Friday, May 30, 2014

BREAKING: NCES Releases Report On the Condition of Education 2014

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






















More fun with numbers!

The National Center for Education Statistics has released a report - "The Condition of Education 2014." The report contains a wealth of information and statistics on education in America.  

You can find general information here.  You can download the entire report here.

The report provides data about level of education and employment; the status of rural education; how post-secondary education is financed and tons of other topics of interest to those who work in or are concerned about education.  Check it out.

"Concerning special education, here is a small quote from the report:
Enacted in 1975, the Individuals with Disabilities 
Education Act (IDEA), formerly known as the Education 
for All Handicapped Children Act (EAHCA), mandates 
the provision of a free and appropriate public school 
education for eligible children and youth ages 3–21. 
Eligible children and youth are those identified by a team 
of professionals as having a disability that adversely affects 
academic performance and as being in need of special 
education and related services. Data collection activities to 
monitor compliance with IDEA began in 1976. 
From school years 1990–91 through 2004–05, the 
number of children and youth ages 3–21 who received
special education services increased, as did their 
percentage of total public school enrollment: 4.7 million 
children and youth ages 3–21, or about 11 percent of 
public school enrollment, received special education 
services in 1990–91, compared with 6.7 million, or about 
14 percent, in 2004–05. The number and percentage of 
children and youth served under IDEA have declined 
each year from 2005–06 through 2011–12. By 2011–12, 
the number of children and youth receiving services had 
declined to 6.4 million, corresponding to 13 percent of 
total public school enrollment."


There is also a graph showing which eligibility categories have what share of kids served under IDEA.  Eg. Kids identified with specific learning disabilities are 36% of the kids on IEPs.

Let me know if you find other interesting facts in the report.
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Monday, May 26, 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, May 24, 2014

Procedural Safeguards - The Series Part XI

The judges of the International Court of Justi...
The judges of the International Court of Justice in the Hague (Photo credit: Wikipedia)




























This is the eleventh 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 the special education stakeholders who read this blog find the information in this series helpful.


Due Process Hearings


A due process hearing resembles a court trial. Increasingly, parties are represented by lawyers. Opening statements are made. Testimony is provided by parents, teachers, related service providers, administrators, and many others- often by expert witnesses. Although the formal rules of evidence are generally not applied, exhibits, or documentary evidence, are offered and admitted. The tone is increasingly adversarial. Either closing arguments are made or written briefs are submitted. Hearing officer decisions are generally lengthy and legalistic in tone. The decision of the hearing officer may be appealed to one or more courts.

Parents and local education agencies may file a due process complaint for any matter related to the identification, evaluation, educational placement or the provision of a free and appropriate public education to a child with a disability. IDEA §§ 615(f);615(b)(6).

IDEA imposes a two-year statute of limitations on due process complaints. 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. § 615 (f)(3)(C). The 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. § 615 (f)(3)(D). OSEP has 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).

In addition to the requirement that a hearing officer not have a personal or professional interest that would conflict with objectivity, three more qualifications for due process hearing officers were added in 2004. 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. § 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).

IDEA 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 (due process hearing) notice…,” unless the other party agrees. § 615 (f)(3)(B). see, 34 CFR §300.511(d); 71 Fed. Register No. 156 at pages 46705 -06 (August 14, 2006). However, note that IDEA § 615 (o) provides that nothing in § 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.”

OSEP noted that states have considerable latitude in developing procedural rules for due process hearings and that determinations upon procedural matters not specifically addressed by IDEA are within the sound discretion of the hearing officer so long as the parties’ right to a timely hearing is not denied. 71 Fed. Register No. 156 at page 46704 (August 14, 2006). Other items left to the discretion of the hearing officer include the following: decisions concerning appropriate expert witness testimony. 71 Fed. Register No. 156 at page 46691 (August 14, 2006); ruling upon compliance with timelines and the statute of limitations. 71 Fed. Register No. 156 at page 46705 (August 14, 2006); determining when dismissals are appropriate. 71 Fed. Register No. 156 at page 46699 (August 14, 2006); whether the non-complaining party may raise other issues at the hearing that were not raised in the due process complaint. 71 Fed. Register No. 156 at page 46706 (August 14, 2006); the meaning of the word “misrepresentation” for purposes of the exception to the statute of limitations for filing a due process complaint. 71 Fed. Register No. 156 at page 46706 (August 14, 2006); and providing proper latitude for pro se parties. 71 Fed. Register No. 156 at page 46699 (August 14, 2006).

Concerning the five business day rule for disclosure of evidence prior to a due process hearing, OSEP commented that nothing prevents parties from agreeing to a shorter period of time. 71 Fed. Register No. 156 at page 46706 (August 14, 2006).

As to the location and time of due process hearings, OSEP resisted the suggestion that they be conducted in a “mutually convenient” time and place, fearing that the large number of participants to a hearing would necessitate long delays if mutually convenient times and locations were required. The regulations retain the requirement that hearings be conducted at a time and place that is reasonably convenient to the parents and student. 34 CFR § 300.515(d); 71 Fed. Register No. 156 at page 46707 (August 14, 2006).

Representation by Non-Attorneys in Due Process Hearings

Changes to the federal IDEA regulations effective on December 31, 2008 made an important change to the policy interpretation by OSEP regarding the representation of parties (primarily parents) by non-lawyers in due process hearings. Prior to the change, it had been the long-standing interpretation of OSEP that a non-lawyer could represent parents at a due process hearing in much the same way that a lawyer could represent a party. After certain lower courts declared such a practice to be a violation of “unauthorized practice” statutes, OSEP changed 34 C.F.R. Section 300.512 (a)(1) to specify that whether a party has the right to be represented by a non-lawyer at a due process hearing shall be determined by state law.

Some commenters, including this author, asked OSEP to clarify whether it was sufficient for a state by rule or regulation to specify that parties could be represented by non-lawyers or whether the ability of a lay advocate to represent parents is instead controlled by state law regarding the unauthorized practice of law. OSEP’s “response” was as follows:

Discussion: Whether an SEA may have a State regulation or procedural rule permitting non-attorney advocates to represent parties at due process hearings or whether that issue is controlled by State attorney practice laws is determined by State law. If State law is silent on the question of whether non-attorney advocates can represent parties in due process hearings, there is no prohibition under the Act or its implementing regulations on nonattorney advocates assuming a representational role in due process hearings. 73 Fed Register No. 231 at page 73018 (12/1/2008)

Here is the OSEP Topic Brief on Due Process Hearings:

 Here is the OSEP Questions and Answers On Procedural Safeguards and Due Process Procedures For Parents and Children With Disabilities:

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Monday, May 19, 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!

Friday, May 16, 2014

Procedural Safeguards - The Series Part X

Uncyclopedia dispute resolution
Uncyclopedia dispute resolution (Photo credit: Wikipedia)


























This is the tenth 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.




Resolution Session Meetings


A mandatory resolution session was added to the special education dispute resolution process in 2004. IDEA § 615 (f)(1)(B). Within 15 days of receipt of a due process hearing complaint from a parent, the school district must convene a meeting with the parents, a representative of the LEA with “decision making authority,” and relevant member(s) of the IEP team who have “specific knowledge of the facts identified in the complaint.” The purpose of the resolution session is to permit the parents to discuss their complaint and the underlying facts and to provide the LEA the opportunity to resolve the complaint. The LEA may not bring their lawyer unless the parent has a lawyer. The parties may avoid the resolution session only by waiving the meeting in writing or by participating in mediation. § 615(f)(1)(B)(i). If the LEA has not resolved the complaint to the satisfaction of the parents within 30 days after receipt of the complaint, the hearing may occur and “all applicable timelines for a due process hearing” shall commence. § 615(f)(1)(B)(ii). If the resolution session results in a written settlement agreement, the agreement is legally binding and enforceable in court, except that if either party suffers from “buyer’s remorse,” they may void the agreement within three business days after it is executed. § 615(f)(1)(B)(iii) and (iv).

Attorneys who represent parents are barred from seeking attorney’s fees and costs if they decide to participate in the resolution session. § 615 (i)(3)(D)(ii)and(iii).

Unless one of the exceptions apply, the 45 day deadline for the hearing officer decision begins after the resolution period ends. 34 C.F.R. §300.510(b)(2).

Unlike the mediation provisions of the Act, which contain a specific guarantee of confidentiality for any discussions during a mediation session, §615 (e)(2)(G), there is no confidentiality protection for discussions that take place during a resolution session. OSEP specifically rejected the request of several commenters on the proposed 2006 federal regulations to clarify whether discussions at resolution meetings are confidential because the Act is silent regarding confidentiality. 71 Fed. Register No. 156 at page 46704 (8/14/06). OSEP went on to say that although the parties could negotiate a confidentiality agreement as a part of their written resolution agreement, a state could not require the parties to a resolution meeting to keep the discussions confidential. 71 Fed. Register No. 156 at page 46704 (8/14/06)(emphasis not in original).

The federal regulations provide that where a parent does not participate in the resolution meeting, the timelines for both the resolution process and the hearing will be delayed. 34 C.F.R. § 300.510(b)(3). To avoid the potential perpetual stay-put problem caused by the proposed regulations, the final federal regulations added a provision that if the LEA is unable to obtain the participation of the parent after reasonable efforts (which now must be documented in the same manner as IEP Team meeting participation), the LEA may, at the conclusion of the 30 day period, request that the hearing officer dismiss the due process  complaint. 34 C.F.R. § 300.510(b)(4).

34 C.F.R. § 300.510(b)(5), that provides that where an LEA fails to schedule the resolution meeting within fifteen days, or the LEA delays the due process hearing by scheduling the resolution session at times or places that are inconvenient for the parent, or the LEA otherwise fails to participate in good faith in the resolution process, the parent may seek the intervention of the hearing officer to begin the due process hearing. 71 Fed. Register No. 156 at page 46702 (8/14/06). Although OSEP stated that it believes that such occurrences would be very rare, it agreed with commenters that parents should be able to request that the hearing officer begin the hearing process timelines in such cases. 71 Fed. Register No. 156 at page 46702 (8/14/06).

Although the resolution meeting includes “relevant” members of the IEP Team, it is clear that the resolution meting is not an IEP Team meeting. The purpose of the resolution meeting is for parents to discuss their complaint and the underlying facts and for the LEA to have an opportunity to resolve the dispute. § 615(f)(1)(B)(i)(IV); 71 Fed. Register No. 156 at page 46701 (8/14/06). In response to a commenter who questioned whether a resolution meeting agreement supersedes decisions made by the IEP Team, OSEP stated that nothing in the Act or regulations requires an IEP Team to reconvene following a resolution agreement that includes IEP-related matters. 71 Fed. Register No. 156 at page 46703 (8/14/06).

The purpose underlying the resolution meeting is described in a portion of the conference committee report that discusses the resolution session states that these changes address “unscrupulous lawyers and an overly complex system” that has “led to an abundance of costly and unnecessary lawsuits.” The conference report goes on to explain that the resolution sessions are needed because “...(t)oo often, schools are unaware of parental complaints and concerns until an official complaint is filed and the legal process is already underway.” H.R. 1350 Conference Report, (November 17, 2004).

Here is an analysis by CADRE of Resolution Meetings- State Supports and Practices.

Here is a now somewhat dated (2006) presentation by me concerning the resolution session at a CADRE National Conference.
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Thursday, May 15, 2014

Breaking Feds Issue New Guidance on Charter School Compliance With Civil Rights Laws

Charter School of Wilmington flagpole
Charter School of Wilmington flagpole (Photo credit: Wikipedia)





















Yesterday, the Office for Civil Rights of the U. S. Department of Education issued policy guidance on the requirement that charter schools comply with civil rights laws.

You can read the press release here and the actual guidance document here.

Although the specific policy guidance does not pertain to IDEA, it does include a discussion of charter schools compliance with §504.  Please note also that future guidance is planned with OSERS and OCR specific to children with disabilities attending charter schools. A portion of the report states as follows:

"Free appropriate public education for students with disabilities.

Under Section 504, every student with a disability enrolled in a public school, including a public charter school, must be provided a free appropriate public education–that is, regular or special education and related aids and services that are designed to meet his or her individual educational needs as adequately as the needs of students without disabilities are met. Evaluation and placement procedures are among the 
requirements that must be followed if a student needs, or is believed to need, special education or 
related services due to a disability. 

Charter schools may not ask or require students or parents to waive their right to a free 
appropriate public education in order to attend the charter school. Additionally, charter schools 
must provide nonacademic and extracurricular services and activities in such a manner that 
students with disabilities are given an equal opportunity to participate in these services and 
activities.  More information will be provided in joint guidance that OCR and OSERS plan to issue 
on the rights of students with disabilities who attend charter schools. "

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Monday, May 12, 2014

New 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!

Thursday, May 8, 2014

Bullying Victims and Guns

English: Bullying on IRFE in March 5, 2007, th...
(Photo credit: Wikipedia)



















Here's a frightening statistic: high school students who are the victims of bullying are 31 times more likely to bring a weapon to school.  That's right 31 times more likely according to a study by the Centers for Disease Control. So that means that 200,000 high school students have brought a weapon to school.

This is a recipe for disaster,

"Victims of bullying who have been threatened, engaged in a fight, injured, or had property stolen or damaged are much more likely to carry a gun or knife to school," said senior investigator Andrew Adesman, MD, FAAP, chief of developmental and behavioral pediatrics at Steven & Alexandra Cohen Children's Medical Center of New York.

You can read the press release by the American Academy of Pediatrics here.  Some of the data from the study is available here.


We have written extensively about bullying because children with disabilities are much more likely to be victims of bullying.  This index lists a number of our posts in the bullying series.


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Wednesday, May 7, 2014

Celebrate Exceptional Children's Week

First Student #136
First Student #136 (Photo credit: ThoseGuys119)

















May 5 -11, 2014 is Exceptional Children's Week.  This celebration is sponsored by our friends at the Council for Exceptional Children. You can learn more about the project here

I like the idea of devoting a week to exceptional kiddos. How will you celebrate this occasion?  Let us know your ideas.
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Monday, May 5, 2014

Weekly Question!

Dispute Resolution is at the heart of the Procedural safeguards provided by the Individuals With Disabilities Education Act. Which dispute resolution methods under IDEA have you had the most success with? Leave your story in the comments.

Saturday, May 3, 2014

Procedural Safeguards The Series Part IX

Complaint Department Grenade
Complaint Department Grenade (Photo credit: Wikipedia)
























This is the eighth 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 are not fully understood. Please keep me posted as to your reaction to the series.

State Complaint Procedures (NOTE these are different from due process complaints which lead to due process hearings; these are complaints investigated by the state department of education.  More on due process complaints in a later installment of this series.)


Each state education agency must maintain a state complaint procedure. 34 C.F.R. §§300.151-300.153. OSEP has stated that the state complaint system is required even though Congress has not specifically provided or addressed a state complaint system in the IDEA. 71 Fed. Register No. 156 at page 46606 (August 14, 2006).

Within one year of an alleged violation of the Act, any entity may file a state complaint. 34 C.F.R. §§300.151-300.153. A ruling is required within 60 days subject to extension for exceptional circumstances or an agreement to mediate. 34 C.F.R. §300.152. Only agreement, and not consent, is required to extend the 60 day time limit for processing complaints. 71 Fed. Register No. 156 at page 46604 (August 14, 2006). Here is an analysis by the Regional Resource Centers concerning how the exceptional circumstances exception should be applied. Where a state complaint and a due process hearing are requested on the same topic, the complaint investigator must set aside the portion of the complaint being addressed by due process until the hearing officer issues a decision. 34 C.F.R. §300.152(c). 71 Fed. Register No. 156 at page 46606 (August 14, 2006).

Where a state complaint investigator finds that IDEA has been violated, a corrective action is ordered. The relief that may be awarded includes compensatory education and reimbursement. 34 C.F.R. § 300.151(b). The purpose of this change to the federal regulations in 2006 was to make it clear that states have broad flexibility in awarding an appropriate remedy in resolving state complaints. 71 Fed. Register No. 156 at page  46602 (August 14, 2006).

When a state has finished processing a state complaint, a party who disagrees with the result may file a due process hearing complaint on the same issue if the statute of limitations has not passed. 71 Fed. Register No. 156 at page 46607 (August 14, 2006).

Here is the OSEP Topic Brief on State Complaint Procedures.  Memo to Chief Sch Officers Re Dispute Resolution Procedures Under Part B of IDEA 61 IDELR. 232 (OSEP 7/23/13) The 64 page Q & A attachment includes a section on state complaints.
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