BONNIE LITTLE, ESQ.BLITTLE@BRUMAN.COMERIN AUERBACH, ESQ.

EAUERBACH@BRUMAN.COMBRUSTEIN & MANASEVIT, PLLC

FALL FORUM 2011

Due Process and State Complaints

Topics

Due Process and State Complaints, generally

Common Findings - IDEA Part B Child Find Evaluations and Eligibility IEPs Discipline

Common Findings- IDEA Part C Child Find IFSPs New Regulations

Monitoring Due Process and State Complaint Determinations Correction of identified

noncomplianceWhat does this mean

for verification?

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Resources

Individuals with Disabilities Education Improvement Act (IDEIA) 2004 Website - http://idea.ed.gov

Code of Federal Regulations http://www.access.gpo.gov/nara/cfr/waisidx_09/34cfrv2_09.html

OSEP Monitoring:

http://www.ed.gov/policy/speced/guid/idea/monitor/index.html

OSEP Letters: http://www.ed.gov/policy/speced/guid/idea/letters/revpolicy/index.html#T

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DUE PROCESS AND STATE COMPLAINTSCHILD FINDELIGIBILITY AND EVALUATIONSIEPSDISCIPLINE

IDEA, Part B4

Due Process Complaints 5

Due Process Complaints

A parent may file a due process complaint (lawsuit) against an LEA if:

a. The LEA did not timely identify the student as a student with a disability.

b. The LEA did not provide all of the services required by the student’s IEP.

c. The LEA did not evaluate the student in all areas of suspected disability.

d. The LEA did not provide an appropriate placement for the student.

e. Both (a) and (b).f. All of the above.

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Due Process Complaints

Due Process Complaints: Allow parents/students to enforce the rights

guaranteed under the IDEA. Relate to refusal or denial to initiate or change the

identification, evaluation, educational placement of the provision of a free appropriate public education (FAPE).

May be filed by a parent, student, or LEA. The alleged violation must have occurred within 2 years

of the date of the complaint. Some states have a 1 year statute of limitations.

Each SEA must establish and maintain due process procedures.

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Due Process Complaint Timeline

Day Event

Day 1 Parent files complaint

Day 10 School files answer

Day 15 School files allegations of insufficiency of complaint – if any

Resolution Meeting

Day 20 Hearing Officer will make determination on allegations of insufficiency – if any

Day 30 End of resolution period – if complaint has not been resolved hearing goes forward

5 days prior to hearing date 5-day disclosures due

Day 45 Hearing Officer Decision issued

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Resolution Meetings

Must occur within 15 days of notice of complaint Attorney for the LEA cannot attend unless parent’s attorney

is also present If after reasonable efforts (documented), the LEA is unable to

obtain the participation of the Parent, the LEA may (at the end of the 30-day period), request that the hearing officer dismiss the parent’s due process complaint!

If LEA fails to schedule a resolution meeting, parent can ask for intervention!

Meeting notes are not confidential

Settlement agreement can be voided up to 3 days after it is signed

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Mediation

Available for matters arising prior to the filing of due process complaint Not limited to issues raised in due process hearing;

may mediate any point in the dispute

Mediation is CONFIDENTIAL!

LEA cannot require mediation SEA responsible for selecting mediators, and it must be

on a random, rotational, or other impartial basis “[ED does] not believe that a hearing officer can order

that the parties to a due process complaint engage in mediation.” (71 Fed. Reg. 46694 (Aug. 14, 2006)).

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Hearing Officer Determinations 11

What relief can be granted when a FAPE violation is found?

Courts have broad discretion in fashioning relief for violations of the IDEA.  Burlington Sch. Comm. v. Dept. of Educ., 471 U.S. 359 (1985)  Hold meetings Evaluations Placement

Private Schools Residential

Compensatory Education

Attorneys’ Fees

Attorneys’ fees and related costs may be awarded to the “Prevailing Party”

LEAs are not responsible for parents’ attorneys’ fees for: Attending Resolution Meetings Attending IEP Meetings (unless ordered by Hearing Officer) Educational Advocates (Lay Witness) (Fed Regs comments) Expert Fees (Arlington Central School District v. Murphy)

Attorneys’ fees – Can be awarded to LEAs/SEAs as prevailing party Against attorney of parent

If complaint is frivolous, unreasonable, without foundation; OR

If attorney of parent continued to litigate after clearly became frivolous

Against attorney of parent or parent Improper purpose (harass, cause unnecessary delay,

needless increase cost of litigation)

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Attorneys’ Fees After Offer of Settlement13

Attorneys' fees may not be awarded and related costs may not be reimbursed in any action for services performed subsequent to the time of a written offer of settlement to a parent if--

The offer is timely made (generally, 10 days before the proceeding begins, check state rules);

The offer is not accepted within 10 days; and The court or administrative hearing officer

finds that the relief finally obtained by the parents is not more favorable to the parents than the offer of settlement.

State Complaints14

State Complaints15

An organization, that does not represent a parent or an LEA, may file a state complaint.

a. Trueb. False

State Complaints

An organization or individual may file a written complaint alleging that a public agency has violated a requirement of Part B. Allegations can be substantive or procedural. Allegations can be general or relate to a specific child. One year statute of limitations.

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State Complaints

Each SEA must establish procedures for filing and resolving state complaints. 60 day time limit Independent on-site investigation Provide complainant with opportunity to submit

additional information Provide public agency with opportunity to respond If a parent filed the complaint - Provide opportunity

for mediation Independent, written decision Remedies and corrective actions for noncompliance

found

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State Complaint vs. Due Process Complaint

If a state complaint contains allegations that are also part of a due process complaint, the state must set aside any part of the state complaint that is being addressed in the due process hearing until the conclusion of the due process hearing.

Any part of the state complaint that is not being addressed in the due process hearing must be resolved within 60 day time limit.

If an allegation in a state complaint has been resolved in a due process hearing, the due process hearing decision is binding on that issue.

Failure to implement a due process hearing decision must be resolved by the SEA.

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The most common allegations and how to avoid them.

What to know to prevent due process and state

complaints? 19

Child Find20

Child Find21

Where the LEA has received a number of referrals for behavior incidents, but the student is otherwise close to or on grade level, and the parent does not initiate the identification and eligibility process, could the LEA be at risk for a child find violation?

a. Yesb. No

Child Find

Must have in effect policies and procedure to identify, locate and evaluate all children with disabilities as defined under IDEA. Includes public and private schools Includes homeless and migrant children, and wards of

the state

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Comprehensive Child Find System23

Early Intervening Services (EIS)

For Students: Who are NOT currently identified as needing special

education or related services, and Who need additional academic and behavioral support

to succeed in a general education environment

Activities: Professional development for teachers/staff Providing education and behavioral evaluations,

services, and supports Includes scientifically based literacy instruction

No right to FAPE!!

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Response to Intervention (RTI)

Must promptly request parental consent to evaluate a child if the child has not made adequate progress after an appropriate period of time. The regulations do not specify a timeline for using RTI or define

“adequate progress” ED says it varies depending on the specific circumstances in

each case Generally not acceptable to wait several months Parent may request an evaluation at any time during the RTI

process (RTI does not replace evaluations)

LEA cannot delay or deny evaluations on the basis that a child has not participated in the RTI process. OSEP Memo (Jan. 21, 2011)

Parental Consent

The LEA must make reasonable efforts to obtain the parents’ informed written consent to conduct an initial evaluation of their child.

If a parent refuses or does not respond to an initial evaluation, the LEA may seek to override this decision (not required).

The LEA cannot override parent’s decision to refuse services.

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Parental Notices27

Procedural Safeguards Notice

Must be given to parents on an annual basis per school year.

Must also be given:• At the initial referral or parental request for an

evaluation• On the first due process request• On the first state complaint• Change of placement occurs• On request by parent

Parental Notices

Prior Written Notice

Must be given to parents if the LEA proposes or refuses to initiate or change the following:• Evaluation of a child,• Identification of a child,• Educational placement of a child, or• Provision of FAPE to a child.

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Evaluations and Eligibility29

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An LEA must conduct the initial evaluation of a student within 60 days (unless the State has a different timeframe) unless:

a. The parent repeatedly fails or refuses to produce the child for the evaluation.

b. The evaluator gets backed up and the evaluation is conducted as soon as possible.

c. The preferred evaluator states in writing that the evaluation cannot be conducted within the 60 day timeframe.

d. Both (a) and (c).

Initial Evaluation

Initial Evaluations: within 60 days of receiving parental consent (unless State has different timeframe) Exceptions:

The parent repeatedly fails or refuses to produce the child for the evaluation.

The child enrolls in a school of another public agency and parent and the subsequent public agency are making progress to ensure completion of the evaluation.

Consent Reasonable efforts and parents refuse or fail to respond – can

override. DOCUMENT Reasonable Efforts!!!!

Calling, Letters, E-mails, Visits to Parent’s Home and/or Work.

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Initial Evaluations32

What does it mean to assess a student in all areas related to the suspected disability? 34 C.F.R. 300.304(c)(4)

Supreme Court Case : Compton Unified School District v. Addison No.  07-56013 (9th Cir. Mar. 22, 2010), petition for

cert. filed, (Jan. 7, 2011). 

Reevaluation

Reevaluation: Every 3 years Not more then 1 per year

Consent required? Reasonable efforts and parents refuse – the LEA can

override Reasonable efforts and parent fails to respond –

parental consent not required

No FAPE violation if don’t override consent!

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Independent Educational Evaluation34

Evaluation conducted by a qualified examiner who is not employed by the LEA responsible for the education of the child in question.

Parent has the right to an independent educational evaluation at the public’s expense if the parent disagrees with an evaluation obtained by the LEA. Can ask the parent the reason why he or she objects,

but can not require the parent to provide an explanation

Multidisciplinary Team (MDT) Meeting

Before an IEP is created, eligibility must be determined.

MDT determines eligibility.

IF eligible – create an IEP within 30 days of determining eligibility!

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Individualized Education Programs (IEPs)

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Which of the following IEP team members is not always a required member:

a. General education teacherb. Special education teacherc. Related services personneld. LEA representative

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IEP Team Members

Required Members Parent At least 1 regular ed

teacher, if child participating in gen ed

At least 1 special ed teacher/provider

LEA representative LEA can designate

member Individual who can

interpret evaluation results

May Be Required Individuals with special

knowledge or expertise of child

Related services personnel

Child, when appropriate Transition service

agency representatives Invite Part C service

coordinator/rep, if parent requests

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Who Can Miss an IEP Meeting?

Required members may be absent: For all or part of meeting, if LEA and parent agree in writing

Meeting without parent: Permitted, but need documentation of attempts to

arrange mutually agreed on time and place. 34 C.F.R. § 300.322(d)

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What is Needed if a Member Misses an IEP Meeting?

If the missing IEP team member’s area or related service is not modified or discussed No input is needed

If the missing IEP team member’s area or related service will be modified or discussed Member must provide written input on development

of the IEP prior to the meeting

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Review and Revision of IEPs

IEP Team must review IEP annually Encouraged to consolidate with reevaluation

meeting and other IEP Team meetings Reevaluation must occur at least once every

three yearsRevising IEP:

After annual IEP meeting for School Year, parent and LEA can agree not to convene meeting for changes Can develop written document to amend/modify

current IEP But, at parent’s request, must provide redrafted

version with amendments incorporated

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Provision of Special Education and Related Services

Special Education Teachers Highly Qualified standard

If a teacher uncertified in special education is providing student with hours required by IEP, those hours do not count.

Paraprofessionals may not provide IEP-required hours of specialized instruction for students.

Related Services Providers Highly Qualified standard not required

BUT- need State approved certification, licensing or registration for the services provided

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What are Related Services?

Transportation, developmental, corrective and other supportive services required to help a disabled child benefit from special education Includes: interpreting services, physical and

occupational therapy, speech-language pathology and audiology, counseling, therapeutic recreation

Excludes: surgically implanted medical device or replacement

34 C.F.R. § 300.34

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IEPs and Services for Transfer Students

Generally, the new public agency must provide services comparable to services received in the IEP from the previous public agency, until:

Transfer within same State new public agency adopts or develops its own IEP

Transfer from different State new public agency conducts an evaluation (if necessary) and develops and implements new IEP

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IEPs and Services for Transfer Students

What if you have no prior documentation?

If, after taking reasonable steps to obtain the child’s records, the public agency is not able to obtain the IEP from the previous public agency or from the parent, the new public agency is not required to provide services to the child pursuant to 34 C.F.R. §300.323(f). The new LEA must place the child in the regular

school program and conduct an evaluation if the LEA determines it to be necessary.

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Transmitting Student Records

Generally, follow Family Educational Rights and Privacy Act (FERPA)

Except if student transfers to a private school LEA must obtain parental consent prior to releasing

personally identifiable records to the private school

LEA/SEA has 45 days to respond to parent request for student records

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Discipline 47

An LEA is “on notice” that a student may be a student with a disability if:

a. Parent expressed concern in writing.b. Parent requested an evaluation.c. Teacher expressed concerns regarding pattern of

behavior.d. All of the above.

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Discipline Under IDEAStep-by-Step Guide

Where a child has violated a code of conduct, LEA must ask:

1. Is the child identified as a child with a disability or was school on notice of a disability?

The school is deemed to be “on notice” if: Parent expressed concern in writing Parent requested an evaluation Teacher or other personnel expressed specific concerns

about a pattern of behavior

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If answer is:NO = No IDEA protections. Discipline

Enacted. Has an evaluation been requested after or during

discipline? If yes, then expedited evaluations (during

evaluations Stay Put does not apply. Child remains where placed by the LEA.)

YES = Determine if Change of Placement (# 2)

Discipline (cont.) 51

2. Was the Removal a Change of Placement? NOT a change of

placement Change of placement

• Less then 10 consecutive school days• Series of short-term removals that are not a pattern (even if greater than 10 days)

▫ Length of each removal; ▫ Total time removed;▫ Proximity of removals;▫ Behavior not substantially similar; etc.

• Exceeds 10 consecutive school days• Series of short-term removals that are a pattern • 45-day removal

▫ drugs, weapons, serious bodily injury to another

• Request due process hearing for 45-day removal ordered by hearing officer

▫ (very likely to injure self or others in current placement)

Discipline (cont.)

If answer is:

NO = Document Decision; Child remains where placed by the LEA; Determine if services are required (#4)

YES = Manifestation Determination (#3); Functional Behavior Assessment; and Behavior Intervention Plan (or review/amend current plan) Stay Put Applies. Send Parent Notice of Decision and

Procedural Safeguards Notice

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Discipline (cont.)

3. Was the behavior a manifestation of the Child’s Disability? (Decided by IEP team)

If answer is:

NO - Stay Put does not apply; LEA may enact discipline; determine if services are required (#4)

YES - Stay Put applies: Child Remains in School (exception 45-day removal)

Note: If the IEP Team cannot agree, the LEA makes the decision and sends notice to the parent

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Discipline (cont.)

4. Are services required?

10 Day Rule – NO services required for first 10 school days of disciplinary removal in school year unless services would be provided to non-disabled students. LEA can always provide services even when not required.

 Starting 11th Day - Services may be required Not a Change of Placement – up to the LEA to decide the

extent to which services are required Change of Placement - services required, up to IEP Team

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Expedited Hearing Timeframes

If Parent appeals manifestation determination OR LEA requests 45-day removal by hearing officer expedited time frames apply.

Timeframes Hearing – 20 school days of date complaint filed Resolution meeting (unless waived) - 7 days of

date notice of the complaint received Hearing proceeds, unless matter resolved - 15

days of date complaint received Decision – 10 school days after hearing

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Due Process Timeframes v. Expedited Hearing

Day 1 Due Process Complaint Expedited Due Process Complaint

Day 7 Resolution Meeting (calendar)

Day 10 Answer Complaint

Day 15 Make Allegation if complaint is InsufficientResolution Meeting

If Allegations not Resolved – Hearing goes forward

Day 20 If Alleged- Determination of Complaint as (In)sufficient

Hearing(school days)

Day 30 If not Resolved – Hearing goes forwardIf Parent Not Involved – LEA can Make Motion to Dismiss

Final Determination Due (school days)

Day 45 5-Day Disclosure Due 5 days before hearing

Final Determination Due

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DUE PROCESS AND STATE COMPLAINTSCHILD FINDINDIVIDUAL FAMILY SERVICE PLANS

IDEA Part CInfants and Toddlers

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Part C vs. Part B

Part C program provides “early intervention services” to infants and toddlers with disabilities (under 3) Distinct from Part B’s “early intervening services”

that LEAs may provide to children who have not been identified as eligible children with disabilities

State may include “at-risk” infants and toddlers and children who previously received Part C services, who are now eligible for Part B preschool services (generally, ages 3-5), until they enter K State must meet requirements to exercise this option

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Due Process and State Complaints

Due Process Complaints60

Relates to specific child – parents, EIS provider, or lead agency can file.

Adopt Part B Procedures May adopt Part B’s 45 day or Part C’s 30 day timeline

for reaching a final decision

orCreate own procedures

Impartial Hearing Officer Parents due process rights Written decisions due in 30 days of receipt of

complaint!

State Complaints61

Filed by any party regarding any violation of Part C.

State complaints must be completed within 60 days! Includes completing on-site investigation, if necessary Complainant given opportunity to submit additional

information Review information and make independent determination Written decision includes findings of fact and conclusions of

law

Time extensions only allowed in exceptional circumstances.

If allegations already decided in due process case the due process decision is binding!

Child Find62

Comprehensive Child Find System

SEA must have a child find system to identify, locate and evaluate all infants and toddlers who are eligible for services. Must be consistent with Part B and include a system for

making referrals to service providers. Generally, “infant or toddler with a disability”

means individual under 3 experiencing developmental delays in one or more of the following areas: Cognitive development; Physical development; Communication development; Social or emotional development; or Adaptive development

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Evaluations and Assessments

SEA must establish procedures for referring a child as soon as possible, but no later then 7 days. NEW 34 C.F.R. § 303.303

45 calendar days after referral to complete the evaluation and assessment activities and hold an Individualized Family Service Plan (IFSP) meeting. Exceptions under certain circumstances.

Evaluations are designed to identify: The child’s unique strengths and needs and the services

appropriate to meet those needs; and The resources, priorities, and concerns of the family and

supports and services necessary to enhance the family’s capacity to meet the developmental needs of their infant and toddler with a disability.

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Individualized Family Service Plan (IFSP)

Individualized Family Service Plan (IFSP)

Annually evaluate appropriateness of IFSP Periodic review- at least every 6 months (more as

warranted) Degree of Progress toward achieving outcomes Whether modifications or revisions are necessary This meeting may be combined with Annual Meeting

IFSP meetings MUST be mutually convenient time and setting In native language of family or other mode of communication,

unless NOT clearly feasible

Parental Consent is Required!! (no override)

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IFSP Meetings

Each Initial Meeting and Annual Meeting Must Include: Parent(s) Other family members as required by parent (as feasible) Advocate or person outside of the family, if requested by parent Public Agency Service Coordinator Evaluators or Persons conducting Assessments Service Providers, as appropriate

If required member cannot attend, phone participation, authorized representatives or make records available at meeting!

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Prior Written Notice

Must be given to parents if the lead agency proposes or refuses to initiate or change the following: Identification of a child, Evaluation of a child, Placement of a child, or Provision of Early Intervention Services.

Notice Must Include: reasons for action or refusal and include available procedural safeguards

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New Regulations

ED released final regulations for Part C in September 2011.

Key Changes: Transition regulations revised – 34 C.F.R. § 303.209 Timeline for referral = within 7 days - 34 C.F.R. §

303.303 Exceptions to 45 day post-referral timeline - 34 C.F.R. §

303.310 Parent unavailable No consent for screening from parent

Side-by-side comparison available at: http://www.nectac.org/idea/idea.asp

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Monitoring Due Process and State Complaint Determinations

General Supervision System71

Monitoring due process and state complaint determinations should be part of the SEA/LEA general supervision system

SEA/LEA General Supervision System Ensure requirements of IDEA are carried out Supervise the educational program for CWDs Meets the educational standards of the SEA Policies and procedures

SEA Priority areas: (1) Provision of FAPE in the LRE (2) General supervision of child find, effective LEA

monitoring, use of resolution meetings, mediation and system of transition services

(3) Disproportionate representation of racial and ethnic groups 34 C.F.R. § 300.149 and 34 C.F.R. § 300.600

Identification of Noncompliance72

Final determinations based on due process and state complaints may identify instances and/or areas of noncompliance

Types of noncompliance Student-level findings Systemic findings

Other methods of identifying noncompliance: Self-assessments Onsite monitoring

Cyclical v. Risk-based Data review

Disproportionate representation

Correction of Noncompliance73

OSEP Memo 09-02Written notification of noncomplianceCorrection within one year of written

notificationDemonstrating Correction

Verify the LEA/school is: (1) correctly implementing the specific regulatory

requirements; and (2) has corrected each individual case of noncompliance

Exception: child is no longer within jurisdiction of LEA/school

Determinations of LEA Compliance with IDEA

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USDE makes an annual determination of state compliance Based on APR and other relevant information

States make annual determinations as to whether each of its LEAs are meeting the requirements of IDEA Meets requirements Needs assistance Needs intervention Needs substantial intervention

Mandatory withholding

LOOKING AT “RESULTS”

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Verification

Verification76

Critical Elements Analysis Guide (CrEAG) General Supervision System

Identify noncompliance in a timely manner using its different components

Ensure correction of identified noncompliance in a timely manner

Procedures and practices to implement the dispute resolution requirements of the IDEA

Timely collect and report data that are valid and reliable and reflect actual practice and performance

Procedures and practices to implement selected grant application assurances (i.e., monitoring and enforcement related to LEA determinations and significant disproportionality/CEIS)

Fiscal Systems Procedures to ensure that funds are distributed in accordance

with Federal requirements Procedures to ensure allowable use of IDEA funds

Results77

State chooses “results” topic 13 states receiving “results” visits this cycle SMART: specific, measurable, accountable, realistic

and timely

Visit will include Introduction of topic and plan Data drill down Stakeholder involvement Q&A

Results plan must be posted on state website within 90 days of the visit

Results (cont.)78

Examples of Results Topics: Part C: Increase the verification rate of infants and

toddlers who are referred through CAPTA from 8 to 8.2% by FFY 2013

Part B: Indicator 14 survey results will indicate that students with disabilities increased competitive employment from 45.3 to 50% by FFY 2016

Part B: Increase the number of 3rd grade students with disabilities who scored proficient and above from 29% to 34% by 2013-2014

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Questions?

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