Thursday, January 24, 2008

Dispute Resolution Methods- Part VI

Continuing our discussion of the four dispute resolution mechanisms under IDEA, this week we will continue to examine the due process hearing and the major changes in the hearing process under the 2004 reauthorization and the new federal regulations. Last week we examined the new requirement of hearing notice, including the sufficiency requirement, and amendment of the complaint/notice, changes concerning hearing officer qualifications and the statute of limitations. This week we will deal with changes concerning "stay put," and procedural violations.

Stay Put: the child's placement during pendency of due process proceedings
OSEP clarified that for purposes of stay put, “placement” is not generally location specific; the then-current placement is the educational program of the last agreed upon IEP which is being implemented. 71 Fed. Register No. 156 at page 46709 (August 14, 2006).
Where there is a dispute when the child turns three years old and is transitioning from Part C to Part B, the public agency is not required to continue Part C services: if the child is found eligible and there is parental consent, the public agency must provide the services that are not in dispute as stay put. 34 CFR Section 300.518(c); 71 Fed. Register No. 156 at page 46709 (August 14, 2006).
The stay put protection applies fully during the resolution period prior to a due process hearing. 34 CFR Section 300.518(c)(7); 71 Fed. Register No. 156 at pages 46709 -10 (August 14, 2006).
A hearing officer decision in a one-tier system, and a state review officer decision in a two-tier system, that agrees with the parents’ position that a change of placement is appropriate constitutes an “agreement “ by the LEA and the parent for purposes of stay put. 34 CFR Section 300.518(d); 71 Fed. Register No. 156 at page 46710 (August 14, 2006).

Procedural Violations
New Section 615 (f)(3)(E) provides that the decision of the hearing officer must be on substantive grounds. Moreover, this section also provides that in matters alleging a procedural violation, a hearing officer may only find a denial of FAPE if the procedural inadequacies impede FAPE; or significantly impede the parents’ opportunity to participate; or cause a deprivation of educational benefits. Many courts had already read the old IDEA to the same effect. For example, see, D. L. ex. rel. J. L. v. Unified Sch. Dist. 42 IDELR 139 (Tenth Cir. 2004); M. L. v. Federal Way Sch. Dist. 39 IDELR 236 (Ninth Cir. 2003); and Gadsby v. Grasmick 25 IDELR 621 (Fourth Cir. 1997). These rulings are now codified in the statute.
During the hearing in cases alleging a procedural violation, the hearing officer will have to carefully rule on evidentiary objections to ensure that evidence connecting the procedural violation to one of the specified grounds is forthcoming. In cases in which a party is not represented by counsel, the matter is complicated by the hearing officer’s duty to make a complete record. In such cases, the hearing officer will likely ask a number of questions of the unrepresented party to determine the result of the alleged procedural violations or the effect of said procedural violations upon FAPE, the opportunity of the parents to participate in the process, or the deprivation of educational benefit.
OSEP has clarified that the requirement that a hearing officer base his decision on substantive grounds applies only to cases alleging denial of FAPE; a hearing officer still has jurisdiction over LRE cases and other matters alleging issues involving identification, evaluation and placement. 71 Fed. Register No. 156 at pages 46705-06 (August 14, 2006). The new amendment does not affect these types of cases.

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