Procedural Safeguards - The Series: Part II

Complaint Department Grenade (Photo credit: Wikipedia)

This is the second installment in a multi-part series on procedural safeguards under the federal special education law, the Individuals With DisabilitiesEducation 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.Be sure to tell me what you think about the series.

Notice of Procedural Safeguards-

A copy of the procedural safeguards of the notice must be provided to the parents only one time per year, except that it must also be given upon initial referral or parental request for evaluation, upon the first occurrence of filing of a due process complaint, and upon request by a parent.  Section 615(d)(1)(A).  The regulations clarify that the notice must also be provided upon the parents’ filing of the first state complaint  and on the date on which the decision to take disciplinary action is made. 34 CFR Section 300.504(a); 71 Fed. Register No. 156 at page 46692 (August 14, 2006).  The regulations also make it clear that a parent will receive more than one copy of the notice of procedural safeguards if they also request an evaluation or file a state complaint or due process hearing or they request a copy.  34 CFR Section 300.504(a); 71 Fed. Register No. 156 at page 46692 (August 14, 2006).  The local educational agency may also place a copy of the procedural safeguards notice on their website if they have one. Section 615(d)(1)(B).  OSEP has noted that publishing the notice on its website does not relieve the LEA of the responsibility of offering the parent a printed copy of the notice unless the parent evidences a clear preference to obtain the information electronically 71 Fed. Register No. 156 at page 46693 (August 14, 2006).

The procedural safeguards notice must include a full explanation of procedural safeguards, written in the native language of the parents (unless clearly not feasible) and written in an easily understandable manner, relating to the following:

`(A) independent educational evaluation;

`(B) prior written notice;

`(C) parental consent;

`(D) access to educational records;

`(E) the opportunity to present and resolve complaints, including--

`(i) the time period in which to make a complaint;

`(ii) the opportunity for the agency to resolve the complaint; and

`(iii) the availability of mediation;

`(F) the child's placement during pendency of due process proceedings;

`(G) procedures for students who are subject to placement in an interim alternative educational setting;

`(H) requirements for unilateral placement by parents of children in private schools at public expense;

`(I) due process hearings, including requirements for disclosure of evaluation results and recommendations;

`(J) State-level appeals (if applicable in that State);

`(K) civil actions, including the time period in which to file such actions; and

`(L) attorneys' fees.

                            Section 615 (d)(2).

OSEP has published a model Notice of Procedural Safeguards in order to reduce confusion about what must be included in the notice.  71 Fed. Register No. 156 at page 46693 (August 14, 2006). The model notice is 44 pages long.   The model notice form is available on the website: Although OSEP frowns upon dual filings of state complaints and due process hearings for the same incident, the regulations clarify that the notice of procedural safeguards must explain both procedures and the differences between the two.  34 CFR Section 300.504(c); 71 Fed. Register No. 156 at page 46693 (August 14, 2006).  At a session I attended at a conference of ACRES ( the rural special education association) I learned that when put through software to determine the reading level necessary to read the model procedural safeguards, the researchers found a graduate school reading level was needed to comprehend these safeguards. So much for "easily understandable," no?

See also in general:  Questions and Answers on Procedural Safeguards and Due Process Procedures 52 IDELR 266 (OSERS 6/1/2009) and the NICHCY training module http://nichcy.org/laws/idea/legacy/module17.

Related articles

• Procedural Safeguards - The Series
• "Prior Written Notice" - Another Badly Named Special Education Law Concept!
• Coming Soon: New Series on Procedural Safeguards

BREAKING: Federal Department of Education Issues Guidance on Protecting Student Privacy

Seal of the United States Department of Education (Photo credit: Wikipedia)

We all know about FERPA, the Family Educational Rights and Privacy Act, 20 U.S.C. §1232g, and its regulations at 34 C.F.R. Part 99. This law protects personally identifiable information about students and pertains to access to educational records.

Today the Department of Education's Privacy Technical Assistance Center issued new guidance on Protesting Student Privacy While Using Online Educational Services. The guidance lays out what is required as well as what is best practice when using computer software, mobile "apps" and other online services.

You can review a summary in the Department's press release here. You can read the 14 page guidance document here.

For more general information on student privacy, you should review the PTAC website. 

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New Weekly Question!

Procedural safeguards are at the heart of the Individuals With Disabilities Education Act. As we conduct a new informational series on procedural safeguards, what would you change about IDEA's scheme for protecting parent/student rights?

Procedural Safeguards - The Series

English: United States Supreme Court building in Washington D.C., USA. Front facade. (Photo credit: Wikipedia)

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. 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).

Related articles

• Coming Soon: New Series on Procedural Safeguards
• "Prior Written Notice" - Another Badly Named Special Education Law Concept!
• Is Washington DC Out Of Whack? Part I

New Weekly Question!

Procedural safeguards are at the heart of the Individuals With Disabilities Education Act. As we conduct a new informational series on procedural safeguards, what would you change about IDEA's scheme for protecting parent/student rights?

NCD Letter to President on IDEA Funding

Seal of the United States National Council on Disability. (Photo credit: Wikipedia)

On Friday, the National Council on Disability issued a letter to President Obama and Secretary Duncan concerning IDEA funding.  We thank them for sharing the letter. You might consider sending a copy of this letter to your Congressional representatives. The following is the text of the letter:

February 14, 2014

President Barack Obama
The White House
1600 Pennsylvania Avenue, NW
Washington, DC 20500

The Honorable Arne Duncan, Secretary of Education
U.S. Department of Education
400 Maryland Avenue, SW 
Washington, DC 20202

Dear Mr. President and Secretary Duncan:

On behalf of the National Council on Disability, an independent federal agency that advises Congress and the Administration regarding laws, policies, practices, and procedures that affect people with disabilities, I write to urge you to increase funding for the Individuals with Disabilities Education Act (IDEA) in the 2015 budget. When IDEA was enacted in 1975, Congress made a commitment that the federal government would fund 40% of the additional costs needed to ensure that students with disabilities have access to a free and appropriate public education. Unfortunately, the federal contribution has never risen above 18.5%.ⁱ

While public school doors are open to students with every type of disability in the United States, inadequate financial resources make it difficult for dedicated teachers to meet their needs. Students with disabilities are the least likely of all subgroups to earn high school diplomas. In fact, the vast majority of American students with disabilities leave high school without a high school diploma.ⁱⁱ Because of new federal laws that deny access to federal financial aid to students without a regular high school diploma, this generation of young people with disabilities has limited access to the education and training needed to become financially independent.ⁱⁱⁱ

Local school districts struggle as state budgets are reduced.^iv Across the country, education funding continues to be a challenge. Despite this, our educators are pushing to raise the bar higher with more rigorous standards, tougher standardized summative assessments, and more advanced credit requirements to graduate from high school. Without additional funding and appropriate support, it will become even more difficult for students with disabilities to meet the ever-increasing demands of their school systems.

In addition to increased federal funding for students with disabilities, NCD urges the U.S. Department of Education to shift its accountability practices and hold schools to a higher standard for supporting students with disabilities to achieve higher rates of literacy and numeracy, and to earn regular high school diplomas. To date, accountability and monitoring has focused too much on procedures and paperwork and too little on how best to support students with disabilities as learners striving for success. With appropriate resources, students with disabilities can and will learn and be successful in post-secondary environments and the workforce.

Unequivocally, education is the cornerstone of a lifetime of prosperity and success. Students with disabilities must be afforded the same opportunities to flourish as their peers without disabilities. Accordingly, and consistent with the recommendations set forth in NCD’s 2002 report Individuals with Disabilities Ed Act Reauthorization: Where Do We Really Stand?,^v NCD strongly recommends an increase in the 2015 budget for IDEA funding and a 10-year pathway to full funding and rigorous outcomes-based accountability.

NCD looks forward to working with the Administration to ensure that students with disabilities are given the opportunity to thrive in school and beyond. If we can be of service on this or on other related issues, please do not hesitate to call on us.

Respectfully,

Sara Gelser

Member

cc: Michael Yudin, Acting Assistant Secretary, Office of Special Education and Rehabilitative Services

i Congressional Research Service, Individuals with Disabilities Education Act (IDEA): Issues Regarding “Full Funding” of Part B Grants to States, June 5, 2005; Stateline, Pew Charitable Trusts, Sequester Hits Special Education Like a ‘Ton of Bricks’, PewStates Project, September 10, 2013, available at http://www.pewstates.org/projects/stateline/headlines/sequester-hits-special-education-like-ton-of-bricks-85899503686

.

ii National Council on Disability, National Disability Policy: A Progress Report, Washington, DC: October 2011, available at http://www.ncd.gov/rawmedia_repository/9f8821fb_3747_43d1_a5e3_197440aa7296?document.pdf

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iii Id. See also U.S. Department of Education, Federal Student Aid Handbook, Washington, DC: January 2012, available at http://ifap.ed.gov/fsahandbook/attachments/1213FSAHbkVol1.pdf

.

iv Stateline, Pew Charitable Trusts, Sequester Hits Special Education Like a ‘Ton of Bricks’, PewStates Project, September 10, 2013, available athttp://www.pewstates.org/projects/stateline/headlines/sequester-hits-special-education-like-ton-of-bricks-85899503686

.

v National Council on Disability, Individuals with Disabilities Ed Act Reauthorization: Where Do We Really Stand?, Washington, DC: July 2002, available athttp://www.ncd.gov/publications/2002/July52002

.

Coming Soon: New Series on Procedural Safeguards

 (Photo credit: Wikipedia)

How much do you know about the procedural safeguards contained in the Individuals With Disabilities  Education Act?  One of the key principles of special education law is the right of parents to have meaningful participation in the process.  IDEA and its implementing regulations contain a number of specific procedural safeguards to help facilitate this principle.

Starting next week, we will begin a series on the IDEA procedural safeguards.  As always we appreciate your feedback and comments! Stay tuned for more details.

Weekly Question!

Why do some people who participate in a special ed hearing hate the hearing process so much? How can we improve the system for everybody?

Trends in Special Education Dispute Resolution: CADRE Presents Data

Diagram of the wikipedia dispute resolution processes and realted procedures (Photo credit: Wikipedia)

At a webinar last week that will be repeated on February 13th, CADRE reported on data for the last eight years in special education dispute resolution. There is a lot of good stuff, and you can view the powerpoint here.

CADRE is a fantastic resource.  We keep their website on the lafthand side of the blog because they have all kinds of goodies pertaining to dispute resolution in special education.  CADRE is a great organization, and I use their stuff all the time. Check out their website here.

The eight years of data can be presented by state or nationally, and you can view activity in the various dispute resolution mechanisms over the last eight years. The report presents some interesting facts.  Some of the big picture trends that CADE has identified are:

• State complaints are down by 15%;
• Mediation requests are up; Mediations held are up 15% in the last 7 years;
• Due process hearings held are down 58%

For the 2011-2012 school year, Washington DC once again led the league in dispute resolution activity (per 10K childcount).  In fact, they pretty much lapped the field. Puerto Rico was next followed by New York, Massachusetts, California, Connecticut, Virgin Islands, New Jersey, Vermont, Hawaii, Maryland & Maine. On the other end of the spectrum for the least dispute resolution activity (per 10K childcount) was American Samoa followed by Utah, North Dakota, Oklahoma, Nebraska & South Carolina.  How did your state do?

I urge you to take a look at the data.  More fun with numbers!

Related articles

• Great Conference Last Week in Eugene
• Breaking: OSEP Issues New Guidance on Dispute Resolution
• Dispute Resolution in Special Education

OK So I Overstated It: Why Do Some Folks Hate Special Ed Hearings.

Old gavel and court minutes displayed at the Minnesota Judicial Center (Photo credit: Wikipedia)

Maybe it was hyperbole... I believe that I have overstated the amount of anger towards the special ed hearing process. In my experience, the vast majority of parties and lawyers have left the hearing feeling that it was fair.  I apologize to my fellow hos for making it sound like we always mess up; clearly we don't. But a minority of parties feel differently.  I believe that the emails and comments show that some people have very strong feelings that the system does not work properly, and I think that it good that we are having this discussion.  These sorts of feelings often simmer beneath the surface.  As a matter of public policy, I think it is better for us to talk about them.

Also it is clear from the comments and emails that satisfaction with hearing systems varies widely from state to state.  I'll admit that I have a bias here because I have trained the hearing officers (and mediators and complaint investigators) in a number of states, but I think that well trained hearing officers (in both how to conduct hearings and write decisions as well as updates on the law) conduct better hearings.  The commitment of the state education departments to training varies.  

But as reauthorization eventually comes, and it has to come eventually, it is good that we are having this discussion.  Are there specific changes in IDEA  concerning the hearing system that you would like to see?  Let's continue talking with an eye to how we can improve.  

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New Weekly Question!

Why does everybody who participates in a special ed hearing hate the hearing process so much?

Why Don't Parents & Districts Like Special Ed Hearings

Complaint Department Grenade (Photo credit: Wikipedia)

I do a lot of work as a mediator, complaint investigator and a hearing officer in special education cases.  I also train folks who do these jobs.  I have often noticed the animosity that people have for the special ed hearing system.  I was at a conference once and said that I was a hearing officer, and one guy spat on the floor.  This started me to wondering why people hate special ed due process hearings.

Here is another example from the cases decided last year.  In Luo v Baldwin Union Free Sch Dist 60 IDELR 281 (ED NY 3/21/13), the parent appealed a special ed hearing decision.  In their complaint filed with the court, the parents referred to the due process hearing as an "assh*** parade."  They also described the proceedings as "bulls***."  (Ed note: the parents spelled out the whole words; mine is the cleaned up version...)  The Court had to threaten sanctions if the parents continued to disrespect the proceedings. Those are strong words; why were they so upset?  This seems like a common theme.

So what are we in the special ed hearing business doing wrong?  I'd be interested in your thoughts.  Also look for follow ups on this in the Weekly Question and the comments thereto.

Related articles

• "Prior Written Notice" - Another Badly Named Special Education Law Concept!