Transcript The I.E.P. PROCESS: How to Access Public School Services

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
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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
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Federal Law
State Law
Federal and State Regulations
Circuit Courts (9th District)
Supreme Court
History of Special Education
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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. seq.]
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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)
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Part A - Defines terms used in all 4 sections
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Part B - Ages 3-22 schools & children
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Part C - Ages birth-3 early intervention
program
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Part D – Information & research professionals
and parents
Purpose of IDEA 2004
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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
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(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:
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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
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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
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(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
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Transportation
Speech and language pathology
Audiology
Interpreting services (2004)
Psychological services
Physical and occupational therapy
Related Services
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(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
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(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
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Hearing impairments (including deafness)
Visual impairments (including blindness)
Speech or language impairments
Orthopedic impairments
Autism
Eligibility
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(continued)
Mental Retardation
Emotional Disturbance
Traumatic brain injury
Other health impaired
Specific learning disabilities
Eligibility
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(continued)
AND WHO BY REASON OF THEIR DISABILITY
NEED SPECIAL EDUCATION AND RELATED
SERVICES
Specific Learning Disabilities
under IDEA 2004
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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
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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
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(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
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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
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(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
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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
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(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
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(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
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(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
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“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
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(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
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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
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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
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(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
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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
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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
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(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
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(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
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(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
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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
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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
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(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
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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
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(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
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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
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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
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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)
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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)
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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)
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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
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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
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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
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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)
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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)
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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
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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)
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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)
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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)
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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)
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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)
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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)
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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)
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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)
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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)
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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Notice must be in parents native language.
Must give notice of the mediation and Due
Process complaint procedures.
Notice must contain:
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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
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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:
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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

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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)