Image via Wikipedia Common Issues in Due Process Hearings
Under the IDEA, a due process hearing may be requested with respect to any matter relating to the identification, evaluation or placement of the child, or of the provision of FAPE. IDEA, § 615(b)(6). The following are among the issues that are common in due process hearings.
a. Identification & Eligibility
Issues pertaining to identification and eligibility are governed by IDEA § 612(a)(3) and 614 (b)(4)-(6). See, 34 C.F.R, § 300.121- 300.125, 300.300, 300.306, 300.307 – 300.311.
In summary, to be eligible, a child must have one of the enumerated conditions(mental impairment, a hearing impairment (including deafness), a speech or language impairment, a visual impairment (including blindness), a serious emotional disturbance (referred to in this part as “emotional disturbance”), an orthopedic impairment, autism, traumatic brain injury, an other health impairment, a specific learning disability, deaf-blindness, or multiple disabilities)(which adversely affects his education) and by reason thereof, he must need special education and related services.
Some important circuit court decisions:
Marshall Joint Sch Dist No 2 v. CD by Brian & Traci D 616 F.3d 632, 54 IDELR 307 (7th Cir 8/2/10) Seventh Circuit reversed HO who found student eligible solely upon physician’s opinion that the student could benefit from adaptive PE. The Seventh Circuit noted that a physician may not simply prescribe special education; IEPT must consider relevant factors.
Alvin Indep Sch Dist v. AD by Patricia F 503 F.3d 378, 48 IDELR 240 (5th Cir. 10/4/7) The fifth Circuit affirmed a holding that despite a fifth grader’s ADHD, he was not eligible for special education. The student consistently received passing grades, he succeeded on statewide tests and he was achieving in social situations. Accordingly, he did not by reason thereof “need special education and related services,” and, therefore, he was not a child with a disability as defined by the IDEA
Hood v. Encinitas Union Sch Dist 47 IDELR 213 (9th Cir. 4/9/7) The Ninth Circuit applied the Rowley standard to an eligibility issue. Where the student consistently received above average grades despite her disability, she received educational benefit, and therefore, was not eligible for SpEd. NOTE: One legal scholars has questioned whether the Rowley test is too restrictive for eligibility purposes, Weber, Mark "The IDEA Eligibility Mess," http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1206202
