Tuesday, January 29, 2008
But there are three education blogs that I read as often as I can. One is the Edjurist Accord which features the work of my friend Justin Bathon. A newer blog that also highlights legal issues I care about is the School Law Blog by Mark Walsh. Finally the Adjunct Law Professor Blog by Mitch Rubinstein often discusses education law developments. I have added links to these three thoughtful and useful blogs on the left hand side of this blog under the title other education blogs.
Are there other education or special education or law blogs that you think might be of interest to our readers? If so, please let me know. I will continue to be conservative about recommending blogs until I get the chance to sample them for a while and feel comfortable with them, but I may add some if you and they can persuade me to do so. As always, thanks for reading.
Thursday, January 24, 2008
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).
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.
Friday, January 18, 2008
The U. S . Supreme Court has heard argument in four special ed cases in the last few years. Hundreds of judicial and administrative decisions are issued every year. Many law firms have lawyers who specialize in representing school districts or student/parents. Each state has a due process administrative hearing system and a mediation system. Numerous state, regional and national special education law conferences are held every year. No Child Left Behind is a hot button issue in the presidential campaigns.
How can our law schools claim that they are training new lawyers who are ready to represent clients well when they don't even offer a course in special education law? I don't get it. I encourage more schools to offer special education law classes. I believe that potential law students may begin to apply to the schools who offer these courses as the field grows.
I learned recently that DePaul University Law School offers a special education based writing class. This is certainly a good first step. If you know of other law schools who offer special education law courses, please let me know so that I can publicize them on this blog.
Tuesday, January 15, 2008
The Court remanded the case to the trial court for resolution on the merits. Accordingly, it has no immediate impact. You can read the slip opinion at http://www.ca6.uscourts.gov/opinions.pdf/08a0006p-06.pdf
I hear that one in two marriages ends in divorce these days. My question today is - coupled with the current stormy political climate for NCLB, could the marriage of NCLB and IDEA be headed to divorce court?
Friday, January 11, 2008
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 changes concerning hearing officer qualifications and the statute of limitations. This week we will deal with the new requirement of hearing notice, including the sufficiency requirement, and amendment of the complaint/notice.
3. Hearing Notice
The changes to the law by IDEA'04 include a new requirement that before a party may have a due process hearing, the party must file a notice to the other party and the SEA including, among other things, a description of the nature of the problem, and a proposed resolution of the problem. Section 615 (b)(7)(B).
A party receiving a notice of due process hearing complaint must notify the hearing officer if it believes that the notice is insufficient to meet the statutory requirements. Section 615 (c)(2)(A). The notice of alleged insufficiency must be provided to the hearing officer within 15 days of receipt of the complaint. Section 615 (c)(2)(C). Within 5 days of receipt of such a notice of insufficiency, the hearing officer must make a determination on the face of the notice whether it meets the statutory requirements and immediately notify the parties. Section 615 (c)(2)(D). Given the very short timelines, such challenges will require prompt handling. For example, will there be a mini-hearing by telephone if time permits? OSEP has opined that there is no requirement that a party who questions the sufficiency of a complaint notice specify the basis for their belief., but where the hearing officer finds a notice not sufficient, he will identify how it is not sufficient so the filing party can have the opportunity to amend. . 71 Fed. Register No. 156 at page 46698 (August 14, 2006). The resolution meeting cannot be delayed even if the receiving party believes that the complaint is insufficient. . 71 Fed. Register No. 156 at page 46698 (August 14, 2006).
Although states may not require their use, states must develop model forms for due process complaints. 34 CFR Section 300.509; 71 Fed. Register No. 156 at pages 46699-46670 (August 14, 2006). Even where a party utilizes a model form developed by the SEA, the authority to determine the sufficiency of a complaint notice lies with the hearing officer. 71 Fed. Register No. 156 at pages 46699-46670 (August 14, 2006).
4. Amendment of the Due Process Hearing Notice/Complaint
Another new requirement in IDEA'04 provides that the party requesting the due process hearing "…shall not be allowed to raise issues at the due process hearing that were not raised in the (above-referenced) notice…," unless the other party agrees. Section 615 (f)(3)(B). see, 34 CFR Section300.511(d); 71 Fed. Register No. 156 at pages 46705 -06 (August 14, 2006).
The problem will arise in the form of an objection at a hearing that the party initiating the request for due process is raising a new issue that was not set forth in the written notice. Under IDEA'04, this is not permissible. The hearing officer will then have to carefully review the written notice to determine the issues of which the opposing party was given fair notice. Also, the hearing officer will have to consider what evidence should be considered in proving or disproving said issues.
The practical impact of this change is probably diminished to a large extent by another change to the law. New Section 615 (o) provides that nothing in Section 615 "… shall be construed to preclude a parent from filing a separate due process complaint on an issue separate from a due process complaint already filed." Most due process complaints are filed by parents. If an LEA is successful in restricting evidence offered by a parent on the grounds that it relates to an issue not raised by a complaint, and if the parent is represented by a lawyer who is familiar with the new special education law, the parent will simply file a new due process complaint on the issue excluded at the previous due process hearing. Because of the expense and time necessary for a due process hearing, and the apparent negative reaction by LEAs to having to spend such time and money, it is likely that the parties will often agree to permit the other party to present evidence of new issues unless it is too late in the hearing for the LEA to fairly respond.
One exception where this new provision may cause big problems is the case in which a parent proceeds pro se. Especially where a parent is not literate, or not functionally literate, it may be difficult to understand the new pleading and practice requirements related to the hearing request notice provisions. It should be noted that the literacy of the party is not set forth in the new statute as a factor to consider in the written notice and hearing issue provisions. By contrast, the portions of the law that relate to limitations on reimbursement for unilateral placement in a private school specifically provide that where a parent is illiterate or cannot write in English, the court or hearing officer may in their discretion consider these factors in whether to reduce or deny reimbursement for failure to provide written notice to the LEA. Section 612 (a)(10)(C)(iv)(II). This reimbursement/illiteracy provision was also changed to make reduction or denial discretionary rather than an absolute exception to reduction or denial. Nonetheless, there illiteracy at least remains as a consideration. No such provision is made for illiterate parents concerning the written hearing notice/ hearing issues portions of the law. OSEP has noted that it would expect that hearing officers would exercise appropriate discretion when considering request for amendments by parents who are not represented by legal counsel. 71 Fed. Register No. 156 at page 46699 (August 14, 2006).
Wednesday, January 2, 2008
We will begin with the changes in hearing officer qualifications and the statute of limitations.
1. Qualifications for Hearing Officers.
Before the reauthorization changes took effect (on July 1, 2005 with the exception of the NCLB-related “highly qualified” requirements), the only qualification for a due process hearing officer was that the hearing officer not be an employee of the SEA or LEA. Section 615 (f)(3); and that he not have a personal or professional interest that would conflict with objectivity, 34 C.F.R. Section 300.508(a)(2)(old regs). IDEA'04 adds three more qualifications for due process hearing officers. The following new qualities are required in a hearing officer: the knowledge and ability to conduct hearings in accordance with standard legal practice; the knowledge and ability to write decisions in accordance with standard legal practice; knowledge of and ability to understand special education law. Section 615 (f)(3)(A)(ii)-(iv).
The changes in the qualifications for hearing officers are significant. The fact that the Congress amended this section signals at least some concern about hearing officers. SEA personnel who train and select hearing officers need to be mindful of these changes to the law. Those who train hearing officers should be people with experience in conducting due process hearings and in writing decisions thereafter. New hearing officers should be able to cite prior experience concerning these qualifications. OSEP has noted that pursuant to its general supervisory responsibility, each SEA must ensure that its hearing officers are sufficiently trained to meet the new qualifications established by IDEA. 71 Fed. Register No. 156 at page 46705 (August 14, 2006).
2. Statute of Limitations
IDEA’ 04 imposes a new statute of limitations. Unless state law imposes a contrary limitations period, a party must request a due process hearing within two years of the date that the party knew or reasonably should have known about the alleged action that forms the basis of the complaint. Section 615 (f)(3)(C). The new statute of limitations recognizes two exceptions – cases in which the parent was prevented from requesting the hearing due either to specific misrepresentations by the LEA that it had resolved the problem or to the LEA’s withholding of information that the IDEA requires it to provide. Section 615 (f)(3)(D).
OSEP clarified that a state may adopt a statute of limitations either shorter or longer than two years by statute or regulation, but not by common law, subject to the notification provisions of IDEA. 71 Fed. Register No. 156 at pages 46696-97 (August 14, 2006). It is the province of the hearing officer to determine whether a specific complaint has been filed within the statute of limitations and whether an amended complaint relates to a previous complaint. 71 Fed. Register No. 156 at pages 46698 (August 14, 2006).