Transcript Due Process and State Complaints

Due Process
and State Complaints
BONNIE LITTLE, ESQ.
[email protected]
ERIN AUERBACH, ESQ.
[email protected]
BRUSTEIN & MANASEVIT, PLLC
FALL FORUM 2011
Topics
2
 Due Process and State
Complaints, generally
 Common Findings - IDEA
Part B




Child Find
Evaluations and Eligibility
IEPs
Discipline
 Common Findings- IDEA
Part C



Child Find
IFSPs
New Regulations
 Monitoring Due Process
and State Complaint
Determinations

Correction of identified
noncompliance
 What does this mean for
verification?
Resources
3
 Individuals with Disabilities Education Improvement
Act (IDEIA) 2004 Website - http://idea.ed.gov
 Code of Federal Regulations
http://www.access.gpo.gov/nara/cfr/waisidx_
09/34cfrv2_09.html
 OSEP Monitoring:
http://www.ed.gov/policy/speced/guid/idea/m
onitor/index.html
 OSEP Letters:
http://www.ed.gov/policy/speced/guid/idea/le
tters/revpolicy/index.html#T
IDEA, Part B
4
D U E P R O C E S S A N D S T A T E C O M P L A I N T S
C H I L D F I N D
E L I G I B I L I T Y A N D E V A L U A T I O N S
I E P S
D I S C I P L I N E
Due Process Complaints
5
Due Process Complaints
6
 A parent may file a due process complaint (lawsuit) against an
LEA if:
a. The LEA did not timely identify the student as a student
with a disability.
b. The LEA did not provide all of the services required by the
student’s IEP.
c. The LEA did not evaluate the student in all areas of
suspected disability.
d. The LEA did not provide an appropriate placement for the
student.
e. Both (a) and (b).
f. All of the above.
Due Process Complaints
7
 Due Process Complaints:
 Allow parents/students to enforce the rights guaranteed under
the IDEA.
 Relate to refusal or denial to initiate or change the
identification, evaluation, educational placement of the
provision of a free appropriate public education (FAPE).
 May be filed by a parent, student, or LEA.
 The alleged violation must have occurred within 2 years of the
date of the complaint.


Some states have a 1 year statute of limitations.
Each SEA must establish and maintain due process
procedures.
Due Process Complaint
Timeline
8
Day
Event
Day 1
Parent files complaint
Day 10
School files answer
Day 15
School files allegations of insufficiency
of complaint – if any
Resolution Meeting
Day 20
Hearing Officer will make
determination on allegations of
insufficiency – if any
Day 30
End of resolution period – if complaint
has not been resolved hearing goes
forward
5 days prior to hearing date
5-day disclosures due
Day 45
Hearing Officer Decision issued
Resolution Meetings
9
 Must occur within 15 days of notice of complaint



Attorney for the LEA cannot attend unless parent’s attorney is also
present
If after reasonable efforts (documented), the LEA is unable to obtain
the participation of the Parent, the LEA may (at the end of the 30-day
period), request that the hearing officer dismiss the parent’s due
process complaint!
If LEA fails to schedule a resolution meeting, parent can ask for
intervention!
 Meeting notes are not confidential
 Settlement agreement can be voided up to 3 days after it is
signed
Mediation
10
 Available for matters arising prior to the filing of due
process complaint

Not limited to issues raised in due process hearing; may mediate
any point in the dispute
 Mediation is CONFIDENTIAL!
 LEA cannot require mediation


SEA responsible for selecting mediators, and it must be on a
random, rotational, or other impartial basis
“[ED does] not believe that a hearing officer can order that the
parties to a due process complaint engage in mediation.” (71
Fed. Reg. 46694 (Aug. 14, 2006)).
Hearing Officer Determinations
11
 What relief can be granted when a FAPE violation is
found?
 Courts have broad discretion in fashioning relief for violations of the
IDEA. Burlington Sch. Comm. v. Dept. of Educ., 471 U.S. 359 (1985)



Hold meetings
Evaluations
Placement
Private Schools
 Residential


Compensatory Education
Attorneys’ Fees
12
 Attorneys’ fees and related costs may be awarded to the
“Prevailing Party”
 LEAs are not responsible for parents’ attorneys’ fees for:
 Attending Resolution Meetings
 Attending IEP Meetings (unless ordered by Hearing Officer)
 Educational Advocates (Lay Witness) (Fed Regs comments)
 Expert Fees (Arlington Central School District v. Murphy)
 Attorneys’ fees – Can be awarded to LEAs/SEAs as
prevailing party


Against attorney of parent
 If complaint is frivolous, unreasonable, without foundation; OR
 If attorney of parent continued to litigate after clearly became
frivolous
Against attorney of parent or parent
 Improper purpose (harass, cause unnecessary delay, needless
increase cost of litigation)
Attorneys’ Fees After Offer of Settlement
13
 Attorneys' fees may not be awarded and related costs
may not be reimbursed in any action for services
performed subsequent to the time of a written offer
of settlement to a parent if-The offer is timely made (generally, 10 days before
the proceeding begins, check state rules);
The offer is not accepted within 10 days; and
The court or administrative hearing officer finds
that the relief finally obtained by the parents is not
more favorable to the parents than the offer of
settlement.
State Complaints
14
State Complaints
15
 An organization, that does not represent a parent or
an LEA, may file a state complaint.
a.
b.
True
False
State Complaints
16
 An organization or individual may file a written
complaint alleging that a public agency has violated a
requirement of Part B.



Allegations can be substantive or procedural.
Allegations can be general or relate to a specific child.
One year statute of limitations.
State Complaints
17
 Each SEA must establish procedures for filing and
resolving state complaints.







60 day time limit
Independent on-site investigation
Provide complainant with opportunity to submit additional
information
Provide public agency with opportunity to respond
If a parent filed the complaint - Provide opportunity for
mediation
Independent, written decision
Remedies and corrective actions for noncompliance found
State Complaint vs. Due Process Complaint
18
 If a state complaint contains allegations that are also part
of a due process complaint, the state must set aside any
part of the state complaint that is being addressed in the
due process hearing until the conclusion of the due
process hearing.
 Any part of the state complaint that is not being
addressed in the due process hearing must be resolved
within 60 day time limit.
 If an allegation in a state complaint has been resolved in
a due process hearing, the due process hearing decision
is binding on that issue.
 Failure to implement a due process hearing decision
must be resolved by the SEA.
What to know to prevent due
process and state complaints?
19
The most common allegations
and how to avoid them.
Child Find
20
Child Find
21
 Where the LEA has received a number of referrals
for behavior incidents, but the student is otherwise
close to or on grade level, and the parent does not
initiate the identification and eligibility process,
could the LEA be at risk for a child find violation?
a.
b.
Yes
No
Child Find
22
 Must have in effect policies and procedure to identify,
locate and evaluate all children with disabilities as
defined under IDEA.


Includes public and private schools
Includes homeless and migrant children, and wards of the state
Comprehensive Child Find System
23
SEA
 Develop a comprehensive
LEA
 Promote public awareness of
statewide plan
 Coordinate services to ensure 
FAPE
 Monitor effectiveness of child 
find system
 Report the number of

children eligible for special
education and related
services
child find
Organize parent/community
outreach
Create an effective screening
method
Create a pre-referral system
for at-risk kids, including
optional early intervening
services
Early Intervening Services (EIS)
24
 For Students:


Who are NOT currently identified as needing special education
or related services, and
Who need additional academic and behavioral support to
succeed in a general education environment
 Activities:



Professional development for teachers/staff
Providing education and behavioral evaluations, services, and
supports
Includes scientifically based literacy instruction
 No right to FAPE!!
Response to Intervention (RTI)
25
 Must promptly request parental consent to evaluate a child if
the child has not made adequate progress after an appropriate
period of time.




The regulations do not specify a timeline for using RTI or define
“adequate progress”
ED says it varies depending on the specific circumstances in each case
Generally not acceptable to wait several months
Parent may request an evaluation at any time during the RTI process
(RTI does not replace evaluations)
LEA cannot delay or deny evaluations on the basis that a child has not
participated in the RTI process. OSEP Memo (Jan. 21, 2011)
Parental Consent
26
 The LEA must make reasonable efforts to obtain
the parents’ informed written consent to conduct an
initial evaluation of their child.
 If a parent refuses or does not respond to an initial
evaluation, the LEA may seek to override this
decision (not required).
 The LEA cannot override parent’s decision to refuse
services.
Parental Notices
27
Procedural Safeguards Notice
 Must be given to parents on an annual basis per school
year.
 Must also be given:
•
•
•
•
•
At the initial referral or parental request for an evaluation
On the first due process request
On the first state complaint
Change of placement occurs
On request by parent
Parental Notices
28
Prior Written Notice
 Must be given to parents if the LEA proposes or refuses to
initiate or change the following:
•
•
•
•
Evaluation of a child,
Identification of a child,
Educational placement of a child, or
Provision of FAPE to a child.
Evaluations and Eligibility
29
30
 An LEA must conduct the initial evaluation of a
student within 60 days (unless the State has a
different timeframe) unless:
a.
b.
c.
d.
The parent repeatedly fails or refuses to produce the child for
the evaluation.
The evaluator gets backed up and the evaluation is conducted as
soon as possible.
The preferred evaluator states in writing that the evaluation
cannot be conducted within the 60 day timeframe.
Both (a) and (c).
Initial Evaluation
31
 Initial Evaluations: within 60 days of receiving
parental consent (unless State has different timeframe)

Exceptions:
 The parent repeatedly fails or refuses to produce the child for the
evaluation.
 The child enrolls in a school of another public agency and parent and
the subsequent public agency are making progress to ensure
completion of the evaluation.
 Consent


Reasonable efforts and parents refuse or fail to respond – can override.
DOCUMENT Reasonable Efforts!!!!
 Calling,
Work.
Letters, E-mails, Visits to Parent’s Home and/or
Initial Evaluations
32
 What does it mean to assess a student in all areas
related to the suspected disability?

34 C.F.R. 300.304(c)(4)
 Supreme Court Case : Compton Unified School
District v. Addison

No. 07-56013 (9th Cir. Mar. 22, 2010), petition for cert. filed,
(Jan. 7, 2011).
Reevaluation
33
 Reevaluation: Every 3 years
 Not more then 1 per year
 Consent required?


Reasonable efforts and parents refuse – the LEA can
override
Reasonable efforts and parent fails to respond – parental
consent not required
No FAPE violation if don’t override consent!
Independent Educational Evaluation
34
 Evaluation conducted by a qualified examiner who is
not employed by the LEA responsible for the
education of the child in question.
 Parent has the right to an independent educational
evaluation at the public’s expense if the parent
disagrees with an evaluation obtained by the LEA.

Can ask the parent the reason why he or she objects, but can
not require the parent to provide an explanation
Multidisciplinary Team (MDT) Meeting
35
 Before an IEP is created, eligibility must be
determined.
 MDT determines eligibility.
 IF eligible – create an IEP within 30 days of
determining eligibility!
Individualized Education
Programs (IEPs)
36
37
 Which of the following IEP team members is not
always a required member:
a.
b.
c.
d.
General education teacher
Special education teacher
Related services personnel
LEA representative
IEP Team Members
38
 Required Members




Parent
At least 1 regular ed teacher,
if child participating in gen
ed
At least 1 special ed
teacher/provider
LEA representative

 LEA

can designate
member

 May Be Required
Individual who can interpret
evaluation results



Individuals with special
knowledge or expertise of
child
Related services personnel
Child, when appropriate
Transition service agency
representatives
Invite Part C service
coordinator/rep, if parent
requests
Who Can Miss an IEP Meeting?
39
 Required members may be absent:


For all or part of meeting, if
LEA and parent agree in writing
 Meeting without parent:

Permitted, but need documentation of attempts to arrange
mutually agreed on time and place. 34 C.F.R. § 300.322(d)
What is Needed if a Member Misses
an IEP Meeting?
40
 If the missing IEP team member’s area or related
service is not modified or discussed

No input is needed
 If the missing IEP team member’s area or related
service will be modified or discussed

Member must provide written input on development of the
IEP prior to the meeting
Review and Revision of IEPs
41
 IEP Team must review IEP annually
Encouraged to consolidate with reevaluation meeting and
other IEP Team meetings
 Reevaluation must occur at least once every three years

 Revising IEP:

After annual IEP meeting for School Year, parent and
LEA can agree not to convene meeting for changes
 Can develop written document to amend/modify
current IEP
 But, at parent’s request, must provide redrafted version
with amendments incorporated
Provision of Special Education
and Related Services
42
 Special Education Teachers
 Highly Qualified standard
If a teacher uncertified in special education is providing student
with hours required by IEP, those hours do not count.
 Paraprofessionals may not provide IEP-required hours of
specialized instruction for students.

 Related Services Providers
 Highly Qualified standard not required

BUT- need State approved certification, licensing or registration for
the services provided
What are Related Services?
43
 Transportation, developmental, corrective and other
supportive services required to help a disabled child
benefit from special education

Includes: interpreting services, physical and occupational
therapy, speech-language pathology and audiology, counseling,
therapeutic recreation
Excludes: surgically implanted medical device or replacement

34 C.F.R. § 300.34

IEPs and Services for Transfer Students
44
 Generally, the new public agency must provide
services comparable to services received in the IEP from
the previous public agency, until:

Transfer within same State
adopts or develops its own IEP
new public agency

Transfer from different State
new public agency
conducts an evaluation (if necessary) and develops and
implements new IEP
IEPs and Services for Transfer Students
45
What if you have no prior documentation?
 If, after taking reasonable steps to obtain the child’s
records, the public agency is not able to obtain the IEP from
the previous public agency or from the parent, the new
public agency is not required to provide services to the child
pursuant to 34 C.F.R. §300.323(f).

The new LEA must place the child in the regular school
program and conduct an evaluation if the LEA
determines it to be necessary.
Transmitting Student Records
46
 Generally, follow Family Educational Rights and
Privacy Act (FERPA)
 Except if student transfers to a private school

LEA must obtain parental consent prior to releasing
personally identifiable records to the private school
 LEA/SEA has 45 days to respond to parent request
for student records
Discipline
47
48
 An LEA is “on notice” that a student may be a
student with a disability if:
a.
b.
c.
d.
Parent expressed concern in writing.
Parent requested an evaluation.
Teacher expressed concerns regarding pattern of behavior.
All of the above.
Discipline Under IDEA
Step-by-Step Guide
49
Where a child has violated a code of conduct,
LEA must ask:
1. Is the child identified as a child with a
disability or was school on notice of a
disability?
The school is deemed to be “on notice” if:



Parent expressed concern in writing
Parent requested an evaluation
Teacher or other personnel expressed specific concerns
about a pattern of behavior
50
 If answer is:
 NO = No IDEA protections. Discipline Enacted.
 Has an evaluation been requested after or during
discipline?
 If yes, then expedited evaluations (during evaluations
Stay Put does not apply. Child remains where placed by
the LEA.)
 YES = Determine if Change of Placement (# 2)
Discipline (cont.)
51
2. Was the Removal a Change of Placement?
NOT a change of placement
Change of placement
• Less then 10 consecutive school days
• Series of short-term removals that are
not a pattern (even if greater than 10
days)
▫ Length of each removal;
▫ Total time removed;
▫ Proximity of removals;
▫ Behavior not substantially
similar; etc.
• Exceeds 10 consecutive school days
• Series of short-term removals that are a
pattern
• 45-day removal
▫ drugs, weapons, serious bodily
injury to another
• Request due process hearing for 45-day
removal ordered by hearing officer
▫ (very likely to injure self or others
in current placement)
Discipline (cont.)
52
If answer is:
 NO = Document Decision; Child remains where placed
by the LEA; Determine if services are required (#4)
 YES = Manifestation Determination (#3); Functional
Behavior Assessment; and Behavior Intervention Plan
(or review/amend current plan)

Stay Put Applies. Send Parent Notice of Decision and Procedural
Safeguards Notice
Discipline (cont.)
53
3. Was the behavior a manifestation of the Child’s
Disability? (Decided by IEP team)
If answer is:
 NO - Stay Put does not apply; LEA may enact discipline;
determine if services are required (#4)
 YES - Stay Put applies: Child Remains in School (exception 45-
day removal)

Note: If the IEP Team cannot agree, the LEA makes the decision
and sends notice to the parent
Discipline (cont.)
54
4. Are services required?
 10 Day Rule – NO services required for first 10 school
days of disciplinary removal in school year unless
services would be provided to non-disabled students.

LEA can always provide services even when not required.
 Starting 11th Day - Services may be required
 Not a Change of Placement – up to the LEA to decide the extent
to which services are required
 Change of Placement - services required, up to IEP Team
Expedited Hearing Timeframes
55
 If Parent appeals manifestation determination OR LEA
requests 45-day removal by hearing officer expedited
time frames apply.
 Timeframes
Hearing – 20 school days of date complaint filed
 Resolution meeting (unless waived) - 7 days of date notice
of the complaint received
 Hearing proceeds, unless matter resolved - 15 days of date
complaint received
 Decision – 10 school days after hearing

Due Process Timeframes v. Expedited Hearing
56
Day 1
Due Process Complaint
Day 7
Expedited Due Process
Complaint
Resolution Meeting (calendar)
Day 10
Answer Complaint
Day 15
Make Allegation if complaint is
Insufficient
Resolution Meeting
Day 20
If Alleged- Determination of Complaint Hearing
as (In)sufficient
(school days)
Day 30
If not Resolved – Hearing goes forward Final Determination Due
If Parent Not Involved – LEA can Make (school days)
Motion to Dismiss
Day 45
5-Day Disclosure Due 5 days before hearing
Final Determination Due
If Allegations not Resolved –
Hearing goes forward
IDEA Part C
Infants and Toddlers
57
D U E P R O C E S S A N D S T A T E C O M P L A I N T S
C H I L D F I N D
I N D I V I D U A L F A M I L Y S E R V I C E P L A N S
Part C vs. Part B
58
 Part C program provides “early intervention services”
to infants and toddlers with disabilities (under 3)

Distinct from Part B’s “early intervening services” that LEAs
may provide to children who have not been identified as
eligible children with disabilities
 State may include “at-risk” infants and toddlers and
children who previously received Part C services, who
are now eligible for Part B preschool services
(generally, ages 3-5), until they enter K

State must meet requirements to exercise this option
Due Process and State
Complaints
59
Due Process Complaints
60
 Relates to specific child – parents, EIS provider, or
lead agency can file.
 Adopt Part B Procedures
 May adopt Part B’s 45 day or Part C’s 30 day timeline for
reaching a final decision
or
 Create own procedures



Impartial Hearing Officer
Parents due process rights
Written decisions due in 30 days of receipt of complaint!
State Complaints
61
 Filed by any party regarding any violation of Part C.
 State complaints must be completed within 60 days!




Includes completing on-site investigation, if necessary
Complainant given opportunity to submit additional information
Review information and make independent determination
Written decision includes findings of fact and conclusions of law
 Time extensions only allowed in exceptional circumstances.
 If allegations already decided in due process case the due process
decision is binding!
Child Find
62
Comprehensive Child Find System
63
 SEA must have a child find system to identify, locate and
evaluate all infants and toddlers who are eligible for
services.

Must be consistent with Part B and include a system for making
referrals to service providers.
 Generally, “infant or toddler with a disability” means
individual under 3 experiencing developmental delays in
one or more of the following areas:





Cognitive development;
Physical development;
Communication development;
Social or emotional development; or
Adaptive development
Evaluations and Assessments
64
 SEA must establish procedures for referring a child as soon
as possible, but no later then 7 days. NEW 34 C.F.R. § 303.303
 45 calendar days after referral to complete the evaluation
and assessment activities and hold an Individualized
Family Service Plan (IFSP) meeting.

Exceptions under certain circumstances.
 Evaluations are designed to identify:


The child’s unique strengths and needs and the services appropriate to
meet those needs; and
The resources, priorities, and concerns of the family and supports and
services necessary to enhance the family’s capacity to meet the
developmental needs of their infant and toddler with a disability.
Individualized Family
Service Plan (IFSP)
65
Individualized Family Service Plan (IFSP)
66
 Annually evaluate appropriateness of IFSP
 Periodic review- at least every 6 months (more as
warranted)



Degree of Progress toward achieving outcomes
Whether modifications or revisions are necessary
This meeting may be combined with Annual Meeting
 IFSP meetings MUST be mutually convenient time and
setting

In native language of family or other mode of communication, unless
NOT clearly feasible
 Parental Consent is Required!! (no override)
IFSP Meetings
67
 Each Initial Meeting and Annual Meeting Must Include:






Parent(s)
Other family members as required by parent (as feasible)
Advocate or person outside of the family, if requested by parent
Public Agency Service Coordinator
Evaluators or Persons conducting Assessments
Service Providers, as appropriate
 If required member cannot attend, phone participation,
authorized representatives or make records available at
meeting!
Prior Written Notice
68
 Must be given to parents if the lead agency proposes
or refuses to initiate or change the following:
Identification of a child,
 Evaluation of a child,
 Placement of a child, or
 Provision of Early Intervention Services.

 Notice Must Include: reasons for action or refusal
and include available procedural safeguards
New Regulations
69
 ED released final regulations for Part C in September
2011.
 Key Changes:



Transition regulations revised – 34 C.F.R. § 303.209
Timeline for referral = within 7 days - 34 C.F.R. § 303.303
Exceptions to 45 day post-referral timeline - 34 C.F.R. §
303.310
Parent unavailable
 No consent for screening from parent

Side-by-side comparison available at: http://www.nectac.org/idea/idea.asp
Monitoring Due Process and State
Complaint Determinations
70
General Supervision System
71
 Monitoring due process and state complaint
determinations should be part of the SEA/LEA general
supervision system
 SEA/LEA General Supervision System




Ensure requirements of IDEA are carried out
Supervise the educational program for CWDs
Meets the educational standards of the SEA
Policies and procedures
 SEA Priority areas:



(1) Provision of FAPE in the LRE
(2) General supervision of child find, effective LEA monitoring, use
of resolution meetings, mediation and system of transition services
(3) Disproportionate representation of racial and ethnic groups

34 C.F.R. § 300.149 and 34 C.F.R. § 300.600
Identification of Noncompliance
72
 Final determinations based on due process and state
complaints may identify instances and/or areas of
noncompliance
 Types of noncompliance
 Student-level findings
 Systemic findings
 Other methods of identifying noncompliance:
 Self-assessments
 Onsite monitoring


Cyclical v. Risk-based
Data review

Disproportionate representation
Correction of Noncompliance
73
OSEP Memo 09-02
 Written notification of noncompliance
 Correction within one year of written notification
 Demonstrating Correction



Verify the LEA/school is:
(1) correctly implementing the specific regulatory
requirements; and
(2) has corrected each individual case of noncompliance

Exception: child is no longer within jurisdiction of LEA/school
Determinations of LEA Compliance with IDEA
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 USDE makes an annual determination of state
compliance

Based on APR and other relevant information
 States make annual determinations as to whether
each of its LEAs are meeting the requirements of
IDEA




Meets requirements
Needs assistance
Needs intervention
Needs substantial intervention

Mandatory withholding
Verification
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LOOKING AT “RESULTS”
Verification
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 Critical Elements Analysis Guide (CrEAG)

General Supervision System
Identify noncompliance in a timely manner using its different
components
 Ensure correction of identified noncompliance in a timely manner
 Procedures and practices to implement the dispute resolution
requirements of the IDEA
 Timely collect and report data that are valid and reliable and reflect
actual practice and performance
 Procedures and practices to implement selected grant application
assurances (i.e., monitoring and enforcement related to LEA
determinations and significant disproportionality/CEIS)


Fiscal Systems
Procedures to ensure that funds are distributed in accordance with
Federal requirements
 Procedures to ensure allowable use of IDEA funds

Results
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 State chooses “results” topic
 13 states receiving “results” visits this cycle
 SMART: specific, measurable, accountable, realistic and timely
 Visit will include
 Introduction of topic and plan
 Data drill down
 Stakeholder involvement
 Q&A
 Results plan must be posted on state website within
90 days of the visit
Results (cont.)
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 Examples of Results Topics:
 Part C: Increase the verification rate of infants and toddlers
who are referred through CAPTA from 8 to 8.2% by FFY 2013
 Part B: Indicator 14 survey results will indicate that students
with disabilities increased competitive employment from 45.3
to 50% by FFY 2016
 Part B: Increase the number of 3rd grade students with
disabilities who scored proficient and above from 29% to 34%
by 2013-2014
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Questions?
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information and does not constitute legal advice or a
legal service. This presentation does not create a clientlawyer relationship with Brustein & Manasevit, PLLC
and, therefore, carries none of the protections under the
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any attorney at Brustein & Manasevit, PLLC does not
create an attorney-client relationship with Brustein &
Manasevit, PLLC. You should not take any action based
upon any information in this presentation without first
consulting legal counsel familiar with your particular
circumstances.
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