Procedural Safeguards - The Series - Part V

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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 let us know 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 



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Bullying of Children With Disabilities - Part III

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Bullying remains the hottest of hot button issues in special education law.  In an earlier installment, I explained the early cases laying the conceptual groundwork for the proposition that failure to react to bullying can constitute a denial of FAPE under IDEA.  In the last installment, I discussed the seminal decision of TK & SK ex rel LK v. New York City Dept of Educ 779 F.Supp.2d 289, 56 IDELR 228 (E.D.N.Y. 4/25/2011).  This case is important not just because it analyzes special education law principles involving bullying, but also because it provides a thorough review of the social science literature on bullying. You should read this case and you can do so here.

In this installment, I begin to review the literature on bullying.  Please note the court provided these words in its opinion. I cannot take credit for the analysis:

E. Bullying in America

Were bullying characterized as a disease affecting America's youth, a team from the Center for Disease Control charged with investigating epidemics would have been called in to study it. Joseph L. Wright, Address at American Medical Association Educational Forum on Adolescent Health: Youth Bullying 23 (2002), available at http://www. ama-assn.org/amal/pub/upload/mm/39/youthbullying.pdf. ("If [bullying] were a medical issue, for example an infectious disease in my pediatrics practice, we would have the Epidemic Intelligence Service people from the Centers for Control and Prevention investigate it. The prevalence and epidemiology is striking."). The problem is pervasive; it is perceived by educators as serious, particularly in the middle school years. Michaela Gulemetova, Darrel Drury, and Catherine P. Bradshaw, Findings Form the National Education Association's Nationwide Study of Bullying: Teachers' and Education Support Professionals' Perspectives, in White House Conference on Bullying Prevention, at 11-12 (March 10, 2011), available at http://www. stopbullying.gov/references/white_house_conference/index.html. ("Over 40 percent of [teachers and support staff surveyed] indicated that bullying was a moderate or major problem in their school, with 62 percent indicating that they witnessed two or more incidents of bullying in the last month, while 41 percent witnessed bullying once a week or more."). It is the most common type of violence in our schools. Macklem, supra, at 7.
The issue first seized the attention of the American public after the 1999 shooting at Columbine High School that killed fifteen students and wounded two dozen more. Susan P. Limber, Addressing Youth Bullying Behaviors, in American Medical Association Educational Forum on

Adolescent Health: Youth Bullying 5 (2002), available at http://www.amaassn. org/amal/pub/upload/mm/39/youthbullying. pdf. As part of the investigation that followed the Columbine massacre, the Secret Service examined thirty-seven shooting incidents. They determined that in two-thirds of those cases, the shooter described feeling bullied, persecuted, or threatened at school. Bill Dedman, Secret Service Findings Overturn Stereotypes, Chicago Sun-Times Report, Oct. 15-16, 2000, at 9; Limber, supra, at 5. "I just remember life not being much fun, a shooter recalls. Reject, retard, loser.' I remember stick boy a lot cause I was so thin." Dedman, supra, at 9.
More recently, stories of bullied victims taking their own lives have become common. See, e.g., John Schwartz, Bullying, Suicide and Punishment, N.Y. Times, Oct. 3, 2010, at Al (discussing the suicides of three teens as a result of online bullying); Limber, supra, at 5 (noting that internationally the study of bullying was triggered by the suicides of three young boys in Norway in the 1980s). Some one third of students are engaging in aggressive behavior directed at their peers, oftentimes with the goal of increasing their popularity. Tara Parker-Pope, Web of Popularity, Achieved by Bullying, N.Y. Times blog, (Feb. 14, 2011, 5:03 p.m.), available at http://well.blogs.nytimes.com/2011/02/14/ web-of-popularity-weaved-bybullying/' scp=1&sq=Tara% 20ParkerPope% 20bully&st=cse.
National leaders and educators continue to work toward a solution. President Obama held a summit and announced new federal programs that aimed at "dispel[ing] the myth that bullying is just a harmless rite of passage or inevitable part of growing up." Jackie Calmes, Obama Focuses on Antibullying Efforts, N.Y. Times, March 10, 2011, at A18.
Presidential summits and school shootings achieve headlines, but the day-to-day adverse affects of bullying in damaging educational opportunities to students are as real as they are unnoticed. It is a problem that affects the school performance, emotional well-being, mental health, and social development of school children throughout the United States. Tonja R. Nansel et. al., Cross-national Consistency in the Relationship Between Bullying Behaviors and Psychosocial Adjustment, 158 Archive of Pediatric and Adolescent Med. 730, 733-35 (2004). Whether a child is the victim, aggressor, or merely a bystander, research shows that those in a close vicinity to bullying are adversely marked. Id. See also, Macklem, supra, at 44, 90-92.
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Procedural Safeguards The Series - Part IV

English: Figure 8.1 A Description of the Evalu...Image via WikipediaThis 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. Ple4ase 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 school district 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 546 U.S.49, 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).

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Corrected Link for Last Post

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I understand that the link contained in my most recent post did not work for some of you. The link to the story by the Houston Fox Channel may be found here.

Sorry for any inconvenience.
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Sleeping Hearing Officer; Internet Gotcha

sleepsleep (Photo credit: Sean MacEntee)
Many special education folks heard this week about a sleeping hearing officer.This is a sad story, and here is the link to the Fox TV story.

My first reaction to the story was that it was inexcusable for the hearing officer to doze off during the hearing.  Imagine how the parents felt; were they getting a fair hearing?  What if you were the school district and the ho was so interested by the testimony about your school that he took a nap?  This can't be good!

I spend all year extolling the virtues of the special ed hearing officer.  This kinda thing does not help me in that regard.

But another part of the story bugs me as well.  Is throwing bottles and books on the floor the way to go?  Also at what point did the lawyer decide to take some cellphone video and contact the 6 o'clock news?  And of course anything with a "gotcha" flavor resonates on the internet.  Cellphones and the internet are now a big part of our lives.  They are bringing us the twenty-first century, including Arab Spring and widespread distribution of knowledge.  But they also get us video of cats and games featuring angry birds, not to mention instant "gotcha" moments.  There may be a dark side of the force.

None of this justifies the hearing officer's snoozing during the hearing.  This cannot be tolerated.  But I say that the whole mess fails the whiff test.   What do you think?
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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. Please be sure to tell me what you think about the series.


Today's post concerns parental consent.

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  document here
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Bullying of Kids With Disabilities - Part II

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Bullying remains a hot button issue in special education law. This is the second post in the current series on this topic.  Last week I discussed some of the key cases finding that bullying of children with disabilities can be a violation of the Individuals with Disabilities Education Act (or IDEA as we often refer to it here.)  With that analytical basis, we now turn to a more recent court decision.

The opinion in TK & SK ex rel LK v. New York City Dept of Educ 56 IDELR 228 (E.D.N.Y. 4/25/2011) is a must read.The case involves a twelve year old girl with a specific learning disability. Her peers ostracized her, pushed her and ridiculed her daily.  They refused to touch any item that she had touched.  Yes kids can be very cruel.

The Court held that when facing a situation in which a child with a disability is allegedly being bullied, a school district must take prompt and appropriate action including making an investigation and taking steps to prevent future abuse. In this case, the Court found that the district did nothing despite parent requests to discuss the problem.  The Court held that where the educational benefit to the student was adversely affected by the bullying, FAPE had been denied. The Court awarded reimbursement to the parents for the tuition of the private school in which they had unilaterally placed the student.

In the next posts on this issue, I will quote some of the literature on bullying in America that was relied upon by the court in this case.  You can review the entire opinion here.
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Procedural Safeguards The Series - Part II

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This is the second 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.
 
Notice of Procedural Safeguards-
A copy of the procedural safeguards of the notice must be provided to the parents only one time per year, except that it must also be given upon initial referral or parental request for evaluation, upon the first occurrence of filing of a due process complaint, and upon request by a parent.  Section 615(d)(1)(A).  The regulations clarify that the notice must also be provided upon the parents’ filing of the first state complaint  and on the date on which the decision to take disciplinary action is made. 34 CFR Section 300.504(a); 71 Fed. Register No. 156 at page 46692 (August 14, 2006).  The regulations also make it clear that a parent will receive more than one copy of the notice of procedural safeguards if they also request an evaluation or file a state complaint or due process hearing or they request a copy.  34 CFR Section 300.504(a); 71 Fed. Register No. 156 at page 46692 (August 14, 2006).  The local educational agency may also place a copy of the procedural safeguards notice on their website if they have one. Section 615(d)(1)(B).  OSEP has noted that publishing the notice on its website does not relieve the LEA of the responsibility of offering the parent a printed copy of the notice unless the parent evidences a clear preference to obtain the information electronically 71 Fed. Register No. 156 at page 46693 (August 14, 2006).
The procedural safeguards notice must include a full explanation of procedural safeguards, written in the native language of the parents (unless clearly not feasible) and written in an easily understandable manner, relating to the following:
`(A) independent educational evaluation;
`(B) prior written notice;
`(C) parental consent;
`(D) access to educational records;
`(E) the opportunity to present and resolve complaints, including--
`(i) the time period in which to make a complaint;
`(ii) the opportunity for the agency to resolve the complaint; and
`(iii) the availability of mediation;
`(F) the child's placement during pendency of due process proceedings;
`(G) procedures for students who are subject to placement in an interim alternative educational setting;
`(H) requirements for unilateral placement by parents of children in private schools at public expense;
`(I) due process hearings, including requirements for disclosure of evaluation results and recommendations;
`(J) State-level appeals (if applicable in that State);
`(K) civil actions, including the time period in which to file such actions; and
`(L) attorneys' fees.
                            Section 615 (d)(2).
OSEP has published a model Notice of Procedural Safeguards in order to reduce confusion about what must be included in the notice.  71 Fed. Register No. 156 at page 46693 (August 14, 2006). The model notice is 44 pages long.   The model notice form is available on the website: Although OSEP frowns upon dual filings of state complaints and due process hearings for the same incident, the regulations clarify that the notice of procedural safeguards must explain both procedures and the differences between the two.  34 CFR Section 300.504(c); 71 Fed. Register No. 156 at page 46693 (August 14, 2006).  At a session I attended at a conference of ACRES ( the rural special education association) I learned that when put through software to determine the reading level necessary to read the model procedural safeguards, the researchers found a graduate school reading level was needed to comprehend these safeguards. So much for "easily understandable," no?
See also in general:  Questions and Answers on Procedural Safeguards and Due Process Procedures 52 IDELR 266 (OSERS 6/1/2009) and the NICHCY training module http://nichcy.org/laws/idea/legacy/module17.
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Bullying of Kids With Disabilities - Part I

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Bullying is a real problem in our society.  Bullies often take advantage of those whom they perceive as weaker.  The Columbine tragedy brought the problem to a higher level of public awareness, but the problem persists.

Kids with disabilities are often singled out by bullies.  This has become one of the hottest of hot button issues in special education law.  Several laws could be implicated, but my focus here will be upon whether bullying can constitute a violation of IDEA.

In the next installments, I'll discuss a well-reasoned recent decision, but first some background on the legal foundations for this analysis:

In the seminal decision by the Third Circuit in Shore Regional High Sch. Bd. of Educ. v. P.S. 381 F.3d 194, 41 IDELR 234 (3d Cir. 8/30/2004) recognized that bullying could prevent educational benefit, and a school district’s failure to respond could constitute a denial of FAPE.  See also, Gagliardo v. Arlington Central Sch Dist 489 F.3d 105, 48 IDELR 1 (2d Cir. 5/30/2007).

          Shortly, thereafter the Second Circuit ruled that a student with a disability cannot receive educational benefit or FAPE if he is not in a safe environment.  Lillbask ex rel Mauclaire v. State of Connecticut Dept. of Educ.  397 F.3d 77, 42 IDELR 230 (2d Cir. 2/2/2005).  

           These cases provide the analytical foundation.  





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