Monday, October 18, 2010

Procedural Safeguards The Series - Part I

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This is the first 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.
Procedural safeguards are extremely important under our system of special education.  In the first United States Supreme Court decision interpreting the predecessor of the Individuals with Disabilities Education Act, 20 U.S.C. Section 1400, et seq (hereafter sometimes referred to as the “IDEA”), 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 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. _____,_____, 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).
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