Procedural Safeguards Kristina Krampe, 2005 EDS 513: Legal Issues in Special Education.

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

Remedies

Reimbursement for early intervention services are also allowed when not provided appropriately

Compensatory education can be awarded when FAPE is not provided

Monetary damages are not typically allowed, except in a few cases involving bad faith and gross misjudgments