Due Process and State Complaints

1. Due Process and State Complaints Bonnie Little, Esq. blittle@bruman.com Erin Auerbach, Esq. eauerbach@bruman.com Brustein & Manasevit, pllc Fall Forum 2011

2. Topics • 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?

3. Resources • 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/monitor/index.html • OSEP Letters: http://www.ed.gov/policy/speced/guid/idea/letters/revpolicy/index.html#T

4. IDEA, Part B Due Process and State Complaints Child Find Eligibility and Evaluations IEPs Discipline

5. Due Process Complaints

6. Due Process Complaints • A parent may file a due process complaint (lawsuit) against an LEA if: • The LEA did not timely identify the student as a student with a disability. • The LEA did not provide all of the services required by the student’s IEP. • The LEA did not evaluate the student in all areas of suspected disability. • The LEA did not provide an appropriate placement for the student. • Both (a) and (b). • All of the above.

7. Due Process Complaints • 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.

8. Due Process Complaint Timeline

9. Resolution Meetings • 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

10. Mediation • 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)).

11. Hearing Officer Determinations • 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

12. Attorneys’ Fees • 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)

13. Attorneys’ Fees After Offer of Settlement • 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.

14. State Complaints

15. State Complaints • An organization, that does not represent a parent or an LEA, may file a state complaint. • True • False

16. State Complaints • 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.

17. State Complaints • 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

18. State Complaint vs. Due Process Complaint • 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.

19. What to know to prevent due process and state complaints? The most common allegations and how to avoid them.

20. Child Find

21. Child Find • 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? • Yes • No

22. Child Find • 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

23. Comprehensive Child Find System SEA • Develop a comprehensive 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 LEA • Promote public awareness of 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

24. Early Intervening Services (EIS) • 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!!

25. Response to Intervention (RTI) • 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)

26. Parental Consent • 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.

27. Parental Notices 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

28. Parental Notices 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.

29. Evaluations and Eligibility

30. An LEA must conduct the initial evaluation of a student within 60 days (unless the State has a different timeframe) unless: • 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).

31. Initial Evaluation • 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, Letters, E-mails, Visits to Parent’s Home and/or Work.

32. Initial Evaluations • 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). 

33. Reevaluation • 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!

34. Independent Educational Evaluation • 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

35. Multidisciplinary Team (MDT) Meeting • Before an IEP is created, eligibility must be determined. • MDT determines eligibility. • IF eligible – create an IEP within 30 days of determining eligibility!

36. Individualized Education Programs (IEPs)

37. Which of the following IEP team members is not always a required member: • General education teacher • Special education teacher • Related services personnel • LEA representative

38. IEP Team Members • 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 • Individual who can interpret evaluation results • May Be Required • 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

39. Who Can Miss an IEP Meeting? • 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)

40. What is Needed if a Member Misses an IEP Meeting? • 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

41. Review and Revision of IEPs • 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

42. Provision of Special Education and Related Services • 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

43. What are Related Services? • 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

44. IEPs and Services for Transfer Students • 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 new public agency adopts or develops its own IEP • Transfer from different State new public agency conducts an evaluation (if necessary) and develops and implements new IEP

45. IEPs and Services for Transfer Students 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.

46. Transmitting Student Records • 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

47. Discipline

48. An LEA is “on notice” that a student may be a student with a disability if: • Parent expressed concern in writing. • Parent requested an evaluation. • Teacher expressed concerns regarding pattern of behavior. • All of the above.

49. Discipline Under IDEAStep-by-Step Guide 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)