Introduction to Special Education Law

Dispute Resolution and Remedies

VI. DISPUTE RESOLUTION AND REMEDIES

  1. What is Due Process?

  2. What are the Steps Involved in Due Process?

    1. Pre-Hearing Conference

    2. Mediation

    3. Due Process Hearing

    4. Appeals from Hearing Officer’s Decision

    5. Potential Damages

      1. Compensatory Education

      2. Reimbursement

      3. Attorneys’ fees

    6. Discipline/Expedited Hearings/Interim Placements

      1. Students with Dangerous Weapons

      2. Danger to Self/Others

    7. Notice Requirements

VI. DISPUTE RESOLUTION AND REMEDIES

  1. What is due process?When the parents of an exceptional child and the school district are in disagreement with the child’s educational program, the disagreement is resolved through a procedure familiarly referred to as “due process.”"Due process” involves a series of increasingly formal procedures which the parents and the School district take part in, culminating, in the event that no prior step resolves the dispute, in a due process hearing.  Due process hearings are state administrative proceedings.  They are scheduled by the Office for Dispute Resolution under the auspices of the Pennsylvania Department of Education.  ODR employs various individuals to serve as special education hearing officers who preside over due process hearings.  These individuals are selected due to their knowledge and experience in special education law.

  2. What are the steps involved in due process?Generally, once a parent disapproves a child’s IEP by rejecting a NOREP, the parent has the option to request mediation or a due process hearing.1) Mediation

    • If the parents object to the student’s IEP, they can request Mediation.

    • The school district may also request mediation when there is disagreement between the parents and the school district.

    • This is an optional step for both the school district and parent, which means either party may waive this step and proceed to a due process hearing.

    • Mediation may occur simultaneously with a due process hearing.

    • Mediation is available through and arranged by ODR.

    • Attorneys are not permitted to attend mediation, but lay advocates may attend, although not in a representative capacity.

    • Mediation must be voluntary and cannot be used to deny or delay a parent’s right to a due process hearing.

    • It must be held at a location convenient to both parties.

    • Any agreement reached through mediation must be set forth in a written mediation agreement.

    • Discussions between parties in mediation are confidential and may not be used as evidence in any subsequent due process or civil proceeding.

    • Parties may be required to sign a confidentiality pledge prior to mediation.

    2) Due Process Hearing

    • Can be requested by a parent regarding the identification, evaluation, placement or provision of FAPE of an exceptional child.

    • A parent request for a due process hearing must be forwarded to ODR with a copy provided to the school district.

    • School district may ask for the hearing to proceed with an initial evaluation, to proceed with an initial educational placement, to proceed with a reevaluation to which the parents will not consent, if parent rejects the school district’s proposed identification of a child, proposed evaluation, proposed provision of FAPE, or proposed educational placement. In addition, school districts are required to request a due process hearing if they deny a parent’s request for an independent educational evaluation.

    • Who are the Hearing Officers?  Hearing Officers are experts in special education and/or education law who are selected and trained by ODR.  They cannot be affiliated with any party to the hearing; i.e., an employee of the school district or related to the parent.

    • Hearing officers preside over the hearing and make evidentiary rulings.

    • Formal rules of evidence are not applied in due process hearings.

    • Not as formal as court, more formal than conferences.

    • Parents have the right to be represented by legal counsel and accompanied and advised by individuals with special knowledge of or training regarding children with disabilities (i.e., lay advocates).

    • Parents have the right to have the child present at the hearing.

    • Each side has a chance to have witnesses (school staff, evaluators, other professionals, neighbors, friends or family members who know the child) and each side may ask questions of the other side’s witness.  All witnesses give their testimony under oath.

    • Either party may request the hearing officer subpoena any witness who may have knowledge about the issues in the hearing.

    • Both sides may give the hearing officer written material, such as reports and evaluations to consider.  However, copies of any documents that are to be used at a hearing must be given to the other side at least five (5) business days before the hearing date or they may not be permitted to be entered into evidence.

    • The hearing is recorded and a transcript is made once the hearing is over.

    • The hearing can be closed to the public or open.  Even if the hearing is open, only the decision can be made avail­able to the public.  If the hearing is closed, the decision is part of the child’s records and cannot be released without the parents’ permission.

    • Ordinarily, the hearing must be held within thirty (30) calendar days of the parents’ request and the decision of the hearing officer must be issued within forty-five (45) calendar days of the date the parents request the hearing.

    • Continuances beyond the thirty (30) day timeline may be granted for good cause by request to the hearing officer.

    • The hearing may be day or evening, must be scheduled to be reasonably convenient to the parents, and must take place at a location within the school district.

    • The hearing may take several sessions.

    • The hearing officer issues a written decision to both parties including findings of fact, conclusions of law and an order within fifteen (15) days of the conclusion of the hearing.

    3) Appeals from Hearing Officer’s Decision

    • The Hearing Officer’s decision can be appealed by the parents and/or the school district in state or federal court within 90 calendar days of receiving the decision. There is no longer an Appeals Panel to hear appeals of due process hearings in Pennsylvania, except for cases in which the due process hearing was requested before June 15, 2008.

    • During the litigation of the dispute, the child remains in his or her educational placement at the time of the request for due process.

    4) Potential Damages

    Several remedies may be available to parents of children with disabilities for redressing violations of the IDEIA.

    a) Compensatory Education

    • extends disabled student’s entitlement to a free appropriate education.

    • can be summer school, tutorial or extension beyond normal cutoff point (age 21).

    b) Reimbursement

    • Tuition

    • Occupational therapy

    • Transportation and related expenses

    • Speech therapy

    • Psychotherapy

    • Dietary services

    • Private tutoring/services

    • Private evaluations

    • Personal aide

    c) Attorney’s fees

    Case law since Buckhannon

    Parents filed an attorney’s fee claim in April M. v. Boylston Pub. Sch., No. 99-40181 (D. Mass., August 15, 2001) seeking to recover attorney’s fees, costs and expenses incurred in pursuing their IDEA claim at due process. Applying the rule of law announced by the United States Supreme Court in Buckhannon Board and Care Home, Inc. v. West Virginia Dept. of Health and Human Resources, 121 S.Ct. 1835 (2001), the Court held that parents were not prevailing parties entitled to recover an award of attorney’s fees under the IDEIA. In Buckhannon, the Supreme Court abolished the “catalyst” theory as a proper basis for an award of attorney’s fees under federal fee shifting statutes such as that contained in the IDEA, which allowed parties to recover attorney’s fees when their litigation was deemed to be a catalyst in securing the relief sought. In the alternative, the Supreme Court embraced a “merit” theory, which only awarded attorney’s fees where there has been a judicially sanctioned change in the legal relationship of the parties—e.g. a judgment on the merits, a court- approved settlement, or a settlement enforced through a consent decree. The parties settled their IDEA dispute on the evening prior to the scheduled due process hearing and entered into a private settlement agreement which was not sanctioned by a judicial or administrative body. One of the primary reasons the Supreme Court provided for rejecting the “catalyst” theory was that it often resulted in a second major litigation in a special education case. This would be true in the instant case, as the attorney’s fees were more than double the cost of the out-of-district placement the parents sought for their child. The Court commented that it would still find that Buckhannon barred the parents’ claim for attorney’s fees under the circumstances of this case even if they relied on the viability of the catalyst theory.

    Once again, the Supreme Court’s decision in Buckhannon shows itself to be a dominant force in determining the award of attorney’s fees in special education cases. As applied in J.C. v. Regional Sch. Dist. 10, Board of Educ., parents’ claim for attorney’s fees, argued on the basis of the catalyst theory of recovery, was denied. The student’s parents requested that the school district evaluate him for possible learning disabilities after he enrolled, and a few years passed before a planning and placement team (“PPT”) meeting was convened during which the parents and school personnel discussed the student’s needs. As a result of this meeting, a psychological assessment was finally conducted, but it was ultimately determined that the student did not require special education services or accommodations. Thereafter, the student was suspended from school for allegedly vandalizing a bus, and his parents were notified that an expulsion hearing would be held. The parents, through their attorney, responded by sending a letter to the Board requesting both another PPT and a due process hearing. They also requested that the Board fund an independent evaluation of the student to determine his eligibility for special education and permit him to return to school. The Board cancelled the expulsion hearing and scheduled PPT meetings to address the parents’ requests. The student was evaluated and determined to have a disability and his actions on the school bus were determined to be a manifestation of his disability. Expulsion proceedings were terminated. Both the parents and the school district agreed that no further issues remained to be determined and jointly requested a hearing for the sole purpose of adopting the PPT’s results as an official decision and order. At the hearing, however, the Board changed its mind out of concern that transforming the results of the PPT into an official decision would expose them to liability for attorney’s fees. The hearing officer declined to adopt the PPT’s results as an official order, citing a state regulation that allowed “a settlement agreement to be read into the record as an agreement between the parties only,” and issued a final written decision dismissing the hearing as moot. Following the aborted hearing, the student’s parents sought attorney’s fees. A federal district court awarded them fees on the basis that the parents’ actions were a material factor in bringing about the settlement, and the district appealed. In the interim, the Buckhannon case was issued which overruled the catalyst theory and required some judicially sanctioned relief in order to secure an award of attorney’s fees.

    The Second Circuit reversed this award of attorney’s fees, rejecting the parents’ argument that the development of the student’s IEP could be characterized as more of a judicial consent decree rather than a private settlement. According to the Court, any legal obligation to develop and implement an IEP arose from the IDEA’s statutory mandate, and was not part of a judicial remedy. Moreover, the development of the IEP was not judicially sanctioned, as required by Buckhannon. Nor were the parents entitled to attorney’s fees under Section 504, the Second Circuit joining other circuits to hold that Buckhannon applied equally to claims for attorney’s fees brought under Section 504.

    d) Money Damages are not available under the IDEA.

    In Polera v. Board of Educ. of the Newburgh Enlarged City Sch. Dist., 36 IDELR 231 (2nd Cir., April 29, 2002), the Court considered the availability of money damages as a remedy to compensate violations of the IDEA, reaching a different result than the prevailing view in the Third Circuit. The student, who had a visual impairment, alleged that the school board failed to provide her with a free appropriate public education (“FAPE”), including study materials, compensation for tutoring, and recognition of academic achievements to which she was entitled as a disabled student.  Parents brought their FAPE claim seeking money damages and other relief directly to federal district court, bypassing the administrative process. The district court held that the school district intentionally discriminated against the student in violation of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act and awarded damages to plaintiff, finding that administrative exhaustion was not necessary on those claims. The school district appealed, and the Second Circuit reversed, finding that the student was required to exhaust her administrative remedies pursuant to the IDEA and because she failed to do so, the federal district court lacked subject matter jurisdiction over these claims. The Court determined, as many other courts before it had, that the IDEA provides that potential plaintiffs with grievances related to the education of disabled children generally must exhaust their administrative remedies before filing suit in federal court, even if their claim is formulated under a statute other than the IDEA (such as the ADA or the Rehabilitation Act). As to money damages, the Second Circuit agreed with the prevailing opinion of the other Circuits and the district courts in the Second Circuit that money damages are not available under the IDEA. The Court noted, “The purpose of the IDEIA is to provide educational services, not compensation for personal injury, and a damages remedy – as contrasted with reimbursement of expenses – is fundamentally inconsistent with this goal. The availability of damages also would undercut the IDEIA’s carefully structured procedure for administrative remedies, a mechanism that encourages parents to seek relief at the time that a deficiency occurs and that allows the educational system to bring its expertise to bear in correcting its own mistakes.”  In comparison to the views taken by the Second Circuit, the Third Circuit, in W.B. v. Matula, 67 F.3d 484 (3d Cir. 1995), held that it would be futile, perhaps even impossible, for plaintiffs to exhaust their administrative remedies because the relief sought by plaintiffs in this action, which included money damages, was unavailable in IDEA administrative proceedings. The Third Circuit further found that damages may be sought under Section 1983 for violations of the IDEA and did not definitively rule out the possibility that they may be available directly under the IDEA as well, leaving the door open for these awards in the future.

    5) Discipline/expedited hearings/interim placements

    Under certain circumstances, school districts may unilaterally, meaning without proceeding to a due process hearing, remove a student to an alternative interim placement for not more than forty-five (45) days for disciplinary reasons.

    1. Students with Dangerous Weapons

    • Exceptional child may be placed in an interim alternative setting, as decided by IEP team, up to forty-five (45) days.

    • Pendent placement becomes interim setting.

    • “Weapons” do not include a knife with a blade less than 2½ inches.

    • When such an alternative placement is made, the IEP Team must develop a behavioral interven-tion plan within ten (10) days by conducting a functional behavioral assessment.  It is not clear whether a behavioral intervention plan is any different than a behavior management plan as provided by Pennsylvania’s Chapter 14 requirements.

  • Danger to Self/Others:  If a disabled student is believed to be too dangerous to maintain in school but does not bring a firearm, other weapon or illegal drugs to school, the school may seek a forty-five day alternative placement by means of an expedited due process hearing before a hearing officer upon showing by substantial evidence (beyond a preponderance of the evidence.(1) Substantial likelihood of injury to the child or others;
    (2) Reasonable steps were taken to prevent the injuries to the child or others and;
    (3) Existence of an appropriate IEP.
    (4) Appropriate alternative educational setting.   Scranton Sch. Distr., 29 IDELR 133 (Pa. SEA 1998) (review panel found all four elements unmet).

     

    6) Notice Requirements: Notice must be provided to parents in the following circumstances:

    • when the school district proposes to initiate or change the identification, evaluation, or educational placement of the child with a disability.

    • when the school district refuses to initiate or change the identification, evaluation or educational placement of the child with a disability.

    • When the school district refuses to pay for an independent educational evaluation because it feels its evaluation is appropriate (and the school district should request a due process hearing).

      • Notice must be provided in the parent’s native language or other mode of communication where feasible

      • Notice must be oral where parent does not communicate through written language as long as oral notice is understood by parent and is documented in writing.

    • A copy of procedural safeguards must be given to parents at a minimum:
      a.  upon initial referral for an evaluation;
      b.  upon every notification of an IEP meeting;
      c.  upon reevaluation of a child; and
      d. upon receipt of a request for a due process hearing.

    • A word about custody issues:  Notice must be provided to both parents, even if one parent is the non-custodial, in the absence of a court order terminating parental rights.

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