Tuesday, August 19, 2014

Procedural Violations: My Presentation at the Utah Special Education Law Institute - Part II

An original Get Out of Jail Free Chance card.
An original Get Out of Jail Free Chance card. (Photo credit: Wikipedia)

In part I of this post, I provided some of the law and background concerning procedural violations. In this post I will describe my very unscientific study of procedural violation caselaw from a two year period. But first, before I got to the meat of the presentation, I had to give four caveats:
#1 Special Education Law is closer to Metaphysics than it is to Contract Law. ...just sayin'

#2 My informal and unscientific study of procedural violations relies upon published decisions. Most lawyers believe that cases that are very good for one side tend to settle, and other factors like the new resolution session may influence cases from going through  to decision and on to court. So the sample certainly doesn't reflect a fair representation of actual disputes. Also the non-random sample looked at cases from a two year period further reducing the scientific validity of the "study."

#3 Perhaps most importantly, the session was not designed to teach school personnel how to get away with procedural violations.  My position is that nobody should violate IDEA, procedurally or substantively, ever. Period. I was not attempting to design a get out of jail free card.

#4 Finally, it is important to remember that the requirement for something more than just a procedural violation pertains only to due process hearings.  A state complaint investigator can remedy a procedural violation without regard to the additional factors that must be found before a denial of FAPE can be determined by a hearing officer or court on a due process complaint.  Remember also that the limit on procedural violations is only applicable to FAPE cases.

OK so now for my findings and remember that there is no claim to scientific method  (insert drum roll here.):

The most actionable procedural violation = holding the IEP Team meeting without the parents.

The number one harmless procedural violation = failure to invite persons to the IEP team meeting.

The number two actionable procedural violation =  failure to maintain/retain documentation of the student's progress.

The number two harmless procedural violation = post-secondary transition issues.

Honorable mention harmless procedural violations:
3. issues regarding IEP goals
4. fba/bip behavior issues
5. due process complaint issues
6. IEP TEam meeting times, duration and/or specifying frequency/duration of services, etc.

More importantly, please note that there may be a third rail in these cases. As the Circuit Court of Appeals for the Tenth Circuit has observed, the conduct of the parties in terms of unreasonableness or bad faith has a bearing on how courts analyze procedural violations (and maybe everything else.) See, Sytsema by Sytsema v. Academy Sch Dist No. 20 538 F.3d 1306, 50 IDELR 213 (10th Cir. 2008).  See also, Hjortness by Hjortness v. Neenah Joint Sch Dist 498 F.3d 655, 48 IDELR 119 (7th Cir. 8/20/2007) and MM ex rel DM v Sch Dist of Greenville County 303 F.3d 523 (4th Cir. 2002).  This is a variation on the old saw- bad facts make bad law, yet there is more than a little truth in it.

Again please note the limitations of my study. But there it is. How do my "results" compare with your experience?


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