Thursday, June 5, 2014

Special Education Due Process and Procedural Violations - 2 Things You Must Know!

Are you the parent of a child with a disability receiving special education services? Are you considering filing for a due process hearing on procedural violations of the Individuals with Disabilities Education Act (IDEA)? This article will explain the changes to IDEA that occurred in 2004 when it was reauthorized, in the area of procedural violations, and explain what you as a parent need to know, about this change.
A procedural violation means that the school district did not follow the specific procedures that are required in IDEA. For example: IDEA requires that parents are equal participants in the Individual Educational Plan (IEP) meetings for their child. If special education personnel refuse to allow the parent to give input, this would be a procedural violation. Or if timelines are not followed for testing this would also be a procedural violation.
Before IDEA was reauthorized in 2004 when a parent filed for a due process hearing, the hearing officer could find that a child was denied a Free Appropriate Public Education if procedural violations occurred. Things you must know about the change:
1. IDEA now states that any procedural violations must be substantive or in other words substantial. The procedural violation must rise to the level of preventing the child from receiving a free appropriate public education (FAPE).
2. There are 2 ways that a school districts procedural violation rises to the level of denying the child FAPE. They are:
A. The violation significantly impeded the parents opportunity to participate in the decision making process regarding the provision of FAPE to the student or
B. The violation caused a deprivation of educational benefit.
I would like to discuss each of these:
1. Many school districts have tried to convince courts that parents have participated in the IEP process if they just simply attended the IEP meeting. But a few courts have stated that it is not enough for the parent to just attend the IEP meeting, they must have "meaningful participation!" One court was extremely clear that if a district rejects a specific recommendation for placement or services need by the parent, regardless of evidence that the placement and services are appropriate for the child, and will meet the child's educational needs, this may result in a procedural violation that denies the child FAPE.
In a well known special education case the school district refused to provide a child with Applied Behavioral Analysis (ABA), even though there was a lot of evidence that the child required it. Special education personnel were ecstatic with the child's progress with the private ABA program, but they refused to pay for it. The court in that particular case stated that the school district was not going to agree with the parents request for ABA, no matter what. Therefore the parents were prevented from having meaningful participation in the development of their child's IEP, and this denied their child FAPE; which made the school district liable for paying for the program.
2. Denial of educational benefit is a little harder to prove, but I think it is doable. If the school district refused to listen to parents about a related service that their child needed, and it prevented FAPE, then this would be a deprivation of educational benefit.
Another example would be if a parent had an Independent Educational Evaluation (IEE) that stated that their child needed a Multi sensory reading program for 1 hour 5 days a week with a trained teacher, and the school district refused to listen to them. This would deny the child educational benefit and could be a denial of FAPE.
While this change has made it a little more difficult to prove denial of a free appropriate public education at due process, it makes it a little more clear for parents as they are preparing their case. Good luck and remember your child is depending on you!