Procedural Safeguards The Series - Part IV

Image via WikipediaThis is the fourth installment in a multi-part series on procedural safeguards under the federal special education law, the Individuals With Disabilities Education Act. I work a lot in this area, so it is near and dear to my heart. Despite the importance of procedural safeguards. however, many issues in this area are misunderstood. I hope that all of the different types of special education stakeholders who read this blog find the information in this series helpful. Ple4ase tell me what you think about the series.

 

 

Independent Educational Evaluations

The parents of a child with a disability have the right to an independent educational evaluation (hereafter sometimes referred to as “IEE.”) IDEA Section 615(b)(1). The IEE must be provided by the school district at public expense unless the school district files a due process complaint and shows that its evaluation was appropriate. 34 CFR Section 300.502(b). The U. S. Supreme Court found the right to an IEE to be a very important safeguard for parents, and relied on it in part, in rejecting the argument that school districts had an advantage in terms of expertise and knowledge. Schaffer v. Weast 546 U.S.49, 126 S.Ct. 528, 44 IDELR 150 (2005).

Parents may obtain only one IEE at public expense each time the school district conducts an evaluation with which the parents disagree. 34 CFR Section 300.502(b)(5). The purpose of this regulation is to protect the parents’ right to an IEE (OSEP rejected a suggestion limiting a parent to one IEE in a child’s school career) while ensuring that a school district does not have to bear the cost of multiple IEEs concerning a single disagreement. 71 Fed. Register No. 156 at page 46690 (August 14, 2006).

OSEP has noted that where a hearing officer orders an IEE, parental consent is needed for the release of education records to the independent evaluator. If the parent refuses to consent, the hearing officer could decide to dismiss the parent’s complaint. 71 Fed. Register No. 156 at page 46690 (August 14, 2006).

If a parent obtains an IEE at public expense, but disagrees with the result, the school district could introduce it as evidence in a due process hearing. 71 Fed. Register No. 156 at page 46690 (August 14, 2006).



Related articles

• Procedural Safeguards - The Series - Part I (specialeducationlawblog.blogspot.com)
• Procedural Safeguards The Series - Part II (specialeducationlawblog.blogspot.com)
• Procedural Safeguards The Series - Part III (specialeducationlawblog.blogspot.com)
• Big News from OSEP on Resolution Session (specialeducationlawblog.blogspot.com)
• Bullying of Kids With Disabilities - Part II (specialeducationlawblog.blogspot.com)

Corrected Link for Last Post

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I understand that the link contained in my most recent post did not work for some of you. The link to the story by the Houston Fox Channel may be found here.

Sorry for any inconvenience.

Related articles

• Procedural Safeguards The Series - Part III (specialeducationlawblog.blogspot.com)
• Procdeural Safeguards - The Series Returns! (specialeducationlawblog.blogspot.com)
• Section 504 and ADA - the Redheaded Stepchildren of Special Education Law (specialeducationlawblog.blogspot.com)

Sleeping Hearing Officer; Internet Gotcha

sleep (Photo credit: Sean MacEntee)

Many special education folks heard this week about a sleeping hearing officer.This is a sad story, and here is the link to the Fox TV story.

My first reaction to the story was that it was inexcusable for the hearing officer to doze off during the hearing.  Imagine how the parents felt; were they getting a fair hearing?  What if you were the school district and the ho was so interested by the testimony about your school that he took a nap?  This can't be good!

I spend all year extolling the virtues of the special ed hearing officer.  This kinda thing does not help me in that regard.

But another part of the story bugs me as well.  Is throwing bottles and books on the floor the way to go?  Also at what point did the lawyer decide to take some cellphone video and contact the 6 o'clock news?  And of course anything with a "gotcha" flavor resonates on the internet.  Cellphones and the internet are now a big part of our lives.  They are bringing us the twenty-first century, including Arab Spring and widespread distribution of knowledge.  But they also get us video of cats and games featuring angry birds, not to mention instant "gotcha" moments.  There may be a dark side of the force.

None of this justifies the hearing officer's snoozing during the hearing.  This cannot be tolerated.  But I say that the whole mess fails the whiff test.   What do you think?

Related articles

• Texas Judge Resigns After Being Filmed Sleeping During Critical Hearing (jonathanturley.org)
• Procedural Safeguards The Series - Part III (specialeducationlawblog.blogspot.com)
• Texas Judge Caught Sleeping on The Job. (maxtindall.com)
• Procdeural Safeguards - The Series Returns! (specialeducationlawblog.blogspot.com)
• Procedural Safeguards - The Series - Part I (specialeducationlawblog.blogspot.com)
• Section 504 and ADA - the Redheaded Stepchildren of Special Education Law (specialeducationlawblog.blogspot.com)

Procedural Safeguards The Series - Part III

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This is the third installment in a multi-part series on procedural safeguards under the federal special education law, the Individuals With Disabilities Education Act. I work a lot in this area, so it is near and dear to my heart. Despite the importance of procedural safeguards. however, many issues in this area are misunderstood. I hope that all of the different types of special education stakeholders who read this blog find the information in this series helpful. Please be sure to tell me what you think about the series.


Today's post concerns parental consent.

Parental Consent
Where the parent does not provide consent for the initial evaluation, the school district may invoke procedural safeguards, such as mediation or a due process hearing, to pursue such evaluation. Section 614 (a)(1)(D)(ii)(I). If the parent refuses to consent to services for the child, however, the school district shall not provide special education and related services to the child and the district may not invoke mediation or the due process hearing system. Section 614 (a)(1)(D)(ii)(II). Where the parent refuses to consent to services or fails to respond to a request to provide such services, the school district is relieved of the obligation to provide FAPE to the student and is not required to convene an IEP team meeting or to develop an IEP for the child. Section 614 (a)(1)(D)(ii)(III)(aa) and (bb).

OSEP has clarified that a school district must make reasonable efforts to obtain the informed parental consent for an initial evaluation and document these efforts in the same manner as documenting efforts to obtain parent participation in IEP team meetings. 71 Fed. Register No. 156 at page 46631 (August 14, 2006). A school district may, but is not required to, utilize the procedural safeguards to obtain parental consent for an evaluation although OSEP believes the override procedures should be used only in rare circumstances. 71 Fed. Register No. 156 at page 46632 (August 14, 2006).
The reasonable efforts required of a school district do not require the convening of an IEP team meeting, although a school district may convene an IEP team meeting in order to obtain informed consent. 71 Fed. Register No. 156 at page 46634 (August 14, 2006).
Where a child is home schooled or placed by his parents in a private school at their own expense, the school district may not use the procedural safeguards to attempt an override of lack of consent. 34 CFR Section 300.300(d)(4); 71 Fed. Register No. 156 at page 46635 (August 14, 2006).

REVOCATION OF CONSENT

The federal Office of Special Education Programs made several changes to the federal IDEA regulations effective on December 31, 2008. The most significant change involved parental revocation of consent. 34 C.F.R. Sections 300.300 and 300.9 were amended to provide that parents are now permitted to revoke in writing their consent for the continued provision of special education and related services after having received services. School districts are no longer able to use mediation or a due process hearing to seek to override or challenge the parents’ lack of consent. School districts will not be deemed to be in violation of the ACT for denial of FAPE where the parent has revoked consent to the continued provision of special education and related services

Concerning the situation where a parent revokes consent and the student then gets disciplined, OSEP said the following in a June, 2009 Q & A document:
Question A-3: Do the discipline provisions apply if the child violates the school’s code of student conduct after a parent revokes consent for special education and related services under §300.300(b)?
Answer: No. Under §§ 300.9 and 300.300, parents are permitted to unilaterally withdraw their children from further receipt of special education and related services by revoking their consent for the continued provision of special education and related services to their children. When a parent revokes consent for special education and related services under §300.300(b), the parent has refused services as described in §300.534(c)(1)(ii); therefore, the public agency is not deemed to have knowledge that the child is a child with a disability and the child will be subject to the same disciplinary procedures and timelines applicable to general education students and not entitled to IDEA’s discipline protections. It is expected that parents will take into account the possible consequences under the discipline procedures before revoking consent for the provision of special education and related services. 73 Federal Register 73012-73013.

You can find the entire Q& A  document here

Related articles

• Procedural Safeguards - The Series - Part I (specialeducationlawblog.blogspot.com)
• Procedural Safeguards The Series - Part II (specialeducationlawblog.blogspot.com)
• Procdeural Safeguards - The Series Returns! (specialeducationlawblog.blogspot.com)
• Bullying of Kids With Disabilities - Part II (specialeducationlawblog.blogspot.com)

Bullying of Kids With Disabilities - Part II

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Bullying remains a hot button issue in special education law. This is the second post in the current series on this topic.  Last week I discussed some of the key cases finding that bullying of children with disabilities can be a violation of the Individuals with Disabilities Education Act (or IDEA as we often refer to it here.)  With that analytical basis, we now turn to a more recent court decision.

The opinion in TK & SK ex rel LK v. New York City Dept of Educ 56 IDELR 228 (E.D.N.Y. 4/25/2011) is a must read.The case involves a twelve year old girl with a specific learning disability. Her peers ostracized her, pushed her and ridiculed her daily.  They refused to touch any item that she had touched.  Yes kids can be very cruel.

The Court held that when facing a situation in which a child with a disability is allegedly being bullied, a school district must take prompt and appropriate action including making an investigation and taking steps to prevent future abuse. In this case, the Court found that the district did nothing despite parent requests to discuss the problem.  The Court held that where the educational benefit to the student was adversely affected by the bullying, FAPE had been denied. The Court awarded reimbursement to the parents for the tuition of the private school in which they had unilaterally placed the student.

In the next posts on this issue, I will quote some of the literature on bullying in America that was relied upon by the court in this case.  You can review the entire opinion here.

Related articles

• Bullying of Kids With Disabilities - Part I (specialeducationlawblog.blogspot.com)
• Bullying and the Special Needs Child (education.com)
• Procedural Safeguards - The Series - Part I (specialeducationlawblog.blogspot.com)
• DOE Sends Annual IDEA Report to Congress (specialeducationlawblog.blogspot.com)
• Effective Strategies to Stop Bullying (neboautism.wordpress.com)

Procedural Safeguards The Series - Part II

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This is the second installment in a multi-part series on procedural safeguards under the federal special education law, the Individuals With Disabilities Education Act.  I work a lot in this area, so it is near and dear to my heart.  Despite the importance of procedural safeguards. however, many issues in this area are misunderstood.  I hope that all of the different types of special education stakeholders who read this blog find the information in this series helpful.Be sure to tell me what you think about the series.

 

Notice of Procedural Safeguards-

A copy of the procedural safeguards of the notice must be provided to the parents only one time per year, except that it must also be given upon initial referral or parental request for evaluation, upon the first occurrence of filing of a due process complaint, and upon request by a parent.  Section 615(d)(1)(A).  The regulations clarify that the notice must also be provided upon the parents’ filing of the first state complaint  and on the date on which the decision to take disciplinary action is made. 34 CFR Section 300.504(a); 71 Fed. Register No. 156 at page 46692 (August 14, 2006).  The regulations also make it clear that a parent will receive more than one copy of the notice of procedural safeguards if they also request an evaluation or file a state complaint or due process hearing or they request a copy.  34 CFR Section 300.504(a); 71 Fed. Register No. 156 at page 46692 (August 14, 2006).  The local educational agency may also place a copy of the procedural safeguards notice on their website if they have one. Section 615(d)(1)(B).  OSEP has noted that publishing the notice on its website does not relieve the LEA of the responsibility of offering the parent a printed copy of the notice unless the parent evidences a clear preference to obtain the information electronically 71 Fed. Register No. 156 at page 46693 (August 14, 2006).

The procedural safeguards notice must include a full explanation of procedural safeguards, written in the native language of the parents (unless clearly not feasible) and written in an easily understandable manner, relating to the following:

`(A) independent educational evaluation;

`(B) prior written notice;

`(C) parental consent;

`(D) access to educational records;

`(E) the opportunity to present and resolve complaints, including--

`(i) the time period in which to make a complaint;

`(ii) the opportunity for the agency to resolve the complaint; and

`(iii) the availability of mediation;

`(F) the child's placement during pendency of due process proceedings;

`(G) procedures for students who are subject to placement in an interim alternative educational setting;

`(H) requirements for unilateral placement by parents of children in private schools at public expense;

`(I) due process hearings, including requirements for disclosure of evaluation results and recommendations;

`(J) State-level appeals (if applicable in that State);

`(K) civil actions, including the time period in which to file such actions; and

`(L) attorneys' fees.

                            Section 615 (d)(2).

OSEP has published a model Notice of Procedural Safeguards in order to reduce confusion about what must be included in the notice.  71 Fed. Register No. 156 at page 46693 (August 14, 2006). The model notice is 44 pages long.   The model notice form is available on the website: Although OSEP frowns upon dual filings of state complaints and due process hearings for the same incident, the regulations clarify that the notice of procedural safeguards must explain both procedures and the differences between the two.  34 CFR Section 300.504(c); 71 Fed. Register No. 156 at page 46693 (August 14, 2006).  At a session I attended at a conference of ACRES ( the rural special education association) I learned that when put through software to determine the reading level necessary to read the model procedural safeguards, the researchers found a graduate school reading level was needed to comprehend these safeguards. So much for "easily understandable," no?

See also in general:  Questions and Answers on Procedural Safeguards and Due Process Procedures 52 IDELR 266 (OSERS 6/1/2009) and the NICHCY training module http://nichcy.org/laws/idea/legacy/module17.

Related articles

• Procedural Safeguards - The Series - Part I (specialeducationlawblog.blogspot.com)
• Procdeural Safeguards - The Series Returns! (specialeducationlawblog.blogspot.com)
• Section 504 and ADA - the Redheaded Stepchildren of Special Education Law (specialeducationlawblog.blogspot.com)
• Correction Re CADRE Conference Report- Hearing Officers and Special Education (specialeducationlawblog.blogspot.com)

Bullying of Kids With Disabilities - Part I

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Bullying is a real problem in our society.  Bullies often take advantage of those whom they perceive as weaker.  The Columbine tragedy brought the problem to a higher level of public awareness, but the problem persists.

Kids with disabilities are often singled out by bullies.  This has become one of the hottest of hot button issues in special education law.  Several laws could be implicated, but my focus here will be upon whether bullying can constitute a violation of IDEA.

In the next installments, I'll discuss a well-reasoned recent decision, but first some background on the legal foundations for this analysis:

In the seminal decision by the Third Circuit in Shore Regional High Sch. Bd. of Educ. v. P.S. 381 F.3d 194, 41 IDELR 234 (3d Cir. 8/30/2004) recognized that bullying could prevent educational benefit, and a school district’s failure to respond could constitute a denial of FAPE.  See also, Gagliardo v. Arlington Central Sch Dist 489 F.3d 105, 48 IDELR 1 (2d Cir. 5/30/2007).

          Shortly, thereafter the Second Circuit ruled that a student with a disability cannot receive educational benefit or FAPE if he is not in a safe environment.  Lillbask ex rel Mauclaire v. State of Connecticut Dept. of Educ.  397 F.3d 77, 42 IDELR 230 (2d Cir. 2/2/2005).  

           These cases provide the analytical foundation.  

Related articles

• Bullying and Special Needs Children (education.com)
• Procdeural Safeguards - The Series Returns! (specialeducationlawblog.blogspot.com)
• Kids Fight Back Against Bullying With Lawsuits, Video [Bullying] (jezebel.com)
• Procedural Safeguards - The Series - Part I (specialeducationlawblog.blogspot.com)
• Section 504 and ADA - the Redheaded Stepchildren of Special Education Law (specialeducationlawblog.blogspot.com)