OSEP Wants You! Seeking Input Re Results Driven Accountability

Seal of the United States Department of Education (Photo credit: Wikipedia)

The Office of Special Education Programs is the arm of the federal government that oversees special education. OSEP is currently seeking input regarding changes in their monitoring system.

OSEP has determined to switch to a results driven accountability system from whatever the previous system was. These changes sometimes make me nervous, but the concept of focusing on outcomes for kids with disabilities seems really good.

In pursuit of this goal, OSEP has posted a series of questions seeking comments from stakeholders.  If you feel strongly about special education, you should comment.  This is your chance to provide your input, and I strongly believe that OSEP will consider your input carefully.  They may not agree, but you will be heard.

The current question seeks comments concerning the core principles that OSEP has developed internally to guide its process toward results driven accountability.  Here are the principles:

The following core principles underlie and will guide OSEP’s RDA work:

1. OSEP is developing the RDA system in partnership with our stakeholders.
2. The RDA system is transparent and understandable to states and the general public, especially individuals with disabilities and their families.
3. The RDA system drives improved outcomes for all children and youth with disabilities regardless of their age, disability, race/ethnicity, language, gender, socioeconomic status, or location.
4. The RDA system ensures the protection of the individual rights of each child or youth with a disability and their families, regardless of his/her age, disability, race/ethnicity, language, gender, socioeconomic status, or location.
5. The RDA system provides differentiated incentives, supports, and interventions based on each state’s unique strengths, progress, challenges, and needs.
6. The RDA system encourages states to direct their resources to where they can have the greatest positive impact on outcomes and the protection of individual rights for all children and youth with disabilities, and minimizes state burden and duplication of effort.
7. The RDA system is responsive to the needs and expectations of the ultimate consumers (i.e., children and youth with disabilities and their families) as they identify them.

You can and should let OSEP know what you think on this website. You can review the core principles here. You can review the previous four questions and resulting comments at these websites: one, two, three and four.

Let me know what you think of the RDA process.

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Procedural Safeguards - The series Part XII

Safeguards Transporter (Photo credit: Wikipedia)

This is the final 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 thought about the series.

Attorneys’ Fees


IDEA’04 changed the section on attorneys’ fees to provide that a school district or SEA may now recover their attorneys’ fees from the parent’s attorney who files a complaint that is frivolous, unreasonable, or without foundation or who continues to litigate after the litigation clearly becomes frivolous, unreasonable, or without foundation. Section 615 (i)(3)(B)(i)(II). Also, the statute now provides that a school district or SEA may now recover their attorneys’ fees from the parent or the parent’s attorney where the claim was presented for an improper purpose, such as to harass, to cause unnecessary delay or to needlessly increase the cost of litigation. Section 615 (i)(3)(B)(i)(III). The standard for an award against a parent’s attorney or a parent is very high, and it is unlikely that many awards of attorneys’ fees will be made against parent’s attorneys, and especially against parents without attorneys. These new provisions, however, may cause counsel who represent parents to decline borderline cases. There could also be awards in those rare cases in which parents clearly abuse the system. OSEP declined to clarify the standard for an award of attorney’s fees against a parent stating that judicial interpretations would likely vary on a case-by-case basis and should be left to the discretion of the court. 34 CFR Section 300.517(c)(2)(ii); 71 Fed. Register No. 156 at page 46708 (August 14, 2006).

The provision permitting an award of attorneys’ fees to parents who prevail in a due process or court proceeding remains unchanged in IDEA’04. The regulations provide that attorney’s fees may not be awarded for attending IEP team meetings, except where they are convened as a result of judicial action, an administrative proceeding, or in the discretion of the state, for a mediation. 71 Fed. Register No. 156 at pages 46708-09 (August 14, 2006).

ADDITIONAL RESOURCES: OSEP has also published a Question and Answer document, Questions and Answers On Procedural Safeguards and Due Process Procedures For Parents and Children With Disabilities (OSEP Revised June 2009). The Q & A document is available at the OSEP IDEA website:

In addition, NICHY, also known as the National Dissemination Center for Children with Disabilities, has issued a series of training module on procedural safeguards. The training modules are available online here. and as to all matters in volving dispute resolution, take a quick look at the CADRE website.





 

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Mediation and Consent Revocation - Revisited

Mediation Headquarters (Photo credit: Aaron Landry)

I am a shameless advocate of mediation.  I know that it has its detractors, even among some groups of lawyers. I remember that certain groups of plaintiffs lawyers considered mediation, as well as arbitration and anything else that was a part of ADR (alternative dispute resolution)  was  bad.

But the more I see of dispute resolution in special education, and I have seen a lot, the more I am convinced that mediation is better than the alternatives.  Mediation is best suited to help fix the long term relationship between a family and school personnel.

When the new consent revocation rules were adopted by OSEP on the last day of the previous presidential administration, I was surprised that mediation was removed as an option when consent is being revoked.OSEP has recently reaffirmed that mediation is not an option under those circumstances.  More on that next week.

For today let me just say- too bad.

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Procedural Safeguards - The Series Part VIII

Complaint Department Grenade (Photo credit: Wikipedia)

This is the eighth 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 are not fully understood. Please keep me posted as to your reaction to the series.

State Complaint Procedures (NOTE these are different from due process complaints which lead to due process hearings; these are complaints investigated by the state department of education.  More on due process complaints in a later installment of this series.)

Each state education agency must maintain a state complaint procedure. 34 C.F.R. §§300.151-300.153. OSEP has stated that the state complaint system is required even though Congress has not specifically provided or addressed a state complaint system in the IDEA. 71 Fed. Register No. 156 at page 46606 (August 14, 2006).

Within one year of an alleged violation of the Act, any entity may file a state complaint. 34 C.F.R. §§300.151-300.153. A ruling is required within 60 days subject to extension for exceptional circumstances or an agreement to mediate. 34 C.F.R. §300.152. Only agreement, and not consent, is required to extend the 60 day time limit for processing complaints. 71 Fed. Register No. 156 at page 46604 (August 14, 2006). Here is an analysis by the Regional Resource Centers concerning how the exceptional circumstances exception should be applied. Where a state complaint and a due process hearing are requested on the same topic, the complaint investigator must set aside the portion of the complaint being addressed by due process until the hearing officer issues a decision. 34 C.F.R. §300.152(c). 71 Fed. Register No. 156 at page 46606 (August 14, 2006).

Where a state complaint investigator finds that IDEA has been violated, a corrective action is ordered. The relief that may be awarded includes compensatory education and reimbursement. 34 C.F.R. § 300.151(b). The purpose of this change to the federal regulations in 2006 was to make it clear that states have broad flexibility in awarding an appropriate remedy in resolving state complaints. 71 Fed. Register No. 156 at page 46602 (August 14, 2006).

When a state has finished processing a state complaint, a party who disagrees with the result may file a due process hearing complaint on the same issue if the statute of limitations has not passed. 71 Fed. Register No. 156 at page 46607 (August 14, 2006).

Here is the OSEP Topic Brief on State Complaint Procedures:

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• Procedural Safeguards - The Series - Part I (specialeducationlawblog.blogspot.com)

I'm Going to Really Miss JoLeta Reynolds

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JoLeta Reynolds died last Friday at her home in Rock Island, Tennessee. She was a Senior Policy Advisor for the Office of Special Education Programs of the U. S. Department of Education. She was only 67, and she had been fighting cancer for seven years. Here is an obituary.

This is a quote from a post I did about the JoLeta Reynolds Award, which is named after her, on July 13, 2007:

"JoLeta Reynolds is one of the best people on the planet. Many folks who work in special education know her well. She is a senior policy advisor for OSEP. She was instrumental in the re authorizations of IDEA, wrote the federal regulations after the 1977 reauthorization of IDEA and she was key in the writing of the new (2004 reauthorization) regs. She helps everybody who has a question. Many times she has helped me personally understand the nuances of the regs; she is very patient and supportive of me. She has persevered through obstacles that would stop many of us in our tracks. She is great!"

I would often call JoLeta when I had a question about the regs. A couple times, I played back messages from her that began in that kind voice, "Jim I don't think you're reading that regulation correctly." She would tell me when I got it wrong, but she never made me feel bad about it. She was always supportive of me.

The entire Special Education Law community has lost an amazing resource and a dear friend. This is a sad day.

New OSEP Guidance: Discipline for SpEd Students

This kind of got lost in the buzz over the new Supreme Court decision, but the federal Office of Special Education Programs recently published new guidance concerning discipline of students with disabilities. Discipline has always been an important area and it was one of the key reasons that the federal special ed law was created in the first place. Expulsion and long term suspensions were among the mechanisms used to prevent children with disabilities from attending public school. As a result, the predecessor of IDEA contained specific protections against disciplinary changes of placement for special ed students.

Unfortunately, the field of discipline gives many teachers, parents, administrators, principals, and regulators stomach aches. The discipline rules have become fairly complex. When understood in context, however, they are not so hard to apply.

The new OSEP guidance includes OSEP's take on whether disciplinary rules apply when the parent revokes consent for services tat had been being received; that home instruction cannot be the sole IAES option; and clarification regarding the behavior requirements. You can review the new policy guidance here.

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