Procedural Safeguards Kristina 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 parents Legal guardians Person 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 safeguards Be written in parent’s native language Be in understandable Ianguage Be available to parents Safeguards must be provided to parents: At least once a year At initial referral When due process compliant filed When a copy is requested

General Requirements Notice must be provided to parents: When referral is initiated Before initial placement Before changes to identification, placement, or IEP are made Before changes to identification, placement, or IEP are denied Within a reasonable amount of time (e.g., 10 days) With enough information for parental understanding

General Requirements Written consent required before: Initial evaluation Initial placement Provision of special education services Written consent is recommended before: Reevaluations Changes 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 less Before IEP meetings Before 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 cost Refusing consider something new/different Giving to parental demands without cause Acting on principle, rather than reason Failing to assume the burden of proof Failing 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