Chapter Thirteen

1. Chapter Thirteen Procedural Safeguards

2. Procedural Safeguards • The Education for All Handicapped Children Act provided procedural protections to ensure parents and students were meaningfully involved with school districts when educational programs were planned and implemented. • The procedural protections relied on the 5th and 14th Amendments of the Constitution, which gave people procedural and substantive due process rights. • Congress created explicit procedural safeguards to be afforded students with disabilities and their parents. • Parents challenging the special education services provided by a school may use the procedures set forth in the Education Department General Administrative Regulations (EDGAR).

3. Procedural Rights of Parents Identification of Parents: • Procedural safeguards must be extended to the parents of students with disabilities under the IDEA. • The identification of a student’s parents is an important requirement under the law. • A parent is defined as: a parent, guardian, person acting as parent of the child, or surrogate parent. • The IDEA neither compels a school district to include a noncustodial parent in special education planning nor prohibits the inclusion of that parent.

4. Procedural Rights of Parents Identification of Parents, cont. • The IDEA doesn’t address situations where parents of a student are divorced and live apart and one agrees with an IEP but the other disagrees. • The parent in disagreement with the IEP should be notified of the IDEA due process rights. • Questions regarding the role of foster parents in the special education decision-making process remain unsettled. • The role of foster parents is not addressed in the IDEA. • The IDEA doesn’t require a state to recognize a foster parent as a ‘parent’. • If a foster parent becomes a parent under the law, a surrogate parent doesn’t need to be appointed to represent the student.

5. Procedural Rights of Parents Surrogate Parents: • If a child doesn’t have a parent, the parent can’t be found, or a child is a ward of the state, the IDEA requires that a surrogate parent be appointed. • A surrogate parent has all the rights, responsibilities, and procedural safeguards of a natural parent under the IDEA. • The appointment of surrogate parents doesn’t end parental rights and the surrogate parents don’t act as replacements for parents in other matters.

6. Procedural Rights of Parents Surrogate Parents, cont. • The public agency responsible for the surrogate parent must have procedures for determining whether a student needs a surrogate parent and for assigning the surrogate parent. • If parents can be located but have no interest in their child’s educational program or refuse to participate in the special education process, the IDEA doesn’t empower school districts to appoint surrogate parents.

7. General Procedural Requirements • School districts must establish and maintain procedural safeguards in accordance with the IDEA and state law requirements. • A copy of the procedural safeguards must be made available to parents of a child with a disability one time a year. • A school district may place the procedural safeguard notice on its website.

8. General Procedural Requirements Notice Requirements: • The IDEA requires that schools notify parents at various stages in the special education process regarding their substantive and procedural rights. • Notification means that the school must inform the parent of any actions proposed by the school district. • The notice must be written so that it is understandable to the general public.

9. General Procedural Requirements Consent Requirements: • The IDEA requires parental consent prior to the initial evaluation and placement of a student in special education. • A school district must inform parents of relevant information regarding the evaluation or placement before obtaining consent. • When obtaining consent, the school must ensure that the parents understand and agree to the proposal in writing.

10. General Procedural Requirements Consent Requirements, cont. • Parents must be told that the granting of consent is voluntary and may be revoked at any time. • The IDEA 2004 covers what to do when parents refuse to grant consent for what school personnel believe are needed special education services or if parents fail to respond to the school’s attempts to reach them.

11. General Procedural Requirements Opportunity to Examine Records: • The IDEA contains specific requirements concerning parental access rights. • Schools must permit parents to inspect and review all educational records collected, maintained, and used by the school concerning the student’s special education. • The length of time between the parents’ request to the school and the inspection or review of the records can’t exceed 45 days. • The IDEA’s confidentiality of information requirements directs schools to keep a record of parties obtaining access to the student records. • a. This requirement doesn’t extend to parental access.

12. General Procedural Requirements Independent Educational Evaluation: • The IDEA’s procedural safeguards include the right of parents to obtain an independent educational evaluation (IEE) of their child. • If the parents disagree with the school’s evaluation, they may request an IEE at public expense. • The IEE may be presented as evidence at an impartial due process hearing. • Parents have received reimbursement for IEEs when schools have violated procedural safeguards, when parents have taken unilateral actions that were later determined necessary, and when the IEE was later used to determine placement.

13. Dispute Resolution • If parents believe a school district hasn’t followed the procedures or if they disagree with actions involving the identification, evaluation, or placement of the child, parents may follow a set of dispute resolution mechanisms. Mediation: • The IDEA Amendments of 1997 added voluntary mediation requirements to the procedural safeguards. • Mediation is a dispute-resolution and collaborative problem-solving process in which a trained impartial party facilitates a negotiation process between parties who have reached an impasse.

14. Dispute Resolution Mediation, cont. • When a mediation session is conducted, a neutral third party helps the parents and school personnel arrive at their own solution to the disagreement. • Although a mediation session is structured, it is less formal and adversarial than due process hearings or court proceedings. • States are required to offer mediation as a voluntary option for parents and school districts to resolve disputes. • Mediation can’t be used to delay or deny parents’ right to an impartial due process hearing.

15. Dispute Resolution Mediation, cont. • Congress left to the states decisions regarding the attendance of attorneys at mediation. • Mediators don’t have to be attorneys. • Mediation resolutions are put into a legally binding written agreement, which states that discussions that occurred during mediation will be kept confidential.

16. Dispute Resolution Resolution Session: • In IDEA 2004, Congress developed the resolution session as an intermediary step between the mediation session and the due process hearing. • The parents give the school district 30 days in which to resolve the issue. • If no resolution is reached, the due process hearing may take place.

17. Dispute Resolution The Due Process Hearing: • The IDEA contains a bill of rights for parents wishing to contest a school’s special education decisions regarding their child. • The indispensable condition of the IDEA’s procedural safeguards is the due process hearing. • The purpose of it is to allow an impartial third party to hear both sides of a dispute, examine the issues, and settle the dispute. • Parents may request a due process hearing to contest a school’s identification, evaluation, educational placement, or provision of FAPE or to question the information in their child’s educational records.

18. Dispute Resolution The Due Process Hearing, cont. • The due process hearing may be used to seek resolution of procedural violations if the violations adversely affect a student’s education. • The IDEA leaves the choice of the agency that conducts due process hearings to individual states. • The hearing must be conducted at a time and place convenient to the parents. • No less than 5 days before the hearing, both parties are required to disclose

19. Dispute Resolution The Due Process Hearing, cont. • States have the option of adopting a one-tier or two-tier hearing procedure. • In a one tier system, the initial level of review is usually conducted by the state educational agency. • In a two-tier system, the initial review is usually conducted by the school district and an appeal of the hearing officer’s decision is made to the state for an intermediate administrative review.

20. Dispute Resolution The Due Process Hearing, cont. • State laws or regulations direct the method by which due process hearings are requested. • If the hearing is conducted by the school district, the request normally goes through the district. • The nature of the disagreement and the names of the parties involved should be included in the request.

21. Dispute Resolution • The Impartial Hearing Officer: • The integrity of the due process hearing is maintained by ensuring that the hearing officer is impartial. • The officer must have no involvement with the child, the parent, the school system, or the state. • Potential hearing officers are not considered employees of the public agency if they are paid by the school only for the hearing and for no other reason. • The hearing officer must understand the IDEA thoroughly. • School districts must maintain a list of persons who may serve as due process • Parents can challenge the selection of the officer.

22. Dispute Resolution • The Role of the Hearing Officer: • The primary duties are to: inform the parties of their rights during the hearing, allow all parties the opportunity to present their cases, conduct the hearing in a fair, orderly, and impartial manner, and render a decision in accordance with the law. • The hearing officer must determine whether the student in question received a FAPE that provided meaningful educational benefit. • The hearing officer’s authority to grant particular remedies is less extensive than that of a judge. • The hearing officer may not award attorney’s fees and has no authority over outside agencies.

23. Dispute Resolution • The Role of the Hearing Officer, cont. • The hearing officer must make a decision no later than 45 days after the hearing request. • Hearing officers cannot be held liable for actions taken in their official capacity. • However, they may be sued for damages resulting from actions taken in their individual capacities.

24. Dispute Resolution • Hearing Rights: • The IDEA contains a set of procedural rights that must be afforded all parties in a due process hearing. • Both parties in the hearing have the right to be represented by counsel if they desire. • The parents have the exclusive right to open the hearing to the public. • Either party in a hearing has the right to appeal with the hearing officer’s decision in 90 days.

25. Dispute Resolution • The Stay-Put Provision: • Unless the school and parents agree otherwise, when a request for a hearing is made the IDEA’s “stay-put” provision is invoked. • The stay-put provision acts as an automatic preliminary injunction pending a resolution of a due process hearing or judicial action. • The school may use its normal procedures for dealing with students who are endangering themselves or others. • The IDEA abrogates the stay-put amendment when a student with a disability bring a weapon to school or a school function, uses, sells, or solicits the sale of illegal drugs, or inflicts serious bodily injury upon another person while at school or a school function.

26. Dispute Resolution • The Stay-Put Provision, cont. • In these situations, the students can be immediately removed to an interim alternative setting for up to 45 days, and this becomes the stay-put placement if a due process hearing is requested. • The Conduct of the Hearing: • Usually, hearings are conducted in a professional manner but with a more informal atmosphere than a trial court. • There should be a structure to the hearing so that everyone clearly understands his or her role and participates fully. • Either party in a hearing has the right to a written record of the hearing.

27. Dispute Resolution • The Conduct of the Hearing, cont. • Parents may require an electronic record of the hearing. • Often hearing rooms are set up like a trial court, with the hearing officer in a central position and the respective parties on the sides. • The hearing officer typically opens the hearing with a call to order and an introductory statement. • The hearing should begin with preliminary matters such as questions, objections, or requests from participants. • After opening statements are completed, evidence is presented.

28. Dispute Resolution • The Conduct of the Hearing, cont. • The school system should present its case first. • Both sides present evidence and witnesses, and are able to cross-examine each other. • Both parties conclude with a closing statement that summarizes their position • The hearing officer should close the hearing.

29. Dispute Resolution • Appeals and Civil Actions: • In states with a two-tiered process, the decision of the hearing officer can be appealed to the SEA. • In an appeal, the agency reviews the entire hearing record, ensures that procedures were followed, seeks additional evidence, allows arguments at its discretion, and makes an independent decision. • The appeal is usually made to the office of special education of the state’s department of education. • Either party may appeal the SEA’s decision and may file a civil action in a state or federal court.

30. Dispute Resolution • Appeals and Civil Actions, cont. • In a one-tier state, the civil action may be filed following the due process hearing. • In a two-tier state, the civil action usually can’t be filed until all the administrative options have been exhausted. • The court will usually not rehear the case, nor will it focus on the entire case. • A party in a due process hearing may also file a civil action if the other party fails to follow the decision of the hearing officer.

31. Alternatives to the Due Process Hearing Criticisms: • Criticisms have been leveled at the system of procedural safeguards, especially due process hearings, as being too expensive, time consuming, adversarial, and emotionally draining for all parties involved. • In the IDEA Amendments of 1997, Congress required states to adopt voluntary mediation systems to alleviate the overly adversarial nature of the dispute-resolution process. • A 5-part solution to the problems in the hearing process: • The due process hearing should be the final stage for most special education disputes.

32. Alternatives to the Due Process Hearing • Criticisms: • Since the due process hearing would escalate in importance under the first suggestion, regulations would specify that hearing officers must have expertise in special education. • The conduct of due process hearing would be changed to a problem-solving model rather than an adversarial model. • Attorney’s fees would be limited to the judicial stage. • Hearings in routing cases should be limited to one full day.

33. Alternatives to the Due Process Hearing School District Responsibilities in the Hearing: • Success in the due process hearing is critical to the ultimate outcome of the case. • Schools must prepare seriously when approaching a due process hearing. • There are six major problems that frequently lead to due process hearings, and schools should attempt to avoid these errors. • Procedural violations: failing to fulfill the procedural protections of the IDEA. • Telling parents that a particular service or program is appropriate for their child but that the school district can’t afford it.

34. Alternatives to the Due Process Hearing School District Responsibilities in the Hearing, cont. • Rigidity: blanket statements that exclude the consideration of certain programs or services are clearly illegal. • Giving in to parental demands when the demands won’t provide the child with a FAPE. • Acting on the basis of principle rather than reason. • Burden of proof: the responsibility of proving a case. • The failure to act promptly to secure services recommended by the IEP team.

35. Remedies • When a suit is filed, the court will usually defer to the facts as determined during the due process or administrative hearing, although the court may also hear additional evidence at the request of either party. • The IDEA authorizes courts to provide relief to the prevailing party. • The state does not clarify what exactly “appropriate relief” might entail. • The types of relief provided by courts to redress violations of the law are referred to as remedies. • The courts have recently expanded the definition of appropriate relief.

36. Remedies Sovereign Immunity: • The IDEA allowed parties to sue states and school districts. • The law overturned the doctrine of sovereign immunity. • Sovereign immunity refers to the immunity of the states against damage suits. • Lawsuits against a governmental entity or its officials are prohibited.

37. Remedies Attorney’s Fees • The original EAHCA contained no provision for reimbursement of attorney’s fees. • Smith v. Robinson, 1984 • In this case, the parents of a child with cerebral palsy sued successfully for attorney’s fees under Section 505 of the Rehabilitation Act in federal district court. • The attorney’s fee award was overturned by the U.S. Court of Appeals. • The parents appealed to the U.S. Supreme Court, which upheld the ruling of the appeals court.

38. Remedies • The Handicapped Children’s Protection Act (HCPA): • The HCPA amended the IDEA to allow the provision of attorney’s fees to parties prevailing in special education lawsuits. • The major purpose of the HCPA is to allow parents to recover attorney’s fees in successful actions under the IDEA without having to use other laws to sue. • Issues in the Award of Attorney’s Fees: • The law contained several stipulations regarding the reimbursement of these fees. • A major proviso in the law was that parents could collect attorney’s fees only if they were the prevailing party.

39. Remedies • Issues in the Award of Attorney’s Fees, cont. • In many cases brought to trial, school districts have made good faith efforts to provide services to students with disabilities, but parents and the schools have not been able to agree regarding the specific services required. • The law prohibits the awarding of attorney’s fees in cases where parents have rejected a properly made settlement offer if they ultimately obtained essentially the same relief as originally offered. • The HCPA reversed the Court’s ruling in Smith regarding the exclusivity of the IDEA in lawsuits. • The law allowed plaintiffs to sue for attorney’s fees if they had been denied fees because of the Smith ruling.

40. Remedies • IDEA 1997 and the Attorney’s Fees Provision: • The 1997 amendments retained the HCPA’s provisions regarding attorney’s fees and added a few qualifications. • The provisions served to limit the situations in which attorneys could seek reimbursement from school districts. • In determining attorney’s fees awards, courts are required to assess the degree to which the plaintiff prevailed on significant issues.

41. Remedies • Buckhannon Board & Care Home Inc. v. West Virginia Department of Health and Human Resources, 2001: • The ruling in this case has had a significant effect on attorney’s fees available under the IDEA. • Buckhannon sued for attorney’s fees based on a legal concept called the catalyst theory. • According to the catalyst theory, a plaintiff may be considered the prevailing party, and be awarded attorney’s fees, if it obtained its desired outcome because its legal action brought a voluntary change in the defendant’s behavior, conduct, or policies. • The Supreme Court rejected the catalyst theory as a basis for attorney’s fees awards.

42. Remedies • IDEA 2004 and Attorney’s Fees: • In an effort to discourage IDEA-related litigation, Congress acted to alter the attorney’s fees provision. • In any IDEA-related action, a court may award reasonable attorney’s fees to a prevailing party who is the parent of a child in special education. Injunctive Relief: • An injunction is a judicial remedy awarded for the purpose of requiring a party to refrain from or discontinue a certain action.

43. Remedies Injunctive Relief, cont. • It is a preventive measure that guards against a similar action being committed in the future. • Preliminary injunctions, which are temporary, are issued prior to a trial. • A permanent injunction is awarded when a court, after hearing the case, is convinced that such an injunction is required to prevent harm. • When school officials attempt to obtain an injunction, they must convince the court that they will likely succeed on the merits of the case in trial.

44. Remedies Tuition Reimbursement: • Tuition reimbursement is typically an award to compensate parents for the costs of a unilateral placement of their child in a private school when the public school has failed to provide an appropriate education. • The appropriate education the parents had to obtain is provided at no cost to the parents. • The Supreme Court examined the question of tuition reimbursement under the IDEA in two court cases.

45. Remedies • Burlington School Committee v. Department of Education, 1985 • Burlington involved a school district’s education of a third grader, Michael Panico, who had learning disabilities and emotional problems. • An independent evaluation indicated Michael should be in a private school setting. • The Supreme Court stated that parents who unilaterally place their children with disabilities in a private school setting are entitled to reimbursement for tuition and living expenses if a court finds that the school had proposed an inappropriate IEP. • If the school’s proposed placement was found to be appropriate, the school would not have to reimburse the parents.

46. Remedies • Burlington School Committee v. Department of Education, 1985, cont. • The IDEA gives courts broad discretion in granting relief. • The Supreme Court recognized that related expenses, in addition to tuition, may also be awarded to parents. • Following the Burlington decision, a number of issues regarding tuition reimbursement were litigated. • Florence County School District Four v. Carter, 1993: • Parents can be reimbursed for the use of unapproved personnel and schools for services obtained when school districts failed in their duty to offer an appropriate education for students with disabilities under Part B of the IDEA.

47. Remedies • Florence County School District Four v. Carter, 1993, cont. • Shannon Carter had evaluations done indicating that she had a learning disability and Attention Deficit Disorder. • Her parents requested that Shannon be placed in a self-contained classroom in a neighboring school district, but the school district proposed that Shannon receive instruction from a special education teacher in a resource room. • The Carters lost a due process hearing, and placed Shannon at Trident Academy, a private school. • The Supreme Court ruled that the school district had to reimburse the parents for placement in the school, even though it was not on the SEA’s approved list. • Limiting parental reimbursement to state-approved schools would be contrary to the IDEA when the school district had not complied with the law.

48. Remedies Compensatory Education: • Compensatory educational services are designed to remedy the progress lost by students with disabilities because they were previously denied a FAPE. • It is the award of additional educational services, above and beyond the educational services normally due a student under state law. • It can extend a student’s eligibility for educational services beyond age 21 as compensation for inappropriate educational services.

49. Remedies Compensatory Awards Under the IDEA: • Compensatory education may be ordered if it is determined that a school district did not provide an appropriate education. • Tuition reimbursement represents an up-front risk that many parents cannot afford. • Parents don’t need to resort to litigation to receive an enforceable award of compensatory education.

50. Remedies Punitive Damages: • Punitive damage awards are monetary awards in excess of actual damages. • They are intended to serve as punishment and recompense for a legal wrong. • Extensive litigation has examined whether courts can order the award of punitive damages in special education cases brought under the IDEA. • Recently, some legal developments have indicated that school districts can be held liable for punitive damages for violations of the IDEA. • The first major development was the HCPA.