ADVOCATING FOR A CHILD WITH SPECIAL NEEDS Presented By Dina C. Kaplan, Esq. Andrea Lorant, M.A. Maureen Cataldi, M.Ed

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

Special Education & Law Federal Law State Law Federal and State Regulations Circuit Courts (9th District) Supreme Court

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

Individuals with Disabilities Education Act [20 U. S. C. Sec. 1400 et Individuals with Disabilities Education Act [20 U.S.C. Sec. 1400 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

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

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

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

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

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)

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

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

Related Services / DIS Services Transportation Speech and language pathology Audiology Interpreting services (2004) Psychological services Physical and occupational therapy

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

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)

IDEA 2004 Special Education Eligibility Hearing impairments (including deafness) Visual impairments (including blindness) Speech or language impairments Orthopedic impairments Autism

Eligibility (continued) Mental Retardation Emotional Disturbance Traumatic brain injury Other health impaired Specific learning disabilities

Eligibility (continued) AND WHO BY REASON OF THEIR DISABILITY NEED SPECIAL EDUCATION AND RELATED SERVICES

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

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

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

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

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

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

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

NCLB 2001 (continued) Requires states to ensure all teachers who teach a core academic subject are highly qualified by 2005-2006 school year, no waivers or emergency credentials Core academic subjects are english, reading or language arts, history and geography

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

BACK TO THE INDIVIDUALS WITH DISABILITIES EDUCATION ACT 2004

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

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

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

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

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

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.

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.

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 2004 - no exception for vacation days

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

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

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

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

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

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

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

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

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

THE INDIVIDUALIZED EDUCATION PROGRAM [PROCESS, CONTENTS AND SERVICES]

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

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

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.

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)

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

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

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

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

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)

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

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

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

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

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

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

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

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

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)

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

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)

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)

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)

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)

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)

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)

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)

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)

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.

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)

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)

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….

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)

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)

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)

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)

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 e-mail if parent chooses and district has the ability to do so. 20 USC 1414(n)

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

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

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)

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)

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)

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)

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

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)

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)

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

“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)

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)

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)

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)

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)

THE DUE PROCESS HEARING Existing law, by federal regulation at, 34 CFR 300.511(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.

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)

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.

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)

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).

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….

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)

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)

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…

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)

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)

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)

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)

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.

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)

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)

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)