Procedural Safeguards

Purpose

• Guarantee parents both an opportunity for meaningful input into all decisions affecting their child’s education and the right to seek review of any decisions they think inappropriate

• Congress placed as great an emphasis on school districts’ compliance with the procedural safeguards as it did on their compliance with the substantive aspects of the IDEA

Identification of Parents

• Definition- a parent, guardian, or person acting as a parent of the child, or a surrogate parent who has been appointed following the procedures of the law

• Does not include the state if the child is a ward of the state

• Includes persons acting in place of the parent with whom the child lives, as well as persons who are legally responsible for a child’s welfare

Identification (cont.)

• Two routes to parental eligibility: living with the child in a parental role, or having legal responsibility for a child who lives elsewhere

• Foster parent as a parent if legally responsible for a child’s welfare and the natural parents’ authority to make educational decisions has been relinquished

Surrogate Parents

• IDEA requires that a surrogate parent be appointed if the child’s parent cannot be found, does not have a parent or is a ward of the state

• Role- safeguard the educational rights of the child

• Has full parental rights and have no conflicts of interest

Notice Requirements

• Written notice must be provided to parents prior to the school’s proposing to initiate or change the identification, evaluation, educational placement, or provision of a FAPE to the child, or prior to the school’s refusal to make such changes

• Purpose- provide them with information to protect their rights, allow them to make informed decisions, and allow for full participation in the special education process

Notice (cont.)• Must be written so that it is understandable to the

general public• Full explanation of all procedural safeguards• Description of action proposed or refused by the

school- why action taken, options considered, options rejected

• Description of evaluation procedures utilized and any other factors relevant to the decision

• Written in understandable language, understood by parent, and written evidence that these requirements were met

Consent Requirements

• Required prior to initial evaluation and placement in special education, Reevaluation (unless demonstrate unsuccessful attempts)

Examining Records

• Right to inspect educational records relating to their child

• No unnecessary delay and before any meeting regarding the child’s education

• Respond to reasonable requests for explanations/interpretations of records

• Request copies of records

• Can have a representative inspect and review

• Must assume parents have right to inspect

• Keep records of who accesses the records

• List types and locations of records

• Can request records be amended

IEE

• Right to one IEE at public expense

• Provide parents information about where an IEE may be obtained

• Right to an IEE at public expense if they disagree with the school’s evaluation

• School can initiate a hearing to show appropriateness of the evaluation

• Results of the IEE must be “considered” by the school

• Hearing officer requests an IEE- school pays

Mediation• IDEA 97- added voluntary mediation

requirements• Mediator has no authority to to impose solutions• Cannot be used to delay or deny parents’ rights to

an impartial due process hearing • Allows LEA’s to establish procedures to require

parents to meet with a third party who would encourage and explain the benefits to them

• State bears the cost of mediation• Agreements are to be put into writing

Due Process Hearing• Purpose- allow an impartial third party hear both

sides of a dispute, examine the issues, and settle the dispute

• Parents may request: contest school’s identification, evaluation, educational placement, FAPE or to question the info. in their child’s educational records (EDGAR- ed. dept. general administrative regulations), or resolution of procedural violations adversely affecting a student’s education

Due Process Hearing

• Schools request- parents refuse consent to evaluation or placement

• 9th Circuit- may be requested by parents even if their child has not been formally accepted into special education

Impartial Hearing

• The officer must have no involvement with the child, the parent, or the school system

• Districts must maintain a list of persons who may serve as due process hearing officers and provide, upon parental request

Role of the Hearing Officer• Duties- inform the parties of their rights during the

hearing, allow opportunity to present case, conduct hearing in a fair, orderly and impartial manner, and render a decision in accordance with the law

• A hearing officer may order an IEE, reimbursement of educational expenses, or compensatory education, but may not award attorneys’ fees

• Has no authority over outside agencies• Decision final unless appealed (cannot be held

liable- unless known violations)

Hearing Rights• Can be accompanied by counsel or experts• Present evidence and confront, cross examine and

compel attendance of witnesses• Prohibit information not shared at least 5 days

prior to the hearing• Obtain a record of the hearing• Obtain written findings of fact and decisions• Parents can have the child present, require LEA to

provide record of hearing and facts and decision• Open the hearing to the public

Stay Put Provision• Unless parents and school agree, IDEA’s

stay put provision is in effect

• Objective- maintain stability and continuity for the student

• Conduct of the hearing- The formal rules of evidence used in courts do not apply to administrative hearings

• Relevancy and reliability should be the rules for introducing evidence in the hearing

School District Responsibilities• Most decisions by due process hearing

officers are upheld on review• 7 deadly sins- 1) procedural violations, 2)

telling parents that a particular service or program is appropriate for their child, but the school district cannot afford it, 3) rigidity, 4) giving in to parental demands when the demands will not provide the child with a FAPE, 5) acting on principle rather than reason, 6) burden of proof is usually on the district, 7) procrastination