1 Procedural Safeguards Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved

2 Procedural Safeguards LEAs must establish and maintain procedures to assure that children with disabilities and their parents are guaranteed procedural safeguards with respect to the provision of a free appropriate public education Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved

3 IDEA Safeguards Identification of parents General procedural requirements Opportunity to examine records Independent educational evaluation Surrogate parents Impartial due process hearing Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved

4 General Procedural Requirements Notice requirements Consent requirements Opportunity to examine records Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved

5 Notice A procedural safeguard notice may be given only once a year and at: –the initial referral –a parental request for evaluation –the initial filing for a due process hearing –at the request of the parent School districts may post their procedural safeguard notice on their Web site The procedural safeguards notice must include: (a) timeframes for filing due process hearing requests (b) the opportunity for resolution process (c) information on mediation, and (d) timeframes for lawsuits Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved

6 Consent Informed consent must be obtained from a student parents/guardians before the school: –Conducts a preplacement evaluation –Initially places a student in special education –Conducts a reevaluation When obtaining consent, the school must ensure that the parents understand and agreed to the proposal in writing Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved

7 Opportunity to Examine Records Parents/guardians shall be afforded the opportunity to inspect and review all education records regarding –The identification, evaluation, and educational placement of their child, and –The provision of FAPE to their child The IDEA’s confidentiality of information requirements direct schools to keep a record of parties obtaining access to records including names, dates, and purposes (this does not extend to a student’s parents) Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved

8 Independent Educational Evaluations (IEE) Provide parents with information on where to obtain an IEE Right to one IEE at public expense If LEA evaluation is appropriate the parents are entitled to an IEE, but not at public expense Results of the IEE must be considered IEE results may be presented at a hearing A hearing officer may request an IEE Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved

9 Dispute Resolution Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved

10 Mediation A dispute-resolution and collaborative problem-solving process A trained impartial mediator facilitates a negotiation process between the parties The mediator had no authority to impose solutions Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved

11 Resolution Sessions Within 15 days of Due Process Hearing notice, the school must convene a meeting with: –Parents –Relevant IEP team members –An agency representative with decision-making authority –May not include an LEA attorney unless parent’s attorney is present The purpose of the meeting is to discuss the facts and resolve the hearing issues. Parties may agree, in writing, to waive the resolution meeting or to use mediation in lieu of the resolution session Attorney’s fees are not recoverable Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved

12 Written Settlement Agreement If resolution is reached to resolve the complaint at a meeting, the parties execute a legally binding agreement (written settlement agreement) that is: –Signed by both the parents and a representative of the agency –Enforceable in any state court of competent jurisdiction If parties execute a written settlement agreement, a party may void the agreement within three business days Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved

13 Impartial Due Process Hearings The purpose of a due process hearing is to resolve disputes regarding proposal to:  Initiate identification, evaluation, or placement  Change identification, evaluation, or placement Hearings are conducted by SEA or LEA The impartial hearing officer (IHO) must be impartial The role of a hearing office is functionally comparable to that of a judge Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved

14 Due Process Hearings Two-year statute of limitations on requesting due process hearings Decisions in due process hearings are to made on substantive grounds On matters alleging procedural violations, a hearing office can find that a student did not receive a FAPE only when the violations: –Impeded the student’s right to a FAPE –Impeded the parents opportunity to participate –Caused a deprivation of educational benefits 90 day time limit from date of IHO’s decision to bring a civil action Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved

15 Due Process Hearing Rights Right to counsel Right to present evidence, cross-examine, & compel attendance Right to prohibit entry of evidence (5 days prior) Right to persons with specialized knowledge Right to written or electronic record verbatim (parents may choose to require electronic record) Right to obtain written findings of fact & law Right to have child in question present Right to an open hearing Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved

16 Exhaustion of Remedies Tiers –Local Educational Agency –State Educational Agency Court action Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved

17 Burden of Proof Due Process Hearing Court Proceedings Due weight is accorded due process decision Reviewing court can take case de novo Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved

18 Shaffer v. Weast, 2005 The most recent special education ruling from the U.S. Supreme Court addressed the issue of burden of proof in special education lawsuits The U.S. Supreme Court issued its ruling on (6-2 ruling). Justice Sandra Day O’Conner wrote the majority opinion Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved

19 Facts of the Case The parents of a child with learning disabilities refused to sign the school’s IEP & placed their son in a private school. They filed a complaint against the school district challenging their son’s IEP and seeking tuition reimbursement. A hearing officer noted that the facts were evenly balanced, but ruled for the school district because the parents “bear the burden of proof.” The parents appealed to the federal district court which sent the case back to the hearing officer to reconsider the case with the school district bearing the burden of proof. The hearing officer reversed his ruling. The school appealed to the District court, which rejected the appeal, and then to the U.S. Court of Appeals for the 4 th Circuit The appellate court ruled in favor of the school district, holding that the parents should bear the burden of proof The parents appealed to the U.S. Supreme Court Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved

20 Ruling According to the majority opinion, written by Justice O’Connor, although the IDEA is silent on which party (parents or schools) has the burden of proof, the burden of proof is traditionally placed upon the party seeking relief. When parents challenge an IEP, therefore, they must prove the IEP is inappropriate, School systems are not legally obligated to prove the adequacy of IEPs, Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved

21 Problems with the IDEA’s Hearing Method Time consuming Emotionally taxing Expensive Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved

22 Right to Bring Civil Action: Public agencies may recover their attorneys’ fees from parents’ attorneys if the case was: –Frivolous –Unreasonable –Without foundation Public agencies may recover attorneys’ fees against the parents’ attorney or the parents if the case was presented for any improper purpose such as to: –Harass; –Cause unnecessary delay –To needlessly increase the cost of litigation Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved

23 Remedies “The court shall receive records of the administrative proceedings, shall hear additional evidence at the request of a party, basing its decision on the preponderance of evidence, shall grant such relief as the court determines is appropriate,” (IDEA, 20 U.S.C. § 1415 (e)(2) Types of relief provided by the courts are referred to as remedies Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved

24 Attorneys’ Fees “In any action or proceeding brought under [HCPA], the court, in it’s discretion, may award reasonable attorney’s fees as part of the costs to the parents or guardians of a [child with disabilities] who is the prevailing party” 20 U.S.C. § 1415  Smith v. Robinson (468 U.S. 992,1984)  The Handicapped Children’s Protection Act (1986) Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved

25 Tuition Reimbursement An award to compensate parents for the costs of a unilateral placement of their child in a private school when an LEA has failed to offer an appropriate education Burlington v. Department of Education (471 U.S. 359, 1985) Florence v. Carter (114 S.Ct. 361,1993) Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved

26 Compensatory Education Compensatory services are designed to remedy the progress lost by students with disabilities because they were previously denied an appropriate education Examples: –Extending a student’s eligibility beyond 21 –Extended school year Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved

27 Punitive Damages Monetary awards in excess of actual damages, intended to serve as punishment and recompense for legal wrongs  IDEA  Section 504  Section 1983 of the Civil Rights Act Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved

28 Section 1983 Forbids public officials from depriving citizens of their rights under the US Constitution or Federal laws To assert a 1983 claim, the plaintiff must prove that:  The defendant was acting under color of law  The actions deprived the plaintiff of rights guaranteed by the Constitution or federal statutory law Doe v. Withers, (20 IDELR 442,1993) Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved