1 Selected Recent IDEA Changes in Procedural Safeguards Sherrie Brown Special Education and the Law Winter 2010

Revocation of Consent (IDEA regulations effective )  IDEA requires LEA to obtain written consent from parents for initial provision of special education and related services.  Final regulations now permit parents to withdraw their consent for continued IEP services at any time subsequent to their initial provision. 34 CFR 300.9(c)(3),(b)(4).  If rights transfers to student at age of majority, the right to revoke consent transfers to the student.  This is a reversal of the OSEP interpretation of the “duty” of the LEA – i.e., pursue due process. 2

Comments to the Regulations:  Allowing parents to revoke consent for the continued provision of special education and related services at any time is consistent with IDEA’s emphasis of the role of parents in protecting their child’s rights and the Department’s goal of enhancing parent involvement and choice in their child’s education. Fed Reg.,Vol. 73, No. 231 (page 73009).

Comments continued:  Parents have the right to revoke in their entirety. NOT the right to revoke consent for a particular service. Parents should use due process procedures to ask hearing officer to find a particular service not appropriate.  If a parent disagrees with a particular service and the parents and public agency agree that child would be provided a FAPE without that service, “the public agency should remove the service from the child’s IEP.” Fed Reg., Vol 73, No. 231, (page 73011).

And continued…  Revocation not subject to due process hearings or mediation. 34 CFR (b)(4)(ii) Comments state that state may develop additional procedures that require schools to offer to meet with parents to discuss their concerns. BUT must be voluntary and must not delay revocation of services.  Written revocation required for school to discontinue. 34 CFR (b)(4) Comments state that schools may ask “why?” but parents do not have to reply.

Etc…  Prior Written Notice must be sent to parents following receipt of the revocation and before ceasing services. 34 CFR (b)(4)(i) Comments reiterate that notice must be language that is accessible to parents, explain change of placement. No timeline but must be timely and include information on sources for parents re: understanding IDEA. Best practice would require that parents get detail explanation of disciplinary rules compared to children on IEPs.  No FAPE violation following revocation of consent. 34 CFR (b)(4)(iii) Comments state that parents may request new evaluations at any time following revocation. No limit on number of times may request and schools must be “treated” as any other child referred for evaluation/child find process. Fed Reg., Vol 73, No. 231, pages 73014,15.

Etc…  Schools required to provide parents at least annually a statement of procedural safeguards fully explaining the procedural rights that IDEA provides—including the right to revoke consent.  Educational records do not need to be amended to erase IDEA services following revocation. Revocation is not retroactive. 34 CFR 300.9(c)  Comments clarify that these regulations do not address Section 504/ADA protections and requirements. Fed Reg., Vol 73, No. 231, page QUESTION: Can parent revoke consent for IDEA and request Section 504?

Finally…  If parent revokes prior to state testing (NCLB), no requirement to provide accommodations that were included in IEP. QUESTION: but under Section 504?  However, NCLB regulations allow a school to include students who were previously IEP students in the subgroup of students with disabilities for 2 AYP cycles. Fed Reg., Vol 73, No. 231, page  Supplementary Security Income (SSI) may be affected when parents revoke consent. Best Practice suggests that parents be informed of the impact on SSI eligibility.  Nothing in the new regulations changes duty of schools to report abuse and neglect. Fed Reg., Vol 73, No. 231, page

Dispute Resolution Options (Part B IDEA):  School and Family resolution OSPI Special Education Ombudsman  Citizen Complaints  Special Education Mediation  Due Process Complaints  Court resolution

Citizen Complaints  Any individual or organization may file if believe that there has been violation of federal or state laws or regulations.  Complaint must be in writing and signed.  Specific details of what needs to be included—including resolution if known.  OSPI has a complaint form on-line although not required.  Sent to OSPI and copy to district or ESD or….  OSPI requests response from district and the response sent to complainant. Allowed to respond.  OSPI investigates and written decision within 60 days. If violations, OSPI includes measures to correct student specific or systemic violations.  Only investigates violations occurring within past year and not ones that are in due process or already been resolved through due process.

11 Due Process Complaint  Either parent or LEA must file complaint to initiate a due process hearing (15,000 requests in USA )  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.

12 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).

13 Mediation  Mediation continues to be voluntary.  Discussions are confidential.  If 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.  OSPI contracts with Sound Options Mediation and Training Group.

14 Miscellaneous Hearing Issues  IDEA final regulations allowed states to authorize non- attorneys to represent both schools and parents at due process hearings. 34 CFR (a)(1).  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).

15 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.

16 Attorneys’ Fees….  Reasonable fees may be awarded to Parent who prevails SEA/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).

17 Supreme Court adds “rules”  Party seeking relief in due process hearing bears the burden of proof. Schaffer v. Weast, 126 S. Ct. 528 (2005).  Attorneys’ fees do not include expert witness fees. Arlington v. Murphy, 126 S.Ct (2006). NOTE: IDEA Fairness Restoration Act (H.R. 2740) would reverse Murphy.  Parents may represent their children in court actions regarding IDEA. Winkelman v. Parma City School District, 127 S.Ct (2007)

18 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.

19 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.

20 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.

21 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.

22 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: ?

Forest Grove School District v. T.A., 557 U.S. ___ (2009)  Facts: TA attended public school from kindergarten until junior year without special education services albeit school had evaluated him for LD and mentioned that perhaps he had attention issues (but never evaluated even with requests from parents). Never evaluated for Section 504. After TA ran away from home and ended up in emergency room, parents placed him in a private school and sought tuition reimbursement (as well as requested school evaluate him). School evaluation concluded that he did have LD, ADHD and depression but not at level to seriously impact educational performance. Hearing Officer held for parents; district court said no…only once school has provided services. 9 th Circuit Court of Appeals overruled lower court finding that parents were eligible for tuition reimbursement because school found to have failed to provide TA a FAPE.

 Issue: Is the receipt of special education services through public school system a prerequisite for private school placement reimbursement?  Holding: (6/3 decision) No.  Reasoning: Earlier case law and 1997 amendments to IDEA clearly put districts on notice that they may be liable for private school placements if they don’t provide FAPE. There are limitations to the liability—district must have failed to provide FAPE and the private school placement must be appropriate. 24

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