Title: ADVOCATING FOR A CHILD WITH SPECIAL NEEDS
1ADVOCATING FOR A CHILD WITH SPECIAL NEEDS
- Presented By
- Dina C. Kaplan, Esq.
- Andrea Lorant, M.A.
- Maureen Cataldi, M.Ed
2What 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
3Special Education Law
- Federal Law
- State Law
- Federal and State Regulations
- Circuit Courts (9th District)
- Supreme Court
4History 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
5Individuals 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
6IDEA (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
7Purpose 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
8Purpose 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
9IDEA 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
10Definition 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)
11Board 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
12Least 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
13Related Services / DIS Services
- Transportation
- Speech and language pathology
- Audiology
- Interpreting services (2004)
- Psychological services
- Physical and occupational therapy
14Related 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
15Related 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)
16IDEA 2004 Special Education Eligibility
- Hearing impairments (including deafness)
- Visual impairments (including blindness)
- Speech or language impairments
- Orthopedic impairments
- Autism
17Eligibility (continued)
- Mental Retardation
- Emotional Disturbance
- Traumatic brain injury
- Other health impaired
- Specific learning disabilities
18Eligibility (continued)
- AND WHO BY REASON OF THEIR DISABILITY NEED
SPECIAL EDUCATION AND RELATED SERVICES
19Specific 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
20Overview 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
21Section 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
22Comparison - 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
23Comparison (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
24No 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
25NCLB 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
26NCLB 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
27NCLB 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
28BACK TO THE INDIVIDUALS WITH DISABILITIES
EDUCATION ACT 2004
29Highly 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
30Highly 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(No Transcript)
32Evaluations 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
33Legal 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
34Legal 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
35Assessment 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.
36Copies 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.
37Legal 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
38Legal 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
40All 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
41Evaluation 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
42Evaluation 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
43Re-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
44Re-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
45Independent 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
46School 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
47THE INDIVIDUALIZED EDUCATION PROGRAMPROCESS,
CONTENTS AND SERVICES
48(No Transcript)
49IEP 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
50IEP 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
51IEP 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.
52IEP 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)
53WHEN 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
54WHEN 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
55MATTERS 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
56MATTERS 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
57MATTERS 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(No Transcript)
59CONTENTS 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
60CONTENTS 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
61CONTENTS 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
62CONTENTS 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
63CONTENTS 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
64CONTENTS 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
65CONTENTS 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
66CONTENTS 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
67CONTENTS 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)
68CONTENTS 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(No Transcript)
70DISCIPLINE
- 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)
71DISCIPLINE
- 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)
72DISCIPLINE
- 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)
73DISCIPLINE
- 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)
74DISCIPLINE
- 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)
75DISCIPLINE
- 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)
76DISCIPLINE
- 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)
77DISCIPLINE
- 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)
78DISCIPLINE
- 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.
79DISCIPLINE
- 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)
80DISCIPLINE
- 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)
81DISCIPLINE
- 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.
82DISCIPLINE
- 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)
83DISCIPLINE
- 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)
84PROCEDURAL 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)
85PROCEDURAL 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)
86PROCEDURAL 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)
87PROCEDURAL 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
88PROCEDURAL 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
89PROCEDURAL 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)
90PROCEDURAL 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(No Transcript)
92THE 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)
93THE 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)
94THE 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
95THE 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)
96THE 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)
97THE 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
98STAY 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)
99OBJECTIONS 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)
100OBJECTIONS 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)
101OBJECTIONS 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)
102RESPONSE 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)
103THE 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.
104RESOLUTION 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)
105RESOLUTION 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.
106RESOLUTION 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)
107RESOLUTION 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).
108THE 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.
109THE 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)
110THE 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)
111THE 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
112THE 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)
113THE 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)
114THE 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)
115APPEAL
- 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)
116ATTORNEY 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.
117ATTORNEY 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)
118ATTORNEY 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)
119ATTORNEY 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)