This morning I would like to thank California special education attorney-blogger, Greg Branch, for bringing light to a number of the reasons why the recent proposals of the School Superintendents' Association (AASA) are flawed and should not be followed.
I encourage readers to read Mr. Branch's blog article and Examiner article Examiner article in which he thoughtfully explains why the Individuals with Disabilities Act (IDEA) is a critical source of civil rights for children with disabilities.
Monday, April 29, 2013
Tuesday, April 23, 2013
Special Education Due Process Hearings Part 1: The Complaint
"Mediation didn’t work . . . the school district and its attorney are known for their stubborn opposition to parent special education requests, and there’s still a serious problem . . ."
In my experience, the vast majority of special education disputes are resolved through mediation. However, under some circumstances, parents and the attorneys who represent them decide it is necessary to go a step further and file a due process complaint with the state department of education, in order to have the case decided by an administrative law judge or hearing officer.
Federal regulations that implement the Individuals with Disabilities Education Act (IDEA) require the states to have a dispute resolution system and procedures in place, including provisions for impartial due process hearings. 34 CFR § 300.511. Common subjects of due process complaints include: eligibility for special education, a child’s educational placement, and issues involved in the provision of a free appropriate public education (FAPE) to a child.
A due process action begins when the parent (or school district) files a written complaint with the state department of education in which the child’s school is located. A complaint filed on behalf of the parents of a child with a disability must contain specific information, including a statement that the school district has violated a requirement of the IDEA or its implementing regulations, and provide the facts upon which the statement is based.
It is very important that the filed complaint contain all the issues in dispute because the party requesting the due process hearing will not be allowed to raise any issues at the due process hearing that were not raised in the due process hearing complaint. If after filing the complaint the parents believe they need to change or add to it, they may do this only if the school district (and any other education agency named in the complaint) agrees to this in writing, or the administrative law judge (or hearing officer) grants permission to amend the complaint.
It is also very important that the complaint be timely filed. The violation or violations alleged in the complaint may not have occurred more than two years before the date the parent or public agency knew or should have known about the acts/omissions that form the basis of the complaint.
In my experience, the vast majority of special education disputes are resolved through mediation. However, under some circumstances, parents and the attorneys who represent them decide it is necessary to go a step further and file a due process complaint with the state department of education, in order to have the case decided by an administrative law judge or hearing officer.
Federal regulations that implement the Individuals with Disabilities Education Act (IDEA) require the states to have a dispute resolution system and procedures in place, including provisions for impartial due process hearings. 34 CFR § 300.511. Common subjects of due process complaints include: eligibility for special education, a child’s educational placement, and issues involved in the provision of a free appropriate public education (FAPE) to a child.
A due process action begins when the parent (or school district) files a written complaint with the state department of education in which the child’s school is located. A complaint filed on behalf of the parents of a child with a disability must contain specific information, including a statement that the school district has violated a requirement of the IDEA or its implementing regulations, and provide the facts upon which the statement is based.
It is very important that the filed complaint contain all the issues in dispute because the party requesting the due process hearing will not be allowed to raise any issues at the due process hearing that were not raised in the due process hearing complaint. If after filing the complaint the parents believe they need to change or add to it, they may do this only if the school district (and any other education agency named in the complaint) agrees to this in writing, or the administrative law judge (or hearing officer) grants permission to amend the complaint.
It is also very important that the complaint be timely filed. The violation or violations alleged in the complaint may not have occurred more than two years before the date the parent or public agency knew or should have known about the acts/omissions that form the basis of the complaint.
Saturday, April 20, 2013
AASA, the Emperor's New Clothes, Special Education Mediations and Due Process Hearings
In Hans Christian Andersen's story, The Emperor's New Clothes, a vain king with an insatiable appetite for fine clothing, finds himself marching in a parade wearing nothing but his birthday suit. He is the victim of his obsession with sartorial splendor, and of a pair of swindlers who have told him that his "new clothing" is made from such wonderful stuff that it is invisible to anyone who is incompetent or stupid. After an elaborate charade in which the king is "dressed" in the new garments, his lord chamberlain, ministers and advisors who are fearful of losing their jobs, public recognition, and authority, heartily engage in the fraud proclaiming, "How beautiful the Emperor's new clothes are!" Notwithstanding their falderal, upon seeing the king walking naked in public, a small child says, "He doesn't have anything on!" Although the king knew the child was right, he decided that the parade would go on, and holding himself even more proudly, he continued the procession with the lord chamberlain walking along behind him carrying the train of his nonexistent coat.
This story came to mind when I read the 30 page paper issued on April 8, 2013, by the AASA (American Association of School Administrators). In it, the AASA recommends that Congress completely eliminate special education due process hearings and remove the provisions of the IDEA that make mediation agreements legally binding and allow attorneys to represent parents at those mediations. The AASA proposes to replace the procedures with state-approved IEP meeting facilitators, non-binding mediation, and provisions allowing parents to file law suits directly in federal court (think $$$ for the parents) without an opportunity to resolve disputes through state department of education administrative hearings. Since due process hearings are less expensive than federal court proceedings, this would place an additional burden on parents who need to challenge school decisions.
What kind of thinking underlies proposals that would essentially place the fox in charge of the hen house? Are the AASA’s recommendations merely based on an arrogant and naive assumption that public education systems and their personnel are so highly expert and scrupulously thorough that they identify and accurately evaluate each and every child with a disability in every area of their suspected disabilities, write IEPs in a manner that will meet each child’s unique needs and conforms to the law, and that the school personnel who implement them are all equally competent and effective, and neither harbor prejudices nor have their hands tied by restrictions in regard to the assistance they are allowed to recommend or provide?
I don’t think so.
It seems more likely that like the king in the story above, the AASA and its members know when the education systems and personnel they represent aren’t appropriately garbed. But instead of acknowledging and taking responsibility for the nakedness of those systems and personnel, they prefer to advocate for the elimination of the mediation and due process hearing procedures that have an inconvenient tendency to reveal that public education agencies and school districts don’t always operate in compliance with the IDEA and its implementing regulations. By extension, the AASA would probably also support the elimination of studies, such as the one conducted by the federal Department of Education in 2009, which found that only twenty-eight states met the IDEA’s compliance standards.
If the AASA’s proposals demonstrate anything, they demonstrate the kind of overreaching on the part of public school agencies that Congress anticipated when it enacted the portions of the IDEA which afford procedural protections to the parents of children with disabilities. I join with COPAA (Counsel of Parent Attorneys and Advocates) which has stated that the AASA document is nothing more than a shameful attack on parent and student civil rights. See COPAA's statement at: http://www.copaa.org/news/121292/AASA-Document-Nothing-More-Than-A-Shameful-Attack-on-Parent-and-Student-Civil-Rights-.htm
This story came to mind when I read the 30 page paper issued on April 8, 2013, by the AASA (American Association of School Administrators). In it, the AASA recommends that Congress completely eliminate special education due process hearings and remove the provisions of the IDEA that make mediation agreements legally binding and allow attorneys to represent parents at those mediations. The AASA proposes to replace the procedures with state-approved IEP meeting facilitators, non-binding mediation, and provisions allowing parents to file law suits directly in federal court (think $$$ for the parents) without an opportunity to resolve disputes through state department of education administrative hearings. Since due process hearings are less expensive than federal court proceedings, this would place an additional burden on parents who need to challenge school decisions.
What kind of thinking underlies proposals that would essentially place the fox in charge of the hen house? Are the AASA’s recommendations merely based on an arrogant and naive assumption that public education systems and their personnel are so highly expert and scrupulously thorough that they identify and accurately evaluate each and every child with a disability in every area of their suspected disabilities, write IEPs in a manner that will meet each child’s unique needs and conforms to the law, and that the school personnel who implement them are all equally competent and effective, and neither harbor prejudices nor have their hands tied by restrictions in regard to the assistance they are allowed to recommend or provide?
I don’t think so.
It seems more likely that like the king in the story above, the AASA and its members know when the education systems and personnel they represent aren’t appropriately garbed. But instead of acknowledging and taking responsibility for the nakedness of those systems and personnel, they prefer to advocate for the elimination of the mediation and due process hearing procedures that have an inconvenient tendency to reveal that public education agencies and school districts don’t always operate in compliance with the IDEA and its implementing regulations. By extension, the AASA would probably also support the elimination of studies, such as the one conducted by the federal Department of Education in 2009, which found that only twenty-eight states met the IDEA’s compliance standards.
If the AASA’s proposals demonstrate anything, they demonstrate the kind of overreaching on the part of public school agencies that Congress anticipated when it enacted the portions of the IDEA which afford procedural protections to the parents of children with disabilities. I join with COPAA (Counsel of Parent Attorneys and Advocates) which has stated that the AASA document is nothing more than a shameful attack on parent and student civil rights. See COPAA's statement at: http://www.copaa.org/news/121292/AASA-Document-Nothing-More-Than-A-Shameful-Attack-on-Parent-and-Student-Civil-Rights-.htm
Friday, April 19, 2013
Parental Rights in Special Education - Prior Written Notice
The Individuals with Disabilities Education Act's (IDEA) implementing regulations require that a school district give written notice to the parent of a child with a disability within a reasonable time before:
(1) the school plans to take (or refuses to take) actions proposed by either the parent or the school district related to the identification, evaluation, or educational placement of the child; or
(2) the school plans to take (or refuses to take) actions proposed by either the parent or the school district related to the provision of a free appropriate public education (FAPE) to the child. (34 CFR §300.503(a)).
Prior written notice must include:
(1) the school plans to take (or refuses to take) actions proposed by either the parent or the school district related to the identification, evaluation, or educational placement of the child; or
(2) the school plans to take (or refuses to take) actions proposed by either the parent or the school district related to the provision of a free appropriate public education (FAPE) to the child. (34 CFR §300.503(a)).
Prior written notice must include:
- a description of the action proposed or refused by the school;
- an explanation of why the school proposes or refuses to take the action;
- a description of each evaluation procedure, assessment, record, or report the school used as a basis for its decision;
- a statement that the IDEA’s procedural safeguards provide the parents of the child with a disability with rights and procedures for resolving disputes related to the subject matter of the prior written notice, and how the parents can obtain a copy of them;
- resources for parents in order to obtain assistance in understanding these procedures;
- a description of other options that the IEP Team considered and the reasons why those options were rejected; and
- a description of other factors relevant to the school’s proposal or refusal. (§ 300.503(b))
- when the school wants to conduct an initial evaluation of the child;
- when the parent has asked for the child to be evaluated and the school denies the request;
- when the school wants to initiate or change the child’s identification as a "child with a disability;"
- when the school proposes or refuses to provide a particular educational placement for the child;
- when the school wants to change the child’s educational placement;
- when the school wants to change aspects of the special education or related services that the child is receiving; and
- when the school refuses a parent’s request in regard to the educational services the child is receiving.
Tuesday, April 16, 2013
Mediation and Special Education Dispute Resolution
"I’m calling to ask you about whether there is anything I can do about . . ."
Most of the parents who call about special education matters tell me that they’ve talked with their child’s school district and IEP team, and remain in disagreement in regard to one or more of the following:
1. The school district says my child isn’t eligible for special education.
2. The IEP team doesn’t think my child needs more or different special education and related services.
3. The school isn’t providing the assistance or services contained in my child’s current IEP. . . .
4. The IEP team wants to move my child to a different classroom.
5. The IEP team changed my child’s IEP in a manner that I don’t think is appropriate. . . .
6. The school won’t allow my child to participate in . . .
The good news is that many times there is something the parent can do, and it can often be done through the process of mediation.
When Congress enacted the Individuals with Disabilities Education Act (IDEA) it recognized that sometimes parents and school districts would disagree about the special education instruction, services and placements needed by each unique child in order to receive a free and appropriate public education (FAPE). As a result, the IDEA requires that each state department of education (DOE) have dispute resolution procedures, including special education mediation. (20 U.S.C. 1415(e); 34 CFR 300.506).
A special education mediation is a voluntary and confidential meeting that is facilitated at the DOE’s expense by a trained, impartial mediator. Discussions that occur during the special education mediation conference must be confidential and may not be used as evidence in any subsequent due process hearings or civil proceedings. However, the parties may conclude the mediation by placing written statements of their agreements into a formal mediation agreement that becomes legally enforceable after both parties have signed the document.
When a parent (or the parent’s attorney) files a request for mediation with the state DOE, the DOE and a mediator schedule a time, place and date for the mediation. Mediators, unlike administrative law judges or hearing officers in due process hearings, are not decision-makers. They don’t judge, give opinions, or take sides. Instead, they set out the structure and rules of the mediation, and help to keep it on track. One of Iowa’s experienced mediators always admonishes the parties to "be hard on the problems, and not on each other."
In 2010, CADRE, the National Center on Appropriate Dispute Resolution in Special Education, published the results of a six-year study that was performed in order to identify effective state special education dispute resolution systems and the components of those systems that contributed to their effectiveness. The states of Iowa, Oklahoma, Pennsylvania and Wisconsin were identified as having the most effective systems, and CADRE developed profiles of their procedures for use as models for other states. During the six-year period of CADRE’s study, Iowa, a state which incorporated mediation procedures into its state special education regulations in 1995, consistently had the lowest combined rates of written state complaint and due process complaint filings among all states.
As an attorney who represents parents in a number of special education mediations each year, it has been my experience that a substantial majority of parent-school district disputes can be resolved by mediation in manner that is satisfactory to all the parties (parent, school district and area education agency). I believe that Iowa's procedures and the preparation of its mediators are very important to the success of its system in resolving disputes that would otherwise have gone to due process. However, experience has also demonstrated that no matter how effective the state's procedures or the quality of its mediators, mediation as a dispute resolution tool breaks down quickly when a school district is represented by legal counsel with a limited grasp of special education and special education law, who does not approach the mediation table as a problem-solver, but rather as defense counsel. Under those conditions, even "no-brainer" disputes can end up in due process litigation. Perhaps a future CADRE study will find that school districts represented by such attorneys have higher rates of due process hearings.
Most of the parents who call about special education matters tell me that they’ve talked with their child’s school district and IEP team, and remain in disagreement in regard to one or more of the following:
1. The school district says my child isn’t eligible for special education.
2. The IEP team doesn’t think my child needs more or different special education and related services.
3. The school isn’t providing the assistance or services contained in my child’s current IEP. . . .
4. The IEP team wants to move my child to a different classroom.
5. The IEP team changed my child’s IEP in a manner that I don’t think is appropriate. . . .
6. The school won’t allow my child to participate in . . .
The good news is that many times there is something the parent can do, and it can often be done through the process of mediation.
When Congress enacted the Individuals with Disabilities Education Act (IDEA) it recognized that sometimes parents and school districts would disagree about the special education instruction, services and placements needed by each unique child in order to receive a free and appropriate public education (FAPE). As a result, the IDEA requires that each state department of education (DOE) have dispute resolution procedures, including special education mediation. (20 U.S.C. 1415(e); 34 CFR 300.506).
A special education mediation is a voluntary and confidential meeting that is facilitated at the DOE’s expense by a trained, impartial mediator. Discussions that occur during the special education mediation conference must be confidential and may not be used as evidence in any subsequent due process hearings or civil proceedings. However, the parties may conclude the mediation by placing written statements of their agreements into a formal mediation agreement that becomes legally enforceable after both parties have signed the document.
When a parent (or the parent’s attorney) files a request for mediation with the state DOE, the DOE and a mediator schedule a time, place and date for the mediation. Mediators, unlike administrative law judges or hearing officers in due process hearings, are not decision-makers. They don’t judge, give opinions, or take sides. Instead, they set out the structure and rules of the mediation, and help to keep it on track. One of Iowa’s experienced mediators always admonishes the parties to "be hard on the problems, and not on each other."
In 2010, CADRE, the National Center on Appropriate Dispute Resolution in Special Education, published the results of a six-year study that was performed in order to identify effective state special education dispute resolution systems and the components of those systems that contributed to their effectiveness. The states of Iowa, Oklahoma, Pennsylvania and Wisconsin were identified as having the most effective systems, and CADRE developed profiles of their procedures for use as models for other states. During the six-year period of CADRE’s study, Iowa, a state which incorporated mediation procedures into its state special education regulations in 1995, consistently had the lowest combined rates of written state complaint and due process complaint filings among all states.
As an attorney who represents parents in a number of special education mediations each year, it has been my experience that a substantial majority of parent-school district disputes can be resolved by mediation in manner that is satisfactory to all the parties (parent, school district and area education agency). I believe that Iowa's procedures and the preparation of its mediators are very important to the success of its system in resolving disputes that would otherwise have gone to due process. However, experience has also demonstrated that no matter how effective the state's procedures or the quality of its mediators, mediation as a dispute resolution tool breaks down quickly when a school district is represented by legal counsel with a limited grasp of special education and special education law, who does not approach the mediation table as a problem-solver, but rather as defense counsel. Under those conditions, even "no-brainer" disputes can end up in due process litigation. Perhaps a future CADRE study will find that school districts represented by such attorneys have higher rates of due process hearings.
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