Parents' Rights and the Procedural Safeguards Manual

Question:  Is there one piece of advice you think is important for all parents of children in special education?

Answer:  Absolutely.  Every parent should carefully read the Procedural Safeguards manual that you were given at your child’s IEP meeting. Procedural Safeguards means Parents Rights.

Congress believed that informed parents are so important that in the Individuals with Disabilities Act (IDEA), it required schools to provide this booklet to parents.

The Procedural Safeguards Manual provides a general overview of information about special education and the rights available to parents and children under the IDEA. and the Iowa Administrative Rules of Special Education. Some of the areas reviewed in the manual are:

• Written notice to parents
• Parental Consent
• How to Obtain Your Child’s Records
• Evaluations
• School Discipline
• What You Can Do If You Disagree with Your Child’s IEP, or What’s Happening At School
• State Complaints, Due Process, Mediation

 Although the Procedural Safeguards Manual won’t answer every question a parent may have, it covers much of what parents most need to know.

If you have misplaced your copy, you may download a copy from the Iowa Department of Education’s website at: https://www.educateiowa.gov/pk-12/special-education/parent-information/procedural-safeguards-manual-parents-rights-children-ag-0  Downloadable copies of Iowa's Procedural Safeguards manual are available in English, and in Arabic, Bosnian, Loatian, Serbo-Croatian, Spanish and Vietnamese.

Physical Restraint and Seclusion I

With a few changes to conceal their identities and the written permission of a couple who became my clients, I am posting the first parts of our initial email exchange.

Dear Ms. Richard:  My daughter is a first grader who was diagnosed with autism when she was three. She attends [School Name] in [Town Name], Iowa. She is terrified of loud, unexpected noises. This is in her IEP and each month her teachers are supposed to prepare on the day of each month when the emergency sirens are tested and help her put on sound-cancelling headphones. Yesterday I received a call from the school principal. He told me that toward the end of music class, my daughter was given a “time out.” When I asked what happened, the principal told me a new paging system was activated before installation was complete, and made a loud noise that made everyone jump. He said my daughter covered her ears, closed her eyes, curled up in a ball, and screamed for over two minutes. She was still curled up in a ball with her eyes closed and ears covered when her classroom teacher came to take the children back to their classroom. When she would not line up, an associate was called, who put her in some kind of a hold and carried her to the time out room. The principal said this was the first time they “ever had to close the door on her,” and that he was “really surprised because usually when they put her in there, they just have an associate sit in the doorway to keep her from leaving,” but this time she began loud crying and trying to crawl out under the chair. No one has ever said or written anything to us about using time outs with our daughter. Before I could say this, the principal said he had to get going and hung up. My wife told me that when she picked up our daughter from school, she was shivering, and had wet panties and leggings. This morning my daughter refused to eat breakfast or get dressed. She was shaking and hanging on to her mother and saying she didn’t want to go to school. They stayed at home and I went to the school to find out what was going on. When I went to the school office, the principal gave me a “Restraint and Confinement” report which said what he told me the day before, and showed that the time out was 25 minutes long. The principal showed me the “time out” room which turned out to be a bare room, about 6’ x 7,’ with cement block walls. My first thought was that it looked like a prisoner containment cell in a war zone. A cage was installed over a dim light bulb. The door had 8 x 12 reinforced window installed higher than my daughter’s head. The vinyl baseboard had been torn off in places, the room probably hadn’t been painted since the school was constructed, and on the floor tile there was a dried pool of urine. It took every ounce of the self-control I developed in the [Branch of the Military] to get out of the school building without losing my temper. My wife and I want to know if it is legal in Iowa for schools to do this. . . .

Dear [Parent], Under the facts you have provided, it sounds like your child’s school is using seclusion, a method of discipline that is not supported by research, in an unreasonable manner that is prohibited by Iowa’s regulations that govern public education. Restraint and seclusion trigger strong emotions, including fear and loss of control. They increase the child’s anxiety, decreasing the child’s ability to manage behavior, thus increasing future problematic behavior. Restraint and seclusion should only be used as a last resort when less-restrictive measures have failed or aren’t possible, and physical safety or destruction of valuable school property is at severe risk. Iowa’s regulations prohibit school employees from using physical restraint and seclusion to punish minor infractions. The Iowa Department of Education gave a few examples of minor incidents in a decision issued May 30, 2017,
https://www.educateiowa.gov/documents/appeal-decisions/2017/10/book-28-decision-041 stating that “minor infractions” include “stepping out of a line of students, having an “attitude, being out of instructional control, foul language, and saying ‘I’ll kill you’ without having the means to do so.”

Because your daughter has an IEP, this matter is addressed by state and federal special education laws. The Individuals with Disabilities Education Act (IDEA), the federal law that provides states with some of the funds for special education, requires that children eligible for special education receive “free appropriate public education (FAPE).” One of the requirements for a FAPE is an education consistent with state standards. These standards include state regulations governing the use of restraint and seclusion. In Iowa, a student is secluded if the child is confined in a room or some other enclosure from which the child’s egress is restricted. See Iowa Admin. Code r. 281—103.6. This rule does not require that a child’s egress be restricted by a closed door; a child is also secluded when the child’s egress is restricted by a staff member sitting in the seclusion room’s doorway. . . .

Pre-determined IEPs

“A ‘one size fits all’ approach to special education will not be countenanced by the IDEA.”

–  Deal v. Hamilton Cty. Bd. of Educ., 392 F.3d 840, 859 (6th Cir. 2004).

            Some school districts invest in a program and make the mistake of using that program exclusively for students with IEPs who appear to have similar learning issues. However, this is exactly what a school district should not do. A school district is not entitled to decide that because it has a program, that the program will always be appropriate to address the unique learning needs of a particular child.

            A school district violates the Individuals with Disabilities in Education Act (IDEA), 20 U.S.C.S. § 1400 et seq., procedures if the IEP Team independently develops IEP without meaningful parental participation, presents it to the parent using a "take it or leave it" position.  If it does so, then even the parents' decision not to cooperate with the IEP may not excuse the district's error. See Ms. S. ex rel. G v. Vashon Island Sch. Dist., 337 F.3d 1115, 1118 (9th Cir. 2003).

            Predetermined IEPs violate at least two key requirements of the IDEA: (1) that special education and related services meet the unique needs of a child with a disability (see §§1401(26), (29)), and (2) the right of parents, as full members of the IEP team to have meaningful opportunity to participate in the development of the IEP.

            A free appropriate public education (FAPE) as defined by the IDEA, includes both “special education” and “related services.” §1401(9). “Special education” is “specially designed instruction . . . to meet the unique needs of a child with a disability”; “related services” are the support services “required to assist a child . . . to benefit from” that instruction. A State covered by the IDEA must provide a disabled child with such special education and related services “in conformity with the [child’s] individualized education program,” or IEP. §1401(9)(D). See  Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 994 (2017). The IEP is “the centerpiece of the statute’s education delivery system for disabled children.” Honig v. Doe, 484 U. S. 305, 311 (1988). 

            Predetermination can deprive parents of a meaningful “opportunity to participate in the formulation process.” M.M. v. Lancaster Cty. Sch., 702 F.3d 479, 488 (8th Cir. 2012) quoting Lathrop R-II Sch. Dist. v. Gray, 611 F.3d 419, at 24 (8th Cir. 2010).  A comprehensive IEP prepared by a child’s “IEP Team” (which includes teachers, school officials, and the child’s parents), must be drafted in compliance with a detailed set of procedures. See Endrew F. at 994 citing 20 USC §1414(d)(1)(B). These procedures emphasize collaboration among parents and educators and require careful consideration of the child’s individual circumstances. See Id. Citing 20 USC §1414. The IEP is the means by which special education and related services are “tailored to the unique needs” of a particular child. See Id.  citing Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 208, (1982) (“Congress sought to protect individual children by providing for parental involvement . . . in the formulation of the child's individual educational program.”).       

            Federal courts have that predetermined IEPs have violated the IDEA in a number of cases.  For example, in Deal v. Hamilton Cty. Bd. of Educ., 392 F.3d 840 (6th Cir. 2004), the court found that the school district  “clearly” had an unofficial policy of refusing to consider the Lovaas ABA program for autistic children and that its staff attended IEP meetings already having predetermined that they would use the that program for all children with autism. Likewise, in  W.G. v. Bd. of Tr. of Target Range Sch. Dist. No. 23, 960 F.2d 1479, 1484 (9th Cir. 1992), superseded by statute on other grounds, as recognized in R.B. v. Napa Valley Unified Sch. Dist., 496 F.3d 932 (9th Cir. 2007), the school district proposed an IEP that would place a student in a preexisting, predetermined program. At the IEP meeting, the special education teacher advocated use of the Scott Foresman Focus Program, and did not consider alternatives to that program despite the objections of the parents, who later testified that the district asserted  a "take it or leave it" position at the meeting.