PROCEDURAL SAFEGUARDS

Transcription

1 PROCEDURAL SAFEGUARDS Summary of Changes The procedural safeguards notice is a copy of the procedural safeguards available to parents and children with disabilities. The Individuals with Disabilities Education Act (IDEA) requires state and local educational agencies to provide parents and/or students with this notice. Generally, the agency is only required to provide the notice once a year. However, the notice must also be provided when parents request an initial evaluation or when a child is initially referred to the agency, the first time a parent files a complaint, and whenever parents request the notice. IDEA now places a statute of limitations on when a due process complaint can be filed. While parents are permitted to file due process complaints when they feel that their child s rights under IDEA have been violated, any complaints must be filed no later than two years after the violation is alleged to have occurred. The statute of limitations period will not apply if a local educational agency (LEA) falsely claims that it has resolved the complaint, or withholds information it was required to provide. Due process complaint notice is now required under IDEA. A party alleging a due process violation under IDEA, or his or her attorney, is required to provide due process complaint notice to the other party (or their attorney) and the state educational agency (SEA). The notice must include the name and home address of the child, the name of the school the child attends, a description of the nature of the problem, and a proposed resolution. The party presenting the complaint must file this notice before a due process hearing can occur. When the LEA receives a due process complaint notice, it must first determine whether it provided prior written notice regarding the subject matter of the complaint. If it has not done so, the LEA must provide a response to the parents within 10 days of receiving the due process notice that contains the following: (1) an explanation of why the agency proposed or refused to take the action raised in the complaint; (2) a description of other options that the IEP team considered and the reasons those options were rejected; (3) a description of each evaluation procedure, assessment, record, or report the agency used as the basis for the proposed or refused action; and (4) a description of the relevant factors in the LEA s proposal or refusal. If the LEA feels that the due process complaint notice is insufficient, the LEA must notify the hearing officer in writing within 15 days of receiving the complaint. Hearing officers then have up to 5 days to determine if the notice meets the requirements. Upon making a determination, the officer must immediately notify all parties in writing of the decision. If the hearing officer determines that the complaint is sufficient, the LEA must respond to the complaint. If the hearing officer determines that the complaint is not 1

2 sufficient, the parent has the opportunity to resubmit a new complaint and the timelines start over. If a party needs to amend its due process complaint notice, the other party must consent to the amendment in writing and must be given the opportunity to resolve the complaint through the Resolution Session. The hearing officer may also allow a due process complaint notice to be amended, but only if the amendment is made more than 5 days before the due process hearing. When a due process complaint is amended, the applicable timeline for a due process hearing begins again when the party files the amended notice. When a parent files a complaint for due process, he or she must describe the nature of the problem, relevant facts relating to the problem, and a proposed resolution to the problem. As mentioned above, if the LEA feels that the complaint is not sufficient to inform them about the problem, the LEA has 15 days from when the parent filed his or her complaint to ask a hearing officer to decide whether the complaint was sufficient. The hearing officer has five days to make a determination if the complaint is sufficient. If the hearing officer decides that the complaint is not sufficient, the complaint is returned to the parent, and the parent is able to file a new complaint with greater specificity. The timeline starts over once a new complaint is filed. IDEA 2004 created a Resolution Session that provides an opportunity for parents and LEAs to resolve any issues in the complaint so that parents and LEAs can avoid due process hearings and provide immediate benefit to the child. Within 15 days of when a complaint is filed, the LEA must convene a Resolution Session between the parents and relevant members of the IEP Team. The session must include a representative of the LEA who has decision-making authority on behalf of the agency, but may not include an attorney for the LEA unless the parent is also accompanied by an attorney. The session provides an opportunity for the party who filed the complaint to discuss that complaint and the facts forming the basis of it, and an opportunity for the responding party to resolve the complaint. If the parties reach an agreement, they must execute a legally binding agreement that is signed by the parents and the LEA representative. The agreement is enforceable in any state court of competent jurisdiction or in a United States district court. Either party may void the agreement up to 3 days after its execution. If the complaint is not resolved through this session, then the parties may proceed to a due process hearing. The Resolution Session may be waived by the LEA and the parents in writing or if they agree to use the mediation process. U.S. District Courts can award reasonable attorneys fees to prevailing parties, whether that is a parent, SEA or LEA, as part of any settlement of a due process complaint or civil action. Attorneys fees awarded to SEAs or LEAs may only be granted under certain guidelines. First, the parents attorney may be forced to pay the agency s attorneys fees when that attorney files a complaint or civil action that is frivolous, unreasonable, or without foundation, or continues to pursue a civil action after the litigation clearly became frivolous, unreasonable, or without foundation. Second, the parents, or their attorney, may be forced to pay the SEAs or LEAs attorneys fees if the parents 2

3 complaint or subsequent civil action was presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation. Not all legal and administrative proceedings and services are eligible for reimbursement. A court may not award attorneys fees for any services performed subsequent to the time of a written offer of settlement that is made to the parents if: (1) the offer is made in accordance with Rule 68 of the Federal Rules of Civil Procedure; (2) in the case of an administrative hearing, if the offer is made more than 10 days prior to the hearing; (3) the offer is not accepted within 10 days; and (4) the court or administrative hearing officer finds that the relief finally obtained by the parents is not more favorable than the offer of settlement. However, attorneys fees may be awarded to parents who were substantially justified in rejecting the settlement offer. In addition, IEP team meetings are not eligible for reimbursement unless the meeting is convened as a result of an administrative proceeding or judicial action, or, at the discretion of the state, for a mediation session. Attorneys fees for Resolution Sessions are also ineligible for reimbursement. The Georgia Department of Education will amend the forms for requesting Due Process Hearings and Mediation prior to the July 1, 2005 implementation date as well as provide the other new paperwork needed, such as agreement forms. Procedural Safeguards Types of Procedures Section 615(b)(2)(A) Requires procedures to protect the rights of the child whenever the parents of the child are not known, the agency cannot, after reasonable efforts, locate the parents, or the child is a ward of the State, including the assignment of an individual to act as a surrogate for the parents, which surrogate shall not be an employee of the State educational agency, the local educational agency, or any other agency that is involved in the education or care of the child. In the case of (i) a child who is a ward of the State, such surrogate may alternatively be appointed by the judge overseeing the child s care provided that the (ii) surrogate meets the requirements of this paragraph; and an unaccompanied homeless youth as defined in section 725(6) of the McKinney-Vento Homeless Assistance Act (42 U.S.C a(6)), the local educational agency shall appoint a surrogate in accordance with this paragraph. (B) The State shall make reasonable efforts to ensure the assignment of a surrogate not more than 30 calendar days after there is a determination by the agency that the child needs a surrogate. 3

4 More detailed procedures have been added regarding the appointment of an individual to act as a surrogate for parents in situations where the child is a ward of the state or is an unaccompanied homeless youth. The state is required to make reasonable efforts to ensure the assignment of a surrogate not more than 30 days after there is a determination by the agency that the child needs a surrogate. Written Prior Notice Section 615(c)(1) Written prior notice to the parents of the child shall include a description of the action proposed or refused by the agency; an explanation of why the agency proposes or refuses to take the action and a description of each evaluation procedure, assessment, record, or report the agency used as a basis for the proposed or refused action; a statement that the parents of a child with a disability have protection under the procedural safeguards of this part and, if this notice is not an initial referral for evaluation, the means by which a copy of a description of the procedural safeguards can be obtained; sources for parents to contact to obtain assistance in understanding the provisions of this part; a description of other options considered by the IEP Team and the reason why those options were rejected; and a description of the factors that are relevant to the agency s proposal or refusal. Under Section 615(b)(3), written prior notice must be given to the parents of the child whenever the LEA proposes to initiate or change or refuses to initiate or change the identification, evaluation, or educational placement of the child, or the provision of a free appropriate education to the child. The content of the notice has been left unchanged, although the provision detailing the requirements has been reorganized. Timeline to Present a Complaint Section 615(b)(6)(B) Procedural safeguards shall include an opportunity for any party to present a complaint which sets forth an alleged violation that occurred not more than 2 years before the date the parent or public agency knew or should have known about the alleged action that forms the basis of the complaint, or, if the State has an explicit time limitation for presenting such a complaint under this part, in such time as the State law allows, except that the timeline described in this paragraph shall not apply to a parent if the parent was prevented from requesting the hearing due to specific misrepresentations by the LEA that it had resolved the problem forming the basis of the complaint, or the LEA s withholding of information from the parent that was required under this part to be provided to the parent. The 2 year statute of limitations provided by IDEA shall apply to actions in Georgia as the state does not have an explicit time limitation for such actions. 4

5 Due Process Complaint Notice Section 615(c)(2)(A) The due process complaint notice required under subsection (b)(7)(a) shall be deemed to be sufficient unless the party receiving the notice notifies the hearing officer and the other party in writing that the receiving party believes the notice has not met the requirements of subsection (b)(7)(a). The party receiving the due process complaint notice must notify the hearing officer and the other party in writing within 15 days of receiving the complaint that the notice has not met the requirements by, e.g., failing to describe the nature of the problem of the child relating to a proposed change in placement or failing to propose a resolution to the problem. Due Process Complaint Notice Section 615(b)(7)(A) The procedural safeguards must include procedures that require either party, or the attorney representing a party, to provide due process complaint notice in accordance with subsection (c)(2) (which shall remain confidential) to the other party, in the complaint filed with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of FAPE to such child, and forward a copy of such notice to the SEA. The due process complaint notice shall include the name of the child, the address of the residence of the child (or available contact information in the case of a homeless child), and the name of the school the child is attending. In the case of a homeless child or youth, available contact information for the child and the name of the school the child is attending must be included. The due process complaint notice shall also include a description of the nature of the problem of the child relating to such proposed initiation or change, including facts relating to such problem and a proposed resolution of the problem to the extent known and available to the part at the time. Section 615(7)(B) The procedural safeguards must include a requirement that a party may not have a due process hearing until the party, or the attorney representing the party, files a notice that meets the requirements of subparagraph (A)(ii), in that it must include the name of the child, the address of the residence of the child (or available contact information in the case of a homeless child), and the name of the school the child is attending. In the case of a homeless child or youth, available contact information for the child and the name of the school the child is attending must be included. The due process complaint notice shall also include a description of the nature of the problem of the child relating to such proposed initiation or change, including facts relating to such problem and a proposed resolution of the problem to the extent known and available to the part at the time. 5

6 LEA Response to Due Process Complaint Section 615(c)(2)(B) If the LEA has not sent a prior written notice to the parent regarding the subject matter contained in the parent s due process complaint notice, such LEA shall respond to the complaint within 10 days of receiving the complaint and send to the parent an explanation of why the agency proposed or refused to take the action raised in the complaint; a description of other options that the IEP Team considered and the reasons why those options were rejected; a description of each evaluation procedure, assessment, record, or report the agency used as the basis for the proposed or refused action; and a description of the factors that are relevant to the agency s proposal or refusal. A response filed by a LEA shall not be construed to preclude such LEA from asserting that the parent s due process complaint notice was insufficient where appropriate. Other Party Response to Due Process Complaint Section 615(c)(2)(B)(ii) Except in instances where the LEA has not sent a prior written notice to the parent regarding the subject matter of the due process complaint notice, the non-complaining party shall, within 10 days of receiving the complaint, send to the complaint a response that specifically addresses the issues raised in the complaint. Timing Section 615(c)(2)(C) The party providing a hearing officer notification under subparagraph (A) [that the due process complaint notice is insufficient] shall provide the notification within 15 days of receiving the complaint. Determination Section 615(c)(2)(D) Within 5 days of receipt of the notification provided under subparagraph (C) [notification that the due process hearing complaint notice is insufficient], the hearing officer shall make a determination on the face of the notice of whether the notification meets the requirements of subsection (b)(7(a), and shall immediately notify the parties in writing of such determination. Amended Complaint Notice Section 615(c)(2)(E) A party may amend its due process complaint notice only if the other party consents in writing to such amendment and is given the opportunity to resolve the complaint through a meeting held pursuant to subsection (f)(1)(b) [Resolution Session] or the hearing officer grants permission, except that the hearing officer may only grant such permission at any time not later than 5 days before a due process hearing occurs. The applicable timeline for a due process hearing under this part shall recommence at the time the party files an amended notice, including the timeline under subsection (f)(1)(b). The due process hearing is limited to only those issues raised in the complaint. The party requesting the hearing can only raise other issues if the other party agrees and is given 6

7 an opportunity to resolve the complaint through a resolution session or if the hearing officer grants permission. Procedural Safeguards Notice Section 615(d)(1) A copy of the procedural safeguards available to the parents of a child with a disability shall be given to the parents only 1 time a year, except that a copy shall also be given to the parents upon referral or parental request for evaluation, upon the first occurrence of the filing of a complaint under subsection (b)(6), and upon request by a parent. A LEA may place a current copy of the procedural safeguards notice on its internet website if such website exists. Section 615(d)(2)(E) The procedural safeguards notice shall include the opportunity to present and resolve complaints, including the time period in which to make a complaint, the opportunity for the agency to resolve the complaint, and the availability of mediation. Section 615(d)(2)(K) The procedural safeguards notice shall include a full explanation of civil actions, including the time period in which to file such actions. Mediation Section 615(e)(1) Any SEA or LEA that receives assistance under this part shall ensure that procedures are established and implemented to allow parties to disputes involving any matter, including matters arising prior to the filing of a complaint pursuant to subsection (b)(6), to resolve such disputes through a mediation process. Mediation can be initiated at any time, if both parties agree, to expedite the development of a solution. Mediation may not be used to deny or delay a parent s right to a due process hearing, or to deny other rights guaranteed under IDEA. Mediation must be conducted by a qualified, trained, and impartial mediator. Written Agreement Section 615(e)(2)(F) In the case that a resolution is reached to resolve the complaint through the mediation process, the parties shall execute a legally binding agreement that sets forth such resolution and that states that all discussions that occurred during the mediation process shall be confidential and may not be used as evidence in any subsequent due process hearing or civil proceeding; is signed by both the parent and a representative of the agency who has the authority to bind such agency; and is enforceable in any State court of competent jurisdiction or in a district court of the United States. If the parties resolve the complaint in mediation, they must execute a legally binding agreement explaining the resolution and stating that all discussions that occurred during 7

8 the mediation process will remain confidential and may not be used as evidence in any subsequent due process or civil proceeding. The agreement must be signed by both parties and a representative of the SEA or LEA who has the authority to bind the agency. Impartial Due Process Hearing Resolution Session/Preliminary Meeting Section 615(f)(1)(B)(i) Prior to the opportunity for an impartial due process hearing under subparagraph (A), the LEA shall convene a meeting with the parents and the relevant member or members of the IEP Team who have specific knowledge of the facts identified in the complaint within 15 days of receiving notice of the parents complaint; which shall include a representative of the agency who has decisionmaking authority on behalf of such agency; which may not include an attorney of the LEA unless the parent is accompanied by an attorney; and where the parents of the child discuss their complaint, and the facts that form the basis of the complaint, and the LEA is provided the opportunity to resolve the complaint, unless the parents and the LEA agree in writing to waive such meeting, or agree to use the mediation process described in subsection (e). Within 15 days of when a complaint is filed, and prior to a due process hearing, the LEA must convene a resolution session between parents and the relevant members of the IEP team who have specific knowledge of the facts contained in the complaint, as determined by the LEA and the parents. Hearing Section 615(f)(1)(B)(ii) If the LEA has not resolved the complaint to the satisfaction of the parents within 30 days of the receipt of the complaint, the due process hearing may occur, and all of the applicable timelines for a due process hearing under this part shall commence. Written Settlement Agreement Section 615(f)(1)(B)(iii) In the case that a resolution is reached to resolve the complaint at a meeting described in clause (i) [Resolution Session/Preliminary Meeting], the parties shall execute a legally binding agreement that is signed by both the parent and a representative of the agency who has the authority to bind such agency; and enforceable in any state of competent jurisdiction or in a district court of the United States. Review Period Section 615(f)(1)(B)(iv) If the parties execute an agreement pursuant to clause (iii), a party may void such agreement within 3 business days of the agreement s execution. 8

9 Disclosure of Evaluations and Recommendations Section 615(f)(2)(A) Not less than 5 business days prior to a hearing conducted pursuant to paragraph (1), each party shall disclose to all other parties all evaluations completed by that date, and recommendations based on the offering party s evaluations, that the party intends to use at the hearing. IDEA 97 indicated, At least five business days prior to a hearing conducted pursuant to paragraph (1), This change requires that the document exchange occur not less than 5 days before the hearing. As such, the five-day rule has been slightly changed to require that the documents are in the hands of the other party not less than 5 days before the hearing. A hearing officer may bar any party that fails to comply with this requirement from introducing evaluations or recommendations at the hearing without the consent of the other party. Person Conducting Hearing Section 615(f)(3)(A) A hearing officer conducting a hearing pursuant to paragraph (1)(A) shall, at a minimum not be an employee of the SEA or the LEA involved in the education or care of the child; or a person having a personal or professional interest that conflicts with the person s objectivity in the hearing. The hearing officer shall, at a minimum, possess knowledge of, and the ability to understand, the provisions of this title, Federal and State regulations pertaining to this title, and legal interpretations of this title by Federal and State courts; possess the knowledge and ability to conduct hearings in accordance with appropriate, standard legal practice; and possess the knowledge and ability to render and write decisions in accordance with appropriate, standard legal practice. In addition to the previous requirement that the hearing officer not be an employee of the SEA or LEA involved in the education or care of the child, the new law adds that the hearing officer may not be a person who has a personal or professional interest that conflicts with the person s objectivity. The Senate report notes that the committee does not intend this provision to exclude members of professional associations or exclude special educators from other school districts from serving as hearing officers if they meet the other qualifications. Subject Matter of Hearing Section 615(f)(3)(B) The party requesting the due process hearing shall not be allowed to raise issues at the due process hearing that were not raised in the notice filed under subsection (b)(7), unless the other party agrees otherwise. 9

10 Timeline for Requesting Hearing Section 615(f)(3)(C) A parent or agency shall request an impartial due process hearing within 2 years of the date the parent or agency knew or should have known about the alleged action that forms the basis of the complaint, or, if the State has an explicit time limitation for requesting such a hearing under this part, in such time as the State law allows. Exceptions to the Timeline Section 615(f)(3)(D) The timeline described in subparagraph (C) shall not apply to a parent if the parent was prevented from requesting the hearing due to specific misrepresentations by the LEA that it had resolved the problem forming the basis of the complaint; or the LEA s withholding of information from the parent that was required under this part to be provided to the parent. Decision of the Hearing Officer Section 615(f)(3)(E) Subject to clause (ii) [relating to matters alleging a procedural violation] a decision made by a hearing officer shall be made on substantive grounds based on a determination of whether the child received a free appropriate public education. In matters alleging a procedural violation, a hearing officer may find that a child did not receive a free appropriate public education only if the procedural inadequacies impeded the child s right to a free appropriate public education; significantly impeded the parents opportunity to participate in the decisionmaking process regarding the provision of a free appropriate public education to the parents child; or caused a deprivation of educational benefits. Generally, the hearing officer s decision should be made on substantive grounds as to whether the child received FAPE. However, if the complaint alleges procedural violations, the hearing officer may find that the child did not receive a FAPE only if the procedural violations rose to the level at which they impeded the child s right to a FAPE, significantly impeded the parents opportunity to participate in the decision-making process regarding the provision of a FAPE for the child, or deprived the child of educational benefits. Right to Bring Civil Action Section 615(i)(2)(B) The party bringing the action shall have 90 days from the date of the decision of the hearing officer to bring such an action, or, if the State has an explicit time limitation for bringing such action under this part, in such time as the State law allows. The 90 day time limitation set forth in IDEA pertaining to a party s right to bring a civil action in Georgia does apply as the state does not have an explicit time limitation for such actions. 10

11 Award of Attorneys Fees Section 615(i)(3)(B) In any action or proceeding brought under this section, the court, in its discretion, may award reasonable attorneys fees as part of the costs to a prevailing party who is the parent of a child with a disability; to a prevailing party who is a SEA or LEA against the attorney of a parent who files a complaint or subsequent cause of action that is frivolous, unreasonable, or without foundation, or against the attorney of a parent who continued to litigate after the litigation clearly became frivolous, unreasonable, or without foundation; or to a prevailing SEA or LEA against the attorney of a parent, or against the parent, if the parent s complaint or subsequent cause of action was presented for any improper purpose, such as to harass, to cause unnecessary delay, or to needlessly increase the cost of litigation. Opportunity to Resolve Complaints Section 615(i)(D)(iii) A meeting conducted pursuant to subsection (f)(1)(b)(i) [Resolution Session/Preliminary Meeting] shall not be considered a meeting convened as a result of an administrative hearing or judicial action; or an administrative hearing or judicial action for purposes of this paragraph. Attorneys fees cannot be awarded for this meeting, and the decision made at the meeting cannot be appealed. 11