Procedural safeguards The Series - Part VI

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This is the sixth 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. Be sure to tell me what you think about the series.

There are four dispute resolution mechanisms provided by the Individuals with Disabilities Education Act, 20 U.S.C. § 1400, et seq, (hereafter sometimes referred to as “IDEA”) and the accompanying federal regulations: mediation, state complaints, resolution sessions, and due process hearings. In addition, some states and districts are experimenting with fifth method-facilitated IEP meetings.

Special education disputes may be resolved through any of the five methods or by any combination of the methods. It is highly unusual under the law for an aggrieved party to be permitted to invoke more than one resolution option. Although mediation is often used in combination with litigation, it is rare for other formal methods to be combined. An unhappy party could file a state complaint wait for the results and then file a due process hearing over the same dispute. The same dispute can be submitted at any time in the process to mediation. A resolution session occurs in every due process filed by a parent unless waived or submitted to mediation in lieu thereof. It is true that if the complaint and due process are filed at the same time, the portions of the state complaint duplicating the due process complaint are held in abeyance until resolution of the due process, but if they are not filed at the same time, there is no prohibition upon the utilization of multiple methods.

Adding to the frustration of this lack of finality is the fact that the result of most of the options may also be appealed to one or more levels of the court system. The U. S. Supreme Court has noted that the judicial review process for special education cases takes a long time, referring to the appellate process as “ponderous.” Town of Burlington v. Dept of Educ 471 U.S. 358, 105 S.Ct. 1996, 556 IDELR 389 (1985).

This link is to the NICHCY Training Program – Module 18: Options for Dispute Resolution:

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

My Powers are Beyond Your Comprehension - Part II

Rodney Dangerfield at the Shorehaven Beach Clu...

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Following up on the teaser regarding hearing officers and mediators: I have long contended that Rodney Dangerfield is the patron saint of hearing officers. No respect - I tell you! I have been at conferences where when people hear the phrase "hearing officer," they spit on the floor. Our image is a problem. No respect at all!

There were some interesting answers to my question. My favorite involved being bitten by a radioactive spider. Good work readers.

It is difficult to explain what we do in a sound bite. (In today's television world, ya gotta talk fast.) (... and I approve this message because i am incapable of complex thought...)Often when we explain our job duties as hearing officers, people think that we are in the field of audiology or that we are in law enforcement.

What we do is akin to being dropped behind enemy lines where you end up in hostile territory and all you have is your wits, your common sense and your training.

Similarly we are like spies. Spies gather intel; we find facts. Spies assess situations, we determine credibility. Both spies and hos must remain calm and not second guess their instincts. From now on it's Gerl, ...James Gerl.

When I train hearing officers, I tell them that they have all of the responsibilities of a judge (and jury), but very few of the powers. It is a tough job. So if we occasionally pretend that we are touring as a rock band or that we are superheros, please play along.

Happy Thanksgiving

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Please have a wonderful Thanksgiving holiday.

This holiday has always been one of my favorites. First there is the feast- there is something about whole cranberry sauce that makes me happy.

Then there is the chance to visit with family. The stresses of modern life make family more important than ever. I am lucky to have a great family that loves me. The top of the list of many things I have to be thankful for on this day of thanks.

Also on my list of things to be thankful for are the friends I have made in the field of special education law. This includes the many readers of this blog, those who follow the blog posts on Facebook, Twitter and Linkedin. It also includes the many friends and colleagues that I have met in my travels around the country and in my role as mediator and hearing officer. Occasionally, I'm lucky enough to meet one of the wonderful kids with disabilities who are at the heart of this work.Then I remember why all of us who work in this field do what we do. Once again I am thankful!

Procedural Safeguards The Series - Part V

Special education classrooms (shown here at th...

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This is the fifth 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. Be sure to tell me what you think about the series.

Prior Written Notice

A school district must provide prior written notice to the parents whenever it proposes to, or refuses to, initiate or change the: identification, evaluation, placement, or FAPE. IDEA Section 615(b)(3). See 34 CFR Section 300.503(a). The notice must contain the following: a description of the action; an explanation of why the district proposes or refuses the action; a description of each evaluation procedure, assessment, record or report relied upon; a statement that the parents have protections under the procedural safeguards; sources for the parents to contact to obtain assistance; a description of other options considered and why they were rejected; and a description of the factors that are relevant to the district’s proposal or refusal. IDEA Section 615(c)(1). See 34 CFR Section 300.503(b).

“Prior” written notice is an unfortunate choice of words. This does not mean that the notice must be given before the decision is made. Indeed, OSEP has pointed out that the notice must be given a reasonable amount of time before the school district implements the proposal, or refusal, described in the notice. The proposal triggers an obligation to convene an IEP team meeting, but providing prior written notice before the meeting could suggest that the district’s action was made without parent input and participation. 71 Fed. Register No. 156 at page 46690 (August 14, 2006).

OSEP has published a model form for prior written notice consistent with current statutory and regulatory requirements. The model form is available on the website

My Powers Are Beyond Your Comprehension!

Lessons from Austin and beyond.

Why are hearing officers/mediators like as combination of super heros, rock stars, paratroopers, spies and symphony orchestra conductors?

More soon.
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Austin is A Great City

OK quick question. Can I add a city ex post facto to the Gerls Rock Tour that was not for the purpose of special education law?

I have been in Austin, Texas the last three days training hearing officers. Granted they work for the Health & Human Services Commission, they are not special ed hos.

But Austin is a great city. Lots of live music and good food and nice people. So what do you think? Should I add it to the tour?
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Procedural Safeguards The Series - Part IV

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This is the fourth 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. Be sure to tell me what you think about the series.

Independent Educational Evaluations

The parents of a child with a disability have the right to an independent educational evaluation (hereafter sometimes referred to as “IEE.”) IDEA Section 615(b)(1). The IEE must be provided by the school district at public expense unless the LEA files a due process complaint and shows that its evaluation was appropriate. 34 CFR Section 300.502(b). The U. S. Supreme Court found the right to an IEE to be a very important safeguard for parents, and relied on it in part, in rejecting the argument that school districts had an advantage in terms of expertise and knowledge. Schaffer v. Weast ___ U.S.____, 126 S.Ct. 528, 44 IDELR 150 (2005).

Parents may obtain only one IEE at public expense each time the school district conducts an evaluation with which the parents disagree. 34 CFR Section 300.502(b)(5). The purpose of this regulation is to protect the parents’ right to an IEE (OSEP rejected a suggestion limiting a parent to one IEE in a child’s school career) while ensuring that a school district does not have to bear the cost of multiple IEEs concerning a single disagreement. 71 Fed. Register No. 156 at page 46690 (August 14, 2006).

OSEP has noted that where a hearing officer orders an IEE, parental consent is needed for the release of education records to the independent evaluator. If the parent refuses to consent, the hearing officer could decide to dismiss the parent’s complaint. 71 Fed. Register No. 156 at page 46690 (August 14, 2006).

If a parent obtains an IEE at public expense, but disagrees with the result, the school district could introduce it as evidence in a due process hearing. 71 Fed. Register No. 156 at page 46690 (August 14, 2006).

You Be The Judge - Part II

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This is the second installment in a new series. We will provide you with a nice juicy, yet thorny, fact pattern and you then get to become the hearing officer or judge. (Not so easy is it?) Remember though that special ed law is closed to metaphysics than it is to contract law. There may not always be a "right" answer. There may be as many correct answers as there were disparate rulings on the last case to be decided by the Supremes. Remember also the dialectic of special ed law: it is new law and at the same time the law is changed periodically creating a cycle of uncertainty. Remember to let us know what you think. Enjoy:

Johnny was born in July 1998. Approximately two and a half years later he was diagnosed with autism. As a result of his condition, Johnny has "severely delayed communication skills." This delay manifests itself in several ways, including the fact that "[Johnny is] very much in his own world, [does] not respond to his name, [does] not make eye contact, and [does] not want to be part of any of the groups that [are] around him." Johnny also has a short attention span and is easily distracted by movements outside.

During the period from Johnny's diagnosis until his third birthday, Resources for Young Children and Families provided funding for an in-home program. As part of this in-home program, Johnny received 16.5 hours of one-on-one therapy per week. When Johnny turned three, the responsibility for complying with the IDEA's requirements shifted to his local school district. Pursuant to these requirements, the Home School District (the "District") assessed Johnny's learning skills during a "play-based assessment." This assessment provided the foundation for an individualized education program ("IEP).

Subsequent to the assessment, Johnny's parents met with District employees to review a draft IEP for the 2001-2002 school year ("2001 IEP") in May 2001. The District's director of special education, a special education teacher, an occupational therapist, a social worker, and the District's autism specialist all attended the IEP meeting. The draft IEP documented several items, including: (i) the data gathered during the assessment; (ii) Johnny's levels of functioning, achievement, and performance; (iii) a statement of educational needs; (iv) a statement of goals and objectives; (v) a statement of special education needs and related services; and (vi) a recommended placement. To provide Johnny with a free appropriate public education ("FAPE"), the IEP proposed a total of 10.75 hours of services per week. A significant portion of that total -- 9.5 hours per week -- would occur in an education placement in an integrated preschool classroom, while the remainder -- 1.25 hours per week -- would consist of additional educational services, such as speech and language services.

Johnny's parents rejected the draft IEP's suggested placement due to their concerns about Johnny's educational experience in an integrated classroom. The Parents believed that the suggested placement would not have benefited Johnny. To support their position, the Parents provided the District with letters from two behavior specialists, a neurologist, and a staff member at the JFK Center for Developmental Disabilities.

The District and the Parents held another meeting on August 2, 2001. This meeting did not constitute an official IEP team meeting because several team members were out of town. At this meeting, the District offered to increase the total service hours to 20 hours per week. The District, however, never formally amended the IEP to reflect this offer. Due to their continued concerns about Johnny's placement, the Parents rejected the draft IEP shortly after the August 2, 2001 meeting. They instead continued Johnny's at-home program at their own expense. The District did not complete a final IEP for Johnny for the 2001-2002 academic year.

The District and the Parents began discussions regarding an IEP for the 2002-2003 school year ("2002 IEP") in October 2002. In preparation for this IEP, the District evaluated Johnny using both the Mullen Scales of Early Learning and the Vineland Adaptive Behavior Scales. The Parents and the District employees on the IEP team met on November 20, 2002, to discuss the 2002 IEP. The 2002 IEP proposed a total of 25 hours of services per week. The plan included 20 hours per week in an integrated classroom, and 5 hours per week of one-on-one discrete trial training.

Unlike the previous year, the District finalized the 2002 IEP and delivered it to the Parents; however, the Parents neither agreed to nor signed the 2002 IEP. Instead, they continued the at-home program that consisted primarily of one-on-one instruction. Beginning in November 2002, Johnny's parents also enrolled him in a private preschool for nine hours per week. Johnny attended the private school with the help of an aide. The Parents paid for both the at-home program and the private school.

On November 15, 2002, the Parents submitted their demand for an Impartial Due Process Hearing.

You are the hearing officer, what do you do?

Procedural Safeguards The Series - Part III

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This is the third 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. Be sure to tell me what you think about the series.

Parental Consent
Where the parent does not provide consent for the initial evaluation, the school district may invoke procedural safeguards, such as mediation or a due process hearing, to pursue such evaluation. Section 614 (a)(1)(D)(ii)(I). If the parent refuses to consent to services for the child, however, the school district shall not provide special education and related services to the child and the district may not invoke mediation or the due process hearing system. Section 614 (a)(1)(D)(ii)(II). Where the parent refuses to consent to services or fails to respond to a request to provide such services, the school district is relieved of the obligation to provide FAPE to the student and is not required to convene an IEP team meeting or to develop an IEP for the child. Section 614 (a)(1)(D)(ii)(III)(aa) and (bb).

OSEP has clarified that a school district must make reasonable efforts to obtain the informed parental consent for an initial evaluation and document these efforts in the same manner as documenting efforts to obtain parent participation in IEP team meetings. 71 Fed. Register No. 156 at page 46631 (August 14, 2006). A school district may, but is not required to, utilize the procedural safeguards to obtain parental consent for an evaluation although OSEP believes the override procedures should be used only in rare circumstances. 71 Fed. Register No. 156 at page 46632 (August 14, 2006).
The reasonable efforts required of a school district do not require the convening of an IEP team meeting, although a school district may convene an IEP team meeting in order to obtain informed consent. 71 Fed. Register No. 156 at page 46634 (August 14, 2006).
Where a child is home schooled or placed by his parents in a private school at their own expense, the school district may not use the procedural safeguards to attempt an override of lack of consent. 34 CFR Section 300.300(d)(4); 71 Fed. Register No. 156 at page 46635 (August 14, 2006).
REVOCATION OF CONSENT

The federal Office of Special Education Programs made several changes to the federal IDEA regulations effective on December 31, 2008. The most significant change involved parental revocation of consent. 34 C.F.R. Sections 300.300 and 300.9 were amended to provide that parents are now permitted to revoke in writing their consent for the continued provision of special education and related services after having received services. School districts are no longer able to use mediation or a due process hearing to seek to override or challenge the parents’ lack of consent. School districts will not be deemed to be in violation of the ACT for denial of FAPE where the parent has revoked consent to the continued provision of special education and related services

Concerning the situation where a parent revokes consent and the student then gets disciplined, OSEP said the following in a June, 2009 Q & A document:
Question A-3: Do the discipline provisions apply if the child violates the school’s code of student conduct after a parent revokes consent for special education and related services under §300.300(b)?
Answer: No. Under §§ 300.9 and 300.300, parents are permitted to unilaterally withdraw their children from further receipt of special education and related services by revoking their consent for the continued provision of special education and related services to their children. When a parent revokes consent for special education and related services under §300.300(b), the parent has refused services as described in §300.534(c)(1)(ii); therefore, the public agency is not deemed to have knowledge that the child is a child with a disability and the child will be subject to the same disciplinary procedures and timelines applicable to general education students and not entitled to IDEA’s discipline protections. It is expected that parents will take into account the possible consequences under the discipline procedures before revoking consent for the provision of special education and related services. 73 Federal Register 73012-73013.

You can find the entire Q& A discipline document here

News From Omaha Conference: Education Reform on Republican List of Priorities But Not a Top Priority

I have been really enjoying the excellent Tri-State Special Education Law Conference in Omaha. I'll have more reports in the coming posts.

But I did want to impart some important news. At the session on what is happening in Washington, Nancy Reder, Deputy Director of the National Association of State Directors of Special Education, reported that Representative Klein, the new Chairman of the House of Representatives HELP Committee has announced his priorities. Jobs is the issue at the top of the list. Education Reform is on the list but is much further down.

Among the subcomponents under education reform are: restoring local control, parent involvement, teacher effectiveness, and protecting taxpayers.

We will keep an eye on these developments as they unfold.
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You Be the Judge Part I - The "Answer"

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OK we have had many excellent emails and comments regarding you be the judge. Frankly, I am convinced that the readers of this blog belong on the federal judiciary more than the current occupants of that bench. We might be better served.

Concerning the answer given by the court, remember first of all that special education law is closer to metaphysics than it is to contract law. Right answers are not to be found. Ambiguity rules the day.

The facts from this hypo were from the case of Thompson R2-J Sch Dist v. Luke P by Jeff & Julie P 540 F.3d 1143 (Tenth Cir. 8/29/2008). There the court ruled that so long as the student made academic progress at school, the school district was not responsible for the student generalizing his skills to other environments under the Rowley FAPE standard.

Here is the entire opinion.

So what do you think of the court opinion? What do you think of the series you be the judge?

We value your feedback.

Gerls Rock Tour Continues in Omaha

The final stop on my 2010 special education law tour will be Thursday and Friday at the Tri-State Conference in Omaha. I look forward to meeting blog readers and seeing old friends from Iowa, Kansas and Nebraska.

Please find me and say hello if you are in the neighborhood.

By the way- who else could make special education law rock? My powers are beyond your comprehension!
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Educational Law

Procedural safeguards The Series - Part VI

My Powers are Beyond Your Comprehension - Part II

Happy Thanksgiving

Procedural Safeguards The Series - Part V

My Powers Are Beyond Your Comprehension!

Austin is A Great City

Procedural Safeguards The Series - Part IV

You Be The Judge - Part II

Procedural Safeguards The Series - Part III

News From Omaha Conference: Education Reform on Republican List of Priorities But Not a Top Priority

You Be the Judge Part I - The "Answer"

Gerls Rock Tour Continues in Omaha

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