Procedural Safeguards
Yell / The Law and Special Education, Second Edition
Copyright © 2006 by Pearson Education, Inc. All rights reserved
1
Procedural Safeguards
LEAs must establish and maintain procedures to assure
that children with disabilities and their parents are
guaranteed procedural safeguards with respect to the
provision of a free appropriate public education
Yell / The Law and Special Education, Second Edition
Copyright © 2006 by Pearson Education, Inc. All rights reserved
2
IDEA Safeguards
• Identification of parents
• General procedural requirements
• Opportunity to examine records
• Independent educational evaluation
• Surrogate parents
• Impartial due process hearing
Yell / The Law and Special Education, Second Edition
Copyright © 2006 by Pearson Education, Inc. All rights reserved
3
General Procedural Requirements
• Notice requirements
• Consent requirements
• Opportunity to examine records
Yell / The Law and Special Education, Second Edition
Copyright © 2006 by Pearson Education, Inc. All rights reserved
4
Notice
• A procedural safeguard notice may be given only once a
year and at:
– the initial referral
– a parental request for evaluation
– the initial filing for a due process hearing
– at the request of the parent
• School districts may post their procedural safeguard
notice on their Web site
• The procedural safeguards notice must include: (a)
timeframes for filing due process hearing requests (b) the
opportunity for resolution process (c) information on
mediation, and (d) timeframes for lawsuits
5
Yell / The Law and Special Education, Second Edition
Copyright © 2006 by Pearson Education, Inc. All rights reserved
Consent
• Informed consent must be obtained from a student
parents/guardians before the school:
– Conducts a preplacement evaluation
– Initially places a student in special education
– Conducts a reevaluation
• When obtaining consent, the school must ensure
that the parents understand and agreed to the
proposal in writing
Yell / The Law and Special Education, Second Edition
Copyright © 2006 by Pearson Education, Inc. All rights reserved
6
Opportunity to Examine Records
• Parents/guardians shall be afforded the opportunity
to inspect and review all education records
regarding
– The identification, evaluation, and educational
placement of their child, and
– The provision of FAPE to their child
• The IDEA’s confidentiality of information
requirements direct schools to keep a record of
parties obtaining access to records including names,
dates, and purposes (this does not extend to a
student’s parents)
Yell / The Law and Special Education, Second Edition
Copyright © 2006 by Pearson Education, Inc. All rights reserved
7
Independent Educational Evaluations (IEE)
• Provide parents with information on where to
obtain an IEE
• Right to one IEE at public expense
• If LEA evaluation is appropriate the parents are
entitled to an IEE, but not at public expense
• Results of the IEE must be considered
• IEE results may be presented at a hearing
• A hearing officer may request an IEE
Yell / The Law and Special Education, Second Edition
Copyright © 2006 by Pearson Education, Inc. All rights reserved
8
Dispute Resolution
Yell / The Law and Special Education, Second Edition
Copyright © 2006 by Pearson Education, Inc. All rights reserved
9
Mediation
• A dispute-resolution and collaborative problem-solving
process
• A trained impartial mediator facilitates a negotiation
process between the parties
• The mediator had no authority to impose solutions
Yell / The Law and Special Education, Second Edition
Copyright © 2006 by Pearson Education, Inc. All rights reserved
10
Resolution Sessions
• Within 15 days of Due Process Hearing notice, the
school must convene a meeting with:
– Parents
– Relevant IEP team members
– An agency representative with decision-making
authority
– May not include an LEA attorney unless parent’s
attorney is present
• The purpose of the meeting is to discuss the facts and
resolve the hearing issues.
• Parties may agree, in writing, to waive the resolution
meeting or to use mediation in lieu of the resolution
session
• Attorney’s fees are not recoverable
11
Yell / The Law and Special Education, Second Edition
Copyright © 2006 by Pearson Education, Inc. All rights reserved
Written Settlement Agreement
• If resolution is reached to resolve the complaint at a
meeting, the parties execute a legally binding agreement
(written settlement agreement) that is:
– Signed by both the parents and a representative of the
agency
– Enforceable in any state court of competent jurisdiction
• If parties execute a written settlement agreement, a party
may void the agreement within three business days
Yell / The Law and Special Education, Second Edition
Copyright © 2006 by Pearson Education, Inc. All rights reserved
12
Impartial
Due Process Hearings
• The purpose of a due process hearing is to resolve
disputes regarding proposal to:
 Initiate identification, evaluation, or placement
 Change identification, evaluation, or placement
• Hearings are conducted by SEA or LEA
• The impartial hearing officer (IHO) must be impartial
• The role of a hearing office is functionally comparable to
that of a judge
Yell / The Law and Special Education, Second Edition
Copyright © 2006 by Pearson Education, Inc. All rights reserved
13
Due Process Hearings
• Two-year statute of limitations on requesting due
process hearings
• Decisions in due process hearings are to made on
substantive grounds
• On matters alleging procedural violations, a hearing
office can find that a student did not receive a FAPE
only when the violations:
– Impeded the student’s right to a FAPE
– Impeded the parents opportunity to participate
– Caused a deprivation of educational benefits
• 90 day time limit from date of IHO’s decision to bring
a civil action
Yell / The Law and Special Education, Second Edition
Copyright © 2006 by Pearson Education, Inc. All rights reserved
14
Due Process Hearing Rights
•Right to counsel
•Right to present evidence, cross-examine, &
compel attendance
•Right to prohibit entry of evidence (5 days prior)
•Right to persons with specialized knowledge
•Right to written or electronic record verbatim (parents
may choose to require electronic record)
•Right to obtain written findings of fact & law
•Right to have child in question present
•Right to an open hearing
Yell / The Law and Special Education, Second Edition
Copyright © 2006 by Pearson Education, Inc. All rights reserved
15
Exhaustion of Remedies
• Tiers
– Local Educational Agency
– State Educational Agency
• Court action
Yell / The Law and Special Education, Second Edition
Copyright © 2006 by Pearson Education, Inc. All rights reserved
16
Burden of Proof
• Due Process Hearing
• Court Proceedings
• Due weight is accorded due process decision
• Reviewing court can take case de novo
Yell / The Law and Special Education, Second Edition
Copyright © 2006 by Pearson Education, Inc. All rights reserved
17
Shaffer v. Weast, 2005
• The most recent special education ruling from the
U.S. Supreme Court addressed the issue of burden
of proof in special education lawsuits
• The U.S. Supreme Court issued its ruling on 11-1405 (6-2 ruling).
• Justice Sandra Day O’Conner wrote the majority
opinion
Yell / The Law and Special Education, Second Edition
Copyright © 2006 by Pearson Education, Inc. All rights reserved
18
Facts of the Case
• The parents of a child with learning disabilities refused
to sign the school’s IEP & placed their son in a private
school. They filed a complaint against the school
district challenging their son’s IEP and seeking tuition
reimbursement.
• A hearing officer noted that the facts were evenly
balanced, but ruled for the school district because the
parents “bear the burden of proof.”
• The parents appealed to the federal district court which
sent the case back to the hearing officer to reconsider
the case with the school district bearing the burden of
proof.
• The hearing officer reversed his ruling.
• The school appealed to the District court, which
rejected the appeal, and then to the U.S. Court of
19
Yell / The Law and Special Education, Second
Edition
th
Appeals
for Education,
the 4Inc. AllCircuit
Copyright
© 2006 by Pearson
rights reserved
Ruling
• According to the majority opinion, written by Justice
O’Connor, although the IDEA is silent on which party
(parents or schools) has the burden of proof, the
burden of proof is traditionally placed upon the party
seeking relief.
• When parents challenge an IEP, therefore, they
must prove the IEP is inappropriate,
• School systems are not legally obligated to prove
the adequacy of IEPs,
Yell / The Law and Special Education, Second Edition
Copyright © 2006 by Pearson Education, Inc. All rights reserved
20
Problems with the IDEA’s Hearing Method
• Time consuming
• Emotionally taxing
• Expensive
Yell / The Law and Special Education, Second Edition
Copyright © 2006 by Pearson Education, Inc. All rights reserved
21
Right to Bring Civil Action:
• Public agencies may recover their attorneys’ fees from
parents’ attorneys if the case was:
– Frivolous
– Unreasonable
– Without foundation
• Public agencies may recover attorneys’ fees against the
parents’ attorney or the parents if the case was presented for
any improper purpose such as to:
– Harass;
– Cause unnecessary delay
– To needlessly increase the cost of litigation
Yell / The Law and Special Education, Second Edition
Copyright © 2006 by Pearson Education, Inc. All rights reserved
22
Remedies
“The court shall receive records of the
administrative proceedings, shall hear additional
evidence at the request of a party, basing its
decision on the preponderance of evidence, shall
grant such relief as the court determines is
appropriate,” (IDEA, 20 U.S.C. § 1415 (e)(2)
• Types of relief provided by the courts are referred
to as remedies
Yell / The Law and Special Education, Second Edition
Copyright © 2006 by Pearson Education, Inc. All rights reserved
23
Attorneys’ Fees
• “In any action or proceeding brought under
[HCPA], the court, in it’s discretion, may award
reasonable attorney’s fees as part of the costs to
the parents or guardians of a [child with
disabilities] who is the prevailing party” 20 U.S.C.
§ 1415
Smith v. Robinson (468 U.S. 992,1984)
The Handicapped Children’s Protection Act
(1986)
Yell / The Law and Special Education, Second Edition
Copyright © 2006 by Pearson Education, Inc. All rights reserved
24
Tuition Reimbursement
• An award to compensate parents for the costs of
a unilateral placement of their child in a private
school when an LEA has failed to offer an
appropriate education
• Burlington v. Department of Education (471 U.S.
359, 1985)
• Florence v. Carter (114 S.Ct. 361,1993)
Yell / The Law and Special Education, Second Edition
Copyright © 2006 by Pearson Education, Inc. All rights reserved
25
Compensatory Education
• Compensatory services are designed to remedy
the progress lost by students with disabilities
because they were previously denied an
appropriate education
• Examples:
– Extending a student’s eligibility beyond 21
– Extended school year
Yell / The Law and Special Education, Second Edition
Copyright © 2006 by Pearson Education, Inc. All rights reserved
26
Punitive Damages
• Monetary awards in excess of actual damages,
intended to serve as punishment and recompense
for legal wrongs
 IDEA
 Section 504
 Section 1983 of the Civil Rights Act
Yell / The Law and Special Education, Second Edition
Copyright © 2006 by Pearson Education, Inc. All rights reserved
27
Section 1983
• Forbids public officials from depriving citizens of
their rights under the US Constitution or Federal
laws
• To assert a 1983 claim, the plaintiff must prove
that:
 The defendant was acting under color of law
 The actions deprived the plaintiff of rights
guaranteed by the Constitution or federal
statutory law
• Doe v. Withers, (20 IDELR 442,1993)
Yell / The Law and Special Education, Second Edition
Copyright © 2006 by Pearson Education, Inc. All rights reserved
28