YOUR RIGHTS
What is a learning disability? Characteristics of Learning Disabilities Answers to FAQ Answers to FAQ ACADEMIC ACCOMMODATIONS THAT MAY NOT BE REQUIRED FOR STUDENTS WITH LEARNING DISABILITIES This is a sample letter sent to the director of special education to request an independent assessment of your child. Qualified professionals, who are not employed by your school
system, administer the evaluation. You can always have your child tested outside his school district. However, if you expect your school to pay for an independent educational evaluation, then you will need to request this before any
independent testing is done. Your child's school records contain valuable information about her strengths and areas of need. You may want to request copies of the records: This is a sample letter sent to your school principal and/or the special education director to request a review and copies of your child's school records.
Educational Implications for a child with learning disabilities
Do a private evaluator's recommendations need to be
included in the IEP?
Special education rights and responsibilities
Due process hearing form
Sample due process request letter for stay-put
What is a Compliance Complaint?
Sample compliance complaint letter
College Level Rights for Learning Disabled
Sample Request A Meeting letter
Sample Request an Independent Evaluation letter
Sample Request for Student Records letter
Sample Positive Feedback letter
Sample Follow-up letter
Sample Telephone Log Form
Sample Request an Evaluation letter
EXTENDED SCHOOL YEAR (ESY) STANDARDS
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1. When personnel from multiple agencies are involved in making educational decisions about a student, which agent has access to the
student's education records?
This is tricky because there can be multiple appropriate agents who have access to the child's records. The key for district administrators
is to figure out who has access to what. Natural parents, of course, are granted full access, but the situation becomes a little stickier when you have personnel from various agencies such as child welfare, juvenile justice and foster
care.
Sometimes, it isn't appropriate for a foster parent to have access to education records and a surrogate parent must be appointed. Make
sure to check your local and state laws with regard to access questions.
2. Does a noncustodial parent have the right to review a student's education records?
The short answer is yes, unless there is a specific court order preventing the noncustodial parent from accessing the student's records. This is a scenario that crops up frequently in districts, especially when the parents' separation
or divorce has been acrimonious. Each parent tries to impose restrictions on access. Most districts hear mom say that she'd be worried or feel unsafe if dad was granted access.
This response can unhinge administrators and make them wary of granting access. But unless there's a court order preventing it -- and that's rare, although it has happened in cases where there was abuse -- the noncustodial parent is
entitled to access.
3. Are personal notes made about a student protected under FERPA?
It depends. Under the "sole possession of maker provision" in FERPA, if an educator creates a note for the educator's eyes only, it doesn't have to be released to parents.
However, if the educator puts personally identifiable information in the notes, such as a name or student work sample, or shares the information with the IEP team or anybody else, then it is fair game for parents. My advice to
educators is to be aware that any paperwork
you generate on a child may have to be released.
4. Is e-mail considered an education record?
Yes, if it contains personally identifiable information. If an e-mail from one educator to another has the child's name on it, it's fair game. One
caveat: if an e-mail has been deleted, consider it gone. I don't think it's reasonable for a parent to request that a deleted e-mail be retrieved.
5. Is it OK to destroy test protocols?
Destroying test protocols is a questionable practice. Guidance from the Family Policy Compliance Office, which interprets FERPA, has
suggested that test protocols be treated just like any other educational record.
Still, districts have argued that if a protocol doesn't contain any identifiable information it can be thrown out. I don't think that's a good
idea. Instead, educators should do the following when confronted with a test protocol request:
Communicate with parents. Have the tester contact the parents and ask what they want to see on the protocol. Then, rather than sharing
the entire test, the tester can help interpret the scores for parents. Often, parents think scores on tests such as the WISC or the
Woodcock Johnson, which measure cognitive ability, are either too high or too low. Either a parent doesn't understand or a parent has a
preconceived notion of what a score should mean.
If that doesn't work, ask the parents if they have a private psychologist who would be willing to review the protocol and interpret it for them.
A test protocol by itself is essentially useless to parents. Most requests to see them are made by attorneys or parents who are dissatisfied with a student's placement or progress.Case name: Watson ex rel. Watson v. Kingston City Sch.
Dist., 41 IDELR 181 (N.D.N.Y. 2004).
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DO A PRIVATE EVALUATOR'S RECOMMENDATIONS NEED TO BE INCLUDED IN THE IEP?
Case name: Watson ex rel. Watson v. Kingston City Sch. Dist., 41
IDELR 181 (N.D.N.Y. 2004).
Ruling: The U.S. District Court, Northern District of New York ruled that the failure of a district to implement the recommendations of a
parent's private evaluators in an IEP for a high-school student didn't make a substantively appropriate IEP inappropriate. The court
emphasized the deference afforded to educational agencies' methodology decisions.
What it means: Although a parent may recommend a methodology, the district is not obligated to include the recommendation in a
proposed IEP. The district's obligation is to provide an IEP that is reasonably calculated to confer an educational benefit on the student.
Summary: The court determined that the district provided an appropriate IEP to a high-school student with a learning disability and
concerns about being classified as a student needing special education, despite its failure to implement the recommendations of the parent's independent evaluators. The IEP provided a "comprehensive approach of combining special
education sessions with in-class modifications." The parent wanted the student placed in a private school for children with dyslexia. The private evaluators recommended the student be placed in a small class environment, which used
Orton-Gillingham method of reading instruction. The court explained that deference must be paid to the district's methodology decisions and not to the recommendations of a separately hired expert if the district's IEP meets the IDEA's
substantive requirements. The parent questioned the district's class size, peer group and type of instruction, areas the court characterized as "methodology." It stated that "so long as the administrative record provides sufficient
support that the substantive contours of the IEP are reasonably calculated to confer educational benefits, as it does here, it is not within a Court's purview to upset" the district's recommended programming. The court found the
parent's procedural challenges were minor in light of the IEP's "substantive propriety."
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SPECIAL EDUCATION RIGHTS AND RESPONSIBILITIES
Reprinted from the CDE
Sample Complaint Letters at the Very Bottom
What is a due process hearing?
When the parents of a student with disabilities and the educational agency disagree about the child’s eligibility, placement, program needs or related services, either side can request a due process hearing. At the hearing, both sides
present evidence by calling witnesses and submitting any reports and evaluations that support their position. An independent hearing officer (hired by the state) decides whose witnesses and documents are correct and what program is
appropriate. A DUE PROCESS HEARING IS GENERALLY NOT APPROPRIATE FOR ISSUES ADDRESSED BY THE COMPLIANCE COMPLAINT PROCESS. See Question 2.
____________________________________________________________________________________________________________________________
Form: Due Process -- Request for a Hearing
California Department of Education
INSTRUCTIONS: Complete and submit two (2) copies. Retain one (1) copy for
your records. Submit signed original to:
REQUEST FOR A DUE PROCESS HEARING
Superintendent of Public Instruction
721 Capitol Mall, Room 524
Sacramento, CA 95814
This form has been developed to assist parents in requesting a due process hearing Provide all information requested. Failure to provide all information may result in a court reducing the amount of any attorneys' fees awarded. You will
be contacted by the department regarding your hearing request.
FOR CDE USE
Date Received
Case No. Assigned
Due Date
GENERAL INFORMATION
Name of Party(ies) Requesting the Hearing
Relationship(s) to the child
Address of Party(ies) Requesting the Hearing
Street, City, State, ZIP
Daytime Telephone Area/No.
Name of Child
Address of the Child's Residence Street, City, State, Zip
School District of the Child's Residence
School District Where Child is Attending
Describe the nature of the problem the child is experiencing relating to the action proposed, including facts relating to the problem. State the specific reasons for requesting a hearing. Use additional sheets or back if necessary.
A proposed resolution of the problem (to the extent known and available to the parents at this time). Use additional sheets or back it necessary.
SIGNATURE
Signature of Party(ies) Requesting Hearing
Date Signed
____________________________________________________________________________________________________________________________
What is a compliance complaint?
When the educational agency appears to have violated a part of special education law or procedure, a parent, individual, public agency or organization can file a complaint with the California State Department of Education (CDE). A
violation could be: (1) failure to assess or refer a child to special education; (2) failure to follow timelines for assessment and referral; (3) failure to inform parents of an individualized education program (IEP) meeting; (4)
failure to implement the IEP; or (5) failure to implement a due process hearing decision or mediation agreement. An investigator from the CDE or your local school district investigates the allegations and makes a written determination
of whether the education agency was "out of compliance" with law or with the student’s IEP. If an education agency is found "out of compliance," the school district should be ordered to come back into compliance. In addition, the CDE
may order the agency to submit a plan of correction – a document describing the steps the agency has taken and will take to assure that the problem does not occur again,
either to this student or to others, as well as the timelines for taking those steps.
What is the difference between a compliance complaint and a due process hearing?
Although people often confuse compliance complaints and due process hearings, the main difference is:When there is a disagreement about what should go into a child’s IEP, or where to implement the IEP, then a due process hearing is
appropriate; but when the education agency has not followed special education laws or procedures or has not implemented what is already specifically written into a student’s IEP, then a
compliance complaint is appropriate.In other words a due process hearing involves a disagreement over what a child’s program should include, while a compliance complaint involves a failure by the educational agency to follow the rules
or to do what has already been agreed to in writing in the IEP.
Would I follow different complaint procedures if OT/PT or mental health services are not provided as specified in my child’s IEP?
If occupational or physical therapy (OT/PT) or mental health services are not provided in accordance with your child’s IEP, you can file the complaint described in Question 2 and/or a complaint under the Assembly Bill (AB) 3632
interagency dispute resolution procedures. Filing complaints under both processes may bring a quicker resolution. The interagency dispute resolution procedures apply if your child is not receiving OT/PT or mental health services as
specified in the IEP. In that situation, you can file a notice of failure to provide related services with the Superintendent of Public Instruction (Superintendent) or the Secretary of Health and Welfare (Secretary). [California
Government Code (Cal. Gov. Code) Sec. 7585(a).]
Secretary of Health & Welfare
1600 Ninth Street, 4th Floor
Sacramento, CA 95814
Superintendent of Public Instruction
721 Capitol Mall, Room 524
Sacramento, CA 95814
Before reviewing your complaint, the agencies involved will want to see a copy of your child’s IEP. You should send a copy of the IEP with your complaint. The Superintendent and the Secretary must meet to resolve the issue within 15
calendar days of receiving the complaint. They must mail a written copy of the meeting resolution to you, to the local education agency, and to the affected departments, within 10 days of the meeting. [Cal. Gov. Code Sec. 7585(b).] If
the issue cannot be resolved within 15 days to the satisfaction of the departments involved, it can be appealed to the Office of Administrative Hearings (OAH). The OAH will review the issue and submit findings within 30 days of receipt
of the case. The OAH decision is binding on all parties to the dispute. [Cal. Gov. Code
Sec. 7585(c)–(e).]
When a complaint is filed pursuant to Section 7585(a), the student affected by the dispute must receive the service pending resolution of the dispute if the student had been receiving it. [Cal. Gov. Code Sec. 7585(f).]
Who can file a compliance complaint?
Any individual, public agency, or organization (such as a parent group) may file a written complaint. [Title 5 California Code of Regulations (C.C.R.) Sec. 4600(b).] The complaint may concern a single child, a group of children, or a
local education agency policy which you think violates federal or state special education law. Beginning in 2003, teachers and other staff may use the complaint process to address problems they experience from their superiors when they
(teachers and other staff) have tried to help parents or special education students obtain appropriate special education services. As of 2003, no district employee may directly or indirectly use or attempt to use his/her
official authority or influence to intimidate, threaten, coerce, or attempt to intimidate, threaten, or coerce any person, including, but not limited to, a teacher, related services provider, paraprofessional, aide, contractor, or
subordinate for the purpose of interfering with that person’s effort to assist a parent or guardian of a special education student to obtain services or accommodations for that student. [Cal. Ed. Code Sec. 56046(a).] If a teacher or
other employee of the district believes an administrator or other employee of the district has violated this prohibition, he/she can file a complaint with the State Department of Education and ask the Department for an investigation.
[Cal. Ed. Code Sec. 56046(b).]
What can I do if a teacher or other school staff person hurts my child – other than bringing a civil lawsuit against a school district or reporting
the incident to the appropriate law enforcement authorities?
If a child or group of children is in immediate physical danger, or the health, safety or welfare of a child or group of children is threatened, you may file a complaint with the CDE under the Uniform Complaint Procedure [5 C.C.R. Sec.
4600 et seq.], and the CDE must investigate directly. [5 C.C.R. Secs. 4611(a) and 4650(a)(viii)(C).]
When should I file a compliance complaint directly with the California Department of Education (CDE)?
Nearly all the violations that can form the basis of a compliance complaint should be filed with the CDE. The CDE must directly intervene (not refer the complaint to the local agency for self-investigation) in any of the following
situations:
The complaint indicates that a public agency, other than a local educational agency, as specified in Cal. Gov. Code Sec. 7570 (AB 3632), has failed or refused to comply with an applicable law or regulation relating to the provision of
free, appropriate public education to individuals with disabilities. The complaint indicates that the local educational agency or public agency has failed or refused to comply with the due process procedures established in federal and
state law and regulations, or has failed or refused to implement a due process hearing order. The complaint indicates that the child or group of children may be in immediate physical danger or that the health, safety or welfare of a
child or group of children is threatened. The complaint indicates that a student with disabilities is not receiving the special education or related services specified in the student’s IEP. The complaint involves a violation of federal
law governing special education, 20 U.S.C. Sec. 1400 et seq., or its implementing regulations. [5 C.C.R. Sec. 4650(a)(viii).]
If the facts of your situation fit into any one or more of the five situations described above, and if you feel that your local school district should not investigate your complaint, you should specifically request that the CDE
investigate your complaint directly. See Sample Letter - Compliance Complaint, at the end of this chapter. You should identify the situations outlined above - (1) through (5) - that most resembles your situation. You should mention the
specific situation in your complaint letter. Since numbers (1) through (5) cover most of the situations that can lead to filing a compliance complaint, you should be able to identify a subsection that fits your situation.
Outline the reasons for your request in your complaint letter. Your reasons may not conform exactly to the criteria stated above. However, this should not prevent you from at least making the request. The Compliance Unit will determine
whether or not to first refer your complaint for a local investigation.
How do I file a compliance complaint with the CDE?
To file a compliance complaint with the CDE, write to:
Complaint Management and Mediation Unit
Special Education Division
California State Department of Education
515 L Street, Suite 270
Sacramento, CA 95814
You should fully describe the situation that caused you to request the compliance investigation, including which parts of the law have been violated and the basis for your request. You may not know the exact sections of law that have
been violated. That is all right. If you describe the situation adequately, the Complaint Management and Mediation Unit should match the correct sections with your particular situation. If your child’s IEP or other documents are
relevant to your complaint, you should attach them. See Sample Letter - Compliance Complaint at the end of this chapter.
What happens after I file a complaint?
Under federal and state law, the CDE has 60 calendar days from receipt of the complaint to carry out any necessary investigation and to resolve the complaint. [34 Code of Federal Regulations (C.F.R.) Sec. 300.661; 5 C.C.R. Sec
4631(a).] When it receives your complaint, the CDE must review the complaint to determine if it is a matter for state or local investigation. Once the CDE makes its determination, CDE must immediately notify you of its decision and
either refer the complaint for local investigation or begin its direct investigation. [5 C.C.R. Sec. 4651.]
Although the complaint office must process your complaint within 60 days, the office has developed a process to "fast-track" certain complaints which present a small number of uncomplicated issues and provide resolution sooner than 60
days. Very often parents need resolution much more quickly than 60 days. The most obvious examples of this are when school districts attempt to "indefinitely" suspend students beyond the legal limits, or do not comply with an IEP or
with the laws during an extended school year program, or when certain services are to be provided by a school district during any field trip or end-of-the-year activity and the school district refuses such services just days before the
event.
If your reason for filing a compliance complaint involves one or two simple compliance issues, you may wish to ask in your complaint for "fast-track" treatment. Examples of a simple complaint might include: "my child’s IEP specifies
that he is to receive transportation and the bus has not come for two days," or "my child’s teacher does not attend his IEP meetings," or "my child’s IEP specifies that he have an instructional aide during certain periods of the day
and the aide has not been provided," or "my child’s principal has told me that because of my child’s behavior at school I should not bring him back." After filing your complaint, you may also wish to call the compliance office to find
out who the complaint has been assigned to and to remind that individual of the simplicity of your complaint and your desire or need for expedited processing.
Whether or not you file your complaint as a fast-track complaint, if you do not hear from the Complaint Management and Mediation Unit within 10 days after you mail your complaint, you should call the Compliance Unit at (916) 445-4632,
fax (916) 327-3516 to follow up.
How does the CDE investigate complaints?
When the CDE either directly investigates your complaint or you appeal a local education agency’s decision after a self-investigation, the CDE must offer to mediate the dispute. The mediation must be conducted within the
60-calendar-day timeline for completion of the complaint investigation. The time to complete the mediation cannot exceed 30 days unless you and the local education agency agree to the extension. [5 C.C.R. Sec. 4660(a)(1) and (c).]
Either you or the local education agency can waive (give up) your right to the mediation process. If mediation is waived or if mediation does not resolve the issues, CDE must conduct an on-site investigation of the complaint. However,
the parties may agree to mediate some of the issues and submit the other issues for state investigation. [5 C.C.R. Sec. 4660(a)(2), (b).]If an on-site investigation is necessary, the CDE will appoint a compliance investigator to act on
your complaint. At least two weeks before the investigation, the CDE will send a written notice of the investigator’s name and the investigation dates. The notice will also explain the investigation process.
The investigator will contact you and the local education agency to obtain both views of the problem and will review records if necessary. [5 C.C.R. Secs. 4662, 4663.]
The CDE must complete its investigation and resolve the complaint within 60 calendar days after receiving a request for direct state intervention or an appeal of a local investigation. [34 C.F.R. Sec. 76.78; 5 C.C.R. Sec. 4662(d).]
Who handles complaints when the CDE does not intervene directly?
If the CDE chooses not to intervene directly, it must send the complaint immediately to the local education agency involved for investigation. [5 C.C.R. Sec. 4640(a)(1).] In addition, the CDE must notify you by letter that it has
transferred the complaint and that the CDE is requesting local resolution of the complaint. The letter must also advise you of the appeal procedures should you disagree with the results of the local investigation. [5 C.C.R. Sec.
4640(a)(2).]
How do I file a compliance complaint with my local school district?
You should file a compliance complaint with your local school district unless you are requesting a direct investigation by the CDE. See Question 6. You should send the complaint to your Superintendent of Schools or the Director of
Special Education. [5 C.C.R. Sec. 4630(b)(2).]
Each school district must have its own written complaint investigation policy and procedure that has been approved by its Board of Education. Be sure to request a copy of your school district’s specific complaint investigation process
before you file a complaint with your local district.
You should fully describe the situation that has caused you to request the compliance investigation, including which parts of the law have been violated. You may not know the exact sections of law that have been violated. That is all
right. If you describe the situation adequately, the school district should match the correct sections with your particular situation. If your child’s IEP or other documents are relevant to your complaint, you should attach them.
How does a local school district conduct investigations?
The school district has 60 calendar days after receiving your complaint to complete an investigation. This time period may be extended only with your written agreement. [5 C.C.R. Sec. 4631(a).]
You or your representative, or both, and the school district must have the opportunity to present information relevant to the complaint. Depending on your school district’s policies and procedures, the investigation may include a way
for you and the school district to meet and discuss the complaint or to question each other or each other’s witnesses. [5 C.C.R. Sec. 4631(b).]
The school district’s decision after investigation must be in writing. It should contain findings of fact, a determination of whether the school district was out of compliance, corrective actions required by the school district (if
any), and the reasons for making the decision. The decision should also include a notice of your right to appeal to the CDE and the procedures you must follow in making an appeal to the CDE. [5 C.C.R. Sec. 4631(c).]
Can a local school district try to mediate a complaint as part of its local investigation process?
Yes. School districts may develop a mediation procedure in order to resolve complaints before conducting a formal investigation. This mediation process cannot extend the 60-day timeline for resolving complaints unless you agree in
writing to the extension. However, mediation cannot be a mandatory part of the process. You may waive this mediation step. [5 C.C.R. Sec. 4631(d).]
What happens if I disagree with the local education agency’s report?
You may appeal directly to the CDE, Superintendent of Public Instruction, for review of the local decision. You must make any appeal to the CDE for review of a local education agency decision within 15 days after you receive the final
written decision of the local agency. [5 C.C.R. Sec. 4652(a).] If you appeal a decision to the Superintendent of Public Instruction, an impartial review must be completed and a report mailed within 60 days of receipt of the request for
appeal. [5 C.C.R. Sec. 4662(d).] See Questions 9 and 10 for the CDE investigation process.
When appealing a local education agency decision, your complaint must set out the reasons for appealing the decision. The appeal must include a copy of the original complaint and a copy of the local education agency decision. [5 C.C.R.
Sec. 4652(b) and (c).]
What happens when the CDE finds a public education agency to be out of compliance?
If the investigation indicates a failure by the public education agency to comply with the law, the CDE may require corrective action. The CDE investigation report must set forth the corrective actions the education agency is to take,
along with timelines for correction. [5 C.C.R. Sec. 4664.]
If the noncompliance is not remedied, the Superintendent shall take further action. Actions may include a court proceeding for an order compelling compliance, or a proceeding to recover or curtail state funding to the noncompliant
local education agency. [5 C.C.R. Sec. 4670(a).]
The CDE has indicated that it does have the authority to order compensatory services to make up for services lost during a period of noncompliance. The CDE has also indicated that it can order a local district to reimburse a parent for
any out-of-pocket expenses incurred as a result of purchasing IEP services for a child during a period in which a school district failed to provide these services.
What can I do if I do not agree with the CDE’s decision?
If you or the local education agency are dissatisfied with the CDE’s investigation report, either of you may request reconsideration by the Superintendent within 35 days of receipt of the CDE’s investigation report. The Superintendent
may respond in writing within 15 days, either modifying the conclusions or corrective actions of the CDE’s report, or denying the request outright. The CDE’s report remains in effect and enforceable pending the Superintendent’s
reconsideration. [5 C.C.R. Sec. 4665(a).]
Can I file a complaint with any other agencies?
Yes. If your complaint involves an issue of educational discrimination under Section 504 of the Rehabilitation Act of 1973 (see Question 19), you can file a discrimination complaint with the U.S. Department of Education, Office of
Civil Rights (OCR). Complaints of educational discrimination against students by education agencies may also be filed with the CDE (California Department of Education). [5 C.C.R. Secs. 4600(c), 4630(b), 4650(a)(ii).] Issues of
disability-based educational discrimination, however, are usually appropriate for filing with the OCR under Section 504.
How would I file a complaint with the OCR?
The OCR is responsible for investigation of complaints regarding allegations of discrimination on the basis of disability that may constitute violations of Section 504 of the Rehabilitation Act of 1973. [29 U.S.C. Sec. 794.] You will
find the regulations defining what constitutes discrimination in education under Section 504 at 34 C.F.R. Sec. 104.1 et seq.If you wish to file a complaint with the OCR, you should write or call OCR at the address below and ask for a
copy of the complaint form and instruction sheet for filing such a complaint.
U.S. Department of Education, Office for Civil Rights
Region IX Office, Old Federal Building
50 United Nations Plaza, Room 239
San Francisco, CA 94102
Telephone: (415) 556-4275;
TTY (415) 437-7786;
FAX (415) 437-7783
Complaints that do not allege violations of Section 504, but may constitute violations of Federal Special Education Law, should be filed with the CDE as a compliance complaint. See Questions 1, 2, 3, 5, 6, 19 and 20.
When would I file a Section 504 discrimination complaint with OCR?
A parent or other interested party may wish to file a Section 504 complaint whenever, as a result of the conduct or policy of the education agency, a student with a disability does not receive educational benefit from the program
commensurate with that received by her nondisabled peers. This includes, of course, the situation where a student with a disability is excluded from participation in any federally funded program or activity, such as public education.
[34 C.F.R. Sec. 104.4(a).] Schools generally receive federal funding. A student does not have to have a special education qualifying disability for you to file a discrimination complaint with OCR against a school. (See Chapter 1,
Question 6 of this manual.) Such complaints could include, for example, access issues like architectural barriers or program access or the failure of a district to implement an agreed-upon accommodation plan for a student. You must
file a discrimination complaint within 180 days from the date of the discrimination. [34 C.F.R. Sec. 100.7(b).]
How does the OCR act on complaints?
The OCR will acknowledge your complaint within 15 days of its receipt. However, OCR may take up to 45 days to review your complaint to determine if additional information is necessary to process your complaint. OCR will investigate
your complaint and send you a letter of finding within 120 days from the start of the investigation. If it finds the school district to be out of compliance, OCR will seek voluntary compliance within 60 days from date the school
district receives the letter of finding. If arrangements for compliance cannot be achieved,
OCR will begin enforcement measures within the next 30 days.If you requested a state due process fair hearing on the same issue that you filed with OCR, OCR will postpone action on your complaint until resolution of your request for a
hearing.
Can I file a discrimination complaint with the CDE?
Yes. You may file a complaint of discrimination under the CDE compliance complaint process. Complaints alleging discrimination are one type that calls for direct CDE intervention, as opposed to local education agency
self-investigation. [5 C.C.R. Sec. 4650(a)(ii).] Complaints alleging discrimination must be filed within six months of: (1) the discriminatory conduct or (2) the date the complaining party first learned of the discriminatory conduct.
The Superintendent of Public Instruction may extend the six-month filing period by 90 days for good cause upon a written request that describes the reasons for needing the extension. [C.C.R. Sec. 4630(b).]
The individual who files the complaint must ask for direct CDE intervention pursuant to Section 4650(a)(ii). Otherwise, the complaint should have been filed with the local education agency. [C.C.R. Sec. 4630(b)(2).]
These investigations must be conducted in a manner that protects the confidentiality of the parties and the facts. [5 C.C.R. Sec. 4630(b)(3).]
When would I request a due process hearing?
Normally, you would request a due process hearing after an IEP meeting: (1) if you disagree with the special education service or placement being proposed by the district; or (2) when the district refuses to provide an assessment, a
service or a placement for your child which you believe is necessary. [34 C.F.R. Sec. 300.507(a); Cal. Ed. Code Sec. 56501(a).] Under state law, students cannot initiate due process procedures unless they are emancipated or are wards
or dependents of the court for whom no parent can be identified or located and for
whom no appropriate surrogate parent has been appointed. [Cal. Ed. Code Sec. 56501(a).]
When must a school district notify me if the district proposes to change or modify my child’s special education program?
An important first step to due process of law in special education is an adequate written notice from the school district to you of exactly what the district is proposing or refusing to do and why. Any time a school district proposes
to initiate or change the identification, evaluation, or educational placement of a student or the provision of a free, appropriate public education, it must provide the parent of the student with a written notification. In other
words, a district must notify you any time it proposes:
To change your child’s special education qualifying condition or "label" (for example, learning disability) including a determination that she has no special education qualifying condition;
To initiate or change an evaluation of your child;
To change your child’s educational placement; and
To change a component of your child’s IEP, it must give you a written notice that contains all the information described in Question 25.[34 C.F.R. Sec. 300.503(a)(1)(i).]
In addition, any time a district refuses a parent’s request for a specific identification (qualifying condition) change, for a certain evaluation or change to an existing evaluation, for an educational placement change, for a change in
a component of her child’s IEP, the district must provide the parent with the same kind of written notice described below which explains and supports the reasons for its refusal. [34 C.F.R. Sec. 300.503(a)(1)(ii).]
What information should the school district include in this notice?
The written notice required above must contain all of the following:
A full explanation of all procedural rights available to the student, including rights to pursue due process procedures and rights to confidentiality of information as provided in federal special education regulations;
A description of the action proposed or refused by the district, an explanation of why the district proposes or refuses to take the action, and a description of any options the district considered and the reasons why those options were
rejected;
A description of each evaluation procedure, test, record, or report the district used as a basis for the proposed or refused action;
A description of any other factors that are relevant to the district’s proposal or refusal; and
A statement that the parents have certain rights and how the parents can obtain a written description of those rights.
The notice must be written in language that is understandable to the general public and must be provided in the native language or other mode of communication of the parent, unless it is clearly not feasible to do so.[20 U.S.C. Sec.
1415(c); 34 C.F.R. Sec. 300.503(b).]
The information contained in a written notice is crucial to a parent making intelligent and informed decisions. In Union School District v. B. Smith [20 IDELR 987], a Federal Circuit Court in California ruled that notice provisions
were not merely technical requirements but substantive rights, and precluded the district from arguing the appropriateness of a placement that had been verbally offered by the district and refused by the parents but never officially
offered in writing to the parents under the written notice requirements described above.Unfortunately, this notice of proposed or refused changes by districts is one of the most universally ignored provisions of special education law
in California.
Are there any other notices that the school district must give?
Yes. The district must give parents a written notice of their procedural rights at the time the child is first referred for special education evaluation, every time the parents are notified of an IEP meeting, whenever a child is
reevaluated, and whenever a parent files for a due process hearing. [20 U.S.C. Sec. 1415(d)(1); 34 C.F.R. Sec. 300.504.]
What information must the procedural rights notice contain?
The procedural rights notice must be in the native language of the parents (unless the school district is clearly unable to do so). It must be written in an easily understandable way and must contain a full explanation of all of the
following:
Your rights to an independent educational evaluation (see Chapter 2 of this manual);
Your rights to prior written notice of change or refusal to change a program or service, etc., for a pupil (see Question 25 above);
The requirement of parental consent to the assessment, program and placement of your child;
Your rights to access your child’s educational records;
Your right to request a due process hearing;
Your child’s right to remain in his current placement while a due process hearing is pending, and any limitations or exceptions to that right;
The required procedures school districts use for pupils who are subject to placement in alternative educational settings for limited periods of time by school officials or hearing officers;
The requirements for parents when they wish to place their children in private schools and seek public financing for such placements;
The availability of and procedures for mediation;
The procedures concerning due process hearings including the requirement that all evaluation results and recommendations be disclosed by the parent to the district and by the district to the parent at least five days before the
hearing;
The availability of court appeals following a due process hearing decision;
The availability of attorneys’ fees from a school district to the parents where the parents are the prevailing party in a due process hearing, and a full explanation of any limitation on that right or potential denial of or reduction
in attorneys’ fees
for parents; and
The availability of the state compliance complaint procedure, including a description of how to file a complaint and the time lines under that process.[20 U.S.C. Sec. 1415(d)(2); 34 CFR Sec. 300.504(b).]
What happens to my child if I file for a due process hearing?
Except in certain circumstances discussed below, your child must remain in her then current educational placement and have her current IEP fully implemented (including all related services) from the time you request a hearing until the
due process hearing proceedings (and court appeals, if any) are completed. [Cal. Ed. Code Sec. 56505(d); 34 C.F.R. Sec. 300.514.] This protection is usually called the "stay put" placement. Once the due process hearing is over, if a
case goes on to a court appeal, the stay put placement becomes whatever the hearing officer has ordered in the administrative hearing. [Cal. Ed. Code Sec. 56505(d).] Your child’s current educational placement is whatever his IEP says
it is if there is an agreed upon IEP that has gone into effect. If no IEP has been agreed to or has gone into effect, the current educational placement for stay-put purposes is the operative placement actually functioning at the time
the dispute first arises. [Thomas v. Cincinnati Bd. of Educ., 918 F.2d 618 (6th Cir. 1990).] The stay-put placement may be altered if the parent and school agree to a change in placement or services. The child’s stay-put placement
might also change pending the results of the due process hearing in one of the following situations:
The child has engaged in a weapons or drugs offense; the school may change the child’s placement, even if the parent has asked for a due process hearing, to an interim alternative educational setting (IAES) for up to 45 days [34 C.F.R.
Sec. 300.520(a)(2)];
The school persuades a hearing officer that the child’s presence in his current placement is substantially likely to result in injury to the child or someone else; the hearing officer may place the child in an interim alternative
educational setting (IAES) for up to 45 days [34 C.F.R. Sec. 300.521];
The school persuades a state or federal judge that the child’s presence in his current placement is substantially likely to result in injury to the child or someone else; whether the child goes to school anywhere and what his education
consists of pending the due process hearing will depend on the terms of the judge’s order [Honig v. Doe, 484 U.S. 305 (1988); Gadsden City Bd. of Ed. v. B.P., 3 F.Supp.2d 1299 (N.D. Ala. 1998)]; however, as a "suspended" student,
pursuant to the court’s order, the student continues to be eligible for a free appropriate public education during such a period of extended suspension [20 U.S.C. Sec. 1412(a)(1)(A).]; or
The alternative educational settings referred under numbers 1 and 2 above, must be selected so as to enable the child to continue to progress in the general curriculum and to continue to receive those services and modifications to
which she is entitled.
The school district changed my child’s placement without my consent and without following the procedures described in the three situations listed above. They said all they had to do was to have a meeting and determine that my child’s
behavior was not due to his disability and they could do whatever they wanted to with him. Is that true?
No, the ability of school officials to change special education pupil’s placements is limited to the situations listed in the previous answer. Some districts have attempted to only do what is called a "manifestation review" and then do
whatever they want to regarding a special education student’s placement.
If a school proposes to change a child’s placement or to expel or suspend a student for a long period of time (more than 10 consecutive days or more than 10 total days in a pattern of suspensions), the school must, no later than 10
days after it makes this decision, do a "manifestation determination." A manifestation determination is a review of the relationship between the child’s disability and his behavior. [34 C.F.R. Sections 300.523(a) and 300.519.] The IEP
team and any other qualified persons conduct this review. [34 C.F.R. Sec. 300.523(b).] This is a
critical process because only if the team finds that the behavior is not a manifestation of the child’s disability may the school change the child’s placement or take other disciplinary action against the student. [34 C.F.R. Sec.
300.523(c).]
In making a manifestation determination, the team must review the child’s IEP and placement, evaluations and diagnostic results, informationfrom the parents, and observations of the child. [34 C.F.R. Sec. 300.523(c)(1).] In light of
that information, the team must find each ofthe following three statements to be true in order to proceed against the child or change his placement:
In relationship to the behavior subject to discipline, the child’s IEP and placement were appropriate and the special education, supplementary aids and services, and behavioral intervention strategies were provided consistent with that
IEP and placement;
The child’s disability did not impair his ability to understand the impact and consequences of the behavior subject to discipline; and
The child’s disability did not impair his ability to control the behavior subject to discipline.
The school district had such a meeting and decided that my child’s behavior was not a manifestation of his disability. I disagree. What can I do to stop the change of placement?
You can appeal the determination to a due process hearing. The hearing will be an expedited hearing and will likely be scheduled within 20 or 25 days. [34 C.F.R. Sec. 300.525.] While that appeal is pending, your child must remain in
his current placement [34 C.F.R. Sections 300.524(c) and 300.514.], unless the child has been moved to an alternative educational setting or there has been a court order prohibiting him from school attendance. [See next Q&A.]
I appealed but the school told me that my child’s placement during the appeal process will be his new placement not his prior one. Is that
correct?
No, unless the behavior your child engaged in involved weapons or drugs or a hearing officer has already determined that there is a substantial likelihood of injury to someone if your child returns to his prior placement. The only
exceptions to the rule that your child must return to his previous placement pending an appeal procedure occur when you are appealing the interim alternative educational setting (IAES) your child was placed in (by the school for weapon
or drug offenses or by a hearing officer for substantial likelihood of injury), or when you are appealing the manifestation determination resulting from either of those IAES placement procedures. [34 C.F.R. Sections 300.524(c) and
300.526(a).] In those two situations, but in no others, your child’s placement pending the hearing will be the IAES until the hearing decision is issued or until the 45 days allowed for IAES placements expires, whichever comes first.
[34 C.F.R. Sec. 300.526(a).]
How do I set up a due process hearing?
You must make your hearing request in writing and send it to:
Special Education Hearing Office
Institute for Administrative Justice
McGeorge School of Law
3200 Fifth Avenue
Sacramento, CA 95817
(916) 739-7053
(916) 739-7066 (FAX)
You should also send a copy to the local education agency. [Cal. Ed. Code Sec. 56502.] If you ultimately prevail in the due process hearing, and if you have used an attorney to represent you and wish to collect your attorney’s fees
from the school district, your request for fees may be reduced if you have not provided certain information in your letter initially requesting a due process hearing. At a minimum, your letter requesting a due process hearing must
include: the name and residence address of the child and the name of the school the child is attending, a description of the nature of the problem, and a description of your proposed resolution or resolutions to the extent known to you
at the time. [20 U.S.C. Sec. 1415(b)(7).] CDE is required to develop a model form to assist parents in filing for due process which includes all necessary information. [20 U.S.C. Sec. 1415(b)(8); 34 C.F.R. Sec. 300.507(c)(3); Cal. Ed.
Code Sec. 56502(b).] The Special Education Hearing Office (SEHO), which conducts the due process hearings and mediations, recommends that the letter requesting due process contain some additional information. For that reason, you
should use the Sample Letter - Due Process Hearing Request at the end of this chapter. When you make your written request for a due process hearing, you should also ask for a copy of the Special Education Hearing Office Notice of
Procedural Safeguards so that you know all the rules for participating in the hearing process.
After receipt of your request, the local education agency must inform you of free or low cost legal services available in the area. [Cal. Ed. Code Sec. 56502.]
Can the local education agency request a due process hearing?
Yes. Either the parent or the local education agency may request a due process hearing. [34 C.F.R. Sec. 300.507(a); Cal. Ed. Code Sec. 56501(a).] Once a request for a due process hearing is made, how long does SEHO have to hold the
hearing and make a decision?SEHO has 45 days from the day it receives the due process hearing request to make a decision. [34 C.F.R. Sec. 300.511; Cal. Ed. Code Sec. 56502(a).] Upon
request, SEHO can grant a continuance for good cause. [Cal. Ed. Code Sec. 56505(f).]
What is a mediation conference?
After a due process hearing request is made, SEHO will provide a mediator to sit down informally with both sides and try to resolve the disagreement. The first step in due process is usually a mediation conference where a mediator from
SEHO helps the parent and school district to resolve their disagreement. The mediator will meet with the parties together and/or separately in an attempt to find common ground and issues on which the parties can move toward resolution.
The mediator has no power to force either side to do anything, but only tries to help you reach an agreement.
If both you and the school district agree to participate in mediation, a mediation will take place in between the filing for due process and the hearing. Requesting or participating in a mediation conference is not a prerequisite to
requesting a due process hearing. [Cal. Ed. Code Secs. 56500.3(c), 56501(b)(2).] As a practical matter, SEHO will assume that both parties are interested in mediation and will assign a mediator to each case and ask that the parties
contact the mediator to arrange for a mediation conference.
Although many disputes are settled in mediation, you cannot assume that your dispute will be resolved. Accordingly, it is in your best interests to be as prepared as possible for the hearing even prior to the mediation. The benefits of
being well prepared for hearing include having increased negotiating power at mediation, and advanced preparation for the due process hearing if that becomes necessary.
What are the pros and cons of going through mediation?
Mediation is encouraged because it gives both sides another chance to reach agreement. An impartial mediator increases the possibility of resolution. The mediation does not change the 45-day rule, although parents are sometimes asked
to extend the 45 days to aid in the mediation process. From a tactical standpoint, mediation often gives parents more information about the education agency’s point of view. Such information may be helpful if there is a due process
hearing. On the negative side, mediation requires additional time and energy. If it appears that there is absolutely no hope for agreement, it may be best to waive mediation. However, before waiving mediation, make sure that you are
prepared to proceed to the due process hearing. Waiving mediation may result in the due process hearing being scheduled sooner than if you participated in mediation.
See Question 37 for a discussion of the distinction between "pre-due process mediation" and "due process mediation" conferences, and the disadvantages of the "pre-due process mediation" conference.
Are there any dispute resolution procedures other than the compliance complaint and due process mediation and hearing?
Yes. After identification of a disputed issue, you may ask for a "pre-due process" mediation. This pre-due process mediation is not mandatory and you may proceed directly to filing for a due process hearing.
A pre-due process mediation is conducted exactly like a due process mediation. The state will provide a mediator to sit down informally with both sides and try to resolve the disagreement. The pre-due process mediation must be
scheduled within 15 days and completed within 30 days of receipt of your request by SEHO. [Cal. Ed. Code Sec. 56500.3.] A copy of the written resolution, if any, must be mailed to you and the school district within 10 days following
the pre-due process mediation conference. SEHO will likely not offer a due process mediation after the parties have participated in a pre-due process mediation without success.
You must request your pre-due process mediation in writing. You should send your request to the Special Education Hearing Office with a copy to your local school district. See Question 32 for the address. In order to assist SEHO, you
should include a specific request for a pre-due process mediation in your letter.
[Cal. Ed. Code Sec. 56500.3.]
There are several disadvantages to participating in a pre-due process mediation. One disadvantage is that parents cannot have an attorney or independent legal advocacy contractor attend or otherwise participate in the mediation
conference. This may not be a problem for a parent who is knowledgeable about special education programs and entitlements. However, the parent who does not have this knowledge may be at a significant disadvantage when negotiating an
agreement with special education officials and in knowing whether the agreement that is reached is consistent with the law and the facts of the child’s needs. Although state law provides that the "stay-put" rule (the rule that a child
must remain in his last agreed upon program pending resolution of the dispute) applies during pre-due process mediation [Cal. Ed. Code Sec. 56346(b)], SEHO has taken the position that it cannot order a stay-put where no due process has
been filed. CDE has taken the position that it will not issue "stay-put" orders as part of a compliance complaint. For these reasons, parents may only wish to participate in a voluntary pre-due process mediation if the school district
and any other agencies have given their written assurances that stay-put will be honored during the pendency of pre-due process mediation.
This is not to imply that school districts are ever permitted to unilaterally change special education pupils’ placements or programs without going through the IEP process and obtaining the parent’s consent. You should not have to file
for a hearing to maintain what was promised in an IEP meeting and written in an IEP document. However, when disputes arise between parents and districts, sometimes districts ignore their obligations to implement the current IEP and
want to move ahead with whatever change they wish to make. In this situation, if you intended to file for due process anyway on other issues, you can do that and also ask the hearing office to order the district to continue to honor
the IEP during the process. However, if you are satisfied with the IEP and would not otherwise be filing for a hearing, you should not have to file for a hearing and ask for a stay-put just to maintain the school district’s obligation.
When a school district unilaterally changes a placement or terminates a service without going through the IEP process, you may instead wish to file a complaint with the CDE for the district’s failure to comply with the IEP. You should
ask CDE to order the district to provide compensatory services to make up for any lost services or to pay your out-of-pocket expenses if you incurred any in privately maintaining services. The parent should also ask CDE for
"fast-track" processing of the complaint in order to minimize the disruption to your child.
Should I file for due process immediately, that is, as soon as it becomes apparent that the school district and I are at an impasse over services or placement at the IEP meeting?
If the school district is threatening to change your child’s program or placement without your consent, and you wish to keep things the way they are, you may have to file for due process just to preserve the status quo by taking
advantage of the "stay-put" provision. See Question 28 of this chapter.However, you should generally not file for due process until you are prepared to properly participate, even if you feel your child is currently being
inappropriately served. Nothing about the inappropriate program is likely to change simply by your filing for due process; on the other hand, the time spent preparing your evidence will increase your chances of a successful result.
Within a few days of filing for due process, you will receive a notice from SEHO. The notice will contain the dates (two consecutive days) set for the hearing. The notice will also include the name and telephone number of the assigned
mediator. It will be up to you and the district to contact the mediator and make arrangements for a mediation conference prior to the hearing dates, if possible. If you are unable to arrange for mediation prior to the hearing dates,
you will need to postpone the hearing. The due process hearing dates will be set for approximately five weeks from the date SEHO receives your request for due process. The reason these dates for mediation and hearing are set
approximately three and five weeks from the date of receipt of your request for due process is because of SEHO’s attempt to comply with the federal law requiring your receipt of the due process hearing decision within 45 days of your
request for due process.
How do I know if I am prepared for the due process hearing?
At the due process hearing, you will be required to present evidence which establishes that your child needs the services or placement you are seeking through due process. The following are some examples of common disputes.You are
dissatisfied with the goals and objectives of your child’s IEP. For example, you believe that they are unclear or that your child could accomplish more with certain services than the district is willing to acknowledge. You will need
evidence that the objectives you would like to write are reasonable expectations for learning and skill acquisition for your child in light of his her disability and the amount of time in which you would expect the objective to be
reached.
You may agree with the goals and objectives but disagree with the district on the level of services needed to accomplish these objectives. You will need evidence regarding the level of services required by your child to achieve the IEP
objectives.
You may disagree with the placement the district is proposing. For example, you may believe that the placement does not offer your child maximum appropriate interaction with nondisabled children. You will need evidence regarding the
supportive services that could be employed to make it possible to serve your child in the regular classroom or in a more integrated way than that which the district is proposing.
At a minimum, you may be prepared to enter a due process hearing after you have familiarized yourself with what the legal standards are for the IEP services or placement you hope to obtain. Before entering a due process hearing, you
must also make sure that the proof you need to meet those legal standards will be available to you when you need it. If some of your proof is in the form of documents, you must have those documents at least five business days before
the hearing to exchange with the school district. SEHO asks that you supply it with a copy of those documents seven days before the hearing. The witnesses you intend to use to prove your case must appear, prepared to testify at the
date, time and place set for the hearing.
Examples of typical hearings are as follows:
If you are challenging the appropriateness of a school’s IEP for your child; generally, the hearing officer will examine these basic issues:
Is the school’s IEP designed to meet your child’s unique needs? For example, were there IEP goals written for all the areas of educational deficit that your child’s assessments discovered? And were the services offered related to
making progress toward those goals? In other words, were your child’s various educational deficits considered when decisions were made about services and strategies to address those learning problems; or were decisions made based just
on availability of space, administrative convenience, or some other factors that have nothing to do with individualizing a program for a particular child?
Was the IEP reasonably calculated to provide educational benefit? If your child did not make progress toward goals, this is evidence supporting a finding that the IEP was not reasonably calculated to result in progress. If the services
or placement offered were not related to the goals to be achieved, the IEP was not reasonably calculated to provide benefit.
Was the program your child actually experienced consistent with the IEP? In other words, were the services promised on the IEP actually provided and in the amounts, on the schedule, and in the environments which the IEP said they would
be?If the parent is challenging the restrictiveness of a placement offered by a school in which to implement an IEP, the hearing officer generally will examine these basic issues:
Is the restrictive placement offered by the district necessary in order for your child to benefit, that is, to make progress toward goals; or could that progress occur in a less restrictive setting, that is, a setting with greater
access to nondisabled peers?
What supplemental services (such as instructional or behavioral support or curriculum modifications) [see Cal. Ed. Code Sec. 56364(a)] could be used to enable benefit to occur in a less restrictive setting?
What noneducational benefit (such as socialization, behavioral or communication skills development) could be gained by placement in a less
restrictive setting?
What will be the effect on the teacher and nondisabled pupils if the child with a disability is placed in the less restrictive setting of their class or school? Will the student with a disability monopolize the teacher’s time in class;
or will the teacher’s time outside of class and in preparation for class be monopolized by activities necessary to prepare lessons and activities for the child with the disability? Will the child be disruptive, unruly, or distracting
to the other children in the less restrictive setting? If the teacher or other students would be adversely
impacted, what supplemental services could be added to minimize and address these issues?
What will be the cost to the district of any supplemental services needed for appropriate placement in the least restrictive setting? Will that cost be burdensome to the district’s funds and adversely affect the availability of
services to other students in the district?
Therefore, in the typical situations listed above, you are not prepared for the hearing until you are able to introduce evidence in the form of testimony and documents which speak to these questions and factors in a way which will give
a hearing officer the information needed to write a decision in favor of the parent.
Where do I get the evidence I will need to present at the due process hearing?
The information you will need to support and establish your beliefs on these issues may come from your testimony if you can give examples of other similar learning experiences, good or bad, which you have had with your child when she
received a certain level or type or service or when she was placed in a certain environment.
However, it is much more likely that there may be a need for testimony from someone who knows your child and is knowledgeable in the education or training of persons with disabilities to establish some of these elements and to describe
what kinds of services may be needed, in what amounts, in what environments, and why. The school district will present witnesses who are professional educators, psychologists, therapists, and administrators who have degrees and
credentials in the fields which are related to the disputed issues. Therefore, you will likely have to have knowledgeable educators and/or other professionals to establish the facts you need to prove in order to obtain the services or
placement you are seeking.
Some children already have tutors, counselors, doctors, psychologists, or other professionals involved in their lives who can offer the kind of testimony the parent must present. Sometimes, parents are able to obtain publicly financed
evaluations from independent educational professionals under the law regarding the right to an independent assessment. See Chapter 2. Other parents may have to spend their own money to hire an independent evaluator who advertises as an
educational psychologist or learning disabilities specialist.Before requesting due process, the parent, who believes such additional testimony is necessary or desirable for the best chance of success, must find such a witness and make
sure that she is both willing and available to provide that kind of testimony approximately five weeks from the time the parent is contemplating filing for due process.
Can experts testify at a due process hearing?
Yes. It is often very important to have expert witnesses at a due process hearing. An expert witness is someone who has a great deal of knowledge about special education and, specifically, about your child’s disability and special
education needs. The expert witness can assess your child and the various components of the programs at issue and make a professional observation about what is and is not appropriate for your child.
How would I use an expert witness?
Since both sides usually have witnesses who will testify that their position is correct, it is important to have an "expert" testify for you. Normally, the expert will meet your child, review his educational records, visit his class,
speak with his teachers, and generally analyze his special education needs and the programs/services the educational agency is offering. You will then call that expert as a witness to testify.
Instead of having witnesses come to the due process hearing, can I submit letters, records, or other documents to prove my case?
SEHO follows a regulation that provides that a hearing officer may not base his decision on hearsay alone, but must have some other evidence to support the decision. [5 C.C.R. Sec. 3082(b).] Most documents are considered hearsay
because they cannot be cross-examined by the other parties like live witnesses can. The right to cross-examine is an essential part of due process. Therefore, it is crucial to bring witnesses to the hearing who can testify about what
they observed and/or what their opinions are concerning the issues in the hearing. Documents further support and establish the testimony of the witness. You should gather and submit any and all documents that are supportive of your
position in the case. However, you should always make sure that some competent witness is available and willing to testify at the hearing on each major point you must establish in order to obtain what you believe your child needs for
an appropriate education.
If the mediation has failed to resolve all the issues in dispute, nothing the parties said or wrote at the mediation may be submitted to the hearing officer at the hearing for the purpose of trying to prove a party’s case. [5 C.C.R.
Sec. 3086.] Therefore, just because a school district offered to meet you halfway in terms of a program during a mediation conference, it does not mean that such an offer can then be admitted into evidence at the hearing. If mediation
fails and all offers are withdrawn, each party must prove his entire case without any reference to
whatever may have been said or whatever progress may have been made at the mediation.
Will the hearing officer read all the documents that I submit and the district submits?
You cannot assume that the hearing officer will read all of the records submitted by the parties prior to issuing a written decision. Therefore, it is crucial to point out important statements and passages in the records you submit to
the hearing officer, either directly or by references to those records by your witnesses while they are testifying. In addition, you should organize all the documents you plan to submit and identify them by numbers or letters. That way
the hearing officer can easily refer to and locate documents both during and after the hearing.
Must I be represented by a lawyer in order to go through due process?
No, it is not required that you be represented by a lawyer. However, whether you need a lawyer depends on whether you can collect and properly present the evidence you will need to prevail. If you do not use a lawyer in due process,
you should make every effort to consult with a lawyer or advocate who has training and experience in special education law and procedure.
A special education lawyer or advocate is important because he can inform you of what law applies to your child’s situation. It is important to know what the legal standards are regarding the extent of your child’s entitlement to
special education services and placement. Your presentation of evidence through your witnesses and documents should be consistent with the legal standards that apply. The things which you and your witnesses will say and the contents of
the documents you will submit must be consistent with what your child is entitled to under the special education laws in terms of the types and intensity of services and the location of the program.
If you choose to be represented by an attorney at the hearing, you must notify the other parties of this at least 10 days prior to the hearing. [Cal. Ed. Code Section 56507.] If you do not use an attorney, you may wish to view
Protection and Advocacy’s video tape on preparing for and conducting a due process hearing.
What if I have already initiated due process, but I need more time to prepare or to find a representative before the hearing?
As soon as you realize that you need more time, you should contact the school district to ask for its agreement to a postponement. If the school district does not agree to a postponement, you should immediately make a written request
for a postponement to SEHO. A copy of that written request must also be sent to the district. Your written request to SEHO must also indicate that a copy has been sent to the district. SEHO has the authority to grant postponements for
"good cause." What constitutes good cause is not specified by SEHO. Therefore, you should mention as many reasons as you have for needing the postponement (for example, the need to obtain an independent educational evaluation, the
unavailability of an important witness or the inability to retain an advocate or attorney to represent you). Recently, SEHO has not found the unavailability of a witness, in and of itself, sufficient good cause to justify a
postponement. The first postponement may be granted by SEHO, but any further postponements may require much greater justification. If, for example, mediation is continuing, and if the school district agrees, SEHO may take the hearing
"off calendar" to allow the mediation to conclude. [Cal. Ed. Code Sec. 56501(b)(2).] The hearing will be rescheduled only if the mediation fails to resolve all the disputed issues.
Where is the due process hearing held?
The due process hearing is often held at the educational agency offices. It must be at a time and place that is convenient for you and your child. [Cal. Ed. Code Sec. 56505(b).] However, you will not be consulted by SEHO regarding
convenient dates. If it is not possible for you to appear on the date assigned, you should request a postponement.
Who attends the due process hearing?
As a parent, you have the right to have the hearing open or closed. [5 C.C.R. Sec. 3082(f).] If the hearing is open, members of the public can attend. However, even if the hearing is open, you can still have witnesses sequestered. [5
C.C.R. Sec. 3082(c)(3).] "Sequestered" means that witnesses cannot be present at the hearing to hear the testimony of other witnesses. [34 C.F.R. Sec. 300.509; Cal. Ed. Code Sec. 56501(c)(2).]
If the hearing is closed, members of the public cannot attend. A closed hearing usually consists of you (and your child if you want), your representative, the hearing officer, the education agency’s representative and the agency’s
advocate. Testimony can be taken by telephone at the discretion of the hearing officer if each participant can hear and participate in the entire proceeding while it is taking place. [5 C.C.R. Sec. 3082(g).] If you hope to present
testimony by telephone, you should make sure you have the hearing officer’s permission to do so well in advance of the hearing so that the necessary equipment is present at the hearing site. SEHO does not grant permission to present
testimony by telephone in every situation, so you should be prepared to explain the importance of the witness’ testimony and why the circumstances make it extremely difficult or impossible to have the witness appear personally at the
hearing to testify.
Can the parties submit written information to the hearing officer? How soon must they submit it? Do the parties have to disclose their exhibits and lists of witnesses before the hearing?
Both sides can submit exhibits (for example, letters of support, assessment reports, IEPs, etc.) and should do so. At least five business days before the hearing, you must make sure the district has: (1) copies of all documents you
intend to submit as exhibits at the hearing; and (2) a list of the potential witnesses you may call to testify at the hearing, along with a brief statement regarding what each witness will testify about. [Cal. Ed. Code Sec.
56505(e)(7).] Mailing this information five business days before the hearing is not sufficient; the local education agency must receive these materials five business days before the hearing. Likewise, the local education agency must
submit its documents and list of witnesses to you at least five business days before the hearing. Any exhibits or written material exchanged less than five business days before the hearing can be prevented from going into the record,
and any witnesses whose names were not disclosed five business days before the hearing can be prevented from testifying. In addition, SEHO asks both you and the education agency to submit documents and lists of witnesses to SEHO at
least seven days before the hearing. The hearing officer or any party to the hearing has the authority to prohibit the introduction of any evidence (document or witness) at the hearing that has not been disclosed to the hearing office
or to that party, as the case may be, at least five business days before the hearing. [Cal. Ed. Code Sections 56505.1(f) and 56505(e)(8).]
Therefore, you must be sure these documents and witness lists are in the hands of the other parties and the hearing office five business days prior to the hearing.
At least 10 days before the hearing, each party must submit to each other party and the hearing a statement of: (1) what that party believes are the issues to be decided at the hearing and (2) that party’s proposed resolution of those
issues. As a parent, you may have an attorney represent you and your child at the due process hearing. If you do not have an attorney in the due process proceeding, a mediator must help you identify the proposed issues and resolutions
upon your request. [Cal. Ed. Code Sec. 56505(e)(6).]
You may not communicate with the hearing officer outside of the presence of the other parties, and you must send copies to the other parties of any correspondence or other communications you have with the hearing office which ensures
receipt in a timely and comparable manner. [5 C.C.R. Sec. 3083, 3084.]
Is the due process hearing a trial or like court?
The due process hearing is not a trial, and it is not technically like going to court (although they are similar in that witnesses are called). A due process hearing is an "administrative" hearing and does not take place in a courtroom
or before a judge. The hearing officer is someone hired by the state who knows about special education, and who will impartially review all the evidence and make a decision.
How does the hearing proceed?
Normally, both sides give opening statements generally describing the issues in the case. The party that calls for the hearing (the petitioner) then presents her case by calling witnesses. The responding party (the respondent) may then
cross-examine the petitioner’s witnesses, and the petitioner has the right to ask additional questions (re-direct) after the respondent has cross-examined.After the petitioner finishes her case, the respondent calls her witnesses (the
same procedure as before: examination, cross-examination, and then re-direct examination). Finally, both parties give closing arguments. You can also request that the record remain open so that you can submit a written closing
argument. [34 C.F.R. Sec. 300.509, Cal. Ed. Code Sec. 56505(e).]
What is the record?
The record is simply all the evidence (written or oral) received by the hearing officer. Although not part of the evidence, the oral or written opening and/or closing statements of the parties are also included in the record of the
administrative hearing. Oral evidence (testimony from witnesses), the opening and closing statements of the parties, and questions asked of witnesses are tape recorded by the hearing officer. The record also includes exhibits and other
written material which have been accepted into evidence by the hearing officer. You are entitled to receive a copy of the tape recording after a decision is rendered if you ask for it. [34 C.F.R. Sec. 300.509(a)(4); Cal. Ed. Code Sec.
56505(e)(4).]
What if a witness does not want to attend the hearing?
The law provides that witnesses can be subpoenaed for a due process hearing. This means that the Special Education Hearing Office will give you subpoena forms to fill out and personally serve on the proposed witness. (For more
information on personal service of subpoenas and other requirements for compelling attendance of witnesses, see SEHO Notice of Procedural Safeguards. It is available from the Special Education Hearing Office where you requested due
process hearing.) A subpoena is an order from the state. It orders the witness to attend the due process hearing. [34 C.F.R. Sec. 300.509(a)(2); Cal. Ed. Code Sec. 56505(e)(3); 5 C.C.R. Sec. 3082(c)(2).]
Does the hearing officer at a due process hearing simply listen to witnesses and review the documents submitted, or can the hearing
officer participate in the hearing process?
Hearing officers have a variety of powers in the conduct of a due process hearing, allowing them to participate in the process and to further develop the evidence on which they will base their decision. Hearing officers may do any of
the following:
Question a witness before any party does;
With the consent of all parties, have conflicting expert witnesses discuss issues with each other on the record;
Visit a proposed placement site;
Call a new witness, not identified by any party, to testify if all parties consent or if there is a five-day postponement;
Order an independent assessment and postpone the hearing until it is completed (with the costs of the assessment to be borne by the hearing officer);
Call as a witness an independent medical specialist to testify about a student’s medical disability (with the cost to be borne by the hearing officer);
Bar the introduction of any documents or the testimony of any witnesses not disclosed to the other parties or to the hearing office at least five business days prior to the hearing.[Cal. Ed. Code Sec. 56505.1.]
Can I get the public education agency to pay for my attorney and expert witnesses?
Under federal law, if you are successful or partially successful in a mediation, a due process hearing, or a court hearing, a federal court may award you reasonable attorneys’ fees. [20 U.S.C. Sec. 1415(i)(3)(A)(B).] A recent decision
of the U.S. Supreme Court in a Fair Housing Amendments Act case has called into question the court’s right to award attorneys’ fees for a successful settlement agreement or mediation. [See Buckhannon Board and Care Home, Inc. v. West
Virginia Dept. of Health and Human Resources, 121 S.Ct. 1835 (2001).] In the Ninth Circuit Court of Appeals (in which California is located), there have been three recent non-special education cases since Buckhannon. One found that the
Buckhannon case did not apply to prohibit attorneys’ fee awards in settlement agreements under the Americans With Disabilities Act. [See Barrios v. Cal. Interscholastic Federation, 2002 DJDAR 579 (9th Cir. 2002).] In the second case,
Labotest, Inc. v. Bonta, 297 F.3d 892 (9th Cir. 2002), the court found that a party who had obtained a favorable stipulation from the opposing party which was then incorporated into the final decision of the court was a prevailing
party on the issue stipulated to. The third Ninth Circuit case found that Buckhannon does apply to prohibit attorneys’ fees after settlement but before a judgment or consent decree in a case under the Equal Access to Justice Act. [See
Perez-
Arellano v. Smith, 2002 DJDAR 1243 (9th Cir. 2002).] However, a federal district court in California has determined that Buckhannon does not apply to IDEA cases and found that a private settlement agreement which was enforceable
against a school district made the student a prevailing party in the dispute. [See Ostby v. Oxnard Union High School District, 209 F.3d 1035 (C.D. Cal. 2002).] The authors will continue to monitor these developments as to which rule is
applied to special education law cases in California. Attorneys’ fees are not available when you have an attorney represent you at an IEP meeting, except where the IEP meeting was convened at the order of a hearing officer or judge.
[20 U.S.C. Sec. 1415(i)(3)(D).]
The term "reasonable attorneys’ fees" means the lawyer’s hourly charges consistent with rates in your area and the costs of pursuing the case — for example, the cost of expert witnesses. The education agency may offer a settlement
agreement, which asks you to waive your right to attorneys’ fees. Because of this possibility, you should thoroughly discuss it with your attorney at the time you hire him and before you enter into any discussions with the school
district. Other specific details about the federal attorneys’ fee law cannot be included here. However, you can and should review these laws with your lawyer when you hire her. There are several laws concerning attorney’s fees which
you should be aware of. Your attorney’s fees may be reduced if the court finds that you did not do better as a result of the due process hearing than what the school district offered in writing at least 10 days prior to the hearing
beginning. Attorney’s fees may be reduced if the court finds that you unreasonably delayed final resolution of the dispute. Attorney’s fees may be reduced if you did not provide the required written notice to the district of certain
information at the time of filing for a due process hearing. [20 U.S.C. Sec. 1415(i)(3)(D).]
If I lose the due process hearing, can I do anything?
Both sides have the right to go to court to appeal the due process hearing officer’s decision. Any appeal to court must be filed within 90 calendar days of receipt of the administrative hearing decision. [34 C.F.R. Sec. 300.512; Cal.
Ed. Code Sec. 56505(i).]
I would like to sue the school district for the way my child’s special education was mishandled or ignored over the years, what are my chances of success?
Special education is ultimately controlled by federal law. The United States is divided into eleven appellate-level circuits of federal courts and a twelfth for the District of Columbia. The interpretation of the Individuals With
Disabilities Education Act (IDEA) and other federal civil and disability rights laws differs somewhat among the various circuits. If you wish to obtain money damages for the school district’s substandard or nonexistent special
education of your child, your chances of recovering anything are not good in most parts of the country, including California, which is in the Ninth Circuit Court of Appeals. Since initial passage of the IDEA, the federal courts have
turned away lawsuits for money damages for what might be called "educational malpractice" when cases are brought only under the IDEA. [Mountain View-Los Altos Union H.S. Dist. v. Sharron B.H., 709 F.2d 28 (9th Cir. 1981); Colin K. v.
Schmidt, 715 F..2d 1 (1st Cir. 1983); Anderson v. Thompson, 658 F.2d 1205 (7th Cir. 1981); Marvin H. v. Austin Independent Sch. Dist., 714 F.2d 1348 (5th Cir. 1983); Powell v. Defore, 699 F.2d 1078 (11th Cir. 1983); Crocker v.
Tennessee Secondary Sch. Athletics Ass’n, 980 F.2d 382 (6th Cir. 1992); Sellers by Sellers v. School Board of Manassas, 141 F.3d 524 (4th Cir. 1998); Bradley ex rel. Bradley v. Arkansas Dept. of Educ., 301 F.3d 952 (8th Cir. 2002);
Wenger v. Canastota Cent. Sch. Dist., 208 F.3d 204 (2d Cir. 2000) (table).]
Only the third circuit court has allowed claims for money damages under the IDEA. [W.B. v. Matula, 67 F.3d 484 (3d Cir. 1995); Jeremy H. v. Mount Lebanon Sch. Dist., 95 F.3d 272 (3d Cir. 1996).]
Besides cases for compensatory money damages, is there anything else that can be done to address the failures of school districts to have provided appropriate special education services to a student over a long period of time?
Although most courts have not been eager to award money damages for lost educational opportunities and/or for poor educational results, most have allowed claims for out-of-pocket reimbursement of parents who incurred expenses in
purchasing special education services for their child when it is later determined a school district had failed to provide an appropriate education. These include the U.S. Supreme Court and California’s Ninth Circuit Court. [Burlington
Sch. Committee v. Mass. Dept. of Educ., 105 S.Ct. 1996 (U.S. 1985); Ash v. Lake Oswego Sch. Dist. No. 7J, 980 F.2d 585 (9th Cir. 1992); W.G. v. Board of Trustees of Target Range Sch. Dist. No. 23, 960 F.2d 1479 (9th Cir. 1992);
Susquenita Sch. Dist. v. Raelee S., 96 F.3d 78 (3d Cir. 1996); Parks v. Pavkovic, 753 F.2d 1397 (7th Cir. 1985).] In the Ninth Circuit, reimbursement is allowed for both substantive denials of appropriate education (those going to the
educational services and placement) and for procedural denials (those going to the process used to develop a child’s IEP). See Ash and W.G., respectively.
Does this mean that only parents who have the money to provide appropriate services for their child while a district is failing to do so have any remedy in this system?
No. Courts have also awarded compensatory (in-kind) educational services to students as a remedy for past failures by school districts to appropriately educate special education students. [Lester H. v. Gilhool, 916 F.2d 865 (3d Cir.
1990); Burr v. Ambach, 863 F.2d 1071 (2d Cir. 1988; Miener v. Missouri, 800 F.2d 749 (8th Cir. 1986); Todd v. Andrews, 933 F.2d 1576 (11th Cir. 1991).] This includes compensatory services delivered after the student has become
ineligible for special education because of age. [Pihl v. Mass. Dept. of Educ., 9 F.3d 184 (1st Cir. 1994); Jefferson Co. Board of Educ. v. Breen, 864 F.2d 795 (11th Cir. 1988).] This right to compensatory educational services has been
recognized in the Ninth Circuit. [Parents of Student W. v. Puyallup Sch. Dist. No. 3, 31 F.3d 1396 (9th Cir. 1994).]
Are there any limitations or obstacles to claims for reimbursement or compensatory education in California?
Yes. One limitation is that California has established a three-year statute of limitations on claims in special education cases. In other words, a claim for compensatory educational services or reimbursement cannot be made on the basis
of failures by a school district to have provided appropriate education that occurred more than three years before the case is filed. [Cal. Ed. Code Sec. 56505(j).]
The State, local school districts, and some local school district officials sued in their official capacities, may enjoy some immunity from suits for damages brought in the federal courts under the Eleventh Amendment to the U.S.
Constitution. [Belanger v. Madera Unified Sch. Dist., 963 F.2d 248 (9th Cir. 1992); Porter v. Bd. of Trustees of Manhattan Beach Unified Sch. Dist., 123 F.Supp.2d 1187 (C.D. Cal. 2000); Goleta Union Elem. Sch. Dist. v. Ordway, 166
F.Supp.2d 1287 (C.D. Cal. 2001).]
In addition, a party cannot simply proceed directly into court to make a claim for reimbursement or compensatory educational services based on a district’s failure to provide appropriate services under IDEA. In most cases, a party must
first make these claims in the administrative fair hearing process. [Hoeft v. Tucson Unified Sch. Dist., 967 F.2d 1298 (9th Cir. 1992); Doe by Brockhuis v. Arizona Dept. of Educ., 111 F.3d 678 (9th Cir. 1997); Charlie F. v. Board of
Educ. of Skokie Sch. Dist. No. 68, 98 F.3d 989 (7th Cir. 1996); Aiello by Aiello v. Grasmick, 155 F.3d 557 (4th Cir. 1998); Frazier v. Fairhaven School Committee, 276 F.3d 52 (1st Cir. 2002); N.B. v. Alachua Co. Sch. Bd., 84 F.3d 1376,
1379 (11th Cir. 1996); Cudjoe v. Independent Sch. Dist. No. 12, 297 F.3d 1058 (10th Cir. 2002).]
What if my child was simply injured by the acts or negligence of school personnel, do I have to go through a special education due process hearing when I am not making any claim under special education law?
No. Special education due process hearing officers do not have the power to hear claims like this, so going through such a hearing could not result in any order or decision in your favor on such claims. Therefore, the Ninth Circuit and
Third Circuits do not require a party to go through a special education due process hearing in cases that do not involve any claims under special education law. [Witte by Witte v. Clark County Sch. Dist., 197 F.3d 1271 (9th Cir. 1999);
W.B. v. Matula, 67 F.3d 484, 495-496 (3d Cir. 1995).] However, the Ninth Circuit has narrowed its ruling in Witte to cases in which educational issues have been otherwise resolved and the only claims that remain are those which seek
relief not available under IDEA. [Robb v. Bethel School District, 308 F.3d 1047 (9th Cir. 2002).] A party would not have to go through an administrative proceeding just to enforce the terms of a special education hearing decision.
[Porter v. Board of Trustees of Manhattan Beach Unified Sch. Dist., 307 F.3d 1064 (9th Cir. 2002).]
Are there any other federal laws that help in bringing a successful case against a school district for compensatory money damages?
Yes, some courts have recognized that another federal law (Section 1983 of Title 42 of the United States Code) gives people who have certain rights under the Constitution or other federal laws the ability to sue those who deprive them
of those rights through official actions or inactions. In other words, a special education official or agency who or which breaches his/her/its duties to follow federal special education law can be sued for damages and/or other relief
by someone who is adversely affected by denial of those rights. Some courts, such as the Second and Fifth Circuits, that have not allowed actions for damages against schools for violations of the IDEA in the past, have allowed such
damages cases under Section 1983 when based on IDEA violations. The courts, however, are divided on whether violations of the IDEA can form the basis for a Section 1983 case. Examples of cases allowing this kind of claim include:
Quackenbush v. Johnson City Sch. Dist., 716 F.2d 141, 148 (2d Cir. 1983); Frazier v. Fairhaven School Committee, 276 F.3d 52 (1st Cir. 2002); Mrs. W. v. Tirozzi, 832 F.2d 748 (2d Cir. 1987); M.B. v. Matula, 67 F.3d 484 (3d Cir. 1995);
and Angela L. v. Pasadena Indep. Sch. Dist., 918 F.2d 1188 (5th Cir. 1990); Marie O. v. Edgar, 131 F.3d 610 (7th Cir. 1997); N.B. v. Alachua County Sch. Bd., 84 F.3d 1376 (11th Cir. 1996). Examples of cases which disallowed this claim
include: Padilla v. Sch. Dist. No. 1, 233 F.3d 1268 (10th Cir. 2000); and Sellers by Sellers v. School Board of Manassas, 141 F.3d 524 (4th Cir. 1998). The Eighth Circuit, although disallowing claims under 1983 for violations of IDEA
for the purpose of obtaining money damages, may allow claims under Section 1983 for violations of IDEA where the plaintiff is seeking other relief such as compensatory educational services. [Heidemann v. Rother, 84 F.3d 1021 (8th Cir.
1996); Hoekstra v. Independent Sch. Dist. No. 23, 103 F.3d 624 (8th Cir. 1996); Birmingham v. Omaha Sch. Dist., 220 F.3d 850 (8th Cir. 2000).]
The only guidance in California on this question are two federal trial court decisions which decided that compensatory damages are available under the IDEA alone or in combination with 42 U.S.C. Sec. 1983. [Emma C. v. Eastin, 985
F.Supp. 940 (N.D. Cal. 1997); Goleta Union Elementary School District v. Ordway, 2002 WL 32058251 (C.D. Cal.) and Goleta Union Elem. Sch. Dist. v. Ordway, 166 F.Supp.2d 1287 (C.D. Cal. 2001).] The Emma C. case allowed a claim for
damages to go forward under IDEA by itself. In Ordway, the court allowed a claim for damages under IDEA in conjunction with 42 U.S.C. Sec. 1983.
In Ordway and Emma C., the courts allowed claims to go forward against the school district and against individual special education officials or board members. However, local special education officials may enjoy qualified immunity
from suits against them for damages in their individual capacities if the student did not have a clearly established right that was violated or if the local official could not reasonably have known that her conduct was a violation of
that clearly established right. [Harlow v. Fitzgerald, 457 U.S. 800 (1982); Act Up!/Portland v. Bagley, 988 F.2d 868 (9th Cir. 1993).]In the Emma C. case, and in the Third Circuit Court of Appeals cases, the courts have warned that
schools cannot afford the potential additional financial liabilities that a great many money damages cases might bring. These courts have urged later courts to order compensatory educational services and out-of-pocket reimbursement
instead of money damages. Unpublished decisions of the Ninth Circuit Court indicate that claims under Section 1983 based on violations of the IDEA would have been allowed to go forward had the parents in those cases been able to prove
violations of the IDEA. [Taylor v. Honig, 977 F.2d 591 (9th Cir. 1992) (Table) Unpublished Dispositions; Rose v. Simi Valley Unified Sch. Dist., 129 F.3d 127 (9th Cir. 1997) (Table) Unpublished Dispositions.] A federal trial court
within the Ninth Circuit, but in another state (Hawaii), allowed a case for money damages for violations of the IDEA and Section 504 to proceed under Section 1983. [Patricia N. v. Lemahieu, 141 F.Supp.2d 1243 (D. Haw. 2001).]
What about Section 504 and the ADA, are those laws of any assistance in obtaining compensatory damages against a school district?
At least one federal trial court has found that Section 504 and the ADA are so similar that the criteria for determining a violation of one law should be the same as for the other. [McGraw v. Board of Education, 952 F.Supp. 248 (D. Md.
1997).] By statute, the remedies for violations of the ADA and Section 504 are co-extensive with each other. [42 U.S.C. Sec. 12133; 29 U.S.C. Sec. 794a(a)(2).] Most of the damages litigation which has taken place against school
districts to date has been under Section 504.
The Ninth Circuit is among those that allow cases for compensatory and even punitive damages to proceed under Section 504 in conjunction with Section 1983. [Kling v. Los Angeles, 769 F.2d 532 (9th Cir. 1985) rev’d on other grounds, 474
U.S. 936.] The law created by such cases, however, is not very helpful to students who are seeking to recover money damages from schools. Although courts have found that Section 504 will support a case for these kinds of damages, they
have also required that students must prove intentional discrimination, gross misjudgment or bad faith on the part of the public officials under Section 504 or the ADA in order to recover any such damages. [Scokin v. Texas, 723 F.2d
432 (5th Cir. 1984); Smith v. Special Sch. Dist. No. 1, 184 F.3d 764 (8th Cir. 1999); Sellers by Sellers v. School Board of Manassas, 141 F.3d 524 (4th Cir. 1998); Wenger v. Canastota Cent. Sch. Dist., 979 F.Supp. 147 (N.D.N.Y. 1997),
aff’d 181 F.3d 84 (2nd Cir. 1999).] In the Ninth Circuit, a party must prove intent to discriminate, or at least deliberate indifference, in order to recover money damages under Section 504 or Title II of the ADA against a public
entity. [Ferguson v. City of Phoenix, 157 F.3d 668 (9th Cir. 1998).] This standard of proof may prove difficult for parents and students to establish against a public entity such as a school district.
How can a parent ensure that a school district honors the "stay-put" provision?
Most school districts are aware of and usually honor the "stay-put" provision. However, this issue has become more problematic in recent years. There are several alternatives available to help you enforce your "stay-put" rights:
As in all special education process interactions, you should let the school district know that you know your rights. This simple action puts the school district on notice that you expect them to fulfill their responsibilities according
to federal and state law. Therefore, you could include a statement in your hearing request (a copy of which should be sent to your school district) asserting your "stay-put" rights. Ask the school district to confirm your child’s right
to maintain his current placement and/or services within five days from the school district’s receipt of your hearing request. If the school district does not respond, or refuses to honor your "stay-put" rights, you may want to utilize
option (2) or (3) below.
You could file a compliance complaint with the CDE. Unfortunately, CDE action may take too long for this to be of assistance to you. You could call the quality assurance office to request a "fast-track" investigation or call your
school district directly. However, fast-track processing is in the discretion of the CDE.
Once you have filed for a due process hearing, you could file a "stay-put" motion with the hearing office. This motion asks the hearing office to rule on your request for "stay-put" prior to the mediation or hearing. Write a brief
letter to the hearing office outlining your request and why you think the "stay-put" provision should apply to your child’s situation. A hearing officer will review this basic information and issue an order in favor or against your
"stay-put" request. If the ruling is in your favor, the order will force the school district to enforce your "stay-put" rights.
I filed for due process and went through mediation but could not settle my case with the school district. I do not have an attorney. Before the due process hearing, the school district approached me to try to settle the case but
insisted on doing it outside the mediation and due process system. The district wants me to sign a contract that contains our understanding. Should I do that?
The authors of this manual advise against contracts which are outside the IEP process or the due process system, including mediation. The Special Education Hearing Office does not enforce these contracts. The State Department of
Education is required to enforce IEPs and due process hearing decisions. It is willing to enforce mediation agreements, but it may not enforce the terms in other documents. If the school district fully intended to comply with the terms
of the contract, it should be willing to put the terms of the contract in a mediation agreement or IEP. The fact that the school district wishes to settle the case by way of a document with questionable enforceability may mean that the
school district is not acting in good faith and wishes to both avoid a hearing and avoid being compelled to comply with a settlement agreement.I filed for a due process hearing and received information from the Special Education
Hearing Office about having to participate in a "Prehearing Conference" first, and about having to file a "Certificate of Readiness and Request for Prehearing Conference." What are these conferences and certificates all about and what
effect do they have on the due process procedure?
If you filed for due process, you should receive a notice from the Special Education Hearing Office (SEHO), which includes the dates of your hearing and the name and telephone number of the assigned mediator. First, a mediation
conference will be held to attempt to resolve your disagreement with the school district. Either the parent or the school district may waive mediation. If mediation is successful, the hearing will be dismissed so you will not have to
worry about the prehearing conference or certificate.
If mediation is not successful and you are not ready to proceed to the hearing on schedule, you will have to try to get the hearing postponed. You should first try to get the school district to agree to a postponement. If the district
agrees, you should contact the SEHO to request the postponement. Tell the SEHO that the school district has already agreed to the postponement. If the school district does not agree, you may still request a postponement. A postponement
is not automatically granted, however, even if both parties have agreed to one. You should be prepared to state good reasons for why the hearing should be postponed. Good reasons may include a previously-scheduled,
unable-to-be-rescheduled, important medical or legal procedure, or an unanticipated physician-documented illness of a party. Generally, the unavailability of a certain witness is not good cause for a postponement.
It is best practice not to file for due process (unless filing is necessary to invoke the "stay-put" rule) until and unless the parent is ready to proceed to the due process hearing, or is confident that she can quickly become ready
for the due process hearing because the issues and facts are few in number and easily presented, or because the parent has done the vast majority of the necessary preparation, although not all of it, by the time of filing.
If the mediation was not successful and you are ready to proceed to the due process hearing, you must file the Certificate of Readiness and Request for Prehearing Conference form at least 15 days prior to the first day of the hearing.
Obviously, if the mediation takes place less than fifteen days before the first day of the hearing, the party should file this form as soon as possible after the unsuccessful mediation. The prehearing conference lets both sides and the
hearing officer know what to expect in the hearing (in terms of what the issues are, how many witnesses there will be, the schedule for the witnesses, the number of days of hearing that will be needed, and other details, including
anything a party wants to bring up). The conference may be in person or by telephone. The party who requested the due process hearing, which is most often the parent, must participate in the conference or the case may be dismissed.
___________________________________________________________________________________________________________________________
Sample Letter – Compliance Complaint
Mrs. R. Smith
Address
City, CA Zip
Telephone Number
Date
Complaint Management and Mediation Unit
Special Education Division
California State Department of Education
1430 N Street, Suite 2401
Sacramento, CA 95814
To Whom It May Concern,:
This is a special education compliance complaint. [5 C.C.R. Sec. 4600 and following.] I feel that Local Unified School District (LUSD) is out of compliance with federal and state special education laws.
My child’s name is Sean and he is eight years old. He is learning disabled and has a physical disability, which requires him to use assistive technology. I had the following problems with my school district:
NOTE: Pick the problems that apply to your child’s situation. If you have a different problem from those listed, describe the situation fully and include the part of the law that has been violated. If you do not know the law that has
been violated, the Compliance Unit should match the correct law to your situation. See Question 8.
I never consented to psychological assessments done by the district on February 6, 1996. (Failure to get written parental consent for assessment, Cal. Ed. Code Sec. 56321.)
When I asked the district for a copy of the tests done by the psychologist, they refused to give me a copy. (Failure to provide parent with requested records, Cal. Ed. Code Sec. 56504; 34 C.F.R. Sec. 300.502.)
At the March 6, 1996, IEP meeting, CUSD refused to write down in the IEP the need for, and frequency and duration of, physical therapy services (related services). (Failure to provide frequency and duration of related service, 5 C.C.R.
Sec. 3051; 34 C.F.R. Sec. 300 – 346.)
Sean’s IEP states that he will have lunch and art class with nondisabled students, but the district has not provided these opportunities. (Failure to implement the IEP, Cal. Ed. Code Sec. 56345; failure to provide least restrictive
environment, Cal. Ed. Code Sec. 56364; 34 C.F.R. Sec. 300.550-553.)
Sean's IEP states that he is to receive speech therapy twice a week for 30 minutes but CUSD says they do not have a therapist available. (Failure to implement the IEP, Cal. Ed. Code Sec. 56345.)
In order to resolve this complaint, I am asking for the following remedies:
Allow me access to my child’s records;
Get my consent before future assessments;
Order the district to allow Sean to have lunch and art class with nondisabled students as per his IEP;
Modify the IEP to state that physical therapy three times per week, 30 minutes per week must be provided; and,
Immediately begin the twice weekly speech therapy sessions specified in Sean’s IEP.
I have enclosed a copy of my child’s IEP and a letter to the district asking for a copy of the psychologist’s report.
Because my complaint involves a matter which calls for direct State Department of Education intervention pursuant to Title 5 Cal. Code of Regulations Section 4650(a)(viii)(C) [if it involves immediate physical danger or threat to
children], (D) [if it involves nonimplementation of a student’s IEP], or (E) [if it involves a violation of federal special education statute or regulation (see Question 7 for a listing of those situations in which direct state
intervention is required)], I have not filed with the local education agency. Rather, I request direct state intervention in this matter.
I ask for immediate investigation and resolution, as my child cannot afford to wait for these services. Thank you for your assistance.
Sincerely,
Mrs. R. Smith
NOTE: See Due Process Hearings/Complaints for information on timelines that apply to compliance complaints.
NOTE: If you have not heard from the Compliance Unit within 10 days after you mail your complaint, we recommend that you call to follow up at (916) 445-4632 (direct).
Sample Letter – Due Process Hearing Request
Mrs. R. Smith
Address
City, State, Zip
Telephone Number
Date
Special Education Hearing Office
Institute for Administrative Justice
McGeorge School of Law
3200 Fifth Avenue
Sacramento, California 95817
Re: Due Process Hearing
To Whom It May Concern::
I am writing to request a due process fair hearing for my son, Sean Smith. His address is [address]. His date of birth is [date]. He is in the [grade level] grade. He is attending [name of school district] district. He resides in the
[name of the school district in which the child resides] school district. I am the parent [or guardian] of Sean Smith and my residence address and telephone number are as noted above.
Besides the [name] school district, the [name of other public agency involved in the assessment or provision of special education or related services to the pupil] is involved in Seans IEP.
I am requesting this due process proceeding because [explanation of disputed issues involved]. I believe these disputed issues could be resolved if [explanation of your proposed resolutions to each disputed issue described above].
As noted below, I have sent a copy of this letter to [name of applicable school district special education official]. Please send me a copy of the Special Education Hearing Office Notice of Procedural Safeguards and any amendments or
subsequent revisions of the Notice. Please contact me as soon as possible to advise me of the dates of the due process hearing and name and telephone number of the proposed mediator.
Sincerely,
Mrs. R. Smith
cc: [name of applicable school district superintendent to whom copy of this letter has been sent.]
NOTE: You can also use your school district’s form for requesting a due process hearing, if your district has one, and if the form contains all of the information included above. You should send a courtesy copy of your request for a
due process fair hearing to the superintendent of the school district.
__________________________________________________________________________________________________________________________
Sample Due Process Request for Stay-put
Sometimes a school district will threaten to change a student’s placement or program or to reduce services without a parent’s consent. This is a violation of the IEP process and of the child’s current IEP. A parent could file a
compliance complaint to stop the district’s action, but the process for the state department’s investigation can take up to 60 days and the state department likely will not intervene to order the district to keep the program as it is
pending resolution of the complaint. Parents’ most effective recourse in this situation is to file for a due process hearing and to add a request for enforcement of the child’s stay-put rights to the letter or form requesting the due
process hearing. Parents may wish to include a paragraph similar to the following paragraph in order to request stay put.
I am writing to request a stay-put order from the Hearing Office pursuant to 20 U.S.C. Sec. 1415(j), Cal. Ed. Code Sec. 56505(d), and 5 C.C.R. Sec. 3042(a). My child’s last-agreed-upon special education program and placement is
reflected by the attached IEP which specifies placement in/at:
_____________________________________________________ and includes the following services and service frequencies:
_____________________________________________________
_____________________________________________________. The district has threatened to terminate [or change] [or has actually terminated or changed] my child’s last-agreed-upon program/placement as follows:
_____________________________________________________. I respectfully
request the Hearing Office to immediately issue a stay-put order which restores my child’s program/placement to its status quo prior to the district’s unilateral [or threatened] actions pending the results of the due process hearing.
____________________________________________________________________________________________________________________________
College-Level Accommodations for Students with Learning Disabilities
Overview
As a practical matter, the largest disability group to request accommodations at the college level are students with learning disabilities. The following materials highlight the special considerations that have been raised with respect
to this particular disability population.
Key Points
These key-point summaries cannot reflect every fact or point of law contained within a source document.
NECESSARY DOCUMENTATION TO SUPPORT REQUESTS FOR ACADEMIC ADJUSTMENTS IN TESTING
• Both OCR and the courts have held that colleges do not discriminate when they require submission of a "current" evaluation in support of a learning disabled student's initial request for modifications. See Guckenberger v. Boston
University, 26 IDELR 573 (D. Mass. 1997), (recognizing that requirement for student submission of a "current" evaluation when first disclosing the need for accommodations was permissible, but requirement that a student with a learning
disability be retested every three years was discriminatory under Section 504
and the ADA). Guidelines promulgated by the Association for Higher Education and Disabilities (AHEAD) provide standard criteria for colleges to adopt in verifying learning disabilities. With respect to student documentation of a
disability, AHEAD takes the position that a complete set of aptitude and achievement test results, including actual test scores, are required to demonstrate discrepancies between achievement and ability. These test results must be the
product of an evaluation conducted by a clinical or educational psychologist, neuropsychologist or other professionals trained in evaluating learning disabilities.
TYPICAL ACADEMIC ACCOMMODATIONS FOR STUDENTS WITH LEARNING DISABILITIES
• There is a fairly well-established menu of academic adjustments that colleges offer to all learning disabled students who request them, assuming they are supported by adequate documentation. Standard modifications have included the
following:
1. Extended time (time-and-a-half or double time) for exams.
2. Note-taking services.
3. Textbooks on audiocassettes.
4. Permission to retake exams.
See, e.g., Zukle v. Regents of the Univ. of Cal., 14 NDLR 188 (9th Cir. 1999).
• According to OCR, tutoring is not an academic adjustment required under 34 CFR 104.44. See Oregon State University, 5 NDLR 19 (OCR Region X 1993), (tutoring is associated more closely with individual study aid, and Section 504 does
not require the provision of tutoring as a necessary academic adjustment). See also, Hood College (MD), 12 NDLR 127 (OCR Region III 1997), (College has no obligation under Section 504 regulations to provide a disabled student with
tutors, except to the extent that it provided tutors for students without disabilities); Monmouth University (NJ), 8 NDLR 213 (OCR Region II 1996), (because tutoring for students with learning disabilities is not required to be
provided under Section 504, college can impose additional fees upon students who opt to be tutored).
Requests that fundamentally alter academic standards or program requirements:
• Student requests for substantive changes raise the more complex issue of whether a requested academic adjustment fundamentally alters the college's academic standards or program requirements and they may not be required if they do
so. 34 CFR 104.44 (a).
TYPICAL MODIFICATIONS ON COLLEGE ENTRANCE EXAMS FOR STUDENTS WITH LEARNING DISABILITIES:
• Any accommodation "customarily used" will be provided if it is documented by a qualified professional and approved in accordance with program policies and procedures. The ADA's Title III regulations, which cover test administrators
such as ETS, state that "required modifications to an examination may include changes in the length of time permitted for completion of the examination and adaptation of the manner in which the examination is given." 28 CFR 36.309
(b)(2). ETS identifies the following accommodations among those it may approve:
1. Extended testing time. While ETS will, in appropriate instances, allow a student with a disability to take the test with a specific amount of extended time (e.g., time-and-a-half), it will not convert the SAT into an untimed test.)
2. Additional breaks.
3. A test reader.
4. A writer to record answers.
5. A reader to dictate test questions.
____________________________________________________________________________________________________________________________
Request A Meeting
General purpose of letter:
This is a sample letter sent to the chairperson of your child's special education team to request a meeting. Even though there is an annual review, you have the right to request a meeting at any time. Some reasons to request one are:
Your child has met one, or several, of the goals written in the IEP
Your child is not making any progress toward her IEP goals
You feel additional services should be added
You feel a service is no longer necessary in order for your child to succeed
Your child has experienced major changes, such as illness, surgery, or injuryWhen writing your letter, identify your child, her date of birth, her school, and her grade. Also indicate the issues you want to discuss and the people you
would like to attend.
Sample letter:
Your Street Address
City, State, Zip Code
Date
Name of Chairperson
Title
School System Name
Street Address
City, State, Zip Code
Dear Ms./Mr. (Name of Chairperson):
I am requesting an IEP review meeting concerning my child, (Child's Name), who
is in (Grade Level) at (School Name). Her date of birth is (Birth Date). I would like to discuss:
(List Issues)
Please schedule the meeting so that the following people can attend: (Names of People).
I can arrange to meet with you on (Days) between (Range of Time). Please let me know what time would be best for you.
I look forward to hearing from you soon. My daytime telephone number is (000) 000-0000. Thank you for your time.
Sincerely,
(Your Signature)
(Your Name)
Other suggestions and comments: Keep a copy of the letter you actually sign and send for your records.
____________________________________________________________________________________________________________________________
Request an Independent Evaluation
General purpose of letter:
Laws concerning payment for independent evaluations vary from state to state. Be sure to contact your school's special education department or your state's parent training and information center to find out how independent evaluation
fees are handled. Your school may accept financial responsibility for an independent evaluation if the original one:
Was incorrect
Was not done in your child's native language
Was incomplete and additional tests are needed
Could not be done with the needed accommodations
When writing your letter, identify your child, his date of birth, his school, and his grade. Be very specific in your reasons for your request and indicate what areas you would like the independent evaluator to assess. As an example,
this letter addresses a child who is having difficulty with reading, math, and paying attention.
Sample letter:
Your Street Address
City, State, Zip Code
Date
Name of Special Education Director
Director of Special Education
School System Name
Street Address
City, State, Zip Code
Dear Ms./Mr. (Name of Special Education Director):
My child, (Child's Name), who was born on (Birth Date) and is in (Grade Level) at (School Name), was evaluated for special education services in (Month and Year). I disagree with the testing and I would like to have my child
re-evaluated. I am requesting an independent educational evaluation at public expense for the following reasons:
(List your reasons)
I would like the assessment to include comprehensive speech and language, educational, psychological, and neurological testing since my child is having problems with reading, math, and paying attention.
I would like the independent evaluation to be done as soon as possible. Please send me copies of the school's guidelines for this. My daytime telephone number is (000) 000-0000. Thank you for your prompt consideration in this matter.
Sincerely,
(Your signature)
(Your Name)
Other suggestions and comments: Keep a copy of the letter you actually sign and send for your records.
___________________________________________________________________________________________________________________________
Request for Student Records
General purpose of letter:
To be sure they are correct and contain all necessary information
Records may need to be sent if you are moving to a new school district
Copies of past records may be useful to an independent evaluator
Services or other programs may find these useful in designing their activities
Post-secondary programs may need to see copies of your child's records
For your home files, especially if your child is finishing school.
Sample letter:
Your Street Address
City, State, Zip Code
Date
Name of Principal or Special Education Director
Title
School or School System Name
Street Address
City, State, Zip Code
Dear Ms./Mr. (Name of Principal or Special Education Director):
I would like to schedule a time to come to school and review all of my child's Level) at (School Name). Also, I request copies of my child's entire student record.
I look forward to hearing from you by (Date) to arrange a time and a place. You can reach me during the day at (Daytime Phone Number). Thank you for your cooperation in this matter.
Sincerely,
(Your signature)
(Your Name)
Other suggestions and comments:
Call your school department to find out who should receive this request. Keep a copy of the letter you actually sign and send for your records.
____________________________________________________________________
Positive Feedback Letter
General purpose of letter:
This is a sample letter for when things are going well. If a program, teacher, therapist, or other school staff member has provided an excellent opportunity for your child -- send your compliments and encouragement. Positive feedback
is what keeps good programs running well. Just as you want to know "how it's going," so does the school staff!
Sample letter:
Your Street Address
City, State, Zip Code
Date
Name of Chairperson
Title
School System Name
Street Address
City, State, Zip Code
Dear Ms./Mr. (Name of Chairperson):
I am very pleased with (Name of child's) special education program.
(Name of child) has had great success with (Briefly say what went right and
name the professionals working with your child).
We look forward to continuing progress. Thank you for all your efforts on behalf
of my child.
Sincerely,
(Your signature)
(Your name)
cc: (Name), Director of Special Education
(Name), Principal
Other suggestions and comments:
Don't forget to send a copy to the director of special education and the principal or head of the program. Keep a copy of the letter you actually sign and send for your records.
___________________________________________________________________________________________________________________________
Follow-Up Letter
General purpose of letter:
This is a sample letter for when you have not received a response concerning a previous letter.
If you feel too much time has passed, then call and ask if your original letter was received and when you can expect to hear from them. If your request still goes unanswered then you may want to write again. Enclose a copy of the
original request with this letter. Don't send your only copy -- you will always need to have a copy for your records.
:
Your Street Address
City, State, Zip Code
Date
Name of Person on Original Letter
Title
School System Name
Street Address
City, State, Zip Code
Dear Ms./Mr. (Name of Person on Original Letter):
I wrote to you on (Date) and also called to make sure you had received my letter.
I left a message for you to call me back, but since I have not heard from you, I
thought it best to write again.
I am (Purpose of Original Letter). I have enclosed a copy of my first letter.
I expect to hear from you by (Date). My daytime telephone number is (000) 000-
0000.
Sincerely,
(Your signature)
(Your Name)
Other suggestions and comments:
Keep a copy of the letter you actually sign and send for your records
____________________________________________________________________________________________________________________________
Use this template each time you have a phone conversation
with your child's teacher or other staff member.
Telephone Log
Date:
Person I spoke with:
Title:
Telephone Number:
Question:
Answer:
More Information:
What I do next:
____________________________________________________________________________________________________________________________
Requesting An Evaluation
Sample Letter
General purpose of letter:
This is a sample letter sent to the director of special education (or principal) for your school district to request a multidisciplinary, comprehensive evaluation for your child. The evaluation will help you and your child's teacher
find out why your child is struggling in school and to determine if he is eligible for special-education services.
When writing your letter, identify your child, his date of birth, his school, and his grade. Also indicate all areas that he is having problems, such as reading, writing, math, the ability to pay attention, behavior, and/or social
skills. As an example, this letter addresses a child who is having difficulty with reading, math, and paying attention.
Sample letter:
Your street address
City, State, Zip Code
Date
Name of Special Education Director or Principal
Director of Special Education or Principal
School System Name
Street Address
City, State, Zip Code
Dear Ms./Mr./Dr. (Name of Special Education Director or Principal):
I am requesting an individual evaluation for my child, (Child's Name), who is in (Grade Level) at (School Name). Her date of birth is (Birth Date).
I am concerned about my child's educational difficulties in reading and math, and her ability to pay attention in class. I would like the assessment to include speech and language, educational, reading, and psychological testing. I
understand that the evaluation is to be provided at no charge to me.
I would like to meet with the special education chairperson for my child's school before testing begins so that I might share information and discuss the evaluation procedures. I would like a copy of the written report from each
evaluator so that I can review them before meeting to discuss the evaluation results.
If you need my written permission for these tests to be done, then please send me the proper forms to sign.
I will call you to set up an appointment with the chairperson. Thank you for your prompt consideration in this matter.
Sincerely,
(Your Signature)
(Your Name)
__________________________________________________________________________________________________________________________
What is a learning disability?
The regulations for Public Law (P.L.) 101-476, the Individuals with Disabilities Education Act (IDEA), formerly P.L. 94-142, the Education of the Handicapped Act (EHA), define a learning disability as a "disorder in one or more of the
basic psychological processes involved in understanding or in using spoken or written language, which may manifest itself in an imperfect ability to listen, think, speak, read, write, spell or to do mathematical calculations."
The Federal definition further states that learning disabilities include "such conditions as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia." According to the law, learning
disabilities do not include learning problems that are primarily the result of visual, hearing, or motor disabilities; mental retardation; or environmental, cultural, or economic disadvantage. Definitions of learning disabilities also
vary among states.
Having a single term to describe this category of children with disabilities reduces some of the confusion, but there are many conflicting theories about what causes learning disabilities and how many there are. The label "learning
disabilities" is all-embracing; it describes a syndrome, not a specific child with specific problems. The definition assists in classifying children, not teaching them. Parents and teachers need to concentrate on the individual child.
They need to observe both how and how well the child performs, to assess strengths and weaknesses, and develop ways to help each child learn. It is important to remember that there is a high degree of interrelationship and overlapping
among the areas of learning. Therefore,children with learning disabilities may exhibit a combination of characteristics.
These problems may mildly, moderately, or severely impair the learning process.
____________________________________________________________________________________________________________________________
Characteristics of a learning disability:
Learning disabilities are characterized by a significant difference in the child's achievement in some areas, as compared to his or her overall intelligence.
Students who have learning disabilities may exhibit a wide range of traits, including problems with reading comprehension, spoken language, writing, or reasoning ability. Hyperactivity, inattention, and perceptual coordination problems
may also be associated with learning disabilities. Other traits that may be present include a variety of symptoms, such as uneven and unpredictable test performance, perceptual impairments, motor disorders, and behaviors such as
impulsiveness, low tolerance for frustration, and problems in handling day-to-day social interactions and situations.
Learning disabilities may occur in the following academic areas:
Spoken language: Delays, disorders, or discrepancies in listening and speaking
Written language: Difficulties with reading, writing, and spelling
Arithmetic: Difficulty in performing arithmetic functions or in comprehending basic concepts
Reasoning: Difficulty in organizing and integrating thoughts
Organization skills: Difficulty in organizing all facets of learning
__________________________________________________________________________________________________________
Because learning disabilities are manifested in a variety of behavior patterns, the Individual Education Program (IEP) must be designed carefully. A team approach is important for educating the child with a learning disability,
beginning with the assessment process and continuing through the development of the IEP. Close collaboration among special class teachers, parents, resource room teachers, regular class teachers, and others will facilitate the overall
development of a child with learning disabilities.
Some teachers report that the following strategies have been effective with some students who have learning disabilities:
Capitalize on the student's strengths
Provide high structure and clear expectations
Use short sentences and a simple vocabulary
Provide opportunities for success in a supportive atmosphere to help build self-esteem
Allow flexibility in classroom procedures (e.g., allowing the use of tape recorders for note-taking and test-taking when students have trouble with written language)
Make use of self-correcting materials, which provide immediate feedback without embarrassment
Use computers for drill and practice and teaching word processing
Provide positive reinforcement of appropriate social skills at school and home
Recognize that students with learning disabilities can greatly benefit from the gift of time to grow and mature
______________________________________________________________________________________
EXTENDED SCHOOL YEAR (ESY) STANDARDS
Legal Basis
The principle that each student with a disability is entitled to an individually designed education was established in
a series of court cases that led to the adaptation, in 1975, of the federal law now known as IDEA. A subsequent
series of court cases and policy clarifications established that providing special education services beyond the
usual school year is a part of the guarantee of the free, appropriate public education (FAPE) clause of the
IDEA. These decisions have prescribed the basic requirements for ESY program eligibility and defined some
related ESY elements, such as the length and type of the ESY program, and funding matters, including
transportation. In addition, the Office for Civil Rights (OCR) of the Department of Education ruled that even
students regarded as disabled under Section 504 of the 1973 Rehabilitation Act, and not eligible for
services under IDEA, have to be considered for ESY services. A letter of finding, issued by OCR regarding the
Baltimore city public schools, states that "Section 504 regulations require that the individual needs of every
child be examined, considered, and met. While 180 days of school may be adequate for some handicapped
students, it may not be adequate for others...".
Eligibility for ESY services at no cost to parents is determined by the child’s Individual Education Program (IEP)
team. This IEP team must consider, as appropriate, whether a child needs extended school year services
in order to receive a free appropriate public education (FAPE). Clearly, this determination must be done on an
individual basis.
The program of ESY as part of the IEP is not simply an extension of time in school, nor is it required for every
student. Nevertheless, it is the function of the school district to evaluate the need for ESY services correctly
and fairly. This issue is made more difficult by the fact that there are no comprehensive eligibility criteria
in the law, and only general standards have been mentioned by the courts for including ESY in the student’s
program.
What follows is a compilation of ESY standards discussed by various federal courts throughout the country (At the
time of this writing, no ESY case has been decided by the Court of Appeals for the 7th Circuit which
includes Wisconsin). These ESY standards could become part of the school district’s comprehensive staff training
on this issue.
STANDARD #1: NO SINGLE CRITERION
The first standard that has been mentioned by many federal courts is that no single criterion can be used as
a sole qualifying factor. For example, the Tenth Circuit Court of Appeals (Johnson v. Independent School
District No. 4 ) concluded that a single standard could not be used as the sole criterion for the provision of
ESY services. Also, in a recent case, Ruesch V. Fountain (1994), cited a Maryland school district for "...the use of
a standard for ESY eligibility which was incorrectly limited to a regression / recoupment analysis and did not
consider other factors which were relevant in the ESY determination." The decision said that this standard may
be used, but only as one part of
a multi-faceted inquiry.
STANDARD #2: REGRESSION / RECOUPMENT
Judicial decisions have outlined various areas of considerations for determining eligibility, starting with
the concept of regression / recoupment first established in Battle v. Commonwealth of Pennsylvania (1980).
Regression refers to a decline in knowledge and skills that can result from an interruption in education;
recoupment is the amount of time it takes to regain the prior level of functioning. The issue is whether the benefits
derived by the child during the regular school year will be significantly jeopardized if he is not provided an
educational program during the summer months. This criterion for eligibility, although it is a primary consideration
to be used by IEP teams, is still only one of several criteria to be considered in making ESY decisions. It covers
both instructional and related services for the prevention (or reduction) of academic and physical regression.
For some students, the skill regression during the summer months, coupled with their limited recoupment
ability, is such that their basic educational needs cannot be met in a traditional 180 day program.
As one example or referent point, the IEP committee could determine that more than 45 school days (9 weeks)
will be required to return the student to the former level of achievement because of the interruption of summer
vacation.
The determination of ESY eligibility must be based on empirical and qualitative data collected by the IEP
committee for individual skills. The IEP committee must take into account not only retrospective data, but also
predictive data on recoupment abilities (will the recoupment take 9 weeks or more?). The key question before
the IEP committee is whether the child needs services in the summer in order to secure the minimum
benefits of a free and appropriate public
education in the fall.
STANDARD #3: EMERGING SKILLS
A more recent case, Ruesch V. Fountain (1994), noted that "... ‘emerging skills’ and ‘breakthrough
opportunities’ (as when a child is on the brink of learning to read) - can and should be incorporated into the
eligibility analysis." The child is in a critical stage of developing a skill which has great potential for increasing
his/her self-sufficiency. If such a skill is not completely acquired and mastered, it is likely that the current level
of acquisition will
be lost due to the interruption of summer vacation.
STANDARD #4: NATURE AND SEVERITY OF THE CHILD’S DISABILITY
Another criterion usually included in the eligibility determination is the nature and severity of the child’s
disability. Although no disability category may be excluded from consideration for ESY, the nature and severity
is a key factor in the ESY eligibility determination. Children with severe disabilities are more likely to be
involved in ESY programs, since their regression may be more significant, and their recoupment abilities may
extend over longer time.
STANDARD # 5: NOTICE AND TIMING
Another point made by the court in the Ruesch v. Fountain case was the importance of making a decision about
ESY early enough in the year to allow the parents adequate time to exercise their right to administrative review
or appeal in a timely fashion. That decision of the U.S. District Court in Maryland prescribed very specific
requirements relative to ESY procedures. The court found that the explanation about ESY contained a brochure
distributed to all students was not sufficient and ordered additional explanation to be provided to parents. The
court also ordered that the student’s eligibility for ESY be considered at each annual review meeting,
and that parents sign a form acknowledging their receipt of this information. The district must document the
discussion and the decision reached after consideration of ESY eligibility at each annual review meeting.
STANDARD #6: CONTENT AND DURATION OF ESY SERVICES
Some ESY services may extend over the summer, while others provide only for periodic contact with
professionals, or assistance to parents in providing instruction or reinforcement to their children. OSEP
issued a policy letter stating that limiting the duration of summer programs for students with disabilities
"...would violate the basic requirement that programs be designed to meet the individual needs of each
child" (Letter to Baugh, 1987). Requirements for specifying the content and duration of ESY programs were also
strongly stated in the Ruesch v. Fountain decision. The court mandated "...individualized determinations of the
number of weeks, days per week, and hours per day that each student receiving ESY should be provided".
Also, the content of the child’s ESY program must be determined on an individual basis. In response to an
inquiry: "May LEAs refuse to provide related services, including transportation and therapy services, to
students who are in need of and receiving such services during the regular school year?" OSEP responded: "No".
STANDARD #7: ABILITY OF PARENTS TO PROVIDE AN EDUCATIONAL STRUCTURE AT HOME
A number of federal courts ( Johnson v. Bixby, 10th federal circuit court, 1990; Battle v. Pennsylvania, 3rd
federal circuit court, 1980) mentioned that one of the standards that needs to be considered in determining need
for ESY is the ability of the parents to provide an educational structure at home. If parents can provide the
proper structure at home, the regression and recoupment issue will not be as severe, thus ESY services through
the school staff may not
be necessary.
Interventions during the summer may be provided by other than school staff. For example, parents may be
able to provide structured opportunities for their children to practice specific skills. Perhaps the student’s
utilization of a computer software program will be sufficient to maintain a critical skill. Perhaps accessing an
existing community resource, such as a summer recreation program, will meet the need. If so, the provision of
such parental services will not necessitate an ESY program. The IEP committee may recommend ESY services
after concluding that (a) parents are not able or willing to provide home structured opportunities, or (b) the
involvement of EEN staff during the summer is
necessary to offset the impact of regression and recoupment.
EXTENDED SCHOOL YEAR (ESY) IS:
Based only on the individual student’s specific critical skills that are critical to his/her overall educational
progress as determined by the IEP committee.
Designed to maintain student mastery of critical skills and objectives represented on the IEP and achieved during
the regular school year.
Designed to maintain a reasonable readiness to begin the next year.
Based on multi-criteria and not solely on regression.
Considered as a strategy for minimizing the regression of skill, thus shortening the time needed to gain
back the same level of skill proficiency that existed at the end of the school year.
Deliverable in a variety of environments and structures such as:
(a) Home with the parent teaching, and staff consulting
(b) School based
(c) School based with community activities
(d) Related services alone or in tandem with the above.
EXTENDED SCHOOL YEAR (ESY) IS NOT:
It is not a mandated 12-months service for all students with disabilities.
It is not required for the convenience of the school or parents and, therefore, cannot serve as a day care or respite
care service.
It is not required or intended to maximize educational opportunities for any student with disabilities.
It is not necessary to continue instruction on all of the previous year’s IEP goals during the ESY period; rather,
the focus should be on those specific, critical skills where regression, due to an extended vacation period, may
occur.
It is not to be considered to help students with disabilities advance in relation to their peers.
It is not for those students with disabilities who exhibit regression, which is solely related to medical problems
resulting in degeneration, or transitional life situations such as divorce or death of a family member. This type
of
regression is not due to the interruption of summer vacation.
It is not required solely when a child fails to achieve IEP goals and objectives during the school year.
It is not to provide a child with education beyond that is prescribed in his/her IEP goals and objectives.
__________________________________________________________________________________________________