Wrightslaw - The Special Ed Advocate Newsletter, August 21, 2000

Legal Lessons: Procedural Safeguards, Parent Notice, the “Supremacy Clause”

1. Procedural Safeguards
2. Parent Notice
3. New Case! Sarah M. V. Weast (S. D. MD. 2000)
4. Resources: Procedural Safeguards
5. Join Pete & Pam Wright At New England Conference (September 8 & 9, 2000)

1. Procedural Safeguards

When Congress enacted the IDEA, they included a system of “procedural safeguards” to protect the rights of children with disabilities and their parents. These “safeguards” are designed to protect the child’s right to a free appropriate education. To be effective advocates, parents must learn about their rights and responsibilities. Do you understand your rights and responsibilities?

TIP: Contact your state department of education or visit their web site. Request that they send you all available information about your parental rights and responsibilities. Ask them to advise you when new publications are available.

2. Parent Notice

When Congress re-authorized the IDEA in 1997, they added new requirements about parent notice and reimbursement for private placements. If parents decide to place their child unilaterally in a private school and want the school to reimburse them for the private placement, parents must take specific steps to protect their rights:

The parents must advise the IEP team that they are rejecting the proposed IEP and state “their concerns and their intent to enroll their child in a private school at public expense.”
OR

10 BUSINESS DAYS before removing the child from the public school, the parent must give the school WRITTEN NOTICE of “their intent to enroll the child in a private school at public expense.”

If parents don’t take these steps, they may lose their right to reimbursement for the private placement – even if the public school placement was inappropriate. School districts are using this new requirement as a tactic to avoid reimbursing parents for private placements. Do you know the answers to these questions?

When does the clock begin to run on the parental notice requirement? What triggers the 10-day notice requirement? Does the clock begin to run when parents apply to a private school? Or when parents investigate private schools? Does the clock begin to run when parents submit an application to a private school? Or, when parents pay a deposit? Does the clock begin to run when the child is accepted at the private school? Does the clock begin to run when the child is removed or withdrawn from the public school program?

SUPREMACY CLAUSE

What happens when a state statute conflicts with a federal statute like the IDEA? Which statute controls? Why? What is the supremacy clause? A new case from Maryland gives answers to these questions.

3. New Case! Sarah M. V. Weast (S. D. MD. 2000)

On July 28, a Maryland court issued a decision in Sarah M. v. Weast. Here is a summary of the facts in this case:

In SARAH M., the parents of a child with multiple disabilities were dissatisfied with their daughter’s lack of progress in her special education program. Results of an independent evaluation convinced the parents that Sarah needed more intensive services than she was receiving in the public school program. The evaluator suggested two courses of action. The parents should continue to work with the IEP team in an effort to get an appropriate program for Sarah. The parents should also look into placing Sarah in a private school for children with disabilities. The parents followed this advice.

In May, after investigating private schools in their area, the parents reserved a spot for the following school year. To keep their options open, the parents continued to negotiate for more intensive services with the IEP team. On July 8, after the school year ended, the parents wrote a letter and advised the school of their “intention to enroll Sarah in a private school at public expense beginning September 1998.”

The school’s position was that the parents “removed” Sarah from school in May, when they reserved a spot for her at the private school. The school claimed that they were “off the hook” because the parents didn’t give notice 10 days before they applied to the private school.

The parents’ position was that since Sarah attended public school until the school year ended in June, she was obviously not “removed” from the public school program in May. The parents claimed that their July 8 letter satisfied the 10-day parent notice requirement.

Citing Maryland law, the Administrative Law Judge sided with the school district. On July 28, Judge Messitte reversed the Administrative Law Judge. Why? For answers to these questions, read this new decision in the Law Library.

(NOTE: To read this decision, you must have Adobe Reader software on your computer. You can download free Adobe Reader software at http://www.adobe.com/)

4. Procedural Safeguards: Resources

Here are some resources that will help you learn about the Procedural Safeguards designed to protect your child’s right to a free appropriate public education (FAPE).

1. The Procedural Safeguards section in the IDEA statute with commentary by Pete.

2. Appendix A to the federal regulations includes valuable information about rights and responsibilities.

3. Wrightslaw: Special Education Law (ISBN: (ISBN: 1-892320-03-7) will help you answer to questions about the Individuals with Disabilities Education Act, Section 504 of the Rehabilitation Act, and the Family Educational Rights and Privacy Act; extensive commentary by Pete about legal rights and responsibilities, and how to use tactics and strategies. Download four free chapters from Wrightslaw: Special Education Law.

4. Parent advocate Pat Howey offers advice about power struggles, conflict, parent power, and how to use power wisely.

5. Parent attorney Sonja Kerr offers valuable “tips” about how to handle stonewalling at school meetings.

5. Join Pete & Pam Wright At New England Conference on September 8 & 9 2000

Please join Pete and Pam Wright on SEPTEMBER 8-9, 2000 for “Special Education Law: Understanding IDEA-97, Evaluations and the Law, ADD/ADHD” in Bedford, New Hampshire.

Speakers: Peter W. D. Wright, Pamela Darr Wright, John O. Willis, and Thom Hartmann.

Conference Agenda in pdf.

Conference information in html.

Please print out the agenda to share with friends and colleagues.

CONTACT: Dot French
Phone: 603-437-6286
Fax Registration: 603-434-0371
Email: education7@aol.com

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