Transcript Procedural Safeguards - College of Education

Procedural
Safeguards
Yell / The Law and Special Education, Second Edition
Copyright © 2006 by Pearson Education, Inc. All rights reserved
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Procedural Safeguards
LEAs must establish and maintain
procedures to assure that children with
disabilities and their parents are
guaranteed procedural safeguards with
respect to the provision of a free
appropriate public education
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IDEA Safeguards
• Identification of parents
• General procedural requirements
• Opportunity to examine records
• Independent educational evaluation
• Surrogate parents
• Impartial due process hearing
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General Procedural
Requirements
• Notice requirements
• Consent requirements
• Opportunity to examine records
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Notice
• A procedural safeguard notice may be given only
once a year and at:
–
–
–
–
the initial referral
a parental request for evaluation
the initial filing for a due process hearing
at the request of the parent
• School districts may post their procedural safeguard
notice on their Web site
• The procedural safeguards notice must include: (a)
timeframes for filing due process hearing requests (b) the
opportunity for resolution process (c) information on mediation,
and (d) timeframes for lawsuits
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Yell / The Law and Special Education, Second Edition
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Consent
• Informed consent must be obtained from a
student parents/guardians before the
school:
– Conducts a preplacement evaluation
– Initially places a student in special education
– Conducts a reevaluation
• When obtaining consent, the school must
ensure that the parents understand and
agreed to the proposal in writing
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Opportunity to Examine Records
• Parents/guardians shall be afforded the
opportunity to inspect and review all education
records regarding
– The identification, evaluation, and educational
placement of their child, and
– The provision of FAPE to their child
• The IDEA’s confidentiality of information
requirements direct schools to keep a record of
parties obtaining access to records including
names, dates, and purposes (this does not
extend to a student’s parents)
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Independent Educational
Evaluations (IEE)
• Provide parents with information on where to
obtain an IEE
• Right to one IEE at public expense
• If LEA evaluation is appropriate the parents are
entitled to an IEE, but not at public expense
• Results of the IEE must be considered
• IEE results may be presented at a hearing
• A hearing officer may request an IEE
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Dispute Resolution
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Mediation
• A dispute-resolution and collaborative
problem-solving process
• A trained impartial mediator facilitates a
negotiation process between the parties
• The mediator had no authority to impose
solutions
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Resolution Sessions
• Within 15 days of Due Process Hearing notice,
the school must convene a meeting with:
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–
–
–
Parents
Relevant IEP team members
An agency representative with decision-making authority
May not include an LEA attorney unless parent’s attorney is
present
• The purpose of the meeting is to discuss the facts
and resolve the hearing issues.
• Parties may agree, in writing, to waive the
resolution meeting or to use mediation in lieu of
the resolution session
• Attorney’s fees are not recoverable
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Written Settlement Agreement
• If resolution is reached to resolve the complaint at a
meeting, the parties execute a legally binding
agreement (written settlement agreement) that is:
– Signed by both the parents and a representative of
the agency
– Enforceable in any state court of competent
jurisdiction
• If parties execute a written settlement agreement, a
party may void the agreement within three business
days
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Impartial
Due Process Hearings
• The purpose of a due process hearing is to resolve
disputes regarding proposal to:
 Initiate identification, evaluation, or placement
 Change identification, evaluation, or placement
• Hearings are conducted by SEA or LEA
• The impartial hearing officer (IHO) must be impartial
• The role of a hearing office is functionally
comparable to that of a judge
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Due Process Hearings
• Two-year statute of limitations on requesting due
process hearings
• Decisions in due process hearings are to made on
substantive grounds
• On matters alleging procedural violations, a
hearing office can find that a student did not
receive a FAPE only when the violations:
– Impeded the student’s right to a FAPE
– Impeded the parents opportunity to participate
– Caused a deprivation of educational benefits
• 90 day time limit from date of IHO’s decision to
bring a civil action
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Due Process Hearing Rights
•Right to counsel
•Right to present evidence, cross-examine, &
compel attendance
•Right to prohibit entry of evidence (5 days prior)
•Right to persons with specialized knowledge
•Right to written or electronic record verbatim (parents
may choose to require electronic record)
•Right to obtain written findings of fact & law
•Right to have child in question present
•Right to an open hearing
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Exhaustion of Remedies
• Tiers
–Local Educational Agency
–State Educational Agency
• Court action
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Burden of Proof
• Due Process Hearing
• Court Proceedings
• Due weight is accorded due
process decision
• Reviewing court can take case de
novo
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Shaffer v. Weast, 2005
• The most recent special education ruling
from the U.S. Supreme Court addressed
the issue of burden of proof in special
education lawsuits
• The U.S. Supreme Court issued its ruling
on 11-14-05 (6-2 ruling).
• Justice Sandra Day O’Conner wrote the
majority opinion
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Facts of the Case
• The parents of a child with learning disabilities refused to sign the
school’s IEP & placed their son in a private school. They filed a
complaint against the school district challenging their son’s IEP and
seeking tuition reimbursement.
• A hearing officer noted that the facts were evenly balanced, but ruled for
the school district because the parents “bear the burden of proof.”
• The parents appealed to the federal district court which sent the case
back to the hearing officer to reconsider the case with the school district
bearing the burden of proof.
• The hearing officer reversed his ruling.
• The school appealed to the District court, which rejected the appeal, and
then to the U.S. Court of Appeals for the 4th Circuit
• The appellate court ruled in favor of the school district, holding that the
parents should bear the burden of proof
• The parents appealed to the U.S. Supreme Court
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Ruling
• According to the majority opinion, written by
Justice O’Connor, although the IDEA is silent on
which party (parents or schools) has the burden
of proof, the burden of proof is traditionally
placed upon the party seeking relief.
• When parents challenge an IEP, therefore, they
must prove the IEP is inappropriate,
• School systems are not legally obligated to
prove the adequacy of IEPs,
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Problems with the IDEA’s
Hearing Method
• Time consuming
• Emotionally taxing
• Expensive
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Right to Bring Civil Action:
• Public agencies may recover their attorneys’ fees
from parents’ attorneys if the case was:
– Frivolous
– Unreasonable
– Without foundation
• Public agencies may recover attorneys’ fees against
the parents’ attorney or the parents if the case was
presented for any improper purpose such as to:
– Harass;
– Cause unnecessary delay
– To needlessly increase the cost of litigation
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Remedies
“The court shall receive records of the
administrative proceedings, shall hear
additional evidence at the request of a party,
basing its decision on the preponderance of
evidence, shall grant such relief as the court
determines is appropriate,” (IDEA, 20 U.S.C.
§ 1415 (e)(2)
• Types of relief provided by the courts are
referred to as remedies
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Attorneys’ Fees
• “In any action or proceeding brought under
[HCPA], the court, in it’s discretion, may award
reasonable attorney’s fees as part of the costs
to the parents or guardians of a [child with
disabilities] who is the prevailing party” 20
U.S.C. § 1415
Smith v. Robinson (468 U.S. 992,1984)
The Handicapped Children’s Protection Act
(1986)
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Tuition Reimbursement
• An award to compensate parents for
the costs of a unilateral placement of
their child in a private school when an
LEA has failed to offer an appropriate
education
• Burlington v. Department of Education
(471 U.S. 359, 1985)
• Florence v. Carter (114 S.Ct. 361,1993)
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Compensatory Education
• Compensatory services are designed to
remedy the progress lost by students
with disabilities because they were
previously denied an appropriate
education
• Examples:
– Extending a student’s eligibility beyond 21
– Extended school year
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Punitive Damages
• Monetary awards in excess of actual
damages, intended to serve as
punishment and recompense for legal
wrongs
IDEA
Section 504
Section 1983 of the Civil Rights Act
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Section 1983
• Forbids public officials from depriving
citizens of their rights under the US
Constitution or Federal laws
• To assert a 1983 claim, the plaintiff must
prove that:
 The defendant was acting under color of law
 The actions deprived the plaintiff of rights
guaranteed by the Constitution or federal
statutory law
• Doe v. Withers, (20 IDELR 442,1993)
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