PDED 505 Special Education Legislation & Litigation

1. PDED 505Special Education Legislation & Litigation Due Process

2. Due Process • Due process is a legal term that refers to judicial protection of liberty & property against unreasonable governmental action • It basically refers to "how" and "why" laws are enforced • The 5th amendment states: "…nor shall any state deprive any person of life, liberty, or property, without due process of law"

3. Due Process There are 2 types of Due Process: 1. Substantive Due Process: • the threatened or actual denial of life, liberty, or property • the "why" • a court will determine the cut off point for deciding to hear a case based on the degree of violation of substantive due process

4. Due Process 2. Procedural Due Process • these are formal proceedings with established rules and principles • the standards specifying how due process is to be applied • the "how" • for example: procedural safeguards in P.L. 94-142 include: • the opportunity to examine records • the right to obtain an independent educational evaluation • written notice to parents when educational agency proposes/refuses to initiate change • an opportunity to present complaints • an impartial due process hearing

5. Due Process Procedures Initiating a Hearing • either the parent or school may initiate a hearing • both parties must submit a due process complaint notice before accessing a due process hearing • arrangements for the hearing are made by the school or SEA • the child must "stay-put" in current educational placement during the due process proceedings; this is referred to as the "stay put provision"

6. Due Process Procedures Initiating a Hearing • parents may initiate due process proceedings if they disagree with: • proposal by educational agency to initiate or change the identification, evaluation, or educational placement of the child, or the provision of a FAPE to the child, OR • refusal by educational agency to initiate or change the identification evaluation, or educational placement of the child or the provision of a FAPE to the child

7. Due Process Procedures Initiating a Hearing • the school district/educational agency may also initiate a due process hearing • States are required to offer parents an opportunity to resolve the matter through 3rd party mediation (dispute resolution) before holding a due process hearing • The LEA cannot request dispute resolution to override a parent’s refusal to consent for special education and related services. In these circumstances, the LEA is not responsible to provide FAPE, convene an IEP or develop an IEP • If the school is considering whether to conduct an initial evaluation and the parent refuses, the district may pursue mediation and due process for the initial evaluation

8. Due Process Procedures Initiating a Hearing • Prior to 3rd party mediation, a “resolution session” may be held; the parent/LEA may waive the meeting • Complaints must be submitted no more than 2 years from the data a parent/agency knew or should have known about the issue that is the subject of the complaint

9. Due Process Procedures The Hearing Officer • an impartial hearing officer oversees due process hearings; their job is to sort out the facts and apply the law (IDEA) to the facts • the officer has the same powers as a judge, except for questions regarding the constitutionality of law and the awarding of attorney fees;  the individual is empowered to issue orders regarding a FAPE • the officer may only rule on the issues presented, and a review officer may only rule on appealed issues

10. Due Process Procedures The Hearing Procedures The following refer to the rights of both parties in a due process hearing: • the right to counsel, present evidence, confront/cross examine witnesses, compel attendance of witnesses, obtain verbatim records of hearing • all evidence must be made available to both parties at least 5 days before hearing • written decision must be made within 45 days after receipt of request for hearing • both parties have the right to appeal the findings

11. Due Process Procedures Additional Rights of Parents • the child has the right to be present • hearings are open to the public • informed of free/low cost legal & other services

12. Due Process Procedures Judicial Review • this may be pursued only after all administrative appeals have been exhausted

13. Examples of Due Process as Related to… Evaluation Procedures • IEP can be invalidated if not based on proper evaluation • Timelines must be followed for completing evaluations • A district must consider the results of an Independent Educational Evaluation (the recommendation of an IEE must not necessarily be adopted, or given extra weight, just considered) • The district cannot insist on an evaluation if the proceedings would pose a risk to student’s health/welfare

14. Examples of Due Process as Related to… Development of IEPs • IEPs that are not individualized • Gerstmyer v. Howard County Public Schools (1994): criticized an IEP that was assembled using portions of IEPs that had been developed for other students

15. Examples of Due Process as Related to… Development of IEPs (continued) • Parents must be provided with genuine opportunity for participation; informal contact with parents do not meet IDEA's requirements for parental participation • Do IEPs have to be "perfect"?  Flaws are acceptable as long as they do not compromise the appropriateness of a student's educational program.  In one case, an IEP did not address all areas of a student's disability.  Per the judge's ruling, this compromised the integrity of the student's educational program and therefore invalidated the IEP. • A student's placement must be based on the IEP

16. Examples of Due Process as Related to… Parental Rights • Parental rights have never before been mandated in federal legislation until IDEA • parental notification • informing parents of their rights provides them with informed consent • parents must be provided with notification of action/refusals with an explanation why; they must be given a description of the options considered and any reasons for rejection

17. Other Procedural Considerations… • Procedural errors • To what extent did the error interfere with the development of the IEP? • The courts will examine any of these violations and determine if and to what extent interference with the IEP occurred/

18. Other Procedural Considerations… • The IEP conference • Parents must be notified & they should be present • Schools must take measures to ensure parental understanding of the IEP • Parental participation means more than mere presence at a meeting; it means participating (collaborating, contributing, and involvement) • Parents may give up rights by failing to participate

19. Other Procedural Considerations… • IEP revisions • Parents must be notified and given the opportunity to object to substantial changes to IEP

20. Other Procedural Considerations… • Noncustodial parents • When parents are divorced, both have a right to notification and participation in due process

21. Other Procedural Considerations… • When students turn 18 years of age, parents do not lose their rights, even if they do not possess guardianship • Privacy rights; the disclosure of personal, identifiable information is prohibited

22. Other Procedural Considerations… Change in Placement • Change in placement refers to changes that affect the form of education or instruction, and not necessarily the location of instruction • Formal written notification of graduation must be given • An adjustment to an IEP is considered a change in placement only if the change is likely to significantly affect the student's learning • If a service is being provided and it is not in the IEP, it can be changed without due process proceedings

23. Remedies for Violations • "Any party aggrieved by the findings and decision…shall have the right to bring a civil action with respect to the complaint presented…In any action brought under this paragraph, the court…shall grant such relief as the court determines is appropriate"

24. Remedies for Violations The following are possible remedies with a due process proceeding: • injunctions; an order requiring specified actions • damages; these are not available under due process proceedings • reimbursement is possible • reasonable attorney fees may be awarded to the SEA/LEA when the parent’s complaint is “frivolous, unreasonable or without foundation” or when the parent’s complaint was presented for an improper purpose (e.g., to harass, cause unnecessary delay, or needlessly increase the cost of litigation) • compensatory education is possible when a student has not received an appropriate education • attorney fees are also possible