1 Selected IDEA Changes in Procedural Safeguards, Complaints and Due Process Sherrie Brown Special Education and the Law Winter 2008

2 Due Process Complaint  Either parent or LEA must file complaint to initiate a due process hearing.  Complaint must include name of child, description of the problem, proposed resolution (20 USC 1415(b)(7).  Party receiving complaint may challenge the sufficiency of the complaint. Congress explained this as a way to reduce some of the “unnecessary litigation” because parents will have to actually identify a “clear and specific problem” and if can’t…should call IEP meeting. Congress continues to say that hearing cannot occur until parent has disclosed all issues with specificity.  Prior Written Notice as the ANSWER – or LEA must respond to parental complaint within 10 days and explain why LEA didn’t do as parents wanted.

3 Resolution Prior to Due Process Hearing  Resolution Meeting must be convened within 15 days of receiving notice and prior to the hearing  Attendance at Meeting includes: IEP members with specific knowledge of facts in complaints (parents and LEA determine relevant members); representative from LEA with decision- making authority; LEA attorney ONLY if parents brings one.  Purpose is to give parents opportunity to discuss their complaint and to give LEA opportunity to resolve the dispute.  Resolution Meeting not required if parents and LEA agree in writing to waive it OR if agreed to mediation.  If not resolved to satisfaction of parents within 30 days or receipt of complaint…hearing may occur.  If parents don’t participate after reasonable efforts by LEA, LEA may ask hearing officer to dismiss the complaint.  If resolution reached…parties must execute a legally binding, written agreement, signed by both and which is enforceable in state or federal court (may be voided by either party within 3 business days).

4 Mediation  Mediation continues to be voluntary.  Discussions are confidential.  Is issues resolved…legally binding document prepared. Signatures from both sides States that all discussions are confidential and may not be used as evidence in subsequent due process hearing or civil proceedings.

5 Miscellaneous Hearing Issues  Hearing limited to issues raised in due process hearing complaint—unless the other party agrees to add them.  Request for due process hearing must be within 2 years of date parent or agency knew or should have known about the action that forms basis of complaint (or the explicit time allowed by state law.)  The 2 year timeline does not apply to parent if parent was prevented from filing because LEA specifically misrepresented it had resolved the issue; LEA withheld information from parent that parent had right to receive (e.g., right to request hearing).

6 Decision of Hearing Officer…  Substantive Violations: Hearing officer’s determination of whether a student received a FAPE must be based on substantive grounds.  Procedural Violations: Hearing officer may only find violation of FAPE if the procedural inadequacies  Impeded student’s right to FAPE;  Significantly impeded parent’s opportunity to participate in decision making process regarding provision of FAPE;  Caused deprivation of education benefits.  Hearing Officer can order LEA to comply with procedural requirements.

7 Attorneys’ Fees….  Reasonable fees may be awarded to Parent who prevails SEA or LEA that prevails against parent’s attorney who:  Files a complaint or subsequent cause of action that is frivolous, unreasonable or without foundation;  Continues to litigate after litigation clearly becomes frivolous, unreasonable or without foundation.  Cannot use special education funds  No attorneys’ fees for IEP team meetings, and resolution meetings, (unless court ordered or state allows for mediation).

8 Supreme Court adds “rules”  Party seeking relief in due process hearing bears the burden of proof. Schafer v. Weast, 126 S. Ct. 528 (2006).  Attorneys’ fees do not include expert witness fees. Arlington v. Murphy, 126 S.Ct (2006).  Parents may represent their children in court actions regarding IDEA. Winkelman v. Parma City School District, 127 S.Ct (2007)

9 Winkelman v. Parma City School District  FACTS: Jacob Winkelman is a young child with autism Jacob was placed in Achievement Center—preschool program for young children. In 2003 parents and school district met to discuss IEP for next school year. District offered placement in public school K; parents didn’t accept that. Disagreement about what was the “current educational placement” and parents requested due process hearing. Hearing officer concluded that Achievement Center was the “current…placement.” Parents then placed him in a private school (Monarch). Hearing officer then decided that public school program was appropriate and denied parent’s request for tuition reimbursement. Parents had represented Jacob during hearing, district court. When parents went to 6 th Circuit for review of lower court decision, court ruled that they could not represent their or their child’s interest in federal court—i.e., get an attorney.  The text of the IDEA does not support the proposition that its guarantee of a [FAPE] is a right that [a child] shares jointly with his parents. Cleveland Bar Association initiated an investigation –illegal practice of law! US Supreme Court accepts the case and resolves a split in circuits.

10 Question to the Supremes:  To what extent, if any, may a non-lawyer parent of a minor child with a disability proceed pro se in a federal court action brought pursuant to the IDEA.  Circuit Courts of Appeals disagree: 3 rd and 6 th say no—parents may not represent their child’s substantive interests in federal court. 1 st says yes they may.

11 Amicus Briefs…  Solicitor General of USA IDEA procedurally designed to encourage parental involvement and parents face many disadvantages dealing with school district and unlikely Congress intended to put parents at even greater disadvantage by preventing suits from going further.  COPAA (council of parent attorneys and advocates) Limited number of attorneys available to represent children Slammed the Cleveland Bar Association.

12 Majority Opinion and Reasoning (7/2):  Parents may represent their child in court actions involving rights under IDEA.  IDEA grants parents independent, enforceable rights which are not limited to procedural and reimbursement-related matters but encompass the entitlement to a FAPE for their child.  Statutory language resolves question as to whether parents or only children have rights under IDEA. Among goals are “that the rights of children with disabilities and parents of such children are protected.” Many examples of parental involvement; they play a significant role.

13 School Board of New York v. Tom F., 128 S.Ct. 1 (2007)  FACTS: Mr. Freston’s (Viacom executive) son has learning disabilities. Began advocating for him at age 8; NYC offered him a spot but dad wanted smaller school and placed him in private Stephen Gaynor School. He won tuition reimbursement through hearings. NYC sued in federal court where district court ruled family couldn’t receive reimbursement before the child attended public school. Second Circuit reversed; NYC appealed to Supremes.  ISSUE: Can parents receive tuition reimbursement for unilateral private school placement if their children have never attended public school?  HOLDING: Court split 4/4 (Justice Kennedy recused himself) which means that the Supremes let the Second Circuit decision stand.  REASONING: No court opinion because split decision  SIGNIFICANCE: ?