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 isn’t a place or type of classroom
It’s 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 Act [20 U. S. C. Sec. 1400 et
Individuals with Disabilities Education Act [20 U.S.C. Sec 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 child’s 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 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 bachelor’s degree, and demonstrated subject area competence in each academic subject that he/she teaches
Increases qualifications for teacher’s 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 bachelor’s 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

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 child’s 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 haven’t 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 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 Child’s Suspected Disability
Evaluations should be in all areas of child’s 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 child’s 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 district’s evaluation(s), parent is entitled to obtain an independent evaluation at district’s expense
Must inform district in writing that you disagree and want them to pay for independent evaluation
Make sure assessors are as qualified as district’s assessors
If district doesn’t want to pay, they have to file for due process

46. School Records
Parents are entitled to obtain copies of their child’s 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 PROGRAM [PROCESS, CONTENTS AND SERVICES]

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 Children’s Services, etc.

52. IEP TEAM MEMBERS (CONTINUED)
Members can be excused from attending the meeting by written agreement of the parents if,
Member’s 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 child’s 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 child’s 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 child’s IEP
Braille instruction, if appropriate, for a visually impaired child
For a child who is deaf or hard of hearing, consideration of child’s 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)

59. CONTENTS OF THE IEP
Statement of present levels of educational performance, including impact of child’s disability on involvement and progress in general curriculum
For preschool children, how child’s 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 child’s 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 child’s other educational needs resulting from the disability

62. CONTENTS OF THE IEP (CONTINUED)
Description of how child’s 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

70. 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 student’s 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 child’s placement should be changed as a result of the student’s 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 student’s goals. When appropriate a functional behavioral assessment, behavior intervention and modifications to the student’s IEP should be addressed, 20 USC 1415(k)(1)(D)

74. DISCIPLINE
If a decision is made by school personnel to change a student’s placement, within 10 days of that decision, a meeting must be held to determine if the behavior is a manifestation of the student’s 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 student’s disability or, whether the student’s conduct was the direct result of the district’s 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 student’s 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 student’s 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 child’s 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 parent’s 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 SAFEGUARDS General 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 SAFEGUARDS General 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 SAFEGUARDS General 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 if parent chooses and district has the ability to do so.
20 USC 1414(n)

87. PROCEDURAL SAFEGUARDS General 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 SAFEGUARDS General 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 district’s proposed or refused action

89. PROCEDURAL SAFEGUARDS General 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 SAFEGUARDS General 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)

92. 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 (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 officer’s 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 child’s right to FAPE, significantly impeded the parent’s 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)