The Individuals with Disabilities Act (IDEA): Procedural Safeguards and Due Process
What is the IDEA?
The Individuals with Disabilities Education Act (IDEA) is a federal law mandating that all children with disabilities have available to them a free, appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for employment and independent living (P.L. 105-17, 1997). It also ensures that the rights of children with disabilities and their parents are protected.
How must parents be informed about their rights under the IDEA?
School districts must give parents a copy of the procedural safeguards available to them whenever:
their child is referred for an initial evaluation for special education;
they receive a notice of an Individualized Education Plan (IEP) meeting;
their child is reevaluated; and
they register a complaint and request a due process hearing.
The procedural safeguards notice must be written in the parents' native language unless it is clearly not feasible to do so and must be easy to understand. If the parents' mode of communication is not a written language, the notice should be given orally or by other means to ensure the parents' understanding of their rights regarding their child's education.
What is meant by procedural safeguards?
Procedural safeguards are those provisions in IDEA which protect parents' and students' rights with respect to the provision of a free appropriate public education (FAPE). The law provides very specific guidelines for student evaluation, parental consent and involvement, access to records, individualized education program development and implementation, student placement, mediation and due process procedures.These procedural safeguards provide standards for accountability, consistency across classrooms, districts and states, and detail a process for settling disputes in a fair and equitable manner.
What should be contained in a procedural safeguards notice?
The procedural safeguards notice must include a full explanation of all the IDEA's procedural safeguards and the state complaint procedures relating to parents' rights to:
Obtain an independent educational evaluation of their child if not satisfied with the school's evaluation;
Receive prior written notice for actions proposed or refused by the school district;
Grant consent before letting a school conduct an initial evaluation or reevaluation of their child and consent to initial provision of special education and related services;
Have access to all educational records about their child;
Present complaints to initiate due process hearings;
Have their child's education placement maintained throughout the dispute;
Know procedures for students who are subject to placement in an interim alternative educational setting;
Know requirements for placing their child in a private school at public expense;
Use mediation to resolve disputes;
Take a complaint to an impartial hearing officer for a due process hearing;
Appeal the hearing officer's decision;
File civil lawsuits against schools;
Know conditions for recovering attorneys' fees;
Know the state complaint procedures, including how to file and timelines.
What actions by schools require written parental notification?
Parents must be notified in writing and must consent to the education agency's initial evaluation or reevaluation of their child and to the initial provision of special education and related services.Schools must also provide written notice to parents a reasonable time before a meeting to consider changes in a student's identification, evaluation, educational placement and individualized education program. When schools propose or refuse to take certain actions, the written explanation to parents must describe options considered and rejected.It must also describe each evaluation procedure, test, record, report or other relevant factor used as a basis for the proposed or refused action.
The written notice must also include a statement that parents have protection under the procedural safeguards of the IDEA.They must be informed of how to obtain a copy of the safeguards and sources they may contact to obtain assistance in understanding their rights.
What is meant by due process?
Due process means that if the family disagrees with any of the school's processes or decisions regarding the child's identification, evaluation, individualized education program or placement, there are specific procedures required by IDEA for resolving these disagreements.
What is the process for settling disputes?
If the parents and school officials disagree, parents and school officials have the right to a due process hearing with an impartial hearing officer. However, prior to proceeding with a formal due process hearing, parents must be offered the opportunity to resolve their dispute through a mediation process.
If mediation does not resolve the dispute or if parents decline to participate in mediation, they are still entitled to an impartial due process hearing. If either party is dissatisfied with the hearing officer's decision, they can appeal the decision to the state education agency. This is referred to as an administrative appeal.
If the state education agency does not overturn the original decision, all parties still have the right to initiate civil action through state or federal courts.
While due process is an important feature ensuring an appropriate education for students with mental retardation, the most important component is the IEP process. If all parties proceed in good faith, the majority of conflicts can be resolved.
What are the requirements regarding mediation?
Mediation is voluntary for both the parents and the schools. Mediation sessions must be scheduled in a timely manner and be held in a convenient location for all parties involved. Each mediator must be qualified and impartial.An agreement reached during the mediation process must be recorded in a written document.
Mediation cannot be used to deny or delay a parent's right to a due process hearing. Parents who decide not to enter mediation, however, may be required to learn about the usefulness of mediation in resolving disputes and encouraged to use it by a disinterested party.Discussions during mediation are confidential and may not be used as evidence in any subsequent due process hearings or civil proceedings.Attorney's fees need not be awarded for mediation, at the discretion of the state, for a mediation that is conducted prior to filing of a due process complaint by the parent.
How does due process work?
Parents have the right to request a due process hearing by the educational agency when they present complaints about their child's special education identification, evaluation, educational placement or program of services.They must submit a written request for a hearing utilizing the agency's guidelines for documenting relevant information about the child, the nature and facts of the problem and a proposed resolution. School officials may request a hearing if parents refuse or fail to consent for preplacement evaluation or initial placement.Both sides must disclose all evaluations and recommendations intended for use during the hearing at least five days before each administrative hearing.
Any party to a hearing has the right to:
be accompanied by legal representation or counsel. This may include any advocate, not only a lawyer;
present evidence, cross examine and call witnesses;
prohibit evidence not available to the party at least five days before the hearing; and
obtain written, or at the option of the parents, electronic, verbatim record of the hearing and written or at the option of the parents, electronic findings of fact and decisions.
While hearing and appeal procedures are in process, the student should remain in his or her existing program.In the case of an initial placement the school must serve the student until a decision is reached. The decision must be mailed to each of the parties no later than 45 days after the receipt of a request for a hearing or an appeal.
Parties have the right to appeal decisions of due process hearings conducted by an agency other than the state education agency (e.g. the local education agency, the hearing officer). This appeal will go to the state education agency, which will review the hearing to determine that all procedures were consistent with due process requirements.The state must reach a final decision and mail a copy to all parties no later than 30 days after a request for a review.
When are parents entitled to have their attorneys' fees reimbursed?
Federal law provides for the reimbursement of attorneys' fees to families whose administrative and civil action is upheld, with certain limitations.Attorney's fees for IEP meetings are not reimbursable unless the meeting is the result of an "administrative or judicial action."Courts can reduce fees for due process hearings if the fees are excessive, the time spent and legal services are excessive and the parents or their attorney did not provide the school district with appropriate information as required by law. Attorney's fees can also be reduced if the Court concludes that the parents unreasonably protracted a final resolution of the situation.
The National Information Center for Children and Youth with Disabilities (NICHCY). Publications list available at P. O. Box 1492, Washington, D.C. 20013.Telephone: 1-800-695-0285 (voice/TTY) and 202-884-8200 (voice/TTY). Web site:http://www.nichcy.org