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ADVOCATING FOR A CHILD WITH SPECIAL NEEDS

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Title: ADVOCATING FOR A CHILD WITH SPECIAL NEEDS


1
ADVOCATING FOR A CHILD WITH SPECIAL NEEDS
  • Presented By
  • Dina C. Kaplan, Esq.
  • Andrea Lorant, M.A.
  • Maureen Cataldi, M.Ed

2
What is Special Education
  • Special Education isnt a place or type of
    classroom
  • Its services and supports given to children with
    disabilities in order for them to benefit from
    their education

3
Special Education Law
  • Federal Law
  • State Law
  • Federal and State Regulations
  • Circuit Courts (9th District)
  • Supreme Court

4
History of Special Education
  • 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

5
Individuals with Disabilities Education Act20
U.S.C. Sec. 1400 et. seq.
  • 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

6
IDEA (4 Parts)
  • Part A - Defines terms used in all 4 sections
  • Part B - Ages 3-22 schools children
  • Part C - Ages birth-3 early intervention program
  • Part D Information research professionals and
    parents

7
Purpose of IDEA 2004
  • 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

8
Purpose of IDEA 2004 (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

9
IDEA 2004 Provisions
  • Six main principles describe what schools must do
    to comply with law
  • Free Appropriate Public Education (FAPE)
  • Least Restrictive Environment (LRE)
  • Appropriate Evaluation
  • Individual Education Plan (IEP)
  • Parent and Student Participation in Decision
    Making
  • Procedural Safeguards

10
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)

11
Board of Education v. Rowley
  • 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
    childs potential

12
Least Restrictive Environment (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

13
Related Services / DIS Services
  • Transportation
  • Speech and language pathology
  • Audiology
  • Interpreting services (2004)
  • Psychological services
  • Physical and occupational therapy

14
Related Services (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

15
Related Services (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)

16
IDEA 2004 Special Education Eligibility
  • Hearing impairments (including deafness)
  • Visual impairments (including blindness)
  • Speech or language impairments
  • Orthopedic impairments
  • Autism

17
Eligibility (continued)
  • Mental Retardation
  • Emotional Disturbance
  • Traumatic brain injury
  • Other health impaired
  • Specific learning disabilities

18
Eligibility (continued)
  • AND WHO BY REASON OF THEIR DISABILITY NEED
    SPECIAL EDUCATION AND RELATED SERVICES

19
Specific Learning Disabilities under IDEA 2004
  • 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

20
Overview of Section 504
  • 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

21
Section 504 (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

22
Comparison - IDEA 504
  • 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

23
Comparison (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

24
No Child Left Behind Act
  • 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

25
NCLB 2001 (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

26
NCLB 2001 (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

27
NCLB 2001 (continued)
  • Highly qualified means teacher has obtained
    full state certification and holds license to
    teach in the state, has minimum of a bachelors
    degree, and demonstrated subject area competence
    in each academic subject that he/she teaches
  • Increases qualifications for teachers aids
    must have at least 2 years of study in college or
    an associates degree, or passed a test
    demonstrating knowledge of academics

28
BACK TO THE INDIVIDUALS WITH DISABILITIES
EDUCATION ACT 2004
29
Highly Qualified Special Education Teachers
  • 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 bachelors degree

30
Highly Qualified Teachers (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

31
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32
Evaluations Under IDEA
  • 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 childs suspected
    disability, by certified mail or hand deliver, to
    district/school offices, obtain a receipt, and
    keep copy for their files

33
Legal Time Lines
  • 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

34
Legal Time Lines (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

35
Assessment Results
  • 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.

36
Copies of Assessments
  • 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 havent had the opportunity to
    review the assessments prior to the meeting.

37
Legal Time Lines (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

38
Legal Time Lines (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

39
Legal Time Lines (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

40
All Areas of Childs Suspected Disability
  • Evaluations should be in all areas of childs
    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

41
Evaluation Procedures
  • 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

42
Evaluation Procedures (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

43
Re-evaluations
  • 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

44
Re-evaluations (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 childs
    academic achievement and functional performance
    and make recommendations how to assist child in
    meeting post-secondary goals

45
Independent Evaluations
  • If parent disagrees with results of districts
    evaluation(s), parent is entitled to obtain an
    independent evaluation at districts expense
  • Must inform district in writing that you disagree
    and want them to pay for independent evaluation
  • Make sure assessors are as qualified as
    districts assessors
  • If district doesnt want to pay, they have to
    file for due process

46
School Records
  • Parents are entitled to obtain copies of their
    childs 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

47
THE INDIVIDUALIZED EDUCATION PROGRAMPROCESS,
CONTENTS AND SERVICES
48
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49
IEP TEAM MEMBERS
  • 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

50
IEP TEAM MEMBERS (CONTINUED)
  • 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

51
IEP TEAM MEMBERS (CONTINUED)
  • 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 Childrens
    Services, etc.

52
IEP TEAM MEMBERS (CONTINUED)
  • Members can be excused from attending the meeting
    by written agreement of the parents if,
  • Members 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)

53
WHEN IEP MEETINGS MUST BE HELD
  • 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

54
WHEN IEP MEETINGS MUST BE HELD
  • 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 childs program
  • With agreement of the parents, meetings can be
    held by video conference and conference telephone
    calls

55
MATTERS TO BE CONSIDERED BY THE IEP TEAM
  • 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
    childs learning

56
MATTERS TO BE CONSIDERED BY THE IEP TEAM
(CONTINUED)
  • For a child with limited English proficiency,
    consideration of language needs in relation to
    childs IEP
  • Braille instruction, if appropriate, for a
    visually impaired child
  • For a child who is deaf or hard of hearing,
    consideration of childs means of communication,
    and instruction in that means of communication

57
MATTERS TO BE CONSIDERED BY THE IEP TEAM
(CONTINUED)
  • Consideration of whether or not child requires
    assistive technology devices or equipment
  • The academic, developmental and functional needs
    of the child
  • (IDEA 2004)

58
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59
CONTENTS OF THE IEP
  • Statement of present levels of educational
    performance, including impact of childs
    disability on involvement and progress in general
    curriculum
  • For preschool children, how childs disability
    affects his/her participation in appropriate
    activities
  • IDEA 2004 requires statement to include present
    levels in academic achievement and functional
    performance

60
CONTENTS OF THE IEP(CONTINUED)
  • 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

61
CONTENTS OF THE IEP(CONTINUED)
  • Annual goals must be measurable and include
    academic and functional goals to meet childs
    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 childs other educational needs
    resulting from the disability

62
CONTENTS OF THE IEP(CONTINUED)
  • Description of how childs 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

63
CONTENTS OF THE IEP(CONTINUED)
  • 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

64
CONTENTS OF THE IEP(CONTINUED)
  • 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

65
CONTENTS OF THE IEP(CONTINUED)
  • 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

66
CONTENTS OF THE IEP(CONTINUED)
  • 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

67
CONTENTS OF THE IEP(CONTINUED)
  • 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)

68
CONTENTS OF THE IEP(CONTINUED)
  • 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

69
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70
DISCIPLINE
  • 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
    students disability, except that the student
    must continue to receive services
  • 20 USC 1415(k)(1)(C)(D)

71
DISCIPLINE
  • 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)

72
DISCIPLINE
  • IDEA 2004 authorizes school personnel to
    consider, on a case-by-case basis, any unique
    circumstances when determining if the childs
    placement should be changed as a result of the
    students violation of a code of student conduct.
  • 20 USC1415(k)(1)(A)

73
DISCIPLINE
  • 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 students
    goals. When appropriate a functional behavioral
    assessment, behavior intervention and
    modifications to the students IEP should be
    addressed, 20 USC 1415(k)(1)(D)

74
DISCIPLINE
  • If a decision is made by school personnel to
    change a students placement, within 10 days of
    that decision, a meeting must be held to
    determine if the behavior is a manifestation of
    the students disability,
  • The meeting is to include the parents and
    relevant members of the IEP team.
  • 20 USC 1415(k)(1)(E)

75
DISCIPLINE
  • Participants are to consider if the conduct was
    caused by or had a direct and substantial
    relationship to the students disability or,
    whether the students conduct was the direct
    result of the districts 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)

76
DISCIPLINE
  • If the students 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
    students behavior,
  • 20 USC 1415 (k)(1)(F)

77
DISCIPLINE
  • 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)

78
DISCIPLINE
  • 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.

79
DISCIPLINE
  • 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)

80
DISCIPLINE
  • 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)

81
DISCIPLINE
  • 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.

82
DISCIPLINE
  • parents had expressed concern in writing to
    administrators or to the childs 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)

83
DISCIPLINE
  • If the district did not have knowledge, and the
    parents 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)

84
PROCEDURAL SAFEGUARDSGeneral Protections
  • 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)

85
PROCEDURAL SAFEGUARDSGeneral Protections
  • 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)

86
PROCEDURAL SAFEGUARDSGeneral Protections
  • 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)

87
PROCEDURAL SAFEGUARDSGeneral Protections
  • Notice must be in parents native language.
  • Must give notice of the mediation and Due Process
    complaint procedures.
  • Notice must contain
  • A description of the action proposed or refused
    by the district
  • An explanation of why the district proposes or
    refuses to take action

88
PROCEDURAL SAFEGUARDSGeneral Protections
  • 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 districts proposed or refused action

89
PROCEDURAL SAFEGUARDSGeneral 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)

90
PROCEDURAL SAFEGUARDSGeneral 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
  • 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)

91
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92
THE DUE PROCESS COMPLAINT
  • 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)

93
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)

94
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

95
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)

96
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)

97
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

98
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)

99
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)

100
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)

101
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)

102
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)

103
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.

104
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)

105
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.

106
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)

107
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).

108
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.

109
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)

110
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)

111
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

112
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)

113
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)

114
THE DUE PROCESS HEARING
  • The hearing officers 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
    childs right to FAPE, significantly impeded the
    parents opportunities to participate in the
    decision making process, or caused a deprivation
    of educational benefits. 20 USC 1415(f)(3)(E)

115
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)

116
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.

117
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)

118
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)

119
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)
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