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The Law and Special Education

Fifth Edition

Chapter 12

Procedural Safeguards

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Learning Objectives

12.1 Describe the procedural rights of parents.

12.2 Describe the notice and consent requirements of the I D E A.

12.3 Describe the dispute resolution system of the I D E A.

12.4 Describe the purpose and conduct of a due process hearing.

12.5 Describe alternatives to the dispute resolution system of the I D E A.

12.6 Describe judicially awarded remedies for parents who prevail against school districts in due process hearings and court cases.

Introduction

“The history of liberty has largely been the history of the observance of procedural safeguards.”

-Justice Felix Frankfurter, McNabb versus U.S. (1943, page 347)

Procedural Safeguards and I D E A

In special education, procedural safeguards guide the method by which school officials make decisions regarding the education of students with disabilities, and substantive due process rights are those personal rights that school officials may not abridge

Congress established the elaborate system of safeguards to “guarantee parents both an opportunity for meaningful input into all decisions affecting their child’s education and the right to seek review of any decisions they think inappropriate.” Honig versus Doe, 1988, page 598

“An I E P must be drafted in compliance with a detailed set of procedures…These procedures emphasize collaboration among parents and educators and require careful consideration of the child’s individual circumstances.” Endrew F. versus Douglas County School District, 2017, page 2.

The I D E A’s Procedural Safeguards Include:

Notice and consent requirements,

The right to examine relevant records,

Procedures to protect the rights of a student when parents are unavailable,

The independent educational evaluation,

Voluntary mediation,

The opportunity to present a complaint to the state education agency (S E A).

the due process hearing and possibly filing a suit in state or federal court.

Notice Requirements

The purpose of the I D E A’s notice requirement is to provide a student’s parents with information to protect their rights and the rights of their child, to allow them to make informed decisions, and to enable them to fully participate in the special education process

Procedural safeguard notice: Once during every school year school districts are required to provide parents with a copy of the procedural safeguard afforded them by the I D E A.

School districts are also required to provide parents with the procedural safeguards (a) after the initial referral, (b) upon receiving a parental request for evaluation, (c) upon receipt that the parent has filed a complaint with the S E A and first due process complaint, (d) when a school district’s disciplinary removal constitutes a change of placement, and (e) upon receiving a parental request.

The I D E A also requires that written notice be provided to parents prior to the school’s proposing to initiate or change the identification, evaluation, educational placement, or provision of a free appropriate public education (F A P E) to the child, or prior to the school’s refusing to make such changes.

Consent Requirements

The reason for obtaining written consent is to get the parents informed permission to carry out certain actions.

The I D E A requires informed parental consent prior to taking any of the following actions: (a) evaluating a child to determine whether the child is eligible to receive special education and related services (initial evaluation only), (b) providing special education and related services to a child, (c) reevaluating a child, (d) allowing an I E P team member to be excused from attending an I E P meeting, (e) implementing an individualized family services plan (I F S P) in place of an I E P, and (f) accessing a child’s private insurance information and to enable them to fully participate in the special education process

When obtaining consent, the school district personnel must ensure that the parents are fully informed, which means that the parents (a) have been informed about all information relevant to the activity for which consent is sought, in their native language or other form of communication; (b) understand and agree in writing to the proposed action for which their consent is sought; and (c) understand their granting of consent is voluntary and may be revoked at any time

Independent Educational Evaluations (I E E)

If the parents disagree with the school’s evaluation, they may request an I E E at public expense

An I E E is an evaluation conducted by a qualified examiner who is not employed by the public agency responsible for the education of the child.

If school personnel believe the evaluation to be appropriate, they may request a due process hearing. If the hearing officer determines that the school’s evaluation was appropriate, the parents retain the right to an I E E, but not at public expense.

An I E P team must consider the results of the I E E in the special education decision-making process. However, school personnel could decide that they disagree with the results.

The I E E may also be presented as evidence at an impartial due process hearing.

Dispute Resolution

If a student’s parents believe that a school district has not followed the procedures of the I D E A or if they disagreed with actions involving the identification, evaluation, or placement of their child, they may use the I D E A’s dispute resolution mechanisms.

If students are eligible under the I D E A, the dispute resolution mechanisms include mediation, resolution sessions, and due process hearings.

Additionally, each state has a complaint investigation and resolution process.

State Complaint Procedures

States are required to develop compliant procedures when parents disagree with a school district regarding I D E A matters

When parents file a complaint with an S E A, they must also notify the L E A that they are filing the complaint

School districts may not file complaints with a state.

The complaints must be filed within 1 year of the occurrence of the violation and can be filed on any issues involving identification, evaluation, placement, or programming.

If state officials determine that an investigation is needed, the state then has 60 days to conduct an on-site investigation of the complaint.

Following the investigation, state officials must make a written ruling on their decision. Moreover, the written decision must (a) address each allegation in the complaint, (b) detail the state’s findings of fact and conclusions, and (c) provide the reasoning behind the decision

Advantages include less cost, involves investigation, and more efficient

Mediation

Mediation is a dispute-resolution and collaborative problem-solving process in which a trained impartial party facilitates a negotiation process between parties who have reached an impasse

The role of the mediator is to facilitate discussion, encourage open exchange of information, assist the involved parties in understanding each other’s viewpoints, and help the parties to reach mutually agreeable solutions. The mediator has no authority to impose solutions on either party.

State education agencies must (a) pay for the costs of mediation sessions, including the fee charged by the mediator; (b) maintain a list of qualified mediators; (c) track and report the number of mediations held and number of settlements reached through mediations.

Advantages of mediation include the following: (a) takes less time, (b) costs less, (c) allows for greater discussion of the issues, and (d) helps to maintain a workable relationship between schools and parents.

Resolution Session

Within 15 days of receiving a parent’s complaint, the school district is required to convene a meeting with the parents and relevant members of the I E P team, including the school representative, to discuss the complaint and attempt to resolve it.

The two sides can waive the resolution session if both sides agree to such an action.

The parents give the school district 30 days in which to resolve the issue. If no resolution is reached within 30 days of filing the complaint, the due process hearing may take place.

Appeal of Due Process Hearing (1 of 2)

The purpose of the due process hearing is to resolve disputes between the parents of children and youth with disabilities and school districts regarding the identification, evaluation, programming, placement, or provision of a F A P E to a student with disabilities under the I D E A

Parents must file within 2 years of the date that they knew, or should have known, of the action that forms the basis of the complaint unless a state has a different time limit

In a due process hearing an impartial third party, the due process hearing officer, will hear both sides of a dispute, examine the issues, and settle the dispute

Appeal of Due Process Hearing (2 of 2)

In a hearing both the parents and school districts have the following rights: (a) the right to be accompanied and advised by an attorney and by individuals with special expertise with respect to the problems of children with disabilities, (b) the right to present evidence and confront, cross-examine, and compel the attendance of witnesses, (c) the right to prohibit the introduction of any evidence at the hearing that has not been disclosed to the party at least 5 days before the hearing, (d) the right to obtain a written or electronic verbatim record of the hearing (at the option of the parents), and (e) the right to obtain a written or electronic finding of fact and decisions (at the option of the parents).

Alternatives to Due Process

Criticisms have been leveled at the system of dispute resolution, especially due process hearings, as being too expensive, time consuming, adversarial, and emotionally draining for all parties involved

Alternatives

Facilitated I E P meetings

Ombudsman

Third party consultation and evaluation

Remedies (1 of 3)

Attorney’s Fees: The I D E A to allow the provision of attorney’s fees to parties prevailing in special education lawsuits

Smith versus Robinson, 1884

The Handicapped Children’s Protection Act of 1996

Expert witness fees

Arlington Central School District Board of Education versus Murphy (1986)

Injunctive relief: A judicial remedy awarded for the purpose of requiring a party to refrain from or discontinue a certain action. An injunction is a preventive measure that guards against a similar action being committed in the future.

Remedies (2 of 3)

Tuition reimbursement: Tuition reimbursement is typically an award to compensate parents for the costs of a unilateral placement of their child in a private school when the public school has failed to provide an appropriate education. Tuition reimbursement is not a monetary award in the traditional sense, but rather is viewed by the courts as the school district’s reimbursing the parents for the education that should have been provided in the first place.

Burlington School Committee of the Town of Burlington versus Department of Education of Massachusetts, 1985

Florence County School District Four versus Carter, 2009

Forest Grove School District versus T. A., 2011

Remedies (3 of 3)

Compensatory education: Services designed to remedy the progress lost by students with disabilities because they were previously denied a F A P E.

The award of compensatory education is the award of additional educational services, above and beyond the educational services normally due a student under state law

Examples of compensatory education: Extended school year services, extended eligibility for education beyond age 21, and tutoring.

Punitive damages: Punitive damage awards, which are monetary awards in excess of actual damages, are intended to serve as punishment and recompense for a legal wrong. Courts have held that punitive damages are not available under the I D E A.

Section 1983

Doe versus Withers, 1983

L.S. versus Mount Olive Board of Education, 2011

Lessons from Litigation & Legislation

Principle 1: Adhere to the procedural systems developed by school districts to ensure that I D E A’s procedural requirements are met

Principle 2: Ensure that administrators and teachers understand their responsibilities under the I D E A

Principle 3: Ensure that parents are meaningfully involved in the development of their child’s special education program

Principle 4: Ensure that all administrators, teachers, and related services understand their roles in individual children’s I E Ps.

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