Procedural violations of IDEA are only actionable if they adversely impact the child's education or significantly impair the parents' participation rights. Which procedural violations are most likely to result in an adverse finding against a school district?
Monday, June 30, 2014
Saturday, June 28, 2014
Procedural Safeguards -The Series Part XIII
 |
| Drive Thru LAWYER ! (Photo credit: brookenovak) |
This is the final 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. Be sure to tell me what you thought about the series.
Attorneys’ Fees
IDEA’04 changed the section on attorneys’ fees to provide that a school district or SEA may now recover their attorneys’ fees from the parent’s attorney who files a complaint that is frivolous, unreasonable, or without foundation or who continues to litigate after the litigation clearly becomes frivolous, unreasonable, or without foundation. Section 615 (i)(3)(B)(i)(II). Also, the statute now provides that a school district or SEA may now recover their attorneys’ fees from the parent or the parent’s attorney where the claim was presented for an improper purpose, such as to harass, to cause unnecessary delay or to needlessly increase the cost of litigation. Section 615 (i)(3)(B)(i)(III). The standard for an award against a parent’s attorney or a parent is very high, and it is unlikely that many awards of attorneys’ fees will be made against parent’s attorneys, and especially against parents without attorneys. These new provisions, however, may cause counsel who represent parents to decline borderline cases. There could also be awards in those rare cases in which parents clearly abuse the system. OSEP declined to clarify the standard for an award of attorney’s fees against a parent stating that judicial interpretations would likely vary on a case-by-case basis and should be left to the discretion of the court. 34 CFR Section 300.517(c)(2)(ii); 71 Fed. Register No. 156 at page 46708 (August 14, 2006).
The provision permitting an award of attorneys’ fees to parents who prevail in a due process or court proceeding remains unchanged in IDEA’04. The regulations provide that attorney’s fees may not be awarded for attending IEP team meetings, except where they are convened as a result of judicial action, an administrative proceeding, or in the discretion of the state, for a mediation. 71 Fed. Register No. 156 at pages 46708-09 (August 14, 2006).
ADDITIONAL RESOURCES: 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 Revised June 2009). The Q & A document is available at the OSEP IDEA website:
In addition, NICHCY, also known as the National Dissemination Center for Children with Disabilities, has issued a series of training module on procedural safeguards. The training modules are available online here. and as to all matters involving dispute resolution, take a quick look at the CADRE website. (Note: the NICHCY resources are being migrated to the Center for Parent Information and Resources.)
Monday, June 23, 2014
Weekly Question!
Procedural violations of IDEA are only actionable if they adversely impact the child's education or significantly impair the parents' participation rights. Which procedural violations are most likely to result in an adverse finding against a school district?
Thursday, June 19, 2014
Department of Education Seeks Input on Disproportionality
 |
| Department of Education Seal (Photo credit: DonkeyHotey) |
The U S Department of Education published a request for information in the Federal Register today. DOE is seeking public comment on the steps it should take to address disproportionality based upon race and ethnicity in special education.
The Department of Education wants your comments on the actions it should take to:
- significant disproportionality based on race and ethnicity in the:
- identification of children as children with disabilities, including identification by disability category;
- placement of children with disabilities in particular educational settings; and
- the incidence, duration, and type of disciplinary action taken with respect to children with disabilities; and
- ensuring that funds reserved for comprehensive, coordinated early intervening services under Part B of the IDEA are used to effectively address significant disproportionality.
All comments should have the docket # (Docket No. ED-2014-OSERS-0058) and the phrase “CEIS and Significant Disproportionality” near the top of the comments.
You can submit your comments electronically at www.regulations.gov
Or you can mail or deliver them to Larry Ringer, Attention: IDEA Determinations RFI, U.S. Department of Education, 400 Maryland Avenue SW., Room 4032, Potomac Center Plaza (PCP), Washington, DC 20202-2600.
You can review the Federal Register posting here. Other information is available on the Department's website here.
If those issue is important to you, make your voice heard.
Monday, June 16, 2014
New Weekly Question!
Procedural violations of IDEA are only actionable if they adversely impact the child's education or significantly impair the parents' participation rights. Which procedural violations are most likely to result in an adverse finding against a school district?
Thursday, June 12, 2014
More on Professor Weber Law Review Article on Special Ed Hearings
 |
| A diagram I made to demonstrate the current and potential future methods of resolving content disputes on the English Wikipedia (Photo credit: Wikipedia) |
OK so I buried the lead.
A number of readers have asked me for the citation to Professor Weber's new law review article on IDEA due process hearings.The article defends these hearings in the wake of recent attacks. I eventually realized that I posted on this topic on the same day as other breaking news. As a result, those who get our posts by email did not necessarily get the headline for both posts.
To rectify this, I am repeating the post on the law review article below. Thanks for your patience:
Due process hearings under IDEA, the primary special education law, are under attack on many fronts. I have to admit to a bias here. I have been an IDEA due process hearing officer for five different jurisdictions since 1989. In addition, I have trained hearing officers around the country at national, regional and state specific hearing officer trainings. I clearly have an investment in the current special education hearing system. So bear that in mind, but I stand by the following:
In recent years the special ed hearing system has come under attack. School district lawyers and a few academics have squared off against it. Last year the AASA, the school superintendent's association, issued a report calling on Congress to do away with due process hearings. We had two posts about the AASA report here and here. Even some parents don't like the hearing process. See this post.
In this context of attacks upon the due process hearing system, a new law review article provides some important insights. Professor Mark Weber is a true scholar in the field of special education law, and he is a friend of this blog as well as a friend of mine. Professor Weber has written a new law review article that defends the IDEA due process hearing system. He writes that "...some criticisms of hearing rights are flat-out wrong and that others are badly overblown. The system is, on the whole, fair to the various classes of parents..." He goes on to propose some modest reforms to the due process hearing system while defending the system in general. He concludes with the phrase "Don't dis due process." This law review article is a must read for those involved in special ed law.
The article will soon be published in the Ohio State Journal On Dispute Resolution, but in the meantime you can find it on SSRN here. Thanks to Professor Weber for sharing this fantastic article. Please read it and tell us what you think.
In this context of attacks upon the due process hearing system, a new law review article provides some important insights. Professor Mark Weber is a true scholar in the field of special education law, and he is a friend of this blog as well as a friend of mine. Professor Weber has written a new law review article that defends the IDEA due process hearing system. He writes that "...some criticisms of hearing rights are flat-out wrong and that others are badly overblown. The system is, on the whole, fair to the various classes of parents..." He goes on to propose some modest reforms to the due process hearing system while defending the system in general. He concludes with the phrase "Don't dis due process." This law review article is a must read for those involved in special ed law.
The article will soon be published in the Ohio State Journal On Dispute Resolution, but in the meantime you can find it on SSRN here. Thanks to Professor Weber for sharing this fantastic article. Please read it and tell us what you think.
Monday, June 9, 2014
Weekly Question!
Due process hearings is the forum for resolving special ed disputes before going to court. These hearings are currently under attack, but Professor Weber's new law review article defends due process hearings. What do you think? Have you had a due process experience. Leave a comment but please no names!
Saturday, June 7, 2014
Procedural Safeguards - The Series Part XII
 |
| Violations (Star Trek: The Next Generation) (Photo credit: Wikipedia) |
This is the twelfth 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 Violations
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); andGadsby 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.
Wednesday, June 4, 2014
Breaking: Council of State Governments Tells Schools To End Zero Tolerance Discipline
 |
| The artwork for "Discipline", an example of the geometric shapes of the album's visual design. (Photo credit: Wikipedia) |
Yesterday, the Council of State Governments released a report on school discipline that tells school districts to spare the rod. The report notes that an over reliance by schools on suspensions is fueling the school to prison pipeline. The report is highly critical of zero tolerance discipline policies.
The School Discipline Consensus Report mentions frequently that kids with disabilities are targeted for school discipline. Indeed the report emphasizes that children with disabilities are twice as likely as their non-disabled peers to be singled out for school discipline.
The Report was prepared by a team of over 100 policy professionals, educators, behavioral health professionals and justice system professionals. The Report includes sixty recommendations to keep kids in the classroom and out of the courtroom.
If you work in the field of school discipline, you should check out this report. You can read the entire 436 page report here. Video and press coverage of the report are available here.
I wonder if reforms will follow?
Monday, June 2, 2014
Weekly Question!
Due process hearings is the forum for resolving special ed disputes before going to court. These hearings are currently under attack, but Professor Weber's new law review article defends due process hearings. What do you think? Have you had a due process experience. Leave a comment but please no names!
Subscribe to:
Posts (Atom)
