintained by district
Mediation
Resolutions are legally binding document
Cannot be used as evidence in due process hearing
Must be kept confidential - pledge often required before process starts
Resolution session serves an intermediary step between mediation and due process
Due Process Hearing
Allows impartial party to settle dispute
Addresses issues related to evaluation, identification, placement, or provision or FAPE + amendment of student records
Complaint must be filed within 2 years, unless state has specific time limit
Due Process Hearing
Complaint can be filed by parent, school district, or student at the age of majority
Individual states determine what agency conducts hearing
Conducted at time and location convenient for parent
Due Process Hearing
At least 5 days before hearing, all evidence must be disclosed
One-tier procedure - initial review conducted by state department of education
Two-tier procedure - initial review by school district with administrative review by state department of education
Due Process Hearing
Hearing officer can have no personal or professional interest that conflicts with the case
Decisions must focus on meaningfulness of education, not violation of procedures
Officers cannot award attorney’s fees, control outside agencies, or order specific educational placements
Due Process Hearing
Decision must be made in 45 days or less after the request for a hearing
Parties can be represented by counsel
Parents can request list of free/low-cost services, but must obtain and pay for services
Only parents can open hearing to the public
Due Process Hearing
Either party can appeal within 90 days after decision is rendered
Stay put provision requires student to remain in current placement during hearing, unless parents and school agree otherwise
Stay put provision can be negated when drugs, weapons, or serious bodily harm involved
Due Process Hearing
Verbatim record of hearing - typically written, unless parents request electronic
Burden of proof lies on school district
No timeline for filing of appeal in the IDEA; findings must be mailed within 30 days of the appeal
Civil actions must occur within 90 days of decision of appeal
7 “Deadly Sins
School districts enter due process due to:Committing procedural violations Denying service based on costRefusing consider something new/differentGiving to parental demands without causeActing on principle, rather than reasonFailing to assume the burden of proofFailing to secure services in a timely
manner
Remedies
States as well as schools can be sued
Attorney’s fees allowed if parents are prevailing party as a result of court case
Attorney’s fees not awarded for participation in IEP process
School districts can be awarded attorney’s fees for frivolous, unreasonable, or unfounded actions
Remedies
Attorney’s fees for states or districts when the complaint or action is for improper purposes
For injunction, a school must prove:Existence of risk of serious bodily injury All reasonable steps to reduce risk of injury have
been taken
Reimbursement for tuition, and related expenses, allowed when school does not provide a FAPE to student
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