1. 1 IDEA REAUTHORIZATION 2004

2. 2 PRESENTATION OF COMPLAINT A district must have a procedure that gives any party the opportunity to present a complaint regarding any matter relating to the identification, evaluation, or placement of a child, or regarding the provision of FAPE. The complaint must allege a violation that occurred not more than 2 years before the date the parent or public agency knew or should have known about the alleged action that forms the basis of the complaint. Note: this “complaint” is a request for a due process hearing.

3. 3 DUE PROCESS COMPLAINT NOTICE A party (or the attorney for the parent) must provide a due process complaint notice to the other party, with a copy to the SEA when a due process complaint has been made. This notice is confidential.

4. 4 DUE PROCESS COMPLAINT NOTICE CONT. The notice shall include: –Name and address of the child –Name of the school –Description of the nature of the problem of the child relating to the proposed initiation or change, including facts related to the problem –A proposed resolution of the problem to the extent known and available to the party at the time

5. 5 DUE PROCESS COMPLAINT NOTICE CONT. A party may not have a due process hearing until the party of the party’s attorney files a due process complaint notice that meets the requirements of the statute. The state must develop a model form to assist parents in filing a complaint and due process complaint notice

6. 6 DUE PROCESS COMPLAINT NOTICE CONT. A party may not have a due process hearing until the party of the party’s attorney files a due process complaint notice that meets the requirements of the statute. The state must develop a model form to assist parents in filing a complaint and due process complaint notice

7. 7 DUE PROCESS COMPLAINT NOTICE CONT. If a district has not sent a prior written notice to the parents regarding the subject matter in the parents’ due process complaint notice, the district must, within 10 days send a response to the parents that includes:

8. 8 DUE PROCESS COMPLAINT NOTICE CONT. –An explanation of why the agency proposed or refused to take action in the complaint –A description of other options that the IEP team considered and the reasons why those options were rejected –A description of each evaluation procedure, assessment, record, or report the district used as a basis for the proposed or refused action, and –A description of the factors that are relevant to the proposal or refusal

9. 9 DUE PROCESS COMPLAINT NOTICE CONT. The non-complaining notice by non-school district party has 10 days after receiving the complaint to send a response that specifically addresses the issues raised in the due process compliant notice

10. 10 DUE PROCESS COMPLAINT NOTICE CONT. Sufficiency of notice – a due process complaint shall be deemed to be sufficient unless the party receiving the notice tells the hearing officer and the other party in writing that the notice has not met the requirements of the statute. This notice must occur within 15 days of the receiving party’s receipt of the due process complaint notice.

11. 11 DUE PROCESS COMPLAINT NOTICE CONT. Within 5 days of receiving notice that the due process complaint is insufficient, the hearing officer shall make a determination (on the face of the notice) regarding its sufficiency, and shall immediately notify the parties

12. 12 DUE PROCESS COMPLAINT NOTICE CONT. A party may amend its due process complaint notice only if the other party consents in writing to the amendment and is given the chance to resolve the complaint through a meeting (the resolution process) or the hearing officer grants permission. The hearing officer may only allow amendment to the due process complaint notice 5 or more days before the hearing is scheduled

13. 13 RESOLUTION SESSIONS Before a due process hearing may be held, the district must convene a meeting with the parents and relevant IEP team members who have specific knowledge of facts identified in the complaint within 15 days of receiving notice of the parents’ complaint. At the meeting, the parents shall discuss their complaint and the facts that form the basis of the complaint, and the district shall be provided the opportunity to resolve the complaint.

14. 14 RESOLUTION SESSIONS CONT. The meeting may not include an attorney for the district unless the parents bring their attorney. The parent and district may agree in writing to waive the meeting or to use the mediation process instead.

15. 15 RESOLUTION SESSIONS CONT. If the district hasn’t resolved the complaint to the satisfaction of the parents within 30 days of the receipt of the due process complaint notice, the due process hearing may be held, and all due process timelines commence.

16. 16 RESOLUTION SESSIONS CONT. If a resolution is reached at the meeting, the parties shall enter into a legally binding agreement that is signed by both the parent and a representative of the district who has the authority to bind the district, and is enforceable in any court of competent jurisdiction. This agreement may be voided within 3 business days of the agreement’s execution.

17. 17 DUE PROCESS HEARINGS The party requesting the hearing may not raise issues at the hearing that were not raised in the due process complaint notice, unless the other party agrees to allow it A party must request a hearing within 2 years of the date the other party knew or should have known about the action forming the basis of the complaint

18. 18 DUE PROCESS HEARINGS CONT. The decision of the hearing office shall be made on substantive grounds based on a determination of whether the child was provided FAPE In a hearing regarding procedural violations, the hearing officer may find against the district only if the procedural inadequacies impeded the child’s right to FAPE, significantly impeded the parents’ opportunity to participate in the decision making process or cause a deprivation of educational benefit. The hearing officer may order a district to comply with procedural requirements.

19. 19 DUE PROCESS HEARINGS CONT. Unless the child is currently placed in an alternative educational setting (a disciplinary setting), the child shall remain in the current placement during the pendency of the proceedings

20. 20 CIVIL ACTIONS A party shall have 90 days from the date of the decision of the hearing office to file a civil action or during the time period mandated in state law. (note: Texas state law is silent, therefore the 90 day timeline should apply)

21. 21 ATTORNEYS’ FEES A court may award reasonable attorneys’ fees as part of the costs to: –A prevailing party who is the parent of a child with a disability; –A prevailing party that is a district or SEA against the attorney of a parent who files a complaint or subsequent cause of action that is frivolous, unreasonable, or without foundation, or who continues to litigate after the case clearly becomes frivolous, unreasonable and without foundation; or

22. 22 ATTORNEYS’ FEES CONT. –A prevailing party that is a district or state education agency against the attorney of a parent or against a parent if the complaint or subsequent cause of action was presented for any improper purpose, such as to harass, cause unnecessary delay, or to needlessly increase the cost of litigation

23. 23 ATTORNEYS’ FEES CONT. A parent who is the prevailing party and who was substantially justified in rejecting the district’s settlement offer may recover attorneys’ fees and costs No attorneys’ fees may be awarded for resolution sessions

24. 24 ATTORNEYS’ FEES CONT. A court shall reduce the amount of attorneys’ if the court determines that: –The parent or parent’s attorney unreasonably protracted the final resolution; –The amount authorized to be awarded exceeds the prevailing hourly rate in the community for similar attorneys; –The time spent and legal services furnished were excessive, or –The parents’ attorney did not provide the district the appropriate information in the notice of the due process hearing complaint

25. 25 ATTORNEYS’ FEES CONT. The provisions regarding the reduction in an award of attorneys’ fees to parents do not apply if the SEA or LEA unreasonable protracted the final resolution of the action or proceeding

26. 26 MANDATORY MEDICATION SEA shall prohibit State and LEA personnel from requiring a child to obtain a prescription for a substance covered by the Controlled Substances Act as a condition of attending school, receiving an evaluation or receiving services This does not prohibit the teacher and other school personnel to consult or share classroom-based observations with parents regarding a student’s academic and functional performance or behavior or regarding the need for evaluation for special ed or related services

27. 27 STUDENT ASSESSMENT All children with disabilities are included in all general State and districtwide assessment programs with the appropriate accommodations and alternate assessments where necessary SEA or LEA has developed guidelines for the provision of appropriate accommodations

28. 28 STUDENT ASSESSMENT CONT. Alternate assessments must be aligned to the State’s challenging academic content standards and challenging student academic achievement standards and If the State has adopted alternate academic achievement standards, they must measure the achievement of children with disabilities against those standards

29. 29 OVER-IDENTIFICATION AND DISPROPORTIONALITY Data will be collected on disproportionality based on race or ethnicity occurring in particular categories of disability, settings, or disciplinary actions. If a district has a significant problem with disproportionate representation, the district will be required to operate a pre-refusal program to provide coordinated early intervening services to serve students in the district, particularly to these groups of students who are significantly over- identified.

30. 30 PERSONNEL ISSUES Meeting NCLB requirements – any special education teacher who meets the definition of “highly qualified” under NCLB is “highly qualified” under the reauthorized IDEA. In addition, a teacher who is highly qualified under IDEA shall be considered highly qualified under NCLB Note – definition of highly qualified took effect upon signing of the bill

31. 31 PERSONNEL ISSUES CONT. To be highly qualified under NCLB, a teacher must have: –At least a bachelor’s degree, –Full state certification, and –Demonstrated competency in the core academic core subject area assigned

32. 32 PERSONNEL ISSUES CONT. For any elementary or secondary special education teacher, “highly qualified” means that the teacher has obtained full state certification as a special education teacher (including ACP), or has passed the state special education teacher licensing exam and holds a license to teacher special ed, and has not had a special ed certification or licensure requirements waived on emergency, temporary, or provisional basis and holds at least a bachelor’s degree

33. 33 PERSONNEL ISSUES CONT. The highly qualified teacher requirements apply only to teachers providing direct instruction in core academic subjects. Special educators who do not directly instruct students in core academic subjects or who provide only consultation to highly qualified teachers in adapting curricula, using behavioral supports and interventions or selecting appropriate accommodations, do not need to demonstrate subject-matter competency in those subjects

34. 34 PERSONNEL ISSUES CONT. Deadline to be highly qualified – by the end of 2005-2006 No private cause of action – the highly qualified requirements do not create a right of action on behalf of an individual student of class of students for the failure of a SEA or LEA employee to be highly qualified

35. 35 IDEA REAUTHORIZATION 2004