Tuesday, February 26, 2008

Is Rural Special Education Different?

Do you think that rural special education raises unusual and difficult issues? Although it is more difficult than I thought to define "rural," the federal government for example has many definitions of rural, I believe that the potential for isolation, remoteness and transportation problems caused by sparse populations separated by large distances is real. The utilization of new technologies professional training and in holding IEP team meetings is critical.

If you are interested in rural special education issues, the American Council on Rural Special Education (ACRES) will hold its annual conference in beautiful Charleston, West Virginia from March 12 - 15, 2008. I will be speaking at the conference. ACRES is a great organization made up of terrific and smart people who really care about educating rural children with disabilities. If you are interested in these issues, this is a very good conference. I spoke at their conference two years ago and was impressed by the caliber of the educational sessions.

To learn more about ACRES and their conference, check out their website at

Thursday, February 21, 2008

Procedural Safeguards - Part I

We have previously run a series on Dispute Resolution options under IDEA. Dispute resolution is included within the broader topic of Procedural Safeguards under the Act. Today we begin a series in the other IDEA procedural safeguards. Although we won't repeat the items on dispute resolution, we will examine how the IDEA'04 changes and the latest federal regulations impact the other procedural safeguards. We'll hold off on the caselaw until after we take a look at the changes in the law and regs. Today we address the nature of procedural safeguards in general.

Procedural safeguards are extremely important under our system of special education. In the seminal United States Supreme Court decision interpreting the predecessor of the Individuals with Disabilities Education Act, 20 U.S.C. Section 1400, et seq, the Court stressed the importance of procedural safeguards in the statutory system adopted by the Congress, noting that the procedural safeguards gave parents a “large measure of participation at every stage of the … process.” Board of Educ., Hendrick Hudson Central Sch. Dist. v. Rowley, 455 U.S. 175, 102 S.Ct. 3034, 3038 and 3049, 553 IDELR 656 (1982). The court went on to emphasize that compliance with the Act’s procedural safeguards is a critical component of a free appropriate public education. Rowley, supra 102 S.Ct. at 3051.

More recently, the Supreme Court rejected an argument that school districts should have the burden of persuasion due to an alleged advantage in information. The Court reasoned that Congress had leveled the playing field by requiring school districts to share information and protect the rights of parents by adopting the extensive system of procedural safeguards contained in the IDEA. Schaffer v. Weast 546 U.S. 49, 126 S.Ct. 528, 44 IDELR 150 (2005).

Section 615 of the IDEA is entitled “Procedural Safeguards,” and most procedural safeguards for parents are contained in that section. However, some procedural safeguards are found in other sections of the Act or in the federal regulations. In addition to the required Notice of Procedural Safeguards, Section 615(d), there are a number of specific procedural safeguards. The specific procedural safeguards include the following: independent educational evaluation , Section 615 (b)(1) and 34 C.F.R. Section 300.502; prior written notice, sections 615(b)(3)-(4) and (c)(1); informed parental consent, Section 614 (a)(1)(D); access to educational records, Section 615(b)(1); state complaints, 34 CFR Section 300.151, et seq; mediation, Section 615(e); child’s placement during a challenge or “stay put,” Section 615 (j); procedures for an interim alternative education, Section 615 (k); unilateral placement in private school when FAPE in issue, Section 612 (a)(10)(C); due process hearings, Section 615 (f); if a two tiered system, state appeals, Section 615 (q); civil actions appealing a due process decision, Section 615 (q); and attorneys’ fees, Section 615 (i)(C)(3).

Friday, February 15, 2008

Seventh Circuit: NCLB trumps IDEA

The United States Court of Appeals for the Seventh Circuit has issued an interesting opinion in
Board of Educ of Ottawa Township High School District 140, et al., v. Margaret Spellings, Secretary of Education, et al., No. 07-2008. The Court affirms the District Court's dismissal of a challenge of NCLB as inconsistent with IDEA but not for lack of standing as the District Court had held. Instead, the Court ruled that NCLB, which was enacted in 2001, must prevail to the extent that there are inconsistencies with IDEA, the portions of which that were at issue were enacted between 1970 and 1990. You can find the decision at http://www.ca7.uscourts.gov/tmp/AU0PHBSR.pdf

The court did allow an interesting loophole. At the end of the opinion the Court noted that the challenge was to the entirety of NCLB, and the Court left open the possibility that portions of the Act, or specific regulations promulgated thereunder might yield. The claim against the entire statute was, however, too weak to allow continued litigation.

Stay tuned for more interesting decisions- unless the political heat on NCLB kills it first. In that regard, the trend is toward mediation in divorce cases. I wonder if any mediator would attempt to take on the potential divorce of NCLB and IDEA? Flak jackets recommended.

Friday, February 8, 2008

My New Favorite Decision

Here's a good one. Hearing officers beware.

In DB by CB v. Houston Independent School Dist 48 IDELR 246 (D. Texas 9/28/7), the parents argued on appeal that they were deprived of a fair and impartial hearing because the hearing officer slept through the hearing. The District Court rejected the argument, noting that the hearing transcript showed that the HO asked questions of witnesses and resolved evidentiary objections, therefore appearing to be awake. Also the Court noted that the pro se parents had failed to preserve their argument for appeal because they failed to object to the alleged napping on the record during the hearing.
Stock up on Mountain Dew or No Dose hearing officers!

Monday, February 4, 2008

Dispute Resolution Mechanisms - Part VII

Concluding our discussion of the four dispute resolution options 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 changes to the "stay put" provision and procedural violations. This week we will deal with changes concerning NCLB-type issues and miscellaneous hearing issues.

NCLB-type Issues
IDEA ’04 imposes new NCLB-type qualifications for special education teachers as well as related services personnel and paraprofessionals. Section 612(a)(14)(B)&(C). However, IDEA also provides that no due process hearing or court action may be filed because of failure to provide highly qualified personnel, although a parent may file a state complaint concerning staff qualifications. Section 612(a)(14)(E). See 34 CFR Section 300.156(e). OSEP clarifies that a parent may not file a due process complaint about a student, or a judicial action on behalf of a class of students, because personnel are not highly qualified, although a parent or other individual or organization may file a state complaint with the SEA alleging this issue. 71 Fed. Register No. 156 at pages 46612 -13 (August 14, 2006).
It is anticipated, however, that due process complaints alleging that by not providing highly qualified teachers or other staff, an LEA has failed to provide FAPE to a student. In particular, the portion of the definition of FAPE concerning state standards may be implicated. It will be very interesting to see how these cases will be decided.

Miscellaneous Hearing Issues
OSEP noted that states have considerable latitude in developing procedural rules for due process hearings and that determinations upon procedural matters not specifically addressed by IDEA are within the sound discretion of the hearing officer so long as the parties’ right to a timely hearing is not denied. 71 Fed. Register No. 156 at page 46704 (August 14, 2006). Other items left to the discretion of the hearing officer include the following: decisions concerning appropriate expert witness testimony. 71 Fed. Register No. 156 at page 46691 (August 14, 2006); ruling upon compliance with timelines and the statute of limitations. 71 Fed. Register No. 156 at page 46705 (August 14, 2006); determining when dismissals are appropriate. 71 Fed. Register No. 156 at page 46699 (August 14, 2006); whether the non-complaining party may raise other issues at the hearing that were not raised in the due process complaint. 71 Fed. Register No. 156 at page 46706 (August 14, 2006); the meaning of the word “misrepresentation” for purposes of the exception to the statute of limitations for filing a due process complaint. 71 Fed. Register No. 156 at page 46706 (August 14, 2006); and providing proper latitude for pro se parties. 71 Fed. Register No. 156 at page 46699 (August 14, 2006).
Concerning representation of parties by non-attorney advocates in due process hearings, OSEP intends to issue additional regulations on this topic in the future. 71 Fed. Register No. 156 at page 46699 (August 14, 2006).
Concerning the five business day rule for disclosure of evidence prior to a due process hearing, OSEP commented that nothing prevents parties from agreeing to a shorter period of time. 71 Fed. Register No. 156 at page 46706 (August 14, 2006).
As to the location and time of due process hearings, OSEP resisted the suggestion that they be conducted in a “mutually convenient” time and place, fearing that the large number of participants to a hearing would necessitate long delays if mutually convenient times and locations were required. The regulations retain the requirement that hearings be conducted at a time and place that is reasonably convenient to the parents and student. 34 CFR Section 300.515(d); 71 Fed. Register No. 156 at page 46707 (August 14, 2006).
In states with two tier due process systems, OSEP clarified that the 90 day period for appeals begins to run from the date of the decision of the state review officer. 71 Fed. Register No. 156 at page 46707 (August 14, 2006).

ADDITIONAL RESOURCES regarding dispute resolution mechanisms: OSEP has also published a Question and Answer document, Questions and Answers On Procedural Safeguards and Due Process Procedures For Parents and Children With Disabilities (OSEP January 2007). The Q & A document is available at the OSEP idea website: http://idea.ed.gov/ In addition, NICHCY, also known as the National Dissemination Center for Children with Disabilities, is in the process of issuing a series of training modules on IDEA'04, and one of the modules yet to be offered will discuss dispute resolution options under the IDEA. Look for the training module soon online at http://idea.ed.gov/ and at: http://www.nichcy.org/training/contents.asp