As explained in a previous post, I have decided to post a series of Special Ed Law 101 articles to give those outside the SpEd (special education) circle a better chance of understanding what we mean and to get more people hooked on this ever-growing field.
Special Ed Law 101- Part III Compensatory Education
In addition to reimbursement for unilateral placements, the most common relief awarded to a prevailing parent/student in a special education case. A hearing officer awards compensatory education as a remedy for denial of FAPE to the student. The prerequisite again is a denial of FAPE.
The method for determining the appropriate type and amount of compensatory education varies wildly among hearing officers. The most common method has been to determine the period of time equal to the deprivation of FAPE excluding the time reasonably required for the school district to have corrected it. Cumberland Valley Sch. Dist. 106 LRP 20056 (SEA Pa. 2/18/6). See also, Warwick Sch Dist 107 LRP 10896 (SEA PA 12/1/6); In Re Student with a Disability 106 LRP 65292 (SEA NY 10/31/6) (similar quantitative approaches).
The D.C Circuit, however, has developed a preferable qualitative standard for awards of compensatory education in order to place disabled students in the same position they would have occupied but for the school district’s violation of IDEA. Reid ex rel Reid v. District of Columbia 401 F.3d 516, 43 IDELR 32 (D.C. Cir. 3/25/05). The court rejected the hearing officer’s calculation awarding one hour of compensatory education for each day of denial of FAPE. The court also rejected the parents’ request of one hour of compensatory education for each hour of denial of FAPE. Instead, the court adopted a more flexible approach based upon the needs of the child who has been denied FAPE. For example some students might require only short intensive compensatory programs targeting specific deficiencies. Other students may require more extended programs, perhaps requiring even more hours than the number of hours of FAPE denied. Accordingly, the court remanded this matter for the submission of evidence as to the student’s deficiencies resulting from the denial of FAPE. Reid, supra. See also, West Lyon Community Sch Dist v. Northwest Area Educ Agency 107 LRP 30759 (SEA Iowa 5/9/7); Bd. of Educ. of Fayette County v. LM ex rel TD 45 IDELR 95 (E.D.Ky 3/6/6); BC by JC v. Penn Manor Sch Dist 46 IDELR 135 (Pa Commonwealth Ct. 8/15/6); Berkeley Unified Sch Dist 107 LRP 2566 (SEA Calif 12/28/6)(similar qualitative approaches).
Please note that that a prevailing parent/student cannot receive both reimbursement for educational services purchased and an award of compensatory education for the same violation of IDEA. Ambridge Area Sch Dist 106 LRP 60446 (SEA PA 10/2/6) The panel concluded that this would constitute impermissible double recovery.
Tuesday, November 27, 2007
Friday, November 16, 2007
Beware the New Resolution Session- Part III
In two previous posts, I described the new requirement of a resolution session where a parent files a due process hearing complaint and some of the anticipated problems with this new requirement. Despite my obvious reservations about the new resolution system, it does seem to be causing more settlements. I am a Cubs fan, I have to be an optimist. Nonetheless the potential for disaster looms. More thoughts in this regard:
In response to a commenter who questioned whether a resolution meeting agreement supersedes decisions made by the IEP Team, OSEP stated that nothing in the Act or regulations requires an IEP Team to reconvene following a resolution agreement that includes IEP-related matters. 71 Fed. Register No. 156 at page 46703 (8/14/06).
OSEP declined the request of some commenters to require dispute resolution training for parents, although it noted that nothing in the Act prevents a state or local public agency from offering dispute resolution training for parents or from referring them to organizations that provide such training. 71 Fed. Register No. 156 at page 46701 (8/14/06).
Although the issue came up in the context of parents lacking education or sophistication concerning their right to void a resolution agreement within three days, OSEP seems to rely heavily upon the required notice of procedural safeguards as a sort of equalizer, negating any lack of sophistication or education on the part of parents. 71 Fed. Register No. 156 at page 46703-04 (8/14/06).
In student discipline cases requiring an expedited hearing, the deadlines for the resolution process are changed. The resolution meeting must be convened within seven (rather than 15) days. 34 CFR Section 300.532(c)(3)(i). The resolution period is shortened to fifteen (rather than 30) days. 34 CFR Section 300.532(c)(3)(ii). In response to the concerns of commenters, OSEP clarified that the seven and fifteen day periods begin upon receipt of notice of the parent’s due process complaint. 71 Fed. Register No. 156 at page 46725 (8/14/06).
One important change from the proposed regulations involves the period for disclosure of evidence prior to an expedited due process hearing. The proposed regulations would have allowed states to reduce the deadline for disclosure from five to two business days before an expedited due process hearing. {Proposed Section 300.532(c)(4)}. OSEP was persuaded by the commenters that limiting the disclosure period to two days would significantly impair the ability of parties to prepare for hearing, and, therefore, dropped the proposed exception to the five-day rule. 71 Fed. Register No. 156 at page 46725-26 (8/14/06).
NOTE: there are three kinds of days involved in an expedited due process hearing. The due process hearing must be scheduled within 20 school days of the date the complaint is filed and the hearing officer’s decision is due within 10 school days of the hearing. Section 615(k)(4). The resolution meeting must occur within 7 calendar days and the resolution period is 15 calendar days of receipt of notice of the complaint. Section 300.532(c). The deadline for disclosure of evidence prior to an expedited hearing, like any other due process hearing, is five business days. Sections 300.532(c)(4); 300.512(a)(3).
One problem for many LEAs is how to structure the resolution meeting. Many commenters sought guidance from OSEP on the protocol or structure of procedures for conducting a resolution meeting, including whether an impartial mediator or facilitator should be present. While ducking the issue of the presence of a neutral, OSEP expressly declined to specify a protocol or structure for resolution meetings to avoid interfering with efforts of parties to resolve the complaint. 71 Fed. Register No. 156 at page 46701 (8/14/06). OSEP did approve, however, of the use of alternative means of participation for resolution meetings, such as conference telephone calls or videoconferences, where appropriate. 71 Fed. Register No. 156 at page 46701 (8/14/06).
A similar problem involves how to write an agreement, particularly in view of the restrictions on the presence of attorneys. In response to commenters requesting a model settlement agreement, OSEP declined stating that because the terms of settlements agreements will necessarily vary, it would not be practical or useful for SEAs to develop model settlement agreement forms. 71 Fed. Register No. 156 at page 46704 (8/14/06).
In response to a commenter who questioned whether a resolution meeting agreement supersedes decisions made by the IEP Team, OSEP stated that nothing in the Act or regulations requires an IEP Team to reconvene following a resolution agreement that includes IEP-related matters. 71 Fed. Register No. 156 at page 46703 (8/14/06).
OSEP declined the request of some commenters to require dispute resolution training for parents, although it noted that nothing in the Act prevents a state or local public agency from offering dispute resolution training for parents or from referring them to organizations that provide such training. 71 Fed. Register No. 156 at page 46701 (8/14/06).
Although the issue came up in the context of parents lacking education or sophistication concerning their right to void a resolution agreement within three days, OSEP seems to rely heavily upon the required notice of procedural safeguards as a sort of equalizer, negating any lack of sophistication or education on the part of parents. 71 Fed. Register No. 156 at page 46703-04 (8/14/06).
In student discipline cases requiring an expedited hearing, the deadlines for the resolution process are changed. The resolution meeting must be convened within seven (rather than 15) days. 34 CFR Section 300.532(c)(3)(i). The resolution period is shortened to fifteen (rather than 30) days. 34 CFR Section 300.532(c)(3)(ii). In response to the concerns of commenters, OSEP clarified that the seven and fifteen day periods begin upon receipt of notice of the parent’s due process complaint. 71 Fed. Register No. 156 at page 46725 (8/14/06).
One important change from the proposed regulations involves the period for disclosure of evidence prior to an expedited due process hearing. The proposed regulations would have allowed states to reduce the deadline for disclosure from five to two business days before an expedited due process hearing. {Proposed Section 300.532(c)(4)}. OSEP was persuaded by the commenters that limiting the disclosure period to two days would significantly impair the ability of parties to prepare for hearing, and, therefore, dropped the proposed exception to the five-day rule. 71 Fed. Register No. 156 at page 46725-26 (8/14/06).
NOTE: there are three kinds of days involved in an expedited due process hearing. The due process hearing must be scheduled within 20 school days of the date the complaint is filed and the hearing officer’s decision is due within 10 school days of the hearing. Section 615(k)(4). The resolution meeting must occur within 7 calendar days and the resolution period is 15 calendar days of receipt of notice of the complaint. Section 300.532(c). The deadline for disclosure of evidence prior to an expedited hearing, like any other due process hearing, is five business days. Sections 300.532(c)(4); 300.512(a)(3).
One problem for many LEAs is how to structure the resolution meeting. Many commenters sought guidance from OSEP on the protocol or structure of procedures for conducting a resolution meeting, including whether an impartial mediator or facilitator should be present. While ducking the issue of the presence of a neutral, OSEP expressly declined to specify a protocol or structure for resolution meetings to avoid interfering with efforts of parties to resolve the complaint. 71 Fed. Register No. 156 at page 46701 (8/14/06). OSEP did approve, however, of the use of alternative means of participation for resolution meetings, such as conference telephone calls or videoconferences, where appropriate. 71 Fed. Register No. 156 at page 46701 (8/14/06).
A similar problem involves how to write an agreement, particularly in view of the restrictions on the presence of attorneys. In response to commenters requesting a model settlement agreement, OSEP declined stating that because the terms of settlements agreements will necessarily vary, it would not be practical or useful for SEAs to develop model settlement agreement forms. 71 Fed. Register No. 156 at page 46704 (8/14/06).
Thursday, November 8, 2007
Special Ed Law 101- Part IV Unilateral Placements
Special Ed Law 101- Part III Unilateral Placements
As we saw in the Tom F. case before the Supreme Court, among the relief that a due process hearing officer may award is reimbursement for a unilateral placement by the parents. In the case of Burlington Sch. Comm. V. Dept. of Educ., et. al. 471 U.S. 359, 105 S.Ct. 1996, 556 IDELR 389 (1985), the Supreme Court was faced with the issue of whether the IDEA permitted courts (and hearing officers) to award reimbursement to parents when the IEP developed by the schools is not appropriate and the parent removes the student from public school and places him in a private school that does provide FAPE. Noting that the statutory provisions of the IDEA confer broad equitable powers upon the courts to fashion an appropriate remedy, and the fact that judicial review of IDEA cases often takes years, the Supreme Court held that the IDEA does empower courts and hearing officers to award such reimbursement. Burlington, supra.
In Florence County Sch. Dist. v. Shannon Carter, et. al. 510 U.S. 7, 114 S.Ct. 361, 20 IDELR 532 (1993), the Supreme Court was faced with a unilateral placement case in which the public schools provided an inappropriate education leading to a unilateral placement at a private school that provided an appropriate education for the student but that did not meet some of the requirements of the SEA (specifically state approval of the private school.) The Supreme Court held that courts and hearing officers may award reimbursement in these cases. Carter, supra.
The IDEA now provides that a hearing officer or court may order an LEA to reimburse parents for a unilateral placement if the hearing officer or court finds that the LEA had not made FAPE available to the student in a timely manner prior to the enrollment in the private school. IDEA, Section 612 (a)(10)(C)(ii). Such reimbursement may be reduced or denied if the parents failed at the last IEP meeting to reject the proposed placement and state their intent to enroll the child in private school at public expense, IDEA, Section 612 (a)(10)(C)(iii)(I)(aa); or if they fail to give written notice to the LEA of their rejection of the proposed placement and state their intent to enroll the child in private school at public expense 10 business days prior to removal, IDEA, Section 612 (a)(10)(C)(iii)(I)(bb); or if the parents fail to make the student available for an evaluation, IDEA, Section 612 (a)(10)(C)(iii)(II); or upon a judicial finding of unreasonableness with respect to the actions taken by the parents, IDEA, Section 612 (a)(10)(C)(iii)(III). Reimbursement shall not be reduced or denied for failure to give notice if the school prevented the parent from providing such notice, IDEA, Section 612 (a)(10)(C)(iv)(I)(aa); or if the parents were not provided with written procedural safeguards stating this notice requirement, IDEA, Section 612 (a)(10)(C)(iv)(I)(bb); or if compliance with the notice clause would likely result in physical harm to the child, IDEA, Section 612 (a)(10)(C)(iv)(I)(cc). Within the discretion of the hearing officer or court, reimbursement may or may not be reduced or denied if the parents are illiterate or cannot write in English, IDEA, Section 612 (a)(10)(C)(iv)(II)(aa); or if compliance with this clause would likely result in serious emotional harm to the child, IDEA, Section 612 (a)(10)(C)(iv)(II)(bb). See also, 34 C.F.R. Section 300.148.
As we saw in the Tom F. case before the Supreme Court, among the relief that a due process hearing officer may award is reimbursement for a unilateral placement by the parents. In the case of Burlington Sch. Comm. V. Dept. of Educ., et. al. 471 U.S. 359, 105 S.Ct. 1996, 556 IDELR 389 (1985), the Supreme Court was faced with the issue of whether the IDEA permitted courts (and hearing officers) to award reimbursement to parents when the IEP developed by the schools is not appropriate and the parent removes the student from public school and places him in a private school that does provide FAPE. Noting that the statutory provisions of the IDEA confer broad equitable powers upon the courts to fashion an appropriate remedy, and the fact that judicial review of IDEA cases often takes years, the Supreme Court held that the IDEA does empower courts and hearing officers to award such reimbursement. Burlington, supra.
In Florence County Sch. Dist. v. Shannon Carter, et. al. 510 U.S. 7, 114 S.Ct. 361, 20 IDELR 532 (1993), the Supreme Court was faced with a unilateral placement case in which the public schools provided an inappropriate education leading to a unilateral placement at a private school that provided an appropriate education for the student but that did not meet some of the requirements of the SEA (specifically state approval of the private school.) The Supreme Court held that courts and hearing officers may award reimbursement in these cases. Carter, supra.
The IDEA now provides that a hearing officer or court may order an LEA to reimburse parents for a unilateral placement if the hearing officer or court finds that the LEA had not made FAPE available to the student in a timely manner prior to the enrollment in the private school. IDEA, Section 612 (a)(10)(C)(ii). Such reimbursement may be reduced or denied if the parents failed at the last IEP meeting to reject the proposed placement and state their intent to enroll the child in private school at public expense, IDEA, Section 612 (a)(10)(C)(iii)(I)(aa); or if they fail to give written notice to the LEA of their rejection of the proposed placement and state their intent to enroll the child in private school at public expense 10 business days prior to removal, IDEA, Section 612 (a)(10)(C)(iii)(I)(bb); or if the parents fail to make the student available for an evaluation, IDEA, Section 612 (a)(10)(C)(iii)(II); or upon a judicial finding of unreasonableness with respect to the actions taken by the parents, IDEA, Section 612 (a)(10)(C)(iii)(III). Reimbursement shall not be reduced or denied for failure to give notice if the school prevented the parent from providing such notice, IDEA, Section 612 (a)(10)(C)(iv)(I)(aa); or if the parents were not provided with written procedural safeguards stating this notice requirement, IDEA, Section 612 (a)(10)(C)(iv)(I)(bb); or if compliance with the notice clause would likely result in physical harm to the child, IDEA, Section 612 (a)(10)(C)(iv)(I)(cc). Within the discretion of the hearing officer or court, reimbursement may or may not be reduced or denied if the parents are illiterate or cannot write in English, IDEA, Section 612 (a)(10)(C)(iv)(II)(aa); or if compliance with this clause would likely result in serious emotional harm to the child, IDEA, Section 612 (a)(10)(C)(iv)(II)(bb). See also, 34 C.F.R. Section 300.148.
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